in the Interest of S.K.B., a Child ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-054-CV
IN THE INTEREST OF S.K.B.,
A CHILD
------------
FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
In this custody enforcement action, Appellant Keith Donald B., father of
S.K.B. (the child), appeals from the order of the Denton County trial court
declining jurisdiction and granting the special appearance of the child’s mother,
appellee Miwa Shinzato B. In three points, Keith contends that the trial court’s
ruling that it had jurisdiction at the time of the 2003 divorce cannot now be
attacked, that full faith and credit should be given the trial court’s 2003
1
… See T EX. R. A PP. P. 47.4.
custody determination under the Parental Kidnapping Prevention Act, and that
his appearance before a Japanese court and the Japanese judgment entered
after the trial court’s divorce decree did not result in a transfer of continuing
jurisdiction from Texas to Japan. We affirm.
The child was born on March 21, 2000, in Kentucky. In March 2001,
she and Miwa moved to Japan, where they lived until September 2002. At
that point, they returned to the United States and lived with Keith in Lewisville,
Texas. Almost three months later, on December 17, 2002, Miwa went back
to Japan, leaving the child with Keith. Approximately three months later, on
March 19, 2003, Miwa returned to Lewisville to discuss a proposed agreed
divorce with Keith; she went back to Japan with the child on March 27, 2003.
She and the child have lived in Japan since that time. In all, the child lived in
Lewisville, Texas, approximately six months.
On April 3, 2003, a week after Miwa took the child back to Japan, Keith
filed for divorce in Denton County. On August 15, 2003, the trial court signed
a default judgment granting the Brockways’ divorce, naming Keith as sole
managing conservator with the right to establish the primary residence of the
child, and naming Miwa as possessory conservator with no standard visitation
rights.
2
In September 2003, Keith traveled to Japan, and he took the child from
her mother on September 14. On September 16, Miwa filed a petition in Japan
for custody; according to Keith’s brief and his lawyer’s argument at the hearing,
Keith also filed a petition for divorce and custody in Japan in September 2003.
Later in the month, Keith relinquished the child to Miwa at the airport and
returned to the United States alone. He moved to Connecticut.
Almost two years later, in August 2005, Keith filed a motion for
enforcement of possession or access and a petition for writ of habeas corpus
in the trial court in Denton County. On November 14, 2005, Miwa filed a
special appearance and request for the trial court to decline jurisdiction. At
some point after Keith filed the motion to enforce but before the trial court
heard the special appearance on November 27, 2006, the Japanese court ruled
on Keith and Miwa’s competing petitions in Japan (it is unclear whether these
are the original petitions filed in September 2003 or subsequent petitions). The
Japanese court decided that Keith should continue to have “sole custody” but
that Miwa should have physical custody. In its judgment, the Japanese court
pointed out that Miwa and the child have lived in Japan since March 2003 and
that Keith has a home of his own in Connecticut. The Denton County trial
court declined jurisdiction and granted Miwa’s special appearance on February
16, 2007.
3
Under the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), we treat Japan as a sister state.2 Section 152.202 of the family
code provides that in cases like this,
(a) . . . [A] court of this state which has made [an initial] child
custody determination . . . has exclusive continuing jurisdiction
over the determination until:
(1) a court of this state determines that neither the child, nor
the child and one parent, nor the child and a person acting as a
parent have a significant connection with this state and that
substantial evidence is no longer available in this state concerning
the child’s care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines
that the child, the child’s parents, and any person acting as a
parent do not presently reside in this state.3
If a provision of the UCCJEA conflicts with any other law in this state, and the
conflict cannot be reconciled, the UCCJEA prevails.4
The record in the trial court shows that at the time the motion to enforce
was filed, Miwa and the child lived in Japan, Keith lived in Connecticut, and the
parents’ petitions were pending in Japan. During the pendency of the Denton
County proceedings, the Japanese court determined that it had jurisdiction and
exercised it, and it also pointed out in its judgment that at the time of the
2
… See T EX. F AM. C ODE A NN. § 152.105 (Vernon 2002).
3
… Id. § 152.202(a).
4
… Id. § 152.002.
4
judgment, Miwa and the child lived in Japan and Keith lived in Connecticut.
Consequently, we cannot say that the Denton County trial court erred by
declining jurisdiction and granting Miwa’s special appearance in this case.5 We
overrule all of Keith’s points and affirm the trial court’s judgment.
PER CURIAM
PANEL F: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
DELIVERED: June 26, 2008
5
… See id.; In re Lewin, 149 S.W.3d 727, 736–37 (Tex. App.—Austin
2004, orig. proceeding) (holding that trial court erred by failing to recognize that
Canadian court had already determined that neither the parents nor the child
resided in Texas).
5