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 2005-02

in the Interest of G. M., a Child ( 2005 )


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    NUMBER 13-02-228-CV

    COURT OF APPEALS


    THIRTEENTH DISTRICT OF TEXAS


    CORPUS CHRISTI - EDINBURG




    IN RE G.M., A MINOR CHILD




        On appeal from the 94th District Court

    of Nueces County, Texas.  




          CONCURRING MEMORANDUM OPINION  


      Before Justices Hinojosa, Rodriguez, and Castillo

    Concurring Memorandum Opinion by Justice Castillo  

              

    I. BACKGROUND

              This appeal is before us on appellant's pro se brief. Respectfully, I would address: (1) appellant's issue regarding indigency; and, (2) the trial court's jurisdiction. Generally, the absence of a reporter's record precludes any relief on appeal. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam). See Tex. R. App. P. 37.3(c). Where an appeal involves no factual dispute, but strictly questions of law, no reporter's record is required. Office of Publ. Util. Counsel v. Pub. Util. Comm'n, 878 S.W.2d 598, 599-600 (Tex. 1994) (per curiam). We are required to address every issue raised and necessary to the final disposition of an appeal. Tex. R. App. P. 47.1.

              As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court. State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). Here, assuming without deciding that we are compelled to proceed solely on the clerk's record before us and without deciding appellant's indigency question, I agree with the majority that we must indulge all presumptions in favor of the trial court's findings and decide only the issues not requiring a review of the reporter's record. However, I would determine first whether issues not requiring our review of the reporter's record are raised in this appeal. Two sub-issues are compelling.

              First, appellant sought a free reporter's record. The trial court denied her application. She has brought the matter to our attention. Respectfully, I would abate the appeal and request the trial court to enter findings of fact and conclusions of law addressing specifically the denial of her application to obtain a free reporter's record. While I agree that an appellant has the burden to present a record to the appellate court that shows the error about which she is complaining, Zuyus v. No'Mis Comm., Inc., 930 S.W.2d 743, 748 (Tex. App.–Corpus Christi 1996, no writ), indigency may well prevent an appellant from meeting that threshold burden.

              Second, in her first issue, appellant challenges the trial court's jurisdiction. Appellant asserts that the trial court never acquired exclusive, continuing jurisdiction, and, if it did, it lost continuing jurisdiction when the child's residence was no longer in the state of Texas. Whether a trial court has jurisdiction is a question of law subject to de novo review. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Appellant complains the trial court lacked jurisdiction. Our jurisdiction must be established because our jurisdiction extends no further than that of the court from which the appeal is taken. Warner-Lambert Co. v. Mills, 117 S.W.3d 488, 490 (Tex. App.–Beaumont 2003, no pet.) (citing Pearson v. State, 315 S.W.2d 935, 938 (1958)); Nabejas v. Tex. Dep't of Pub. Safety, 972 S.W.2d 875, 876 (Tex. App.–Corpus Christi 1998, no pet.). Our initial inquiry is always whether we have jurisdiction over an appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). We are obligated to determine, sua sponte, our own jurisdiction. N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam); Welch v. McDougal, 876 S.W.2d 218, 220 (Tex. App.–Amarillo 1994, writ denied). If the trial court lacked jurisdiction, an appellate court only has jurisdiction to set the judgment aside and dismiss the cause. See Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex. App.–Dallas 1994, writ denied).

              Indeed, every reasonable presumption will be indulged to sustain a judgment and nothing will be presumed against it. Miller v. Hood, 536 S.W.2d 278, 285 (Tex. Civ. App.–Corpus Christi 1976, writ ref'd. n.r.e.). And, all prior requisites to the rendition of a judgment will be presumed to have been fulfilled. Id. Further, absent direct proof to the contrary, recitations in a judgment are presumed true and control the rest of the record. See Allen v. Bolton, 416 S.W.2d 906, 911 (Tex. Civ. App.–Corpus Christi 1967, no writ). However, jurisdiction of a court is never presumed. See Tex. Ass'n. of Bus., 852 S.W.2d at 443-44 (Tex. 1993); El-Kareh v. Tex. Alcoholic Beverage Comm'n, 874 S.W.2d 192, 194 (Tex. App.–Houston [14th Dist.] 1994, no writ). As jurisdiction is fundamental and may not be ignored, a reviewing court must inquire into it, even if it is necessary to do so sua sponte. White v. Schiwetz, 793 S.W.2d 278, 281 (Tex. App.–Corpus Christi 1990, no writ).           Thus, respectfully, I conclude that the review of the clerk's record in this case presents a serious question of jurisdiction.  II. THE RECORD

              Appellant is the mother and appellee is the father of the minor child, G.M. In 1995, appellant filed a suit affecting parent-child relationship ("SAPCR") in Texas requesting appointment as sole managing conservator of the child. In the pleading, appellant addressed jurisdiction:

    2. Jurisdiction. No court has continuing jurisdiction of this suit or the children the subject of this suit. Texas is the home state of the child.


    The first order the trial court entered awarded temporary sole managing conservatorship of the minor child to appellant. The order stated, in part:

    2. Jurisdiction. The Court, having examined the pleadings and heard the evidence and argument of counsel, finds it has jurisdiction of this cause and of all the parties and that no other court has continuing, exclusive jurisdiction.


    In June 2000, appellee filed his counter-petition and as to jurisdiction alleged:

    2. Jurisdiction.

    This Court has acquired and enjoys exclusive jurisdiction of this suit, of the parties, and of the child the subject of this suit as a result of prior proceedings, and as a result of the invocation of jurisdiction by [appellant] in filing her Original Suit Affecting the Parent-Child Relationship.

     

    On the commencement of the proceeding filed by Petitioner, Texas was the home state of the child. Texas would have remained the home state of the child, and/or the child would not have been absent from the state but for the actions of Petitioner in removing the child.


              After numerous contested proceedings, the parties tried the issue of conservatorship to a jury. The trial court entered judgment awarding sole managing conservatorship to appellee and possessory conservatorship to appellant, consistent with the jury's answers to jury questions in the court's charge.

              The final judgment addressed jurisdiction, as follows:

    The Court, after examining the record, relevant provisions of state and federal law, having heard the evidence, and argument of counsel, finds that it has jurisdiction of this case and of all the parties and that no other court has continuing exclusive jurisdiction of this case. All persons entitled to citation were properly cited.


    Regarding continuing jurisdiction, the final judgment stated:

              11. Statement Regarding Continuing Jurisdiction

    It is intended that these orders are to be construed as final orders in a suit affecting parent-child relationship. However, considering the continuing nature of jurisdiction over suits affecting the parent-child relationship, and considering the provisions of Title 28 U.S.C. §1738A (the Parental Kidnaping Prevention Act), principles of the Uniform Child Custody Jurisdiction and Enforcement Act, or the Uniform Child Custody Jurisdiction Act, if still applicable, principles of comity, "home state" designation, and principles of forum non conveniens, the Texas Court of continuing jurisdiction intends to decline the further exercise of jurisdiction once this order becomes final by operation of law, or, if appropriate, upon the institution of further proceedings in the child's home state of California, which the court determines from this point in time forward is the more appropriate forum to determine enforcement or modification of these final orders in suit affecting parent-child relationship.


              The parties do not dispute that, prior to the time appellant filed the SAPCR in Texas and prior to the entry of the final judgment, the Superior Court of California in Los Angeles entered a judgment of legal separation, adopting the parties' marital dissolution agreement. Part of the judgment addressed custody of their minor child:

    CHILD CUSTODY

     

    13. Legal custody of the minor child, [G.M.], born December 1, 1990, is awarded to the parties jointly. In exercising joint legal custody, the parties are ordered to consult [,] discuss, and cooperate with one another in making decisions . . . .

     

    14. Petitioner [appellant] is awarded physical custody of the minor child. Respondent shall have visitation with the child as agreed between the parties, which such visitation will be supervised by monitor selected by Petitioner for the next two years. It is understood that Petitioner is immediately relocating with the child to Texas.


    The judgment required that appellee pay monthly child support. The parties' marital dissolution agreement stated, in part:

    A. The parties acknowledge that this Agreement is entire, and cannot be altered, amended or modified except by an instrument in writing executed by both Husband and Wife . . . .

     

    C. This Agreement shall not be binding or effective until it is signed by both Husband and Wife. This Agreement may be submitted to any court of competent jurisdiction, and, Legal Separation and/or Dissolution of Marriage. . . .

     

    E. Both parties waive the right to appeal, the right to request a statement of decision, and the right to move for trial or reconsideration.


    Notably, the only reference to the California court's jurisdiction relates to spousal support. The agreement states, "The parties agree that the court shall reserve jurisdiction but that neither party shall pay to the other any monthly spousal support at this time."

              In her first issue, appellant asserts that the trial court erred in finding it retained absolute jurisdiction over the child and in exercising that jurisdiction. Appellant argues that the trial court lacked jurisdiction under "UCCJEA 155.002(a)(1) and (2)," family code section 155.001(a); family code section 103.003, and family code section 152.105. Appellee counters that appellant has failed to demonstrate lack of jurisdiction because: (1) the California judgment for legal separation established an order in suit affecting parent-child relationship; (2) appellant's SAPCR in Texas sought to modify the California joint custody order; (3) although, the California court in Los Angeles was the court of continuing jurisdiction over custody matters, Texas was the child's new home state; and, (4) the California court in Ventura county declined further exercise of custody jurisdiction. Appellee argues that the trial court exercised its jurisdiction only after the California court declined exercise of jurisdiction consistent with the Uniform Child Custody Jurisdiction Act.           The question squarely before us is whether the Texas trial court had jurisdiction to modify the Los Angeles court order that incorporated the parties' agreement regarding custody of the child. III. CONTINUING JURISDICTION

              Effective September 1, 1999, Texas adopted the Uniform Child Custody Jurisdiction and Enforcement Act (1997) ("UCCJEA") replacing the previous act, Uniform Child Custody Jurisdiction Act (1968) ("UCCJA"). See Tex. Fam. CodeAnn. chap. 152 cmt. The UCCJEA applies to any SAPCR and any suit for modification filed on or after September 1, 1999. Id. Accordingly, suits pending as of September 1, 1999 are governed by the former law. Id.

              Appellant filed the SAPCR seeking sole managing conservatorship of the child in 1995. Her suit was pending as of September 1, 1999. Thus, we look to the UCCJA to address appellant's jurisdiction challenge.

              In a divorce action which includes a SAPCR, the trial court acquires and retains continuing, exclusive jurisdiction over matters related to the suit after it has rendered a final order. Tex. Fam. Code Ann. §§ 155.001, 155.002, 155.003 (Vernon 2002). In a SAPCR, the trial court in subsequent proceedings has jurisdiction to modify its order upon the filing of a proper motion. Id.§§ 155.003, 156.001, 156.004 (Vernon 2002). Appellant did not file a divorce action in Texas. She filed a SAPCR requesting sole conservatorship of the child.           There is a difference between an original conservatorship determination and a modification: "Because a change of custody disrupts the child's living arrangements and the channels of a child's affection, a change should be ordered only when the trial court is convinced that the change is to be a positive improvement for the child." See In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000). "Legal custody" is defined in the Texas Family Code as "managing conservatorship of a child." Tex. Fam. Code Ann. § 152.102(2) (Vernon 2002). "Modification" means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination. Id. §152.102(12). The supreme court recognized that the critical distinction between an original suit and a modification suit is the fact that a modification suit seeks a change in the child's existing living arrangements. Allison v. Allison, 3 S.W.3d 211, 214 (Tex. App.–Corpus Christi 1999, no pet.). Thus, I would conclude that appellant sought a modification of the California court's judgment approving the parties' agreement and awarding them joint custody of the child. Appellant's complaint that the trial court did not have continuing jurisdiction finds support in the record before us.

    IV. CONCURRENT JURISDICTION

              In order to prevent jurisdictional conflicts and competition over child custody, the United States Congress passed the Parental Kidnaping Prevention Act of 1980 (PKPA), 28 U.S.C.A. § 1738A. In Interest of S.A.V., 837 S.W.2d 80, 88 (Tex. 1992). The PKPA requires every state to give full faith and credit to child custody determinations of other states. 28 U.S.C.A. § 1738A(a); S.A.V., 837 S.W.2d at 88. However, the PKPA provides that:

    A court of a State may modify a determination of the custody of the same child made by a court of another State, if


              (1) it has jurisdiction to make such a child custody determination; and

     

    (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

     

    28 U.S.C.A. § 1738A(f). Thus, in case of any conflict, the PKPA takes precedence over state law. S.A.V., 837 S.W.2d at 88.

               A child establishes a new home state by living there with a parent for at least six consecutive months. See Tex. Fam. Code Ann.§ 152.002(6) (Vernon 2002). It is undisputed that when appellant filed her SAPCR, the child's home state was Texas. Assuming that the California court in Los Angeles and the Texas trial court had concurrent jurisdiction because Texas became the child's home state, nothing in the record establishes that the court in Los Angeles no longer had jurisdiction or declined jurisdiction. 28 U.S.C.A. § 1738A(f)(2). Appellee concedes that the Ventura court declined jurisdiction when he filed a divorce there. The Ventura court, however, did not enter the custody judgment. The Los Angeles court did.

              This case presents the difficulties inherent in the resolution of all interstate custody disputes. S.A.V., 837 S.W.2d at 88. The clerk's record leaves unanswered the status of the California court's jurisdiction. Because I cannot determine from the record that the Los Angeles, California court declined to exercise its jurisdiction over custody, similarly, I cannot determine whether the Texas court's exercise of jurisdiction over custody was proper under the PKPA.

    V. CONCLUSION  

              Accordingly, to resolve appellant's jurisdictional question, I would abate the appeal and request the trial court to enter findings of fact and conclusions of law to assist this Court. The exercise would, indeed, help resolve the jurisdictional questions with careful regard for the rights of the parties and the best interests of the child.   

     

                                                                            ERRLINDA CASTILLO

                                                                            Justice



    Concurring Memorandum Opinion delivered and filed

    this the 17th day of February 2005.