Phillips v. Beaber

• Decision Date: 06 April 1999
• Citation: 995 S.W.2d 655
• Parties: (Tex. 1999) SUSAN LETNER (BEABER) PHILLIPS, PETITIONER v. DANIEL EDWARD BEABER, RESPONDENT NO. 98-0808
• Court: Texas Supreme Court

Page 655

995 S.W.2d 655 (Tex. 1999)

SUSAN LETNER (BEABER) PHILLIPS, PETITIONER v. DANIEL EDWARD BEABER, RESPONDENT

NO. 98-0808

IN THE SUPREME COURT OF TEXAS

Argued on April 6, 1999

Decided: June 3, 1999

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS

JUSTICE O'NEILL delivered the opinion for a unanimous Court.

A court that renders a final order in a suit affecting the parent-child relationship generally retains continuing, exclusive jurisdiction to modify the order. TEX. FAM. CODE 155.001(a), 155.003(a). This jurisdiction may be exercised to modify visitation, which is defined as "possession of and access to a child," TEX. FAM. CODE 152.002(11), but not to modify "custody" if the child and the custodial parent have established another home state, as in the present case. TEX. FAM. CODE 152.003(c) & (d). We must decide whether a parent's motion to modify, which seeks to obtain primary possession and the right to establish the child's residence, implicates visitation or custody. The court of appeals held that the motion concerns only visitation, and reversed the trial court's dismissal order. 971 S.W.2d 127, 129-30. We hold that the rights sought to be modified concern more than mere visitation and are inherently custodial. Consequently, we reverse the court of appeals' judgment and reinstate the trial court's dismissal order.

Daniel and Susan Beaber divorced in Fort Bend County in 1991, and were named joint managing conservators of their only child. The divorce decree granted Susan "primary custody and control of the child" and the sole legal right to determine the child's residence. Daniel was granted possession "at all times as the parties may mutually agree," or on alternating weekends, certain holidays, and for eight weeks during the summer.

The divorce decree was modified by agreement in 1996 after Susan and the child moved to Colorado, primarily to address changes in Daniel's visitation rights and travel logistics necessitated by the move. Under the modified order, Susan retained primary custody and the right to determine the child's residence.

In 1997, Daniel filed a motion to modify the agreed order asking the court to award him primary possession and the right to establish the child's residence, and to grant Susan access rights under a standard possession order. Susan challenged the court's jurisdiction under section 152.003(d) of the Family Code, which prohibits a court from exercising jurisdiction to modify custody if the child and the custodial parent have established a new home state. The trial court granted Susan's plea to the jurisdiction and dismissed Daniel's motion. The court of appeals held that this was error because Daniel's motion sought to modify "possession of or access to the child," which was within the trial court's continuing jurisdiction, rather than "custody," which was not. 971 S.W.2d at 129. We disagree.

A trial court generally retains continuing, exclusive jurisdiction to modify its final order in a suit affecting the parent-child relationship. See TEX. FAM. CODE 155.001(a), 155.003(a); Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex. 1974). Under the Family Code and Texas's Uniform Child Custody Jurisdiction Act (UCCJA), however, "a court may not exercise its continuing jurisdiction to modify custody if the child and the party with custody have established another home state," unless the action was filed before the new home state was acquired or all parties acquiesce in writing. See TEX. FAM. CODE 152.003(d). Section 155.003(b) similarly provides that a court may not exercise its continuing jurisdiction to modify managing conservatorship if the child has acquired a new home state or if modification is precluded by Chapter 152 of the Family Code, the UCCJA. The Legislature amended section 155.003 "to include UCCJA provisions" as part of the same legislation adopting the UCCJA. See SENATE JUDICIARY COMM., BILL ANALYSIS, Tex. S.B. 439, 68th Leg., R.S. (1983). Because section 155.003 incorporates the specific restrictions upon modification jurisdiction imposed by section 152.003(d), and because Susan's plea to the trial court's jurisdiction rested on section 152.003(d), we focus our analysis on that section.

Texas's version of the UCCJA defines "custody" as "managing conservatorship of a child." TEX. FAM. CODE 152.002(2). "Managing conservatorship" is "the relationship between a child and a managing conservator appointed by court order." TEX. FAM. CODE 101.019. Although a court may not exercise its continuing jurisdiction to modify "custody" or "managing conservatorship" if the child has acquired a new home state, it retains jurisdiction to modify visitation, which the Family Code defines as "possession of or access to a child," so long as at least one of the parties continues to reside in Texas. See TEX. FAM. CODE 155.003(c); Welborn-Hosler v. Hosler, 870 S.W.2d 323, 327 (Tex. App.-Houston [14th Dist.] 1994, no writ); Hemingway v. Robertson, 778 S.W.2d 199, 201-02 (Tex. App.-Houston [1st Dist.] 1989, no writ). A child establishes a new home state by living there with a parent for at least six consecutive months. See TEX. FAM. CODE 152.002(6). It is undisputed that when Daniel filed his motion to modify, the child's home state was, and it remains, Colorado.¹ Thus, if Daniel's motion seeks to modify custody or managing conservatorship, the trial court's dismissal was proper. On the other hand, if his motion merely concerns visitation, as the court of appeals concluded, the trial court abused its discretion in dismissing the motion.

The court of appeals based its analysis on what it considered the "plain meaning" of section 155.003, which provides:

155.003. Exercise of Continuing, Exclusive Jurisdiction

(a)Except as otherwise provided by this section, a court with continuing, exclusive jurisdiction may exercise its jurisdiction to modify its order regarding managing conservatorship, possessory conservatorship, possession of and access to the child, and support of the child.

(b)A court of this state may not exercise its continuing, exclusive jurisdiction to modify managing conservatorship if:

(1)the child's home state is other than this state; or

(2)modification is precluded by Chapter 152.

(c)A court of this state may not exercise its continuing, exclusive jurisdiction to modify possessory conservatorship or possession of or access to a child if:

(1) the child's home state is other than this state and all parties have established and continue to maintain their principal residence outside this state; or

(2)each individual party has filed written consent with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction of the suit.

971 S.W.2d at 128-29 (quoting TEX. FAM. CODE 155.003 (a)-(c)) (emphasis added).

The court of appeals determined that the statute "clearly distinguishes the concepts of managing conservatorship and 'possession of or access to a child.'" Id. at 129. It likened the right of primary possession to visitation, over which the trial court retains continuing exclusive jurisdiction. See id. The court also reasoned that a change in the right to establish a child's domicile does not modify the managing conservatorship "because both parents retain their status as joint managing conservators of the child." Id. Consequently, the court of appeals held that the statute did not restrict the trial court's continuing modification jurisdiction. See id.

The court of appeals' analysis is defective in two respects. First, it implies that the statutory distinction between "managing conservatorship" and "possession of or access to a child" renders the terms mutually exclusive. 971 S.W.2d at 129. Such an implication ignores the fact that a managing conservatorship encompasses certain aspects of possession and access. When establishing a conservatorship, the court must specify the rights to be exercised exclusively by one parent. See TEX. FAM. CODE 153.071(3). The decree in the present case provides that Susan alone has "the sole legal right to determine the residence of the child" and "the primary custody and control of the child." Although these rights necessarily encompass "possession of or access to the child," they are fundamentally "rights inherent in a custody status." Leithold v. Plass, 413 S.W.2d 698, 700 (Tex. 1967).

Second, the court of appeals tacitly concludes that a custody modification does not occur in a joint managing conservatorship unless the movant is seeking to become the sole managing conservator. In other words, Texas courts retain continuing jurisdiction to modify any and all rights assigned to managing conservators, so long as the movant does not seek to change a joint managing conservatorship to a sole managing conservatorship. This mechanistic interpretation does not follow from a plain reading of the statute and improperly elevates form over substance. By looking solely to the nomenclature of conservator status, the court of appeals ignores the actual effect the proposed modification will have on that status. While a change in the type or designation of a conservatorship would undoubtedly be a custody modification, we disagree that only those modifications implicate custody under the UCCJA. If the Legislature had intended such a limitation, it could have so provided.

Our objective when construing a statute is to determine and give effect to the Legislature's intent. See Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997). To ascertain that intent, we look first to the statute's plain language. See Liberty Mutual, 966 S.W.2d at 484 (citing Monsanto Co. v. Cornerstone Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993)). We must view the statute's terms in context, and give them full effect. See id. Under the Code Construction Act, we may...