Roy Anthony Frazer, Jr v. Kendra Hall ( 2012 )

Opinion issued June 14, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00505-CV

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Roy Anthony Frazer Jr., Appellant

V.

Kendra Hall, Appellee

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Case No. 60997

MEMORANDUM OPINION

          Appellant Roy Anthony Frazer Jr. filed suit in Brazoria County to adjudicate parentage and conservatorship of a child born in California.  Kendra Hall, the mother of the child, filed a special appearance and plea to the jurisdiction.  The trial court granted Hall’s special appearance and plea to the jurisdiction. On appeal, Frazer argues the trial court abused is discretion in declining to exercise jurisdiction over his parentage action.  We affirm.

Background

The child’s mother, Hall, resided in West Columbia, Texas before the child’s birth. Hall moved to California in November of 2010, and the child was born December 21, 2010 in Huntington Beach, California.   

On November 24, 2010, Frazer filed a Petition to Adjudicate Parentage.  In his petition, Frazer sought to establish parentage, and he also sought to be named the sole managing conservator or, in the alternative, joint managing conservator of the child.  On January 11, 2011, Hall filed a special appearance, special exceptions, and plea to the jurisdiction.  In her special appearance, Hall argued that because she was a resident of California and not domiciled in Texas, the trial court lacked personal jurisdiction over her. She also argued that the court lacked subject-matter jurisdiction to adjudicate parentage or conservatorship because under Texas Family Code Section 152.102(7) the home state of the child was California, not Texas.  Tex. Fam. Code Ann. § 152.102(7) (West 2008) (defining home state in the case of a child less than six months old to be “the state in which the child lived from birth with a parent or person acting as a parent”).  In the alternative, Hall argued that the trial court should decline to exercise jurisdiction and stay proceedings to allow her to file suit in California.

At the time of the trial court’s hearing on Hall’s special appearance and plea to the jurisdiction, Hall had not filed a suit for child support, visitation, or custody in California.  Hall testified that she left Texas on November 1, 2010, arrived in California on November 3, 2010, and planned to start school in California the month after the hearing.  According to Hall, the child was conceived in Texas and she received some pre-natal care in Texas.  Although Frazer accompanied Hall to one pre-natal visit, according to Hall he did not pay for any expenses associated with the visit.  She admitted that Frazer helped her by providing her access to his debit card. Hall testified that although she tried to identify Frazer as the child’s father on the birth certificate, she was not allowed to do so because the California hospital required Frazer’s signature.  

At the conclusion of the hearing, the trial court found it had personal jurisdiction but declined to exercise it: 

Court: Based on the evidence before the Court and the Texas Family Code, this Court may exercise personal jurisdiction. However, it is declining to exercise personal jurisdiction. This hearing is adjourned.

Hall’s Attorney: And subject matter jurisdiction, Your Honor?

Court: As well.

The trial court’s order states:

After consideration of the pleadings, the testimony and evidence presented and argument of counsel with review of applicable cases and law, the Court specifically finds that it may exercise personal jurisdiction (pursuant to Texas Family Code Section 159.001 et seq.) over the Respondent but the Court declines to exercise personal jurisdiction. Furthermore, the court specifically finds that it may exercise subject matter jurisdiction (pursuant to the Texas Family Code Section 152.001 et seq.); however, the Court declines to exercise subject matter jurisdiction. 

The trial court filed findings of fact and conclusions of law at Frazer’s request.  In the findings, the trial court concluded that Texas was not the child’s home state and that the trial court lacked subject matter jurisdiction to adjudicate conservatorship or possession.  It also found that Frazer and Hall engaged in sexual intercourse in Texas and the child may have been conceived in Texas.  Although the trial court concluded this was a basis for jurisdiction under Texas Family Code section 159.201(a)(6), it concluded that in light of “the minimal contact of the child with this state, assumption of jurisdiction over Respondent by this court would offend traditional notions of fair play and substantial justice.”  See Tex. Fam. Code Ann. § 159.201(a)(6) (West 2008).  The findings of fact also state that Frazer and Hall are the parents of the child.

Analysis

Frazer does not contest the trial court’s finding that the child’s home state is California, nor does he argue that the trial court erred in declining to exercise jurisdiction to adjudicate conservatorship.  See Tex. Fam. Code Ann. § 152.201.  Frazer’s sole argument on appeal is that the trial court abused its discretion in declining to exercise jurisdiction to adjudicate parentage under Family Code section 159.201.  We review the trial court’s denial of personal jurisdiction under section 159.201 for abuse of discretion.  See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (trial court abuses discretion when it reaches decision so arbitrary and unreasonable as to amount to clear and prejudicial error of law); Dickerson v. Doyle, 170 S.W.3d 713, 718 (Tex. App.—El Paso 2005, no pet.) (reviewing trial court’s decision to decline jurisdiction under the doctrine of forum non conveniens for abuse of discretion).

The Uniform Parentage Act provides that the necessary parties in a proceeding to adjudicate parentage are the mother of the child and the man whose paternity of the child is to be adjudicated.  See Tex. Fam. Code Ann. § 160.603 (West 2009). The Act mandates that an individual may not be adjudicated a parent unless the court has personal jurisdiction over the individual.  Id. § 160.604(a) (West 2008).  Subsection (b) provides that a court having jurisdiction to adjudicate parentage “may exercise personal jurisdiction over a nonresident individual or the guardian or conservator of the individual if the conditions in Section 159.201 are satisfied.”  See id. § 160.604(b).  Texas Family Code section 159.201, a long-arm statute within the Uniform Interstate Family Support Act, allows the court to exercise personal jurisdiction under certain circumstances including when the parties “engaged in sexual intercourse in the State of Texas and the child may have been conceived by the act of intercourse.”  Tex. Fam. Code Ann. § 159.201(a)(6).

          In its findings of facts and conclusions of law, the trial court found that although Hall had intercourse in the State of Texas and the child may have been conceived by that act, assumption of jurisdiction over Frazer would offend traditional notions of fair play and substantial justice.  See id.  Whether the contacts were sufficient to allow it to exercise personal jurisdiction is not a question this court must resolve because regardless of whether they were, the trial court declined to exercise jurisdiction, as permitted by the statute.  Texas Family Code section 159.201 states that a court may exercise personal jurisdiction over a non-resident if one of the enumerated bases for jurisdiction exists.  Id. § 159.201(a).  Because the statute is permissive rather than mandatory, the trial court was within its discretion to decline jurisdiction, and we find no abuse of discretion.  See Dickerson, 170 S.W.3d at 721 (holding under section 159.201 it is within trial court’s discretion to decline to exercise jurisdiction even if it could exercise personal jurisdiction).

          Because we conclude the trial court did not abuse its discretion in declining to exercise personal jurisdiction, we need not reach Frazer’s argument that the trial court erred in declining to exercise subject-matter jurisdiction. 

Conclusion

          We affirm the judgment of the trial court. 

                                                                   Rebeca Huddle

                                                                   Justice

Panel consists of Justices Higley, Sharp, and Huddle.