In re Salminen

• Decision Date: 05 April 2016
• Docket Number: NO. 01–14–01021–CV,01–14–01021–CV
• Parties: In re Outi Salminen, Relator
• Court: Texas Court of Appeals

492 S.W.3d 31

In re Outi Salminen, Relator

NO. 01–14–01021–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued April 5, 2016

Cynthia Thomson Diggs, Calli Baldwin, Holmes Diggs & Eames, PLLC, Houston, TX, for Appellant.

Laura D. Dale, Matthew A. Knox, Laura Dale & Associates, PC, Houston, TX, for Appellee.

Panel consists of Chief Justice Radack, and Justices Keyes and Higley.

OPINION

Evelyn V. Keyes

, Justice

This original mandamus proceeding arises from an underlying child support case filed by the relator, Outi Salminen (“Salminen”), a Finnish citizen, under the Uniform International Family Support Act (“UFFSA”).¹ See Tex. Fam. Code Ann. §§ 159.001

–.902 (West Supp.2015). Salminen had sought an order for child support from the real party in interest Milo Vassallo (“Vassallo”), a New York resident. Vassallo unsuccessfully challenged personal jurisdiction under the UIFSA, but he alternatively requested that the trial court take temporary emergency jurisdiction under the Texas Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). See Tex. Fam. Code Ann. §§ 152.001 —.317 (West Supp.2015).

After a temporary orders hearing held on November 17, 2014, the trial court rendered an oral decision and signed a written temporary order in which it assumed emergency jurisdiction under section 152.204 of the UCCJEA, awarded temporary sole managing conservatorship of the child to Vassallo, and ordered the immediate surrender of the child to Vassallo. In this petition for a writ of mandamus, Salminen seeks to vacate the trial court's November 17, 2014 temporary order. We conditionally grant the petition.

BACKGROUND

A. History in Finland

Salminen, a Finnish citizen, has sole custody over the child, S.F.Z.V., who was born in Finland in 2002. Both mother and child live in Finland, while Vassallo's home state is New York. Salminen's custody is based on two orders from district courts in Helsinki, Finland.

The first Finnish order—entitled “Child custody/visitation rights”—granted visitation rights to Vassallo, among other things, who acknowledged paternity over S.F.Z.V., and it noted that the child was in the sole custody of Salminen. This order was signed by a Helsinki district judge, the Honorable Hannele Lindholm, on June 3, 2013 (the “2013 Finnish Child Custody Order”).

A subsequent Finnish order—entitled “Child custody/visiting rights, enforcement”—modified Vassallo's visitation rights, among other things, and it was signed by another Helsinki district judge, the Honorable Helena Valkama, on January 24, 2014 (the “2014 Finnish Child Custody Order”). These Finnish child custody orders were translated into English and submitted to the Harris County trial court as attachments to Vassallo's “First Amended Motion to Register Foreign Child Custody Determination Pursuant to Section 152.305 of the Texas Family Code

.”

B. Procedural History in the Trial Court

In 2012, Salminen filed a child support petition under the UIFSA in New York. The New York court dismissed the petition for lack of jurisdiction, citing the Finnish child support agreement.

After Salminen was unable to establish personal jurisdiction over Vassallo in New York, she and S.F.Z.V. temporarily moved to South Texas in August 2014. On September 26, 2014, Salminen filed the underlying case, a first amended petition for child support under the UIFSA, in Harris County, and the petition stated that she and S.F.Z.V. both resided in Texas.

The petition asserted that S.F.Z.V. was a twelve-year-old girl who had been bom in Finland, was a dual citizen of Finland and the United States, and had lived in Finland most of her life. The parents, Salminen and Vassallo, were never married. Salminen alleged that the trial court had personal jurisdiction over Vassallo under the UIFSA because S.F.Z.V. was possibly conceived when the parents were in Texas in 2002. See Tex. Fam. Code Ann. § 159.201(a)(6)

(West Supp.2015).

In response to Salminen's child support petition, Vassallo challenged the trial court's subject matter and personal jurisdiction under the UIFSA through a special appearance and plea to the jurisdiction. Alternatively, Vassallo requested that the trial court exercise temporary emergency jurisdiction over S.F.Z.V. under the UCCJEA. Vassallo claimed that he had been denied visitation rights in Finland under two prior Finnish child custody and visitation orders (the 2013 and 2014 Finnish Child Custody Orders), and he stated that he believed the Finnish court was the court of continuing, exclusive jurisdiction. Vassallo asserted that the trial court was without jurisdiction to modify the 2013 and 2014 Finnish Child Custody Orders and that Salminen's petition did not allege that the Finnish court, which had entered the previous, controlling conservatorship and visitation orders, had lost or relinquished jurisdiction, as the New York family court had held.

Subject to his special appearance, Vassallo entered an original answer with a general denial. Alternatively, Vassallo moved to modify the conservatorship of S.F.Z. V. and requested that the trial court exercise temporary emergency jurisdiction under UCCJEA section 152.204, which can be exercised when a child is present in the state and has been abandoned or it is necessary to protect the child because the child is subjected to or threatened with mistreatment or abuse. Vassallo contended that Salminen “has a continuous history of absconding with the child the subject of this suit, worldwide forum-shopping, and defying the Finnish court's possession and access orders again and again,” and that that behavior “is nothing less than mistreatment and abuse of the child.” Vassallo argued that if the trial court determined it lacked general jurisdiction, Salminen would “abscond with the child again to another comer of the world without any notice to [Vassallo],” and he requested that the court exercise temporary emergency jurisdiction to modify the conservatorship orders in the best interest of the child.

The trial court notified the parties on October 31, 2014, to appear in court on November 3, 2014, for a hearing on Vassallo's motion for temporary emergency jurisdiction. Before the hearing, the trial court denied Vassallo's special appearance and plea to the jurisdiction. At the November 3, 2014 hearing, the trial court set a temporary orders hearing for November 17, 2014, stating that it would decide issues of support, visitation, make-up visitation, and a possible geographic restriction at that hearing. The trial court did not mention custody. Off the record, the trial court informed the parties' counsel that it would assume general jurisdiction over the case or, if there was an objection, temporary emergency jurisdiction under the UCCJEA.

On November 17, 2014, before the temporary orders hearing took place, Vassallo filed a “Motion for Temporary Emergency Orders,” observing that the court had exercised subject matter jurisdiction over the child on November 3, 2014, and had appointed an amicus attorney to represent the interests of the child. Vassallo noted that Salminen had not responded to his motion to register the 2013 and 2014 Finnish Child Custody Orders, and Vassallo amended this motion on September 30, 2014, by claiming, among other things, that he had been denied a total of four weeks visitation. Thus, Vassallo requested that the court enter orders pursuant to its temporary emergency jurisdiction and issue injunctions against Salminen prohibiting her from removing the child from the United States and providing for “court-ordered possession and access.”

Also before the November 17, 2014 hearing was held, Salminen filed a response and motion to dismiss Vassallo's alternative motion to modify the custody order. Salminen's motion informed the court that, as previously pled by both parties, there was a valid Finnish Child Custody Order which precluded the trial court's assumption of general subject matter jurisdiction over the child under the UCCJEA because the child had not resided in Texas for six months, pursuant to Family Code section 152.203(2)

. More importantly, Salminen asserted that she and S.F.Z.V. had left Texas and returned to Finland on or about November 10, 2014, which also precluded the court's intended assumption of temporary emergency jurisdiction over the child under the UCCJEA at the November 17, 2014 hearing.

At the November 17, 2014 hearing, the trial court did not address child support. Although the trial court acknowledged the 2013 and 2014 Finnish Child Custody Orders that had been filed with the court, it stated that it would “take general jurisdiction” under the UCCJEA. The trial court asked Salminen's counsel where Vassallo lived. She responded that he lived in New York, and his attorney confirmed that Salminen's counsel had served him.

Salminen's attorney noted that her client was willing to appear by phone to testily if the court would permit phone testimony. But Vassallo's counsel objected to the phone testimony request, and the court did not allow Salminen to testify by phone. The trial court did permit testimony from the amicus attorney for the child. The attorney testified that she had recently visited Salminen and the child, who were both living in a rental house in Port Aransas, Texas. The attorney also testified to having visited Vassallo's home in New York for a day and speaking with Vassallo's wife and viewing documents and photos with Vassallo. The following colloquy then occurred between Salminen's counsel and the trial court:

[Counsel]: Just so I understand, what am I proceeding on?

[The Court]: On the motion under 152.204, because I already assumed general jurisdiction and I am now concerned if whether there may be other issues. So I'm also going to do a hearing on 152.204.

[Counsel]: For the record, I'd like to object to that due to the fact that the child is no longer present in the country.

[The Court]: What evidence do you have of that?

[Counsel]: I don't think they have any evidence

...