in the Interest of T.B. and A.B., Children , 497 S.W.3d 640 ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00006-CV
IN THE INTEREST OF T.B. AND
A.B., CHILDREN
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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 233-558243-14
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OPINION
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I. INTRODUCTION
The primary issue we address in this appeal is whether a Florida court’s
inaction after making an initial child custody determination constituted an implicit
determination that the 233rd District Court in Tarrant County, Texas, (hereinafter
the trial court) was a more convenient forum for Appellee Mother’s suit affecting
the parent-child relationship (SAPCR) seeking modification of the initial child-
custody order issued by the Florida court. Because we hold that the Florida
court’s inaction—in failing for six months to either respond to communications
from the trial court or to rule on custody matters that Father had filed with the
Florida court after Mother had filed her SAPCR in the trial court—constituted
such an implicit determination, we will affirm the trial court’s denial of Father’s
plea to the jurisdiction.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts are undisputed. Mother and Appellant Father are the parents of
two children, T.B. and A.B. Mother and Father lived together in Florida with the
children until early May 2012 when Mother moved to Texas with the children.1
Father then instituted a paternity suit in Florida, and ultimately, the 19th Judicial
Circuit Court of St. Lucie County, Florida, (the Florida court) signed a May 28,
2013 order approving a settlement agreement entered into by the parties.2 The
agreement declared Father’s paternity of both children, provided a parenting
plan, set a visitation schedule, and provided that the children would live in Texas
with Mother; the agreement did not require Father to pay child support.
On August 1, 2014, after registering the Florida order with the Tarrant
County District Clerk’s office, Mother filed a SAPCR in the trial court seeking
1
Mother and Father never married.
2
The Florida court’s order simply states that the cause came before the
court on the stipulation of the parties and that the court “ORDERED AND
ADJUDGED that the Settlement Agreement entered by the parties on the 14 day
of May, 2013, is hereby approved.”
2
modification of the Florida order. Father filed a motion to dismiss Mother’s
SAPCR, alleging that the Florida court was the court exercising continuing
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA or the Act) and that the trial court lacked subject-matter jurisdiction. At
the hearing on Father’s motion to dismiss for lack of jurisdiction, the trial court
advised counsel that before proceeding, it would contact the Florida court to
discuss the jurisdictional issue and the Florida court’s retention of continuing,
exclusive jurisdiction.
On February 5, 2015, Mother filed with the trial court a written request for a
UCCJEA conference between the trial court and the Florida court. On February
12, 2015, Father, who still lived in Florida, filed a motion to reopen the case in
Florida and requested that the Florida court confirm its jurisdiction and enforce its
order. The trial court repeatedly attempted to communicate with the Florida
court, but the Florida court did not respond.
Finally, on June 15, 2015, after four months had elapsed and the Florida
court had neither ruled on Father’s motion requesting confirmation of jurisdiction
in Florida nor responded in any way to the trial court’s communications, the trial
court set Mother’s SAPCR for final hearing on August 24, 2015. Both Father and
Mother appeared at the final hearing and offered evidence; the trial court
ultimately signed an October 13, 2015 final judgment modifying the Florida
court’s order. Father perfected this appeal and raises three issues challenging
the trial court’s jurisdiction.
3
III. STANDARD OF REVIEW
Whether a court has subject-matter jurisdiction is a question of law that we
review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225
(Tex. 2004). Whether undisputed evidence of jurisdictional facts established a
trial court’s jurisdiction is also a question of law. Id. at 226; City of Wichita Falls
v. Jenkins, 307 S.W.3d 854, 857 (Tex. App.—Fort Worth 2010, pet. denied).
IV. JURISDICTION UNDER THE UCCJEA
In his first issue, Father asserts that the trial court lacked subject-matter
jurisdiction to modify the Florida court’s order concerning conservatorship and
visitation issues because the Florida court had continuing, exclusive jurisdiction
under the UCCJEA and has not relinquished its jurisdiction to the trial court or
determined Texas to be a more convenient forum and because Father still
resides in Florida.
A. The Law Concerning UCCJEA Modification Jurisdiction
1. Section 152.203 governs
The UCCJEA encourages national uniformity in child-custody disputes; the
Act is an attempt to deal with the problems of competing jurisdictions entering
conflicting interstate child-custody orders, forum shopping, and the drawn out
and complex child-custody legal proceedings often encountered by parties where
multiple states are involved. See In re Dean, 393 S.W.3d 741, 743 (Tex. 2012)
(orig. proceeding). The UCCJEA limits the jurisdiction of one state to modify the
4
child-custody orders of another state. Id. Most states, including Texas3 and
Florida,4 have adopted the UCCJEA in order to reduce conflicting orders
regarding custody and placement of children. See id.The UCCJEA provides that a Texas court possesses jurisdiction to modify
orders from another state that affect the parent-child relationship if the following
requirements are met:
• Texas would have jurisdiction to make an initial determination
under either UCCJEA section 152.201(a)(1) (“home-state
jurisdiction”) or (a)(2)(“significant connections jurisdiction”), and
• the court of the other state determines it no longer has exclusive
continuing jurisdiction under section 152.202 or that a court of this
state would be a more convenient forum under section 152.207.
See Tex. Fam. Code Ann. § 152.203 (West 2014). Under this two-pronged
analysis, we first examine whether Texas would have jurisdiction to make an
initial determination of custody under either section 152.201(a)(1)’s home-state
jurisdiction or under section 152.201(a)(2)’s significant-connections jurisdiction,
recognizing that Texas needs to meet only one of the subsections of 152.201(a)
in order to satisfy the first prong. In re S.L.P., 123 S.W.3d 685, 688 (Tex. App.––
Fort Worth 2003, no pet.). We then address the second prong and determine
whether the state making the initial child-custody decision concluded either that it
no longer possesses continuing jurisdiction or that a Texas court would be a
3
See Tex. Fam. Code Ann. §§ 152.001–.317 (West 2014 & Supp. 2015).
4
See Fla. Stat. Ann. §§ 61.501–.542 (West 2016).
5
more convenient forum. See Tex. Fam. Code Ann. §§ 152.202, .207 (West
2014).
2. First prong—jurisdiction to make an initial custody decision
Under the pertinent portions of the first prong of 152.203, a Texas court
has significant-connections jurisdiction to make an initial child-custody
determination under UCCJEA section 152.201(a)(2) if (1) the child and at least
one parent have a significant connection with Texas other than mere presence,
(2) substantial evidence is available in Texas concerning the child’s care,
protection, training, and personal relationships,5 and (3) a court of the home state
of the child determines that it no longer has exclusive, continuing jurisdiction.
S.L.P., 123 S.W.3d at 688; Davis v. Guerrero, 64 S.W.3d 685, 689 (Tex. App.––
Austin 2002, no pet.).
Concerning a child’s and at least one parent’s significant connections with
the state in which the movant is seeking an initial child-custody decision and
concerning whether substantial evidence is available in that state, courts
consider the nature and quality of the child’s contacts with the State. 6 See In re
Neither “significant connection” nor “substantial evidence” is defined in the
5
UCCJEA.
6
UCCJEA sections 152.201 (initial child-custody jurisdiction), .202
(exclusive, continuing jurisdiction), and .203 (jurisdiction to modify) cross-
reference and incorporate one another extensively. See Tex. Fam. Code Ann.
§§ 152.201–.203. The existence of significant connections with and substantial
evidence in a state is, at least in part, a ground for a court’s exercise of
jurisdiction under all three subsections. Therefore, because the terms “significant
connection” and “substantial evidence” are given the same meaning under all
6
Forlenza, 140 S.W.3d 373, 378 (Tex. 2004) (orig. proceeding). Some of the
factors showing a significant connection to the state and substantial evidence in
the state include the following: whether the child resides in the state, whether the
child attends school in the state, whether the child’s family resides in the state,
and whether the parent has made educational plans for the child in the state.
See id. (recognizing fact that numerous relatives lived in Texas and maintained
relationship with child as evidence of significant connection with Texas and that
substantial evidence existed in Texas); In re S.J.A., 272 S.W.3d 678, 685 (Tex.
App.—Dallas 2008, no pet.) (same); see also Barabarawi v. Rayyan, 406 S.W.3d
767, 772 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (pointing out absence of
evidence of these factors concerning child’s relationship with Florida as
supporting Texas trial court’s exercise of “default jurisdiction” under section
152.201(a)(4) over initial child-custody decision).
3. Second prong—when home-state court determines that another
court would be a more convenient forum
Under the second prong, a court in Texas is a more convenient forum
under section 152.207(b) when the home state is an inconvenient forum
considering all relevant factors, including whether domestic violence has
occurred and which state could best protect the parties and the child; the length
of time the child has resided outside of the home state; the distance between the
three subsections, cases decided under all three subsections are authoritative on
the issue of what constitutes a significant connection or substantial evidence.
7
home state and the court in the state that would assume jurisdiction; the relative
financial circumstances of the parties; any agreement of the parties as to which
state should assume jurisdiction; the nature and location of the evidence required
to resolve the pending litigation, including the testimony of the child; the ability of
the courts of both states to decide the issue expeditiously; and the familiarity of
the courts of each state with the facts and issues in the pending litigation. See
Tex. Fam. Code Ann. § 152.207(b). This list of factors is not exclusive. See
Unif. Child Custody Jurisdiction & Enf’t Act § 207 cmt., 9 U.L.A. 682 (1997) (“The
list is not meant to be exclusive.”). A home-state trial court is not required to
conduct an evidentiary hearing before making a determination that it is an
inconvenient forum. See Lesem v. Mouradian, 445 S.W.3d 366, 376 (Tex.
App.—Houston [1st Dist.] 2013, no pet.).
B. Analysis
1. Mother’s complaint that the UCCJEA does not apply—Florida
is the home state under the UCCJEA
We begin by addressing Mother’s contention that the UCCJEA does not
apply to the Florida court’s order. Mother claims that the UCCJEA does not
apply because the Florida court only approved the parties’ settlement agreement;
Mother asserts that, consequently, this order by the Florida court is not an order
providing for legal custody, physical custody, or visitation with respect to a child
as required to fall within the parameters of the UCCJEA. But the UCCJEA
expressly defines a “child custody proceeding” as including a proceeding for
8
paternity. Tex. Fam. Code Ann. § 152.102(4) (West 2014). Thus, the Florida
court’s order in Father’s paternity proceeding—which approves the settlement
reached by the parties, declares Father’s paternity, provides a parenting plan,
and sets a visitation schedule—constitutes a child custody proceeding triggering
application of the UCCJEA. See id.; see also In re Calderon–Garza, 81 S.W.3d
899, 903 (Tex. App.––El Paso 2002, orig. proceeding) (recognizing paternity suit
was child-custody suit under UCCJEA).
Thus, by virtue of the Florida court’s order in Father’s paternity proceeding
that declared Father’s paternity, provided a parenting plan, and set a visitation
schedule, the Florida court made the initial child-custody determination
concerning Father and Mother’s children and established Florida as the
children’s home state for purposes of the UCCJEA. See Tex. Fam. Code Ann.
§ 152.102(4), (7), (8) (defining child-custody determination, home state, and
initial determination, respectively); Calderon-Garza, 81 S.W.3d at 903(discussing determination of home state under UCCJEA). We cannot agree with
Mother’s contention that the Florida court’s order approving Mother and Father’s
settlement agreement in Father’s paternity suit did not constitute an initial child-
custody decision under the UCCJEA.
2. First prong—Texas would have jurisdiction
to make an initial custody decision
Moving to our analysis under the first prong of the statutory test to
determine whether the trial court possessed jurisdiction over Mother’s SAPCR to
9
modify the Florida court’s order concerning child custody, we examine whether
Texas would have jurisdiction to make an initial custody determination under
either section 152.201(a)(1) or (2). See Tex. Fam. Code Ann. § 152.203; S.L.P.,
123 S.W.3d at 688. To recap, section 152.201(a)(2) provides, in pertinent part,
that a Texas court may make an initial child-custody determination when the child
and at least one of the child’s parents has a significant connection with Texas
(subsection A) and when substantial evidence is available in Texas concerning
the child’s protection, training, and personal relationships (subsection B). See
Tex. Fam. Code Ann. § 152.201(a)(2)(A), (B).
Looking to whether the children and at least one of their parents have a
significant connection with Texas and whether substantial evidence is available
in Texas concerning the children’s protection, training, and personal
relationships, the record before us shows the following. The children and Mother
have resided in Texas since May 2012. Mother’s mother (the children’s maternal
grandmother) lives in Texas, and Mother and the children resided with her for
approximately ten months when they first moved to Texas. See Forlenza, 140
S.W.3d at 377 (recognizing fact that children’s relatives resided in Texas and
maintained relationship with children constituted a significant connection to
Texas). Father agreed to permit Mother and the children to move to Texas and
to make their home in Texas. See In re Brilliant, 86 S.W.3d 680, 691 (Tex.
App.—El Paso 2002, no pet.) (recognizing that plans to reside in Texas and raise
family there constituted evidence of significant connection with Texas). The
10
children attend school in Texas. The children receive medical care in Texas;
they recently had surgery in Texas. The evidence supports the determination
that the children and Mother have a significant connection with Texas and that
substantial evidence is available in Texas concerning the children’s protection,
training, and personal relationships. See cf. Forlenza, 140 S.W.3d at 377
(requiring evidence only of either a significant connection or the availability of
substantial evidence). Thus, the first prong of section 152.203’s modification
jurisdiction is established.
3. Second Prong—Texas would be a
more convenient forum than Florida7
a. The Florida statute
The inconvenient-forum analysis applies only when a court—such as the
home-state Florida court here—has continuing, exclusive jurisdiction but declines
to exercise its jurisdiction. In Florida, the home-state court may decline to
exercise jurisdiction under section 61.520 of Florida’s UCCJEA based on an
inconvenient-forum analysis. See Fla. Stat. Ann. § 61.520. Section 61.520 of
Florida’s UCCJEA is identical to section 152.207 of Texas’s UCCJEA. Compare
id., with Tex. Fam. Code Ann. § 152.207. Thus, a Florida home-state court
7
In fact, the inconvenient-forum analysis set forth in section 152.207 is not
only the second prong of possible modification jurisdiction under section 152.203
but is also a prong of potential initial child-custody jurisdiction under section
152.201(a)(2). Because the inconvenient-forum analysis is the same for both
152.203 and 152.201(a)(2), we discuss it only once—as the second prong of
modification jurisdiction.
11
utilizes the same eight nonexclusive factors set forth in section 152.207 of the
Texas family code in determining whether another state is a more convenient
forum for a SAPCR than Florida. See Fla. Stat. Ann. § 61.520(2) (setting forth
list of relevant factors, including time child resided outside home state, parties’
circumstances, parties’ financial circumstances, any agreement of parties on
jurisdiction, location of evidence regarding SAPCR, ability of both courts to
expeditiously dispose of SAPCR, and familiarity of each court with facts
regarding the issues). The issue of whether the Florida court, as the home-state
court, is an inconvenient forum for Mother’s SAPCR may be raised on the Florida
court’s own motion or on request of a Texas trial court. See id. § 61.520(1).
b. Analysis of the nonexclusive inconvenient-forum factors
Applying the inconvenient-forum factors, Mother and the children have
resided in Tarrant County, Texas, since May 2012; thus, they had resided
outside the home state of Florida for over three years at the time the trial court
modified the Florida order. Father agreed to Mother’s possession of the children
and to their continued residence in Texas per the agreement Mother and Father
had reached and the Florida court had approved. The distance between Texas
and Florida is over 1,000 miles—requiring lengthy travel by both Mother and the
children to pursue and to present testimony in a SAPCR in Florida.
The children attend elementary school in Tarrant County. Under the
agreement executed by Mother and Father and approved by the Florida court,
Father was granted approximately 160 days per year of possession of the
12
children. Father, who continues to reside in Florida, exercised approximately 42
days of possession in 2013, 54 days of possession in 2014, and 63 days of
possession in 2015. Conversely, the children resided in Tarrant County with
Mother approximately 323 days in 2013, 311 days in 2014, and 302 days in
2015. According to Mother, Father began exercising more days of possession
after she filed her SAPCR seeking modification of the Florida court order. Father
testified that he visited the children in Texas and that during summers, they
would visit him in Florida.
The agreement Mother and Father reached in Florida provides that
enforcement and modification of the agreement shall be brought in Florida so
long as one parent continues to reside in Florida—which Father does. See Hart
v. Kozik, 242 S.W.3d 102, 110 (Tex. App.—Eastland 2007, no pet.) (recognizing
that parties’ jurisdictional agreement is simply one factor in an inconvenient-
forum analysis); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.
2000) (explaining that subject-matter jurisdiction “exists by operation of law only,
and cannot be conferred upon any court by consent or waiver”).
The Florida court possesses no familiarity with the facts or issues
surrounding Mother’s and Father’s relationships with the children nor their
exercise of custody of the children because these issues were not litigated in
Florida—the Florida court’s order simply approved an agreement reached by
Father and Mother. The evidence required to resolve Mother’s SAPCR is located
in Texas where the children reside and attend school. And the trial court is able
13
to decide Mother’s SAPCR expeditiously while the Florida court has failed to rule
on anything filed by Father with the Florida court, including Father’s motion
requesting the Florida court to confirm its continuing jurisdiction and to enforce its
final order approving the settlement agreement.8
Thus, application of the statutory factors in toto establish that Florida is an
inconvenient forum for Mother’s SAPCR and that Texas is a more convenient
forum than Florida; the only factor supporting continuing jurisdiction in Florida is
the parties’ agreement. This single factor is not, however, conclusive and is
considered along with the other listed nonexclusive factors, which show that
Florida is an inconvenient forum and that Texas is a more convenient forum.
See Hart, 242 S.W.3d at 110 (“The statute does not make a jurisdictional
agreement binding upon the court or irrevocable by the parties”). Thus, the
nonexclusive statutory factors support the conclusion that the home state of
8
The Florida court’s online file for Father’s suit reflects that no action has
been taken by the Florida court since it signed the final order in 2013 except that
the closed case was administratively reopened on February 12, 2015, when
Father filed his motion to reopen. To date, the Florida court has conducted no
hearings, made no rulings, nor signed any orders during the fourteen months that
have elapsed since Father filed his motion requesting the Florida court to confirm
its continuing jurisdiction and to enforce its final order approving the settlement
agreement. See St. Lucie County Clerk,
https://courtcasesearch.stlucieclerk.com/BenchmarkWebExternal/CourtCase.asp
x/Details/1919434?digest=YxAQo7VUcfXst47F0OleZA (last visited July 8, 2016);
see also Tex. R. Evid. 201(b)(2), (c)(1) (authorizing appellate court to judicially
notice on its own motion facts that are not subject to reasonable dispute because
they can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned); HealthTronics, Inc. v. Laser USA, Inc., 382
S.W.3d 567, 576 (Tex. App.—Austin 2012, no pet.) (taking judicial notice of
California trial court’s records not contained in appellate record).
14
Florida is an inconvenient forum for Mother’s SAPCR and that Texas is a more
appropriate forum. See, e.g., In re Isquierdo, 426 S.W.3d 128, 135 (Tex. App.––
Houston [1st Dist.] 2012, orig. proceeding) (explaining that mere fact father
continued to reside in UCCJEA “home state” of Texas where initial child-custody
decision had been made did not support Texas’s exercise of exclusive,
continuing jurisdiction over mother’s modification proceeding when children had
lived in North Carolina for past five years).
c. The Florida court’s implied ruling under the present facts
Although the nonexclusive statutory factors support the determination that
Florida is an inconvenient forum for Mother’s SAPCR and that Texas is a more
appropriate forum, Father points out that the Florida court did not sign an order
so holding. Father contends that absent such a written order from the Florida
court either declining to exercise its home-state, continuing jurisdiction or
declaring that Florida is an inconvenient forum and that Texas is a more
convenient forum, the trial court lacked subject-matter jurisdiction over Mother’s
SAPCR. See Saavedra v. Schmidt, 96 S.W.3d 533, 541 (Tex. App.—Austin
2002, no pet.).
The record reflects the following efforts by the trial court and by Father to
obtain a ruling from the Florida court concerning whether it would exercise its
home-state, continuing jurisdiction over Mother’s modification SAPCR. First, at
the hearing on Father’s motion to dismiss, the trial court said that it would contact
the Florida court to discuss the jurisdictional issue and the Florida court’s
15
possible retention of continuing, exclusive jurisdiction. Second, on February 5,
2015, Mother filed a written request in the trial court for a UCCJEA conference
between the trial court and the Florida court. Third, on February 12, 2015, Father
filed a motion to reopen the case in the Florida court and requested it confirm its
jurisdiction and enforce its order. Fourth, the following exchange occurred on the
record on August 24, 2015, prior to the final trial on Mother’s SAPCR, which was
more than a year after Mother had filed the SAPCR and approximately six
months after Father had filed his motion with the Florida court requesting the
Florida court to confirm its jurisdiction:
[Father’s counsel]: Your Honor, before we proceed -- I’m sorry.
Before we proceed, Your Honor, I have one thing I need to
address with the Court. [Mother’s counsel] filed a request for a
UCCJEA conference on February 5th, 2015. When we met with
Your Honor last time, you said that you had called the court in St.
Lucie County, Florida --
THE COURT: Yes.
[Father’s counsel]: -- left multiple messages --
THE COURT: Yes.
[Father’s counsel]: -- and had yet to get a phone call back. I would
just ask, for the record, if the Court could tell us if you ever did hear
back from St. Lucie County?
THE COURT: I never did hear back from the Judge in St. Lucie County.
[Father’s counsel]: Thank you, Your Honor.
Father’s counsel did not seek an abatement pending a response from the Florida
court and did not file a mandamus proceeding in Florida in an effort to obtain a
16
ruling from the Florida court on his motion to confirm the Florida court’s
jurisdiction that he had filed in Florida after Mother had filed her SAPCR in
Texas. See, e.g., Madeira Mgmt., Inc., v. Chapman Realty Corp., 459 So. 2d
1177, 1178 (Fla. Dist. Ct. App. 1984) (recognizing petition for writ of mandamus
is proper remedy to compel judge to rule).9
Father relies on Saavedra to support his argument that the trial court
lacked subject-matter jurisdiction over Mother’s SAPCR because there was no
written order from the Florida court declining to exercise its home-state,
continuing jurisdiction or declaring that Florida is an inconvenient forum and that
Texas is a more convenient forum. 96 S.W.3d at 541. In Saavedra, as here, the
home-state court failed to communicate with the Texas trial court; but in
Saavedra, unlike here, the home-state court actually modified its initial child-
custody order and specifically stated in the modified order that it continued to
maintain exclusive jurisdiction under the UCCJEA. Id. at 538. The Florida court
here did not sign any type of order indicating that it intended to exercise
continuing, exclusive home-state jurisdiction, even though Father had filed a
motion requesting such an order. Consequently, Saavedra is factually different
from the present situation.
9
Father filed a petition for writ of mandamus with this court in July 2015,
see In re Babcock, No. 02-15-00245-CV, 2015 WL 4775767, at *1 (Tex. App.—
Fort Worth Aug. 13, 2015, orig. proceeding) (mem. op.), asserting that the trial
court abused its discretion by denying his motion to dismiss Mother’s SAPCR.
We denied Father’s petition for writ of mandamus.
17
Under the unique facts presented here, we hold that the Florida court’s
failure to communicate with the trial court for over six months and the Florida
court’s failure to rule on Father’s motion filed with it—for over six months before
the trial court proceeded to a final hearing, for over eight months before the trial
court signed a final judgment, and for over fourteen months to date—constitutes
an implied determination by the Florida court to decline to exercise its home-state
jurisdiction and an implied determination by the Florida court that Texas is a
more convenient forum for litigation of Mother’s modification SAPCR. To hold
otherwise would undermine the purposes of the UCCJEA. The comments to the
UCCJEA state that the “Act should be interpreted according to its purposes
which are to: . . . [p]romote cooperation with the courts of other States to the end
that a custody decree is rendered in that State which can best decide the case in
the interest of the child” and to promote consistent and speedy resolution of child
custody issues involving multiple states. Unif. Child Custody Jurisdiction & Enf’t
Act §§ 101–405, 9 U.L.A. 649 (1999 & Supp. 2005); accord Zirkle v. Franklin, No.
282826, 2008 WL 4228282, at *1 (Mich. Ct. App. Sept. 16, 2008) (not designated
for publication) (holding that letter from home-state court implied that it
acquiesced to Michigan court’s exercising UCCJEA jurisdiction). Consequently,
under the narrow facts presented here, we hold that the trial court possessed
subject-matter jurisdiction to modify the Florida court’s order concerning
conservatorship and visitation issues. See Unif. Child Custody Jurisdiction &
18
Enf’t Act §§ 101–405, 9 U.L.A. 649 (1999 & Supp. 2005); accord Staats v.
McKinnon, 206 S.W.3d 532, 539 (Tenn. Ct. App. 2006).
We overrule Father’s first issue.
V. JURISDICTION UNDER UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA)
In his second issue, Father asserts that the trial court lacked jurisdiction
under the UIFSA to modify the Florida court’s order concerning child support; the
Florida court order did not order Father to pay child support.
A. The Law
The UIFSA is a completely different and independent uniform law from the
UCCJEA. See In re M.I.M., 370 S.W.3d 94, 97 (Tex. App.––Dallas 2012, pet.
denied). While the UCCJEA is applicable to child-custody proceedings, the
UIFSA is applicable to child-support proceedings. See Tex. Fam. Code Ann.
§§ 159.001–.902 (West 2014 & Supp. 2015). When a party seeks to modify a
child-support order issued by another state, the UIFSA applies. See Tex. Fam.
Code Ann. § 156.408(a) (West 2014); In re T.L., 316 S.W.3d 78, 83 (Tex. App.––
Houston [14th Dist.] 2010, pet. denied). Thus, a party seeking to modify a
support order from another state must establish jurisdiction pursuant to the
UIFSA, not simply jurisdiction under the UCCJEA. See M.I.M., 370 S.W.3d at 97(discussing distinction between jurisdiction under UCCJEA and jurisdiction under
UIFSA); In re V.L.C., 225 S.W.3d 221, 226 (Tex. App.––El Paso 2006, no pet.)
(recognizing that “there are separate and independent jurisdictional requirements
19
that must be met under the UCCJEA and the UIFSA in order to modify an out-of-
state order”).
Once a court possessing jurisdiction under the UIFSA enters a child-
support order, that court becomes the only tribunal authorized to modify the
decree for as long as it retains jurisdiction. See Tex. Fam. Code Ann. § 159.205(West Supp. 2015). But when a divorce decree or a child-custody order from
another state fails to include a child-support order, the court issuing the divorce
decree or custody order does not acquire continuing, exclusive jurisdiction over
child-support issues under the UIFSA. See id. §§ 159.102(2) (West Supp. 2015)
(defining child support order to which UIFSA applies as “support order for a
child”), .102(28) (defining support order as a “judgment, decree, order, decision,
or directive . . . issued . . . for the benefit of a child . . . that provides for monetary
support, health care, arrearages, retroactive support, or reimbursement for
financial assistance provided to an individual obligee in place of child support”);
Office of Attorney Gen. v. Long, 401 S.W.3d 911, 913 (Tex. App.––Houston [14th
Dist.] 2013, no pet.) (holding “absolute divorce” decree issued by North Carolina
court did not trigger continuing, exclusive jurisdiction under UIFSA of subsequent
petition for child support because decree did not include a support order for a
child); V.L.C., 225 S.W.3d at 226–27 (holding court’s divorce decree
incorporating parties’ agreement concerning child support did not constitute “child
support order” creating continuing, exclusive jurisdiction in that court under
UIFSA). In the absence of an existing child-support order, a petition may be filed
20
in a Texas court by a Texas resident seeking child support for her child so long
as the Texas court may obtain jurisdiction over the alleged obligor. See Tex.
Fam. Code Ann. § 159.201; M.I.M., 370 S.W.3d at 98; see also Patricia W.
Hatamyar, Interstate Establishment, Enforcement, and Modification of Child
Support Orders, 25 Okla. City U. L. Rev. 511, 522 (2000) (explaining UIFSA’s
provision for initial establishment of a child-support order).
B. Analysis
The settlement agreement signed by Mother and Father and approved by
the Florida court in its May 28, 2013 order does not require Father to pay child
support. It provides that
[i]n light of the parties’ incomes, the interstate residences of the
parties, the Father’s sole obligation is to pay travel expenses for
himself and the children for transport between Florida and Texas.
Neither party will pay child support to the other party. It is the
parties’ intent and agreement that there will be no retroactive child
support due.
This provision does not constitute a “child support order” under the UIFSA. See
Tex. Fam. Code Ann. § 159.102(2) (defining child support order as a support
order for a child). The provision is not a support order because it does not order
monetary support, health care, arrearages, retroactive support, or reimbursement
for financial assistance provided to an individual obligee in place of child support.
See id. § 159.102(28) (defining “support order”). Mother and Father’s
agreement, although approved by the Florida court, simply does not meet the
UIFSA’s definitions of “support order” and “child support order” as required by the
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UIFSA to vest continuing, exclusive jurisdiction over child-support determinations
in the Florida court. See id. § 159.102(2), (28); Long, 401 S.W.3d at 913; V.L.C.,
225 S.W.3d at 227. Thus, because the Florida court’s order does not constitute
a child-support order under the UIFSA and because no prior child-support order
exists concerning Mother and Father’s children, the trial court possessed
jurisdiction under the UIFSA to issue a child-support order concerning Mother
and Father’s children.10 See Tex. Fam. Code Ann. § 159.201; M.I.M., 370
S.W.3d at 98.
We therefore overrule Father’s second issue challenging the trial court’s
jurisdiction under the UIFSA to modify a prior child-support order.
VI. JURISDICTION TO AWARD ATTORNEY’S FEES
In his third issue, Father argues that because the trial court lacked
jurisdiction under the UCCJEA as asserted in his first issue and lacked
jurisdiction under the UIFSA as asserted in his second issue, the trial court
likewise lacked jurisdiction to award attorney’s fees.11 Because we have held
10
Father did not file a special appearance, appeared in the trial court for
the trial of Mother’s SAPCR, and does not challenge on appeal the trial court’s
personal jurisdiction over him; thus, he waived any contention that the trial court
lacked personal jurisdiction over him. See In re Barnes, 127 S.W.3d 843, 846
(Tex. App.—San Antonio 2003, orig. proceeding) (explaining that a challenge to
personal jurisdiction over a party may be waived if not asserted); see also Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14, 105 S. Ct. 2174, 2182 (1985)
(“[T]he personal jurisdiction requirement is a waivable right.”).
11
Father does not challenge the amount or reasonableness of the
attorney’s fees awarded, nor does Father cite any authority in support of this
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that the trial court possessed jurisdiction of custody issues concerning the
children under the UCCJEA and possessed jurisdiction of support issues
concerning the children under the UIFSA, we overrule Father’s third issue.
VII. CONCLUSION
Having overruled Father’s three issues, we affirm the judgment of the trial
court.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and SUDDERTH, JJ.
DELIVERED: July 14, 2016
issue. Father’s complaint in his third issue is predicated purely on this court’s
sustaining either his first or second issue.
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