Michael Lesem v. Liane Mouradian , 2013 Tex. App. LEXIS 8052 ( 2013 )

Opinion issued July 2, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-01161-CV
———————————
MICHAEL LESEM, Appellant
V.
LIANE MOURADIAN, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2001-32761
OPINION
In this child custody and child support modification proceeding, Michael
Lesem filed a motion for enforcement against his ex-wife, Liane Mouradian, after
she allegedly failed to return their minor son, J.M.L., to Michael’s possession.
Liane filed a motion for modification and also requested that the trial court decline
jurisdiction and transfer the case to Florida, where she had been living with J.M.L.
for over a year. The trial court granted Liane’s motion and transferred the case to
Florida. In three issues, Michael contends that (1) the trial court erroneously
transferred the child custody portion of the proceedings to Florida because transfer
must be based on either the “significant connection” test or inconvenient forum
grounds, and the trial court did not make findings on either of these grounds;
(2) the trial court erroneously transferred the child support portion of the
proceedings to Florida because transfer of such proceedings is not permissible
when the obligee parent continues to reside in Texas; and (3) an evidentiary
hearing is required before a court can dismiss under the significant connection test
or inconvenient forum grounds.
We affirm in part and reverse and remand in part.
Background
The trial court signed a final decree of divorce on June 29, 2002. In the
divorce decree, the trial court appointed Michael and Liane joint managing
conservators of J.M.L. and gave Liane the exclusive right to establish J.M.L.’s
primary residence. The court ordered that Michael was to have possession of
J.M.L. pursuant to a Standard Possession Order. The divorce decree also obligated
Michael to pay child support for J.M.L.’s benefit to Liane.
2
On July 27, 2007, the trial court modified the final divorce decree. The
modified order provided that Michael and Liane were to remain joint managing
conservators of J.M.L., but it bestowed upon Michael the exclusive right to
establish J.M.L.’s primary residence. The order set out Liane’s visitation schedule
and provided that, beginning in the summer of 2009, Liane was to have possession
of J.M.L. each summer from July 1 until July 21. The order modified the child
support obligations to require Liane to pay child support for J.M.L.’s benefit to
Michael.
On August 10, 2012, Michael filed a “Motion for Enforcement of Possession
or Access” alleging that Liane had refused to surrender possession of J.M.L. on
July 21, 2012, in violation of the July 27, 2007 modified order. Michael informed
the trial court that Liane had filed a custody suit in Palm Beach County, Florida, in
April 2012, and he requested that the trial court order Liane to cease pursuit of the
Florida case due to the Texas court’s continuing, exclusive jurisdiction.
In response, Liane filed with the trial court a petition to modify the parent-
child relationship, seeking to further modify the July 27, 2007 modified order.
Liane alleged that Michael had voluntarily relinquished primary care and
possession of J.M.L. to her for more than six months, and she requested that she be
named the party with the exclusive right to designate J.M.L.’s residence and that
Michael have possession pursuant to a Standard Possession Order. Liane also
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requested that the trial court modify the child support order to provide that she
have the right to receive child support payments from Michael for J.M.L.
In her modification petition, Liane informed the trial court that J.M.L.’s
principal residence was, and had been for at least the preceding six months, in
Palm Beach County, Florida. She requested a transfer of the proceedings to the
Florida court “[f]or the convenience of the parties and witnesses and in the interest
of justice” and alleged the following in support of this request:
Except for Respondent, MICHAEL LESEM, all the parties, including
the child affected by the proceedings, and any potential witnesses
related to the child’s education, health, and well-being reside outside
Texas. Petitioner, LIANE MOURADIAN, and the child the subject
of this suit reside in Palm Beach County, Florida, and venue is proper
in that county.
....
The child affected by this proceeding does not reside in Texas. Palm
Beach County, Florida is the county most appropriate to serve the
convenience of Petitioner, the child the subject of this suit, and the
witnesses and the interest of justice, and venue is proper in that
county.
Liane also alleged that J.M.L. had health concerns and was under the care of
physicians in Florida. All witnesses that could testify about this issue, and about
J.M.L.’s health since May 2011, were located in Florida.
Liane simultaneously filed a separate motion to transfer and request for the
trial court to decline jurisdiction. In this motion, Liane reiterated that she has had
“actual care, custody, and control” of J.M.L. since May 2011, and she stated the
4
same grounds for transfer that she had raised in her modification petition. Liane
requested that the trial court decline jurisdiction and dismiss the case because
Texas is an inconvenient forum for a custody determination. Liane also requested
that the trial court confer with the Florida court pursuant to Family Code section
152.110 before declining jurisdiction. See TEX. FAM. CODE ANN. § 152.110(b)
(Vernon 2008) (“A court of this state may communicate with a court in another
state concerning a proceeding arising under this chapter.”). The next day, Liane
filed an amended motion for modification. She attached an affidavit to this motion
in which she averred that J.M.L. had lived with Michael in Texas until May 2011,
that Michael voluntarily relinquished the primary care and possession of J.M.L. to
her, and that J.M.L. had lived exclusively with her and attended school in Florida
since May 2011 with Michael’s knowledge and consent.
In response to Liane’s modification motion, Michael argued that Texas was
the more convenient forum for addressing custody matters because the trial court
spent six years resolving issues relating to the parties’ divorce and custody of
J.M.L., which gave it greater familiarity with the particular case; J.M.L. was born
and resided in Texas for eleven and a half years before spending the preceding
fifteen months in Florida with Liane; and J.M.L.’s residence in Florida was
intended to be temporary. Michael requested that the trial court deny Liane’s
motion to transfer and retain jurisdiction over all issues relating to J.M.L.
5
Liane submitted a bench brief to the trial court in support of her motion to
transfer. In this bench brief, Liane addressed each of the statutory factors relevant
for the trial court to determine whether Texas was an inconvenient forum. See
TEX. FAM. CODE ANN. § 152.207(b) (Vernon 2008). Liane acknowledged that the
trial court had continuing, exclusive jurisdiction over the case, but she argued that
because J.M.L. had resided with her in Florida for the last sixteen months, all of
the information relevant to the modification suit was located outside of Texas, and,
therefore, the trial court should decline jurisdiction. She argued that “[a]ll
information pertaining to the child’s education, living conditions, home life,
school, and [health care] needs” is located in Florida and that “there is little, if any,
substantial evidence in Texas relating to the child’s current circumstances, care,
health, and well-being.” As evidence, Liane attached e-mail correspondence
between her and Michael, indicating that Michael paid tuition for J.M.L. to attend
school in Florida, that Michael had purchased a computer for J.M.L. and had it
shipped to his school in Florida, that J.M.L. had visited Michael in Houston
twice—once in September 2011 for three days and once in December 2011 for four
days—since he had moved to Florida, and that Michael, a psychiatrist, agreed to
research physicians in the Boca Raton area for J.M.L.
The trial court held a hearing on Liane’s motion to transfer on October 5,
2012. Liane’s and Michael’s counsel attended in person, and the trial judge of the
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Palm Beach County court was present by telephone. Liane’s counsel argued that
because J.M.L. had resided in Florida for the previous sixteen months and all of the
evidence relevant to his health care was located in Florida, Texas was an
inconvenient forum. Michael’s counsel argued that there is relevant evidence
located in Texas: the trial court oversaw six years of litigation concerning J.M.L.,
J.M.L. has family and extended family in Houston, and J.M.L. lived in Houston for
eleven and a half years before moving to Florida with Liane. Michael’s counsel
also argued that the hearing was not “noticed for a forum non-convenience
hearing,” and he requested that the trial court hold such a hearing on “proper
notice” and allow the parties to present evidence.
The trial court stated at the hearing that it was uncontroverted that Florida
was now J.M.L.’s home state and that the fact that Michael had intended for J.M.L.
to stay with Liane only temporarily was irrelevant to that determination. The trial
court also stated that it could not consider any evidence predating the order to be
modified, the July 27, 2007 order. The court concluded that, under the Uniform
Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), it did not “have to
hear any evidence because [it has an] uncontroverted stipulation that the child has
been out of the State of Texas for six months.” The court also noted that it has
“absolute authority” to cede its continuing jurisdiction to Florida and indicated its
7
willingness to do so. The trial court then determined that it no longer had
continuing, exclusive jurisdiction, and it ceded jurisdiction to the Florida court.
On October 12, 2012, the trial court granted Liane’s motion to transfer. In
the order, the trial court stated that it “cedes jurisdiction over this matter to Palm
Beach County, Florida.”
Michael subsequently filed a motion to reconsider. In this motion, Michael
argued that the trial court did not hear evidence on whether J.M.L. retained a
significant connection to Texas, nor did it hear evidence concerning the statutory
factors relating to whether Texas was an inconvenient forum. He also argued that
because the trial court did not make findings concerning whether J.M.L. had a
significant connection to Texas or whether Texas was an inconvenient forum,
“there is no basis on which this Court can defer jurisdiction to Florida . . . .” He
further contended that the trial court could not transfer issues concerning child
support to Florida, regardless of whether Florida was now J.M.L.’s home state,
because Michael, the obligee under the July 27, 2007 modified order, still resided
in Texas. Michael also requested, in this motion, that the trial court file findings of
fact and conclusions of law.
The trial court denied Michael’s motion to reconsider on December 12,
2012, and dismissed the case. This appeal followed.
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Transfer of Child Custody Proceedings
In his first issue, Michael contends that the trial court erroneously
transferred the custody portion of the modification suit to Florida because the trial
court did not make findings either that J.M.L. no longer had a significant
connection to Texas or that Texas was an inconvenient forum, and a determination
that Florida is now J.M.L.’s home state is insufficient to support transfer.
The UCCJEA governs jurisdiction over child custody issues between Texas
and other states. In re Isquierdo, No. 01-11-00193-CV, 2012 WL 2455074, at *2
(Tex. App.—Houston [1st Dist.] June 28, 2012, orig. proceeding). The UCCJEA
was enacted “to clarify and to unify the standards for courts’ continuing and
modification jurisdiction in interstate child-custody matters.” In re Forlenza, 140
S.W.3d 373, 374 (Tex. 2004) (orig. proceeding). Family Code section 152.201(a)
is the “exclusive jurisdictional basis for making a child-custody determination by a
court of this state,” and it provides that Texas has jurisdiction to make an initial
child-custody determination if one of four circumstances are met. 1 See Waltenburg
v. Waltenburg, 270 S.W.3d 308, 313 (Tex. App.—Dallas 2008, no pet.) (discussing
Family Code section 152.201(b)); see also TEX. FAM. CODE ANN. § 152.102(8)
(Vernon 2008) (defining “initial determination” as “the first child custody
determination concerning a particular child”). One of these circumstances is
1
It is uncontroverted that the Texas court had jurisdiction to make an initial child-
custody determination in this case.
9
whether Texas is the “home state” of the child on the date of the commencement of
the proceeding. TEX. FAM. CODE ANN. § 152.201(a)(1) (Vernon 2008). The
Family Code defines “home state” as “the state in which a child lived with a
parent . . . for at least six consecutive months immediately before the
commencement of a child custody proceeding.” Id. § 152.102(7).
Generally, once Texas makes a child-custody determination, Texas retains
“exclusive continuing jurisdiction” over the determination until “a court of this
state determines that neither the child, nor the child and one 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.” TEX. FAM. CODE ANN. § 152.202(a)(1) (Vernon 2008); In re
Forlenza, 140 S.W.3d at 375 (“Article 2 of the UCCJEA specifically grants
exclusive continuing jurisdiction over child-custody disputes to the state that made
the initial custody determination and provides specific rules on how long this
jurisdiction continues.”).
A court that has continuing jurisdiction to make a child-custody
determination may decline to exercise its jurisdiction if “it determines that it is an
inconvenient forum under the circumstances and that a court of another state is a
more appropriate forum.” TEX. FAM. CODE ANN. § 152.207(a); Monk v. Pomberg,
263 S.W.3d 199, 205 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Before
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determining if it is an inconvenient forum, the Texas court shall consider whether
it is appropriate for the court of another state to exercise jurisdiction. TEX. FAM.
CODE ANN. § 152.207(b). To make this determination, the court “shall allow the
parties to submit information and shall consider all relevant factors” including:
(1) whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the
parties and the child;
(2) the length of time the child has resided outside this state;
(3) the distance between the court in this state and the court in the
state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume
jurisdiction;
(6) the nature and location of the evidence required to resolve the
pending litigation, including testimony of the child;
(7) the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and
(8) the familiarity of the court of each state with the facts and
issues in the pending litigation.
Id. If the Texas court determines that it is an inconvenient forum and that the court
of another state is a more appropriate forum, the Texas court shall stay the
proceedings upon the condition that child custody proceedings be commenced
promptly in the other state, and the Texas court may impose “any other condition
the court considers just and proper.” Id. § 152.207(c).
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When, as here the trial court does not file findings of fact and conclusions of
law, we imply all necessary findings of fact to support the trial court’s order. In re
W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.) (citing
Waltenburg, 270 S.W.3d at 312); Touradji v. Beach Capital P’ship, L.P., 316
S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (stating that when
trial court does not issue fact findings, we presume that court resolved all factual
disputes in favor of its ruling). When the appellate record includes a reporter’s
record, the trial court’s implied findings may be challenged for legal and factual
sufficiency. In re W.C.B., 337 S.W.3d at 513. In a legal sufficiency review, we
consider the evidence in the light most favorable to the trial court’s order and
indulge every reasonable inference that supports it. Id. (citing City of Keller v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). In a factual sufficiency challenge, we
consider all the evidence and determine whether the evidence supporting the order
is so weak or so against the overwhelming weight of the evidence that the order is
clearly wrong and manifestly unjust. Id. (citing City of Keller, 168 S.W.3d at 822).
In family law cases, because the abuse of discretion standard of review
overlaps with traditional sufficiency of evidence standards of review, legal and
factual sufficiency are not independent grounds of reversible error, “but instead are
factors relevant to our assessment of whether the trial court abused its discretion.”
Id. (citing In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.)).
12
The trial court does not abuse its discretion if “some evidence of a substantial and
probative character exists to support the trial court’s decision.” Id. (citing In re
S.E.K., 294 S.W.3d 926, 930 (Tex. App.—Dallas 2009, pet. denied)).
Here, Michael argues that the trial court impermissibly based its decision to
transfer the case solely on the fact that Florida is now J.M.L.’s home state, which is
not a valid basis to decline jurisdiction. He argues that because the trial court
failed to make findings either that J.M.L. lacks a significant connection to Texas or
that Texas is an inconvenient forum, there is “no basis on which Texas can defer
jurisdiction to Florida.” We disagree.
The trial court stated on the record at the October 5, 2012 hearing that it was
uncontroverted that J.M.L.’s home state was now Florida and that it had “absolute
authority to cede my continuing jurisdiction [to] the State of Florida.” In its order
granting Liane’s motion to transfer, the trial court stated only that it ceded
jurisdiction over the matter to Palm Beach County, Florida. It did not state, either
in this order or in the order denying Michael’s motion for reconsideration, its
rationale for transferring the case. The trial court did not file findings of fact and
conclusions of law.
Liane specifically argued in her motion to transfer that the trial court should
decline jurisdiction because J.M.L. lacked a significant connection to Texas and
because Texas was an inconvenient forum. Because the trial court did not file
13
findings and conclusions, we imply all findings necessary to support the trial
court’s judgment, including findings that J.M.L. lacks a significant connection to
Texas and that Texas is an inconvenient forum. See Waltenburg, 270 S.W.3d at
319 (noting that, generally, appellate court implies all findings necessary to support
judgment, but will not “imply that the court’s ruling is based on a ground not
asserted in the motion on which the court stated it was ruling.”). Although
Michael does not challenge on appeal the sufficiency of the evidence to support
these implied findings, we briefly address the information before the trial court that
supports these findings.
Liane attached an affidavit to her amended modification motion in which she
averred that J.M.L. had lived with Michael in Texas until Michael “voluntarily
relinquished the primary care and possession” of him in May 2011. Since that
time, J.M.L. had lived with Liane in Palm Beach County, with Michael’s
knowledge and consent, and attended school in Florida. Liane also submitted to
the trial court a bench brief, in which she addressed each of the statutory factors
relevant to a determination that Texas was an inconvenient forum as enumerated in
section 152.207(b).2 She stated that she and J.M.L. had been residing together in
2
Liane’s bench brief did not address the first statutory factor—whether domestic
violence had occurred and was likely to continue—and there is no indication in the
record that domestic violence was an issue in this case. See TEX. FAM. CODE
ANN. § 152.207(b)(1) (Vernon 2008); see also Hart v. Kozik, 242 S.W.3d 102, 112
(Tex. App.—Eastland 2007, no pet.) (“If no evidence of a particular factor is
14
Palm Beach County for over sixteen months and that J.M.L. attended school in
Florida. She argued that the distance between Texas and Florida “renders any
Florida witnesses to the child’s current living conditions and circumstances to be
outside of the subpoena range” and renders the costs and time restraints associated
with an investigation by an amicus attorney “expensive and highly burdensome.”
She stated that she currently works as a nurse consultant for a home health care
agency and that she has limited financial resources to participate in litigation in
Texas and to transport J.M.L. to Texas “for any necessary [a]micus interviews or
appearances.” She stated that Michael, on the other hand, is a psychiatrist and the
owner of a research clinic in Houston and that he has “ample financial resources to
participate in a long-distance litigation in Florida,” such that requiring him to
litigate the modification suit in Florida “would be significantly less financially
burdensome” on him than requiring her to litigate in Texas.
Liane attached to her bench brief several e-mails from Michael concerning
(1) Michael’s payment of tuition for J.M.L.’s Florida school; (2) Michael’s
purchase of a laptop for J.M.L. that he had shipped to J.M.L.’s Florida school;
(3) Michael’s purchase of a roundtrip airplane ticket for J.M.L. to travel to
Houston and return to Florida for three days in September 2011; and (4) Michael’s
offer to research potential physicians for J.M.L. in the Boca Raton, Florida area.
offered, we cannot say that the trial court abused its discretion by failing to make a
fact finding.”).
15
Liane argued that these actions showed Michael’s “intent and agreement for the
child to remain in Florida.”
Liane also stated that the testimony of J.M.L.’s doctors and teachers would
be necessary in the underlying modification suit and that J.M.L. has an established
relationship with health care professionals in Florida. She argued that it would be
cost-prohibitive for these potential witnesses to travel to Texas to give any
necessary testimony in the modification proceeding and that it would be more
efficient to handle the proceedings in Florida. Liane acknowledged that the Texas
court had previously addressed issues concerning J.M.L., but she argued that
J.M.L.’s circumstances had materially and substantially changed since the last
modification proceeding in 2007, requiring the presentation of “five years of new
information about the child to the Court.” She also pointed out that she had filed a
modification suit in Palm Beach County in April 2012, to which Michael never
responded, leading to a default judgment. She argued that the Florida court was
therefore familiar with the facts and issues in the litigation.
Based on the information available to the trial court, we conclude that the
evidence supports an implied finding that Texas is an inconvenient forum and
therefore supports the trial court’s decision to transfer the custody modification
proceeding to Florida. See Monk, 263 S.W.3d at 211 (holding that evidence
supported inconvenient forum finding when child had lived in Iowa for
16
approximately two years before trial; evidence was presented that child had
extensive family connections, attended school, participated in extracurricular
activities, and received psychiatric treatment in Iowa; child visited non-custodial
parent in Texas for several weeks each summer and spoke with him “most
Sundays”; custodial parent was employed in Iowa and record was silent about non-
custodial parent’s employment in Texas; record contained no indication of
domestic violence; and parties did not agree on which state should assume
jurisdiction); see also Isquierdo, 2012 WL 2455074, at *5 (“[T]he mere fact that
[the father] continues to reside in Texas does not support the trial court’s exercise
of exclusive continuing jurisdiction over the modification proceeding brought by
[the father].”).
We overrule Michael’s first issue.
Necessity of Evidentiary Hearing
In his third issue, Michael contends that the trial court erroneously
transferred the proceedings to Florida without holding an evidentiary hearing,
which is required by both section 152.202, relating to whether J.M.L. has a
significant connection to Texas, and section 152.207, relating to whether Texas is
an inconvenient forum.
Section 152.207(b) provides that, before a Texas court determines whether it
is an inconvenient forum, it shall consider whether it is appropriate for a court of
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another state to exercise jurisdiction. TEX. FAM. CODE ANN. § 152.207(b). “For
this purpose, the court shall allow the parties to submit information and shall
consider all relevant factors,” including the statutorily enumerated factors. Id.
This section does not explicitly state that the trial court must hold an evidentiary
hearing before making a determination that Texas is an inconvenient forum.
In Dickerson v. Doyle, the El Paso Court of Appeals addressed whether the
trial court denied Dickerson a hearing on the Doyles’ forum non conveniens
motion when it held a hearing concerning the Doyles’ special appearance, heard
evidence relating to the special appearance which also encompassed the section
152.207(b) factors, and subsequently declined to exercise jurisdiction over the
case. See 170 S.W.3d 713, 719 (Tex. App.—El Paso 2005, no pet.). In affirming
the trial court’s determination, the El Paso court noted that section 152.207 allows
the trial court to decline jurisdiction on its own motion, “provided that the court
allows the parties to submit information.” Id. at 720. Because Dickerson made no
showing that he was not allowed to submit relevant information, nor had he
articulated the information that he would have elicited had he been afforded an
opportunity to do so at a hearing, the court held that the trial court did not err. Id.;
see also In re D.T.C., No. 09-08-00388-CV, 2009 WL 2045312, at *4 (Tex.
App.—Beaumont July 16, 2009, no pet.) (mem. op.) (affirming order of trial court
determining that Texas was inconvenient forum despite failure to hold evidentiary
18
hearing when parties provided affidavits concerning relevant factors and “the trial
court was well acquainted with this case and the parties”); In re M.Y.C., No. 04-06-
00895-CV, 2007 WL 2935482, at *2 (Tex. App.—San Antonio Oct. 10, 2007, no
pet.) (mem. op.) (affirming inconvenient forum determination despite no
evidentiary hearing when information before trial court “included some of the
factors enumerated under section 152.207(b)” and appellant “has not shown that he
was not allowed to submit relevant information for the trial court’s
determination”).
Here, there is no indication that the trial court did not allow Michael an
opportunity to present relevant evidence. Although the trial court did not hear
testimony at the October 5, 2012 hearing, it stated on the record that counsel could
have brought their clients to the hearing. Additionally, Liane submitted an
affidavit with her amended motion to modify and a bench brief with exhibits
attached as support for her motion to transfer. Michael did not avail himself of
these methods of presenting relevant information to the trial court, but there is no
indication in the record that he was prevented from doing so. Moreover, Michael
has not articulated the information that he would have elicited had the trial court
held a full evidentiary hearing on Liane’s motion to transfer, nor has he identified
any fact issue that he would have disputed at such a hearing. See Dickerson, 170
S.W.3d at 720; see also Razo v. Vargas, 355 S.W.3d 866, 871–74 (Tex. App.—
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Houston [1st Dist.] 2011, no pet.) (holding, in case involving registration and
enforcement of foreign child custody decrees, that although relevant statute did not
explicitly require evidentiary hearing, such hearing was required under facts of
case because aggrieved party presented bill of exceptions demonstrating that
material fact issues in case were controverted).
We conclude that section 152.207 does not require the trial court to hold an
evidentiary hearing before it makes a determination that Texas is an inconvenient
forum. 3 We therefore hold that the trial court did not err by granting Liane’s
motion to transfer without holding an evidentiary hearing.
We overrule Michael’s third issue.
Transfer of Child Support Proceedings
In his second issue, Michael contends that the trial court erroneously
transferred the child support portion of the modification suit to Florida because he
is the obligee parent under the July 27, 2007 modified order, and he continues to
reside in Texas.
The Uniform Interstate Family Support Act (“UIFSA”) was enacted to
“streamline and expedite interstate and intrastate enforcement of [child] support
decrees.” Cowan v. Moreno, 903 S.W.2d 119, 121 (Tex. App.—Austin 1995, no
3
Because the trial court could have based its decision to grant Liane’s motion to
transfer and dismiss the case solely on section 152.207, we need not address
whether section 152.202, concerning whether J.M.L. has a significant connection
to Texas, requires an evidentiary hearing.
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writ). UIFSA applies when a party seeks to modify a support order issued by
another state, and a party seeking modification of another state’s support order
must establish that UIFSA grants jurisdiction to modify. See In re T.L., 316
S.W.3d 78, 83 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Family Code
section 159.205(a) provides that a Texas court that has issued a child support order
“has and shall exercise continuing, exclusive jurisdiction to modify its order if the
order is the controlling order and . . . at the time a request for modification is filed,
this state is the state of residence of the obligor, the individual obligee, or the child
for whose benefit the support order is issued.” TEX. FAM. CODE ANN.
§ 159.205(a)(1) (Vernon 2008); In re T.L., 316 S.W.3d at 83 (“Jurisdiction under
the UIFSA rests upon the concept of continuing, exclusive jurisdiction to establish
and modify the levels of child support due a particular child.”). Here, Texas is the
state of residence of Michael, the obligee.
Once a Texas court that has jurisdiction enters a support decree, that court is
the only court entitled to modify the decree as long as the court retains continuing,
exclusive jurisdiction. In re T.L., 316 S.W.3d at 83. A court of another state may
enforce the Texas support decree under UIFSA, but that court has no authority
under UIFSA to modify the support decree “so long as one of the parties remains
in the issuing state.” Id.; In re Casseb, 119 S.W.3d 841, 843 (Tex. App.—San
Antonio 2003, no pet.) (“[T]he court in Bexar County has continuing exclusive
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jurisdiction over its support order because section 159.205(a) provides that Bexar
County has such jurisdiction until no party resides in the state or all parties consent
to the transfer of jurisdiction to another state.”); cf. In re B.O.G., 48 S.W.3d 312,
317 (Tex. App.—Waco 2001, pet. denied) (holding that issuing court lacked
jurisdiction to modify child support order when obligor parent had moved to
Canada and obligee parent and child had moved to Virginia). “Only if the issuing
state no longer has a sufficient interest in the modification of its order may the
responding state assume the power to modify it . . . .” In re T.L., 316 S.W.3d at 83;
see also In re Hattenbach, 999 S.W.2d 636, 639 (Tex. App.—Waco 1999, orig.
proceeding) (holding, in mandamus proceeding, that Texas trial court “had no
discretion but to retain the support portion of the proceedings in Texas because the
parties did not agree otherwise”).
Family Code section 159.205 provides two additional ways in which a Texas
court may lose continuing, exclusive jurisdiction to modify a child support order,
neither of which are applicable here. See TEX. FAM. CODE ANN. § 159.205(b)–(c).
Subsection (b) requires that both the obligor and the obligee consent, in a record
filed with the Texas court, that a court of another state that has jurisdiction over at
least one the parties or that is located in the state of residence of the child may
modify the order and assume continuing, exclusive jurisdiction. Id. § 159.205(b).
Michael has resisted the trial court’s efforts to transfer the support modification
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proceeding to Florida, and, thus, he does not consent to Florida assuming
jurisdiction over this proceeding. As a result, Florida may not assume jurisdiction
to modify pursuant to this subsection. Subsection (c) provides that a Texas court
shall recognize the continuing, exclusive jurisdiction of a court of another state if
the other state’s court has issued a child support order that modifies a child support
order of a Texas court under a substantially similar law. Id. § 159.205(c). The
record does not reflect that Florida has issued a child support order modifying the
Texas court’s July 27, 2007 modified order. UIFSA, unlike the UCCJEA, provides
no mechanism for the issuing tribunal—here, the Texas court—to decline to
exercise its continuing, exclusive jurisdiction and transfer jurisdiction to modify a
support order to a court in another state.
It is undisputed that Michael, the obligee parent under the July 27, 2007,
modified order, continues to reside in Texas. Thus, because one party remains in
Texas, the issuing state of the controlling support order—Texas—retains
continuing, exclusive jurisdiction and may not divest itself of jurisdiction and
transfer the support modification proceeding to Florida. See TEX. FAM. CODE ANN.
§ 159.205(a)(1); In re T.L., 316 S.W.3d at 83. We hold that the trial court
erroneously transferred the child support portion of Liane’s modification
proceeding to the Florida court.
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We sustain Michael’s second issue.4
4
Liane also acknowledges in her brief that, pursuant to section 159.205, the trial
court has continuing, exclusive jurisdiction over the child support issues, but she
argues that the UCCJEA and UIFSA have “separate and independent jurisdictional
requirements,” and, therefore, the jurisdiction to modify the support order does not
confer jurisdiction to modify the custody order. She urges this court to hold that,
although the trial court may retain jurisdiction over the support issues, the custody
issues should be transferred to Florida. We note that Family Code section 152.207
contemplates a situation in which the Texas court declines to exercise jurisdiction
over the child custody portion of the proceeding on the basis that Texas is an
inconvenient forum, but retains jurisdiction over another portion of the
proceeding. TEX. FAM. CODE ANN. § 152.207(d) (“A court of this state may
decline to exercise its jurisdiction under this chapter if a child custody
determination is incidental to an action for divorce or another proceeding while
still retaining jurisdiction over the divorce or other proceeding.”); Arnold v. Price,
365 S.W.3d 455, 462 n.4 (Tex. App.—Fort Worth 2011, no pet.); In re
Hattenbach, 999 S.W.2d 636, 639 (Tex. App.—Waco 1999, orig. proceeding)
(“By adopting these uniform acts, [UIFSA and the predecessor to the UCCJEA],
the legislature has created an unsatisfactory situation in which a suit affecting a
parent-child relationship is severed into parallel proceedings in different states.
However, any remedy for this awkward result must come from the legislature, not
the courts.”).
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Conclusion
We affirm the order of the trial court as it relates to the child-custody portion
of Liane’s motions to modify and to transfer. We reverse the order of the trial
court as it relates to the child-support portion of Liane’s motions to modify and to
transfer, and we remand the case to the trial court for further proceedings
consistent with this opinion. All pending motions are dismissed as moot.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Bland.
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