In re M.G.M.

• Decision Date: 31 March 2005
• Docket Number: No. 09-03-528 CV.,09-03-528 CV.
• Citation: 163 S.W.3d 191
• Parties: In the Interest of M.G.M. and V.A.M.
• Court: Texas Supreme Court

163 S.W.3d 191

In the Interest of M.G.M. and V.A.M.

No. 09-03-528 CV.

Court of Appeals of Texas, Beaumont.

Submitted January 25, 2005.

Decided March 31, 2005.

COPYRIGHT MATERIAL OMITTED

Robert Rosenquist, Darden, Fowler and Creighton, Conroe, for appellant.

Ruth Lavada Vernier, The Woodlands, for appellee.

Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

Matthew Jason Markle ("Matthew") appeals a protective order issued by the trial court on July 30, 2003. The applicant for this protective order was his wife, Corinne Templin Markle ("Corinne"). Corinne's application was filed on June 4, 2003. In support of her application, Corinne attached an affidavit indicating that she and Matthew were married on August 30, 1996, in Kalamazoo, Michigan, and that she and Matthew were the parents of two children, M.G.M. and V.A.M. Corrine's affidavit also stated that as of the June 4, 2003, filing date, she and the two children had lived in Texas only since April 25, 2003, which works out to approximately forty days. Prior to April 25, 2003, Matthew, Corinne, and the two children had been residing in Decatur, Michigan. It also appears that Corinne and Matthew had been residing in Michigan prior to their marriage in August of 1996, and that the family had not resided outside of Michigan until Corinne came to Texas with the children on April 25, 2003.

The record further indicates that a temporary ex parte protective order was issued on June 4, 2003, and was to remain in effect for only twenty days. However, prior to Corinne's protective order application, on May 28, 2003, Matthew initiated divorce and child custody proceedings in the 36th Judicial Circuit, Van Buren County, Michigan. While it is not apparent that Corinne was aware of the divorce and custody proceedings pending in Michigan at the time she first applied for the protective order on June 4, 2003, the record does reflect that on June 24, 2003, counsel for Matthew filed with the Texas trial court pleadings in the nature of a Special Appearance, Plea in Abatement, and Motion to Transfer Protective Order. Within his pleadings, Matthew informed the trial court of the pending divorce and custody proceeding in Michigan. The pleadings further contend that, pursuant to Tex. Fam.Code Ann. § 152.201 (Vernon 2002), the Texas trial court lacked subject-matter jurisdiction over the protective order action because Texas was not the home state of the children.

The record also indicates that on June 24, 2003, the trial court entered an order extending its temporary ex parte protective order with the agreement of Matthew's trial counsel. Explicitly included within this June 24, 2003, temporary order is language recognizing that Matthew's agreement to extend the temporary order was "subject and without prejudicing or waiving any plea to the jurisdiction or special appearance of the Respondent." The extended temporary protective order noticed July 10, 2003, as the new date for the hearing "to determine whether the Court should issue its protective order."

On July 10, 2003, a brief, non-evidentiary hearing was held of which we have a reporter's record. The trial court, again with the agreement of Matthew's trial counsel, extended the temporary ex parte protective order because of scheduling problems that prevented the trial court from taking evidence at that time. The trial court agreed to permit Matthew's trial counsel to present his special appearance motion whenever the hearing reconvened. As it turned out, the hearing reconvened the next day, July 11, 2003. However, instead of permitting Matthew to testify and present his special appearance motion, the trial court began the hearing by ruling that Matthew's agreeing to the extension of the temporary protective order on June 24, 2003, constituted a general appearance. Matthew's trial counsel attempted to remind the trial court that he expressly reserved the special appearance issue with the trial court's permission. The trial court would not reconsider and found the special appearance motion to have been waived.

At the July 11, 2003, evidentiary hearing, the trial court heard from Corinne and from Matthew as well as from a psychologist who evaluated Corinne prior to the hearing. At the conclusion of the testimony, the trial court recessed the hearing until it could interview M.G.M. and V.A.M. The trial court also extended the temporary ex parte protective order for an additional twenty days. Thereafter, on July 30, 2003, the trial cort interviewed M.G.M. and V.A.M. in chambers. Upon concluding the interviews with the children, the trial court ruled in open court that family violence had occurred and that family violence would likely occur in the future. The trial court then stated: "I am making it a final order today." The written protective order was subsequently signed by the trial court that same day.

On appeal, both Matthew and Corinne raise jurisdictional issues, with Matthew contending the trial court lacked both personal and subject-matter jurisdiction to issue the July 30, 2003, protective order, and Corinne arguing that this Court lacks jurisdiction to entertain the appeal as the July 30, 2003, protective order is an interlocutory order and, therefore, not appealable. Jurisdiction is fundamental; and we must determine whether we have jurisdiction over an appeal, regardless of whether the parties raise the issue. See Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.-Dallas 1994, writ denied). Lack of subject-matter jurisdiction by a trial court is fundamental error and may be raised for the first time on appeal. Id. To properly address the jurisdictional issues we must first determine under what authority the protective order was issued in light of the facts and circumstances present in the record.

From various comments made by the trial court, especially during the brief hearing conducted on July 10, 2003, it appears the trial court based the issuance of the July 30, 2003, protective order on the provisions contained in Title 4 of the Texas Family Code. See Tex. Fam.Code Ann. §§ 71.001-92.001 (Vernon 2002 & Supp.2005). Matthew's counsel, on the other hand, vigorously argued that the provisions of Chapter 152 of the Texas Family Code controlled as both Corinne's application for protective order and all of the protective orders entered by the court made a "child custody determination" as that term is defined under Chapter 152. See Tex. Fam.Code Ann. § 152.102(3) & (4) (Vernon 2002).¹ Significant, however, is the language contained in section 152.002 which reads: "If a provision of this chapter conflicts with a provision of this title or another statute or rule of this state and the conflict cannot be reconciled, this chapter prevails." Tex. Fam.Code Ann. § 152.002 (Vernon 2002). As applied to the facts and circumstances of this case, we believe that the provisions of Title 4 have more of a general application to all of the issues before the trial court while Chapter 152 has more specialized and comprehensive application to those same issues. The Code Construction Act states that if a general provision conflicts with a special or local provision, the provisions "shall be construed, if possible, so that effect is given to both." Tex. Gov't Code Ann. § 311.026(a) (Vernon 1998). We will therefore examine the jurisdictional issues by giving effect to both Title 4 and Chapter 152 in the context of the particular facts of this case.

On the face of Corinne's June 4, 2003, application for protective order, she references section 152.209(a) of the Texas Family Code in the apparent belief that compliance with that provision was somewhat of a prerequisite for filing the application. See Tex. Fam.Code Ann. § 152.209(a) (Vernon Supp.2005). Furthermore, an examination of Corinne's affidavit that was filed in support of her application for protective order clearly indicated that Corinne and the children had only been "residing" in Texas for approximately forty days prior to the filing of the application. Added to the fact that Corinne's application explicitly requested inter alia that the trial court prohibit Matthew from removing the children from Corinne's possession, and that the trial court grant Corinne exclusive possession of the children and specify the terms of Matthew's access to the children, Corinne's application essentially required the trial court to conduct a "child custody proceeding," and make a "child custody determination" involving children whose "home state"² was clearly Michigan, not Texas. The fact that the main focus at the time the application was filed was protection for the applicant and the children from family violence could not allow the trial court to apply Title 4 exclusively and to the exclusion of the procedures set out in Chapter 152. An examination of the facts and circumstances in the instant case indicates that the necessary protections available to family violence victims in Title 4 and the purposes for Chapter 152, also known as the Uniform Child Custody Jurisdiction and Enforcement Act, could have been given full effect had the trial court attempted to do so. And, as noted above, the provisions of Chapter 152 prevail if an irreconcilable conflict arises between it and another statute or rule of the state. Tex. Fam.Code Ann. § 152.002 (Vernon 2002).

At the outset, we note that many of the operative provisions in Chapter 152 require a jurisdictional determination be made by the trial court before making a child custody determination. See Tex. Fam.Code Ann. §§ 152.201-152.204; 152.206-152.208; 152.304 (Vernon 2002). The doctrine that Texas district courts are courts of general jurisdiction and, therefore, are presumed to have subject-matter jurisdiction is not applicable to actions contemplated under Chapter 152 as the legislature has provided that some of those actions must be heard elsewhere. See Dubai...