In re Lewin

• Decision Date: 27 May 2004
• Docket Number: No. 03-04-00229-CV.,03-04-00229-CV.
• Citation: 149 S.W.3d 727
• Parties: In re Brenda Lee LEWIN.
• Court: Texas Court of Appeals

149 S.W.3d 727

In re Brenda Lee LEWIN.

No. 03-04-00229-CV.

Court of Appeals of Texas, Austin.

May 27, 2004.

John F. Campbell, Law Office of John F. Campbell, P.C., Austin, for relator.

Charles E. Lance, Cameron, for Real Party In Interest.

Before Justices KIDD, B.A. SMITH and PEMBERTON.

OPINION

SMITH, Justice.

Relator Brenda Lee Lewin, a resident of New Jersey, requests that this Court vacate a temporary order awarding the right to determine primary residence of her daughter to the child's father, Robert George Farnsworth. This proceeding presents complex jurisdictional issues created by the interplay between the Hague Convention on the Civil Aspects of International Child Abduction¹ and the Uniform Child Custody Jurisdiction and Enforcement Act,² as codified in family code section 152.202.³ Because the trial court did not first enforce an order from a Canadian court pursuant to the Hague Convention ordering Farnsworth to return the child to Lewin, and because the trial court was otherwise without subject-matter jurisdiction to enter the temporary order modifying custody, we will conditionally grant the writ.

FACTUAL AND PROCEDURAL BACKGROUND

Lewin and Farnsworth, who never married, are the parents of a daughter, T.M.F., born in 1998 while the parents lived in New Jersey. The three moved from New Jersey to Florida, but eventually settled in Milam County, Texas, in 2000. Lewin and Farnsworth's relationship soured and, in October 2002, Lewin left Texas with the child and moved in with her parents in Wayne, New Jersey. Lewin obtained a temporary restraining order against Farnsworth in New Jersey, alleging domestic violence. Farnsworth went to New Jersey and appeared at a hearing in which the restraining order was dissolved. After the court appearance, Farnsworth visited with the child. He returned to Lewin's parents' home the next day and asked to take the child out for breakfast. Instead of taking the child to breakfast, however, Farnsworth drove off with her and returned to Texas. Once in Texas, he filed a suit affecting the parent-child relationship (SAPCR) seeking joint managing conservatorship of the child and asking that he be designated the conservator with the exclusive right to decide the child's primary residence. On October 22, 2002, Lewin filed an answer and counter-petition seeking appointment as sole managing conservator. On November 5, 2002, the district court entered an order (the original SAPCR order) granting joint managing conservatorship and designating:

Brenda Lee Lewin, as the joint managing conservator of the child, shall have exclusive right to determine the primary residence of the child so long as Brenda Lee Lewin ceases to reside with her parents at 12 Brookside Road, Wayne New Jersey, and obtains a residence of her own by September 1, 2003 and so long as the primary residence of Brenda Lee Lewin and the child is located within 40 miles of the city limits of Wayne, New Jersey. IT IS FURTHER ORDERED AND DECREED that, if Brenda Lee Lewin fails to obtain a place of residence for herself and the child by September 1, 2003, or fails to reside within 40 miles of the city limits of Wayne, New Jersey, or resumes living with her parents after September 1, 2003, Robert George Farnsworth shall have the right to determine the primary residence of the child subsequent to September 1, 2003 ....

The original SAPCR order set out a visitation schedule for the period between November 5, 2002 and August 31, 2003 in which the child would stay with each parent for periods of time ranging from a few weeks to three months.⁴ The order then set out alternative visitation schedules depending on whether the parent without the right to designate primary residence does or does not live within 100 miles of the residence of the child.

Lewin and Farnsworth followed the schedule set forth in the original SAPCR order through the summer of 2003; the child lived in New Jersey when she was with Lewin and in Texas when she was with Farnsworth. When Farnsworth picked up the child on July 5, 2003, however, he took the child to Montreal, Quebec, and the two lived in an apartment with Farnsworth's mother. Farnsworth sent a handwritten letter to the Milam County District Clerk, with a copy to Lewin, reflecting his change of address. This letter was dated July 6, 2003, but was not filed with the clerk's office until August 21, 2003.⁵ On August 16, 2003, Lewin sent a letter to Farnsworth and the Milam County District Clerk giving her new address in New Jersey and indicating that she had moved from her parents' home as required by the original SAPCR order. This letter was received by the district clerk on August 25th.

On August 26, 2003, Farnsworth filed suit in Canada to modify the custody arrangements, alleging that Lewin no longer wanted the child and that it appeared the child had been abused under her care. Attached to the Canadian suit was an affidavit by Farnsworth verifying the petition in which Farnsworth identifies himself, as translated in the record, as "residing and domiciled at 7751 Avrille Avenue, Apt. # 8, Anjou, district of Montreal, Province of Quebec." In violation of the original SAPCR order, Farnsworth did not return the child to Lewin on September 1, 2003. His attorney sent a letter to the Milam County District Clerk's Office informing the Texas Court that:

a proceeding has been filed in the Quebec Superior Court concerning the custody of the minor child [T.M.F.]. This proceeding was filed by our client Robert George Farnsworth who is now a resident of the province of Quebec, more precisely at 7751 Avrille Ave., apt:# 8, Anjou, Quebec.

As a matter of fact, the mother and defendant in the proceeding, Brenda Lee Lewin has also moved out of your jurisdiction and is now living at 54 River Road, Wayne, New Jersey, 07470, USA.

With this letter, Farnsworth's Canadian attorney filed the petition, in French, and an affidavit demonstrating that Lewin had been served in the Canadian modification suit.

After Farnsworth wrongfully retained the child past September 1, 2003, Lewin filed an application under the Hague Convention⁶ seeking the return of the child. Farnsworth sought to retain the child on the grounds that there was evidence of abuse and that Lewin had acquiesced in his retention of the child. In November, the Canadian court conducted a three-day evidentiary hearing on Lewin's application. At the conclusion of the hearing, the court found that Farnsworth had unlawfully refused to return the child to Lewin, Lewin had not acquiesced in Farnsworth's continued possession of the child, and that Farnsworth's evidence of possible abuse was inconclusive and not sufficient grounds for failing to order the return of the child in accordance with the terms of the original SAPCR order. The court ordered that the child be returned to Lewin by noon the next day, November 26, 2003, and that Farnsworth pay Lewin $10,066.57 in Canadian funds for attorney's fees and travel expenses necessary to obtain the Hague Convention order.

The next day, Farnsworth did not return the child to Lewin as ordered, but rather fled with T.M.F. without giving notice of their whereabouts to Lewin. Although a warrant was issued in Canada for Farnsworth's arrest, he had already crossed the international border by the time the Canadian police attempted to enforce it. On December 3, 2003, Farnsworth filed a motion in Milam County to modify the parent-child relationship alleging that the child had been neglected by Lewin and abused physically and sexually. He requested that he be given the right to designate the child's primary residence and sought a temporary order restricting Lewin's right to visitation only in Milam County. A temporary ex parte order, signed by the trial court, granting the relief requested in the motion was filed with the Milam County District Clerk less than an hour after the motion was filed. That afternoon, Lewin filed a motion to vacate the temporary order and for a writ of attachment, citing the Hague Convention order that Farnsworth return the child to her on November 26.

Lewin also filed a suit to enforce the Hague Convention order and to obtain custody of the child in New Jersey on December 4, 2003. Relief was denied on December 5, 2003 by the New Jersey Court in a handwritten order stating:

All relief requested is denied. Submissions by [plaintiff] indicate that Texas was/is the home state of [the child]. Jurisdiction is with the State of Texas until further order of that court indicating that they are specifically changing same.

A hearing was held in Milam County on December 11, 2003, in which Lewin and Farnsworth both testified. Lewin argued at the hearing that the Hague Convention order commanding Farnsworth to return the child was enforceable and that Milam County did not have jurisdiction to modify custody because the Canadian court had determined in November that both Lewin and Farnsworth, and their child, no longer resided in Texas. Farnsworth claimed residency in Texas and argued that Lewin failed to meet the provisions of the original SAPCR order which allowed her to continue to determine the primary residence of the child only if she "ceases to reside with her parents and obtains a residence of her own by September 1, 2003." Farnsworth insisted that, by moving in with her fiance, Lewin had not established a residence of her own. The Milam County court entered another temporary order on December 12, confirming Farnsworth as the managing conservator with the right to designate the primary residence of the child and enjoining Lewin from visiting with the child outside of Milam County. Findings of fact were signed by the court on January 2, 2004, and Lewin's motion for rehearing was denied on March 3, 2003. This petition for a writ of mandamus followed.

DISCUSSION

In considering Lewin's petition, we must navigate the multitude of jurisdictional questions that arise when parents separate across...