in Re Christina Marie Dixon ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00162-CV
IN RE Christina Marie DIXON
Original Mandamus Proceeding 1
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: May 8, 2019
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Relator, Christina Dixon, asserts the trial court abused its discretion by denying her plea to
the jurisdiction and motion to dismiss for forum non conveniens in the underlying suit affecting
the parent-child relationship. We conditionally grant the petition for writ of mandamus.
BACKGROUND
In 2015, Christina and real party in interest, David Richardson, obtained a divorce in Texas.
They have one child, I.R. At the time of the divorce, Christina was granted the right to determine
I.R.’s primary residence without geographic restrictions. In August 2017, Christina moved with
I.R. to Virginia where they presently live with Christina’s current husband. In November 2018,
David filed a “Petition to Modify the Parent-Child Relationship” in which he asked to be appointed
1
This proceeding arises out of Cause No. 18-1670-CV-C, styled In the Interest of I.R., a Child, pending in the 25th
Judicial District Court, Guadalupe County, Texas, the Honorable William Old presiding.
04-19-00162-CV
the person with the right to determine I.R.’s primary residence or, alternatively, that the terms of
possession and access be modified. Christina then filed a “Plea to the Jurisdiction Or, In the
Alternative, Motion to Dismiss Forum Non Conveniens.” Following a February 15, 2019 hearing,
the trial court signed an order denying Christina’s plea and motion. Christina filed her petition for
writ of mandamus asserting the trial court erred by denying her plea to the jurisdiction and her
motion to dismiss. David filed a response.
EXCLUSIVE CONTINUING JURISDICTION
No party disputes that the Texas court has continuing jurisdiction in this case. However,
Texas Family Code section 152.202 addresses a Texas court’s continuing jurisdiction over child-
custody matters after the initial determination:
Except as otherwise provided in Section 152.204, a court of this state which has
made a child custody determination consistent with Section 152.201 or 152.203 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; . . . .
TEX. FAM. CODE § 152.202(a)(1).
Section 152.202(a)(1) “specifically provides that a court retains exclusive continuing
jurisdiction until it determines that the significant-connection and substantial-evidence
requirements are no longer met.” In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004) (orig.
proceeding) (emphasis in original).
A. Significant Connection
Visitation within the state is evidence of a significant connection. See id. at 376-77 (“To
accommodate the children’s schedule over the years, Ann repeatedly flew to Washington, Ohio,
and Virginia to see them. Robert admit[ed] that Ann made at least fifteen such trips in the four-
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year period under review.”); In re Meekins, 550 S.W.3d 729, 741 (Tex. App.—Houston [1st Dist.]
2018, orig. proceeding) (child spent at least a couple of days per month with Meekins in Texas and
more time during holidays, and child usually spent time with Meekins each weekend, sometimes
traveling to Texas, sometimes traveling to areas in the Midwest, and sometimes staying in Chicago
where the father lived).
Here, Christina and I.R. have lived continuously in Virginia since August 2017, almost
fifteen months, and there is no dispute the child did not visit her father or anyone else in Texas
after the move to Virginia. See In re Isquierdo, 426 S.W.3d 128, 133 (Tex. App.—Houston [1st
Dist.] 2012, orig. proceeding) (no evidence of any visitation within Texas during the last two and
one-half years to support a finding of a “significant connection”; only evidence was that father had
not made any requests to visit his children during the two-year period preceding his petition).
Other factors a court may consider are the child’s relationship with the Texas-based parent
and/or other friends and family who live in Texas. See Forlenza, 140 S.W.3d at 377 (numerous
relatives of both parents lived in Texas and maintained a relationship with the children); In re
A.C.S., 157 S.W.3d 9, 17 (Tex. App.—Waco 2004, no pet.) (father testified his daughters enjoy
playing with their cousins in Houston (his sister’s children), who are close in age).
David testified he last visited with I.R. in early to mid-August 2017, just before she and
her mother moved to Virginia. Since that time, he has only spoken to his daughter via FaceTime.
David said he has attempted to FaceTime his daughter “at least 200 times” or at least once a week
since she moved to Virginia, but, with few exceptions, Christina blocked his calls. At some point,
Christina’s husband contacted David to ask why he was not talking to I.R. and David told him he
could not get a response from Christina. Shortly thereafter, according to David, Christina allowed
him to FaceTime with I.R.
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David said he has not visited his daughter in Virginia because he cannot afford to travel.
When asked about other people in Texas with whom I.R. may have a relationship, David said his
daughter refers to his current father-in-law and mother-in-law as “grandfather and grandmother,”
but he did not state when either they or his own mother had last seen I.R. David also said a friend
who lives across the street asks when I.R. is coming back to Texas. David believed Christina and
I.R. might not remain in Virginia because Christina still owned a house in New Jersey and her
husband was in the military.
Christina testified her husband contacted David because I.R. became upset when her father
did not come for a visit in the summer of 2018. She said I.R. has had no visits to Texas since
August 2017. Christina stated her husband is now retired, she sold her New Jersey house, and the
family has no plans to leave Virginia. She denied blocking David’s calls. She did not agree that
David has a quality relationship with his daughter because their entire communication in 2018
totaled three hours and thirty-four minutes on the telephone.
Although whether Christina blocked David’s calls was in dispute, we conclude the
remaining uncontroverted evidence establishes that neither Christina nor I.R. have had any
“significant relationship” with Texas since August 2017. We next consider whether substantial
evidence is no longer available in Texas concerning I.R.’s care, protection, training, and personal
relationships.
B. Substantial Evidence
Christina testified I.R. attends school in Virginia, her doctors and a play-therapy counselor
are in Virginia, and I.R. takes karate and horseback riding lessons and participates in a swim team
and Girl Scouts in Virginia. Christina said I.R. did not have any doctors in Texas.
When asked if I.R. had a doctor in Texas, David said she had the same pediatrician as his
son and stepdaughter, but he did not know when I.R. last saw this doctor and he had the doctor
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available “just in case.” Other than a relationship with David, and David’s testimony that I.R.
refers to his in-laws as “grandfather and grandmother” and that a neighbor asked about I.R., there
is no evidence in the record about the extent or quality of any personal relationships in Texas that
I.R. may have.
On this record, we conclude the substantial-evidence requirement is no longer met.
CONCLUSION
The record establishes that neither Christina nor I.R. have any significant connection to
Texas and substantial evidence is no longer available in Texas concerning I.R’s care, protection,
training, and personal relationships. Therefore, the trial court erred by denying Christina’s plea to
the jurisdiction. 2
“A writ of mandamus is an appropriate means to require a trial court to comply with the
[the Texas Family Code’s] jurisdictional requirements.” Powell v. Stover, 165 S.W.3d 322, 324
(Tex. 2005) (orig. proceeding). Accordingly, we conditionally grant the petition for writ of
mandamus and direct the trial court to vacate its February 20, 2019 Order denying Christina’s Plea
to the Jurisdiction and Motion to Dismiss Forum Non Conveniens and enter an order granting
Christina’s plea to the jurisdiction within fifteen days of this opinion.
Beth Watkins, Justice
2
Because this issue is dispositive, we do not address whether the trial court erred by denying the motion to dismiss
for forum non conveniens. See TEX. R. APP. P. 47.1.
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