In Re C.J.S., a Child v. the State of Texas ( 2024 )

Opinion issued May 31, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00396-CV
———————————
IN RE C.J.S., A CHILD
On Appeal from the 387th District Court
Fort Bend County, Texas
Trial Court Case No. 21-DCV-281601
OPINION
This is an appeal from a default final order in a suit to establish paternity and
suit affecting the parent-child relationship. The trial court held it had jurisdiction to
make an initial child custody determination under the Uniform Child Custody
Jurisdiction and Enforcement Act, and it subsequently issued a default final order
naming the child’s parents joint managing conservators, awarding the mother
primary conservatorship of the child, ordering supervised visitation for the father,
and ordering the father to pay child support. The child’s father, Zach, filed a post-
judgment motion asking the trial court to set aside the default judgment and to
reconsider its earlier denial of his plea to the jurisdiction. Alternatively, he requested
a new trial. The trial court conducted a hearing on Zach’s post-judgment motion and
denied all requested relief. This appeal ensued.
In his first three issues on appeal, Zach argues (1) the trial court abused its
discretion by denying his motion to set aside the default judgment under the
Craddock standard; (2) the trial court abused its discretion initially by holding it had
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act and
later by denying his request to reconsider the denial of his plea to the jurisdiction;
and (3) the final judgment is void for lack of subject matter jurisdiction.
Alternatively, in issues four and five, Zach argues that (4) the trial court’s orders
regarding conservatorship and possession should be reversed because they were
based on insufficient evidence, ignored applicable legal presumptions, and imposed
restrictions exceeding those necessary to protect the child’s best interest; and (5)
because the trial court’s orders regarding child support and medical support were
“materially influenced” by the potential outcome of the trial court’s rulings on
conservatorship and possession, they too should be reversed. Finally, in issues six
and seven, Zach argues the trial court abused its discretion in awarding (6) attorneys’
2
fees and (7) “generic, unconditional” appellate fees because the fees are not
supported by sufficient evidence.
We reverse the court’s final judgment as to the award of attorneys’ fees and
remand to the trial court for a determination of fees consistent with this opinion. We
affirm the trial court’s final judgment in all other respects.
Background
The child involved in this suit is C.J.S. C.J.S. was three months old at the
time his mother, Victoria, filed the custody proceedings below in March 2021.
C.J.S. was born in Webster, Texas on December 1, 2020. It is undisputed that he
lived in Texas with Victoria during the first five weeks of his life. C.J.S.’s father,
Zach, lives in Louisiana.
In addition to C.J.S., Victoria has two older children from other relationships:
a daughter, “M.G.”, who lives in Texas, and a son, “J.”, who lives in Louisiana.
Victoria shares joint custody with the father of each child. Sometime in January
2021, when C.J.S. was about five weeks old, Victoria began to travel back and forth
to Louisiana so that she could exercise her visitation rights over J. Victoria was
breastfeeding C.J.S. at the time, so she took C.J.S. with her when she traveled to
Louisiana.
On March 4, 2021, while Victoria was in Louisiana, Zach filed a “Rule to
Establish Paternity & Custody for Joint Custody Implementation Plan & for
3
Injunctive Relief” in the 15th Judicial District Court for the Parish of Vermilion,
Louisiana ( “Louisiana Action”). Zach alleged in his petition that jurisdiction was
“proper in the State of Louisiana” because Zach and C.J.S. were domiciled in
Vermillion Parish, Louisiana, and also that “Louisiana [was] the home state of the
child and his domicile for the entirety of his life.” He requested that a temporary
restraining order be issued because “Victoria is threatening to remove the minor
child from the State of Louisiana . . . relocating permanently to the State of Texas.”
The following day, the Louisiana court issued a temporary restraining order
enjoining Victoria from taking C.J.S. out of Louisiana. On March 10, 2021, Victoria
was served with the suit and restraining order at an address in Abbeville, Louisiana,
which Zach alleged was Victoria’s residence in Louisiana.
Victoria does not dispute receiving service of the Louisiana Action or the
issued temporary restraining order. Rather, explaining she believed the Louisiana
court could not exercise jurisdiction over her or C.J.S., Victoria traveled back to
Texas with C.J.S. C.J.S. remained in Victoria’s sole care in Texas until June 24,
2021, when according to Victoria, Zach traveled to Texas to visit C.J.S. and without
her consent, removed C.J.S. from Texas and took him to Louisiana.1
1
Victoria argued below that Zach “duped her” into meeting Zach and his family “at
a police station in Richmond, Texas under the guise that they just wanted to briefly
see the child . . . [but Zach] and his family physically removed the child from
[Victoria] and fled back to Louisiana with the child.” Zach argued that he came “to
4
On March 15, 2021, Victoria filed an “Original Petition to Adjudicate
Parentage and Original Petition in Suit Affecting Parent-Child Relationship” in the
387th Judicial District Court of Fort Bend County, Texas (the “Texas Action”). She
executed an affidavit acknowledging the proceedings filed by Zach in Louisiana.
Subsequently, on April 5, 2021, Victoria filed an “Exception of Lack of
Subject Matter Jurisdiction, Lis Pendens, and Forum Non Conveniens”
(“Exceptions”) in the Louisiana Action, contesting the court’s jurisdiction and
advising the Louisiana court that a child custody proceeding was pending in Texas.
Also on April 5, 2021, Zach filed a “Plea to the Jurisdiction and Request for Court
to Decline Jurisdiction” in the Texas Action, urging the Texas trial court to dismiss
Victoria’s lawsuit for lack of subject matter jurisdiction. In the alternative, Zach
asked the trial court to decline jurisdiction and to dismiss the case because (1) there
was a pending Louisiana Action; (2) Victoria lived in Louisiana; and (3) Louisiana
was C.J.S.’s home state.
Plea to the Jurisdiction Hearing: April 5, 2021
The Texas court convened a hearing on Zach’s Plea to the Jurisdiction the
same day the plea was filed.2 Only Victoria and Zach testified at the hearing.
Texas with a valid Louisiana order giving [him] custody and got the police to help
[him] get [his] son.”
2
The record does not explain the circumstances that allowed the hearing on Zach’s
Plea to the Jurisdiction to be heard the same day the pleading was filed. Regardless,
5
A. Victoria’s Testimony
Victoria testified that C.J.S. was born in Webster, Texas on December 1, 2020.
Victoria received pre-natal care in Texas, and after his birth, C.J.S. saw a pediatrician
at UTMB in League City, Texas. Victoria testified that as of the date of the
hearing—April 5, 2021—C.J.S. had spent more than half of his life in Texas. C.J.S.
lived in Texas all of December 2020, and he was present in Texas (1) twelve days
in January 2021; (2) ten days in February 2021; (3) eight days in March 2021; and
(4) all of April 2021 (through the date of the hearing). Victoria testified that she has
a temporary place in Louisiana where she stays when she visits her older son, J., who
lives in Louisiana. She shares custody of J. with J.’s father on a 2/2/3 schedule and
she obtained the temporary housing to visit J. Victoria testified that she considers
her permanent residence to be in Rosenberg, Texas, where she has resided “[s]ince
March of 2020.” She met Zach while she was living in Texas.
On cross-examination, Victoria acknowledged there was a pending case
involving C.J.S. in Louisiana, and she testified that she was served with the
Louisiana Action at her temporary residence in Louisiana. She also acknowledged
there was a case involving J. in Louisiana, and that the final order in that case had
been entered in October 2020. Asked whether it was true “she [had] resided in
the hearing transcript does not indicate either party objected to the date of the
hearing.
6
Louisiana for the past several years” and had also resided in Louisiana after “the
birth of [C.J.S.],” Victoria testified, “Correct.” Zach’s counsel handed Victoria a
copy of the certified custody order involving J. and confronted her with the statement
in the order, dated October 1, 2020, where she identified an address in Erath,
Louisiana as her residence. He also asked Victoria whether she had stated, in the
same document, that she was employed at LA 14 Lounge in Louisiana. Victoria
testified she worked at the lounge for about two weeks at the “end of July, beginning
of September [2020],” and that prior to that she was not employed in Louisiana. The
last time she received a paycheck from the lounge was in October 2020.
Also on cross-examination, Victoria testified she has an older daughter, M.G.,
who resides in Texas and that there is a custody case involving M.G. in Harris
County, Texas. M.G.’s father has primary custody. She testified that, in 2017, she
told M.G.’s father that she had moved to Louisiana and she filed for a modification
to “change the pick[-]up and drop off location” for M.G. “to a halfway point between
[her] residence in Louisiana and [M.G.’s] residence” in Texas. She testified that
since then, she had given notice to M.G.’s father that Victoria’s address is now in
Rosenberg, Texas.
On re-direct, Victoria testified that because of the Texas custody order
involving M.G. and the Louisiana custody order involving J., she travels back and
forth between Texas and Louisiana. She testified, however, that C.J.S. was born in
7
Texas, that his pediatrician is in Texas, that he received his vaccinations in Texas,
and that his maternal grandparents are in Texas.
B. Zach’s Testimony
Zach testified that he works as a deckhand on a tugboat in Louisiana. He
works on the tugboat offshore about two weeks at a time. Zach testified that he and
Victoria met through a mutual friend, and that their interactions were in Louisiana.
According to Zach, he and Victoria “hooked up and she ended up pregnant.”
Victoria told Zach she was unsure whether the child was his. Zach testified that the
last time he saw Victoria in person was on March 4, 2020, at her residence in Texas,
where she lives with C.J.S. Zach testified that to his knowledge, Victoria has resided
at her address in Texas for six months. Zach testified that he filed the Louisiana
Action involving C.J.S. in early March 2020, and that Victoria was served with the
suit on March 10, 2020, at her home in Abbeville, Louisiana.3
After hearing testimony from both parties, the trial court judge recessed the
hearing so that she could confer with the Louisiana court as required by Section
152.206(b) of the Uniform Child Custody Jurisdiction and Enforcement Act. Both
parties agreed such conference was appropriate. Despite the trial court’s multiple
3
No further testimony or evidence was offered at the hearing.
8
diligent efforts to confer with the Louisiana court, however, the Louisiana trial court
judge refused to confer with the Texas trial court judge.4
Proceedings in Louisiana
On June 17, 2021, the Louisiana court conducted a hearing on Victoria’s
Exceptions. The Louisiana court held that Victoria and C.J.S had “significant
contact with the State of Louisiana,” and it thus denied Victoria’s Exceptions in a
judgment dated June 23, 2021. The Louisiana court did not make any determinations
concerning the home state of the child, as required under the Uniform Child Custody
Jurisdiction and Enforcement Act, nor did it consider whether Texas would be a
more appropriate forum. The Louisiana court directed the parties to work out a
schedule where both could have access to C.J.S.
On July 22, 2022, Victoria filed in the Louisiana Action a “Notice of Intention
to Apply for Supervisory Writs of Review and Request for Stay.” The Louisiana
court signed an order on July 26, 2022, granting Victoria until August 26, 2022 to
file an application for supervisory writs and staying the proceedings in the trial court
“pending resolution of the Application for Writs of Review.” Within the provided
4
In her issued Findings of Fact, the Texas trial court stated that pursuant to Texas
Family Code §152.110 and an Agreed Motion to Confer signed by the parties, she
“attempted on multiple occasions to schedule a UCCJEA conference with the
Louisiana Court.” She called and left messages for the Louisiana trial court judge
on April 12, 19, 27, and 28, 2021 and again on May 14 and 15, 2021 to no avail.
“[N]o return call was ever received.”
9
time, Victoria appealed the Louisiana trial court’s denial of her Exceptions to the
Louisiana Third Circuit Court of Appeal, which denied supervisory writ review on
September 20, 2021. She also filed an application for writ of review with the
Louisiana Supreme Court, which denied review on October 28, 2021.
Despite its July 26, 2021 order granting a stay while Victoria’s supervisory
writs remained pending, on August 2, 2021, the Louisiana court judge signed a final
order granting sole custody of C.J.S. to Zach and ordering supervised visitation for
Victoria, among other things.
Ruling on Plea to the Jurisdiction in Texas: September 8, 2021
While Victoria’s supervisory writs remained pending in Louisiana, the Texas
trial court reconvened the hearing on Zach’s Plea to the Jurisdiction on September
8, 2021. At that time, no court had exercised jurisdiction over the case based on a
finding of “home state” jurisdiction under the Uniform Child Custody Jurisdiction
and Enforcement Act.
No further evidence was presented to the trial court on the jurisdictional
question. The parties offered only the argument of counsel. Zach argued that the
court should grant his Plea because Zach had filed his action in Louisiana first, the
Louisiana court had already conducted a hearing “specifically dealing with the
jurisdictional issues brought by [Victoria] in Louisiana,” and the trial court in
Louisiana had already entered a final judgment on August 2, 2021 that “addressed
10
all of the SAPCR” issues.”5 Thus, he argued, his Plea was meritorious because
“Louisiana ha[d] already been ruled as the home state of the child,”6 “[j]udgment
ha[d] already been entered in Louisiana,”7 and “Louisiana [was] the court of
continuing exclusive jurisdiction.”
Victoria argued that Zach’s Plea should be denied because the Louisiana court
had failed to confer as required under the Uniform Child Custody Jurisdiction and
Enforcement Act and further because Texas was the home state of the child. Victoria
argued that Texas was the home state of the child because C.J.S. was born in Texas,
C.J.S.’s pediatrician was in Texas, and, at the time she filed suit, C.J.S. had spent
more time in Texas than in Louisiana.
5
A SAPCR is a Suit Affecting the Parent-Child Relationship.
6
Contrary to Zach’s statement, no court had conducted a home state analysis or
otherwise held Louisiana was the home state of the child at the time of the
September 8, 2021 hearing. Although the Louisiana court had exercised jurisdiction
and entered a final judgment in the Louisiana Action, the court did not conduct a
home state analysis, as required under the Uniform Child Custody Jurisdiction and
Enforcement Act, but instead exercised jurisdiction based on a finding of
“significant contacts” jurisdiction. The significant connection analysis may be
conducted only after a home state analysis proves fruitless. See In re Oates, 104
S.W.3d 571, 578 (Tex. App.—El Paso 2003, orig. proceeding) (“Significant
connection jurisdiction should be employed only when Texas is not the home state
and it appears that no other state could assert home state jurisdiction.”); Barabarawi
v. Rayyan, 406 S.W.3d 767, 772 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(Significant connection jurisdiction “applies only if no other state can exercise home
state jurisdiction, or if the state that can exercise home state jurisdiction has declined
jurisdiction for other specified reasons.”) (citing TEX. FAM. CODE § 152.201(a)(2)).
7
As we discuss below, the Louisiana court’s final judgment dated August 2, 2021
was later vacated.
11
The trial court denied Zach’s Plea, stating:
The Court finds that we did try to follow the UCCJEA and tried to make
contact with the Louisiana court. We tried numerous times over several
weeks, the Louisiana court just apparently thumbed their nose at us and
did not reply. So because of that and based on what the Court has
previously heard about where the child was born, where the child’s
doctors have been, the Court is going to take jurisdiction over this
case[.]”
After denying Zach’s Plea, the Texas trial court conducted a temporary orders
hearing concerning conservatorship, possession and access, and child support. Zach
and his attorney elected not to participate in the hearing for fear of waving their
objection to the court’s jurisdiction.8
At the conclusion of the temporary orders hearing, the Texas trial court
entered temporary orders naming Zach and Victoria joint managing conservators of
C.J.S. and granting Victoria the exclusive right to determine C.J.S.’s residence in
Fort Bend and contiguous counties, the right to receive child support, and the right
to make health- and education-related decisions for C.J.S. The trial court determined
it had jurisdiction over the case and personal jurisdiction over the parties. The trial
court also entered orders of possession, ordering that Zach’s possession over C.J.S.
8
An objection to lack of subject matter jurisdiction cannot be waived. Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993); see also Alfonso
v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (“Subject-matter jurisdiction cannot be
waived, and can be raised at any time.”).
12
take place in Fort Bend and contiguous counties, and be restricted to “keeping the
child in those counties.”
After the temporary orders hearing, Zach filed a petition for writ of mandamus
in this Court, asserting the Texas trial court improperly exercised jurisdiction over
the parties and the child. This Court denied the petition without opinion on January
13, 2022.9
Meanwhile, on December 20, 2021, Victoria filed a Petition to Annul
Judgment, for Stay Order, and for Injunctive Relief (“Motion to Annul”) in a
separate docket number in Louisiana state court. She argued that the Louisiana
court’s August 2, 2021 final judgment should be annulled because Louisiana is not
C.J.S.’s home state, the trial court issued its judgment without a legal finding on
paternity, and the judgment was issued while a stay order was in place (“Second
Louisiana Action.”).10
The Texas Trial: March 10, 2022
On March 10, 2022, the Texas trial court conducted a final trial. Although it
is undisputed that Zach and his attorney had notice of the trial, neither Zach nor his
attorney appeared. Victoria and her attorney were the only witnesses who testified.
9
See In re McNeil, No. 01-21-00538-CV, 2022 WL 120137 (Tex. App.—Houston
[1st Dist.] Jan. 13, 2022, orig. proceeding) (mem. op.).
10
Victoria also filed a motion to recuse the Louisiana trial judge who issued the final
judgment. After a hearing before an ad hoc judge, the judge granted her motion,
and the case was reallotted to another Louisiana judge.
13
Victoria testified that on June 24, 2021, Zach traveled to Texas to visit C.J.S.
and, without her consent, “took off” to Louisiana with C.J.S., where C.J.S. remains
with Zach. Since the temporary orders hearing on September 8, 2021, Victoria had
“been able to see” her son only “three times supervised in the state of Louisiana.”
Victoria testified that Zach violated the Temporary Orders the Texas court entered
pertaining to possession and access to C.J.S.
Victoria testified that C.J.S. was born in Webster, Texas on December 1, 2020,
and that he lived in Texas “until he was taken [on] June 24[, 2021].” Victoria was
breastfeeding C.J.S. exclusively, and Zach did not communicate with her about
transitioning C.J.S. off breast milk when he took him to Louisiana or tell her how
C.J.S. was doing. Victoria believed Zach would continue to violate the Texas court’s
orders and that if C.J.S. were returned to her, Zach would again try to take him to
Louisiana.
Victoria registered C.J.S. with Medicaid in Texas. To her knowledge, Zach
did not have Medicaid for C.J.S. in Louisiana, but he had C.J.S. registered “on the
insurance he has through work.” She testified C.J.S. was “a little over a month”
when he and Victoria began to travel from Texas to Louisiana to visit her son J. Her
possession arrangement with respect to J. was a 2/2/3 schedule, so she had to travel
14
frequently from Texas to Louisiana. During that time, she maintained a residence
in Texas.11
Victoria testified that Zach “work[ed] on a boat as a deckhand either working
a week off shore or two weeks offshore and then only a week home.” According to
Victoria, when Zach is offshore, Zach’s mother cares for C.J.S. Victoria testified
she did not believe it was in C.J.S.’s best interest for his paternal grandparents to
raise him. Victoria testified that her communications with Zach’s parents have been
“bland” and lack information about C.J.S.’s condition.
Victoria requested that she and Zach be appointed joint managing
conservators, but that she be awarded the exclusive right to make decisions regarding
invasive medical procedures, education, and psychological or psychiatric treatment.
She testified that she believed such an arrangement was in her son’s best interest.
She also requested that Zach be ordered to return C.J.S. to Victoria and that he have
supervised visits with C.J.S., based on his taking the child and not allowing her to
see him without supervision.
According to Victoria, after Zach took C.J.S. to Louisiana, he did not provide
her with information concerning C.J.S.’s medical appointments, medical needs or
“things that he is doing.” Victoria testified that she tried to coparent with Zach by
11
Victoria also has a daughter, M.G. in Texas. M.G.’s father is her primary caretaker
and has the right to establish residence for her in Harris County, Texas.
15
texting him, “asking about doctor’s appointments, things that [C.J.S.] is doing. And
he gives me no answer saying that he has it handled.” According to Victoria, when
she learned that her son was prescribed allergy medicine, Zach refused to tell
Victoria what types of allergies he had.
Victoria testified that her visits with C.J.S. in Louisiana have been “[r]ocky
because my son doesn’t know, really, who I am anymore,” and the noisy
environment in which she was required to visit made him “fussy” and “just
uncomfortable.” She testified she had not seen C.J.S. for approximately two months,
because her Louisiana attorney had not been successful in scheduling visits since
she had last seen C.J.S. in January 2022.
At the conclusion of the trial, on March 10, 2022, the court rendered its
judgment from the bench, ordering that Victoria and Zach be appointed joint
managing conservators, that Victoria have the exclusive right to make medical and
educational decisions and to determine C.J.S.’s primary residence, that Zach pay
$523.32 a month in child support, that Zach’s possession and access be supervised,
and that all other rights be joint. The trial court ordered that Zach return the child to
Victoria by March 18, 2022, and it awarded Victoria attorneys’ fees and appellate
attorneys’ fees. That same day, the trial court signed a written Final Order.
Victoria filed a copy of the Texas Final Order in the Second Louisiana Action
requesting that the order “be registered in [the] case pursuant to La. R.S. 13:1827
16
and La.Ch.Code art. 1306.5.” Zach timely filed an objection to the registration of
the Texas order, and the Louisiana court set a hearing for August 24, 2022 to hear
the matter. See McNeil v. Stern, 371 So. 3d 1187, 1190 (La. Ct. App. 2023).
Zach’s Post-Judgment Motions in Texas
On April 1, 2022, after securing new counsel, Zach filed in the Texas Action
a combined Motion to Set Aside Default Judgment (“Motion to Set Aside”) and to
Reconsider Dismissal for Lack of Subject Matter Jurisdiction (“Motion for
Reconsideration”), Alternatively, to Grant a New Trial” (“Motion for New Trial”).
A. Motion to Set Aside Default Judgment
In his Motion to Set Aside, Zach requested that the trial court set aside the
default Final Order entered on March 10, 2022. He argued he was entitled to relief
under the Craddock factors.12 He argued that his failure to appear at trial “was the
result of accident and mistake, rather than intentional or conscious indifference,
because Zach fully relied upon the erroneous advice of his trial counsel, advice that
directed Zach “not to appear and/or participate in trial (and/or in an earlier temporary
orders hearing)” to avoid waiving his objections to the trial court’s jurisdiction. Zach
also argued that he had a meritorious defense to Victoria’s SAPCR because the trial
court lacked subject matter jurisdiction under the Uniform Child Custody
12
See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939) (listing
factors a movant must establish to set aside a default judgment).
17
Jurisdiction and Enforcement Act, and because the terms of the Texas order were
not in C.J.S.’s best interest. Finally, Zach argued that setting aside the Final Order
and dismissing the Texas suit would not result in delay, prejudice, or injury to
Victoria.
In his affidavit attached to the Motion to Set Aside, Zach stated that he did not
appear at trial based on the advice of his counsel who told him that “if the trial court
denied [his] challenge to Texas jurisdiction, then we would not participate in any
other hearings because it would create ‘an appearance’ and I would waive my right
to object to jurisdiction in any appeal.” His attorney told him that he “could not
submit evidence in the proceedings because it would have the same effect.” Zach
averred “he had no reason to doubt the legal advice or instructions” his trial counsel
gave him with respect to waiving his right to contest subject matter jurisdiction. On
the advice of counsel, he did not participate either at the temporary orders hearing
or at trial. Zach stated the Final Order in Texas conflicted with the Louisiana court’s
award of sole custody to him, and having two conflicting orders would create a lot
of difficulty.13
Zach also attached an affidavit from his mother, Michele, to his Motion to Set
Aside. In her affidavit, Michele testified that she communicated with Zach’s trial
13
The affidavit also contained arguments intended to establish a meritorious defense
to Victoria’s SAPCR.
18
counsel, who told her that Zach would contest the Texas court’s jurisdiction but that
he should “not participate in any hearings dealing with other issues because if [he]
did not win the jurisdiction issue Zach would waive his right to object on appeal.”
She “made sure to confirm” with trial counsel that Zach need not appear for the
March 2022 trial and Zach’s counsel “told us [Zach] could not appear without
waiving his rights.” She attached emails from trial counsel to her affidavit
“demonstrating his advice and his instructions that Zach should not appear for trial.”
In response to the Motion to Set Aside, Victoria objected globally to “the
numerous hearsay statements” in Zach’s motion, but she did not identify any of the
purported hearsay.14 She argued that Zach’s failure to appear at trial was not a
mistake but rather “intentional or the result of conscious indifference,” given Zach’s
acknowledgment that he relied on his counsel’s “erroneous advice” not to appear at
trial. Victoria further argued that Zach’s attempt to set up a meritorious defense to
her SAPCR fell short because his defense was based in part on his already failed
attempt to challenge the jurisdiction of the court, and further that Zach could not
establish the granting of the Motion to Set Aside would “not delay or otherwise work
14
See Moulton v. Vaughn, 982 S.W.2d 107, 110 (Tex. App.—Houston [1st Dist.]
1998, pet. denied) (holding objections “directed to the affidavit as a whole” that fail
to “point out which part is objectionable on which ground . . . preserve nothing for
review.”); Hanks v. Huntington Nat’l Bank, No. 01-15-00188-CV, 2016 WL
1235689, at *7 (Tex. App.—Houston [1st Dist.] Mar. 29, 2016, pet. denied) (mem.
op.) (“Absent a specific objection, the complaining party waives any argument
concerning the improper admission of the evidence.”).
19
an injury to the plaintiff” because the trial court had already reset the final hearing
twice, once to allow time for this Court to rule on Zach’s Petition for Writ of
Mandamus, and a second time to give Zach “additional notice of the final hearing so
that [he] could appear and participate.”15 Victoria argued that further delay would
only result in harm to C.J.S. and Victoria, who had already expended $35,000 in
attorneys’ fees, which Zach did not agree to tender in full, and she had “wholly
exhausted her funds.”
B. Motion to Reconsider for Lack of Subject Matter Jurisdiction
In his Motion to Reconsider, Zach asked the Court to reconsider its ruling on
his Plea to the Jurisdiction, arguing that Louisiana was C.J.S.’s home state when
Victoria filed the Texas Action or that simultaneous proceedings in Louisiana
prevented the Texas court from exercising jurisdiction over C.J.S. Zach based his
motion on the following arguments: (1) Zach filed the Louisiana Action first; (2) he
served Victoria with the Louisiana Action at her home in Louisiana, despite her
claiming Texas residency; (3) Victoria intentionally left Texas to give birth to C.J.S.
and remained in Texas for only thirty days before returning to Louisiana, where
C.J.S. had predominantly resided when he filed the Louisiana Action; (4) Louisiana
and Texas have virtually identical versions of the Uniform Child Custody
15
Victoria’s response to the Motion to Set Aside did not address the Motion to
Reconsider for Lack of Subject Matter Jurisdiction or the Motion for New Trial.
20
Jurisdiction and Enforcement Act; (5) the Louisiana courts, including the Louisiana
Supreme Court, had all affirmed the trial court’s jurisdiction over C.J.S.; (6) no
Texas appellate court had considered the merits of the Texas court’s ruling on
jurisdiction; (7) Victoria violated Louisiana orders by bringing C.J.S. to Texas when
she filed the Texas Action and thus the court’s jurisdiction resulted from Victoria’s
unjustifiable conduct;16 (8) the Texas court had authority to decline its perceived
jurisdiction in favor of Louisiana “where proper UCCJEA jurisdiction ha[d] already
been determined through Louisiana’s highest court;” (9) the evidence supported a
finding that Louisiana was C.J.S.’s home state and Victoria’s claims to the contrary
“lack credibility;” (10) in the alternative, neither court has home state jurisdiction
over C.J.S.; (11) if neither court has home state jurisdiction over C.J.S., the court
must consider whether there are “significant connections” in Texas, and Zach
contended both parents and C.J.S. had more significant connections to Louisiana;
(12) the Louisiana court’s failure to communicate with the Texas court has no
bearing on the jurisdictional ruling; and (13) Section 152.206 of the Texas Family
Code requires Texas “to dismiss any child custody proceeding . . . if it determines
that such a proceeding has been commenced in another state having jurisdiction in
substantial conformity to the Texas UCCJEA and that the other state proceeding has
16
Zach relied on Section 152.208 of the Texas Family Code, which pertains to
unjustifiable conduct by the party seeking to invoke Texas jurisdiction. We discuss
this argument below.
21
not been terminated or the court of that other state has not deferred to Texas upon a
finding that Texas is a more convenient forum.”
Zach and Victoria testified during the hearing on the Motion for
Reconsideration. As it concerns the court’s jurisdiction, Victoria testified that C.J.S.
was born on December 1, 2020 in Webster, Texas. He lived with her in Rosenberg,
Texas, and he was under her continued care from the time he was born until January
2021. At that time, she started traveling to Louisiana to visit her older son J. She
had a “two days on, two days off, three days on again” schedule with J. Because of
her possession schedule over J., she made living arrangements in Louisiana, first
staying with a friend and later renting a trailer. When she traveled between Texas
and Louisiana with C.J.S. to visit J., C.J.S. returned to Texas with her between visits.
She lived in Rosenberg, Texas in early 2021, found a pediatrician for C.J.S. near her
home, and obtained insurance for him in Texas. She testified that Zach “stated
multiple times . . . that he is not going to follow Texas rulings, [and] that Louisiana
has jurisdiction.”
Relevant to the jurisdictional issues before the court, Zach testified that there
were two orders concerning custody over C.J.S., one in Texas and one in Louisiana,
and that this caused him concern. He testified that Victoria was “living in
Louisiana.” He stated he did not know when C.J.S. first left Texas, after being born
and that he had no evidence “as to whether the child was present in Texas and for
22
how long.” During Zach's testimony, his counsel admitted into evidence a
“Correcting Birth Certificate” form filled out by Victoria in February 2021, in which
Victoria sought to identify Zach as the father on C.J.S.’s birth certificate. On page
4 of the form, Victoria lists her address as Rosenberg, Texas, but on page 5, she lists
her address as Abbeville, Louisiana. Zach also admitted into evidence a text
exchange with Victoria where Victoria gives Zach information concerning food she
has been feeding C.J.S. and some of his required care due to having severe sensitive
skin. Zach presumably offered this evidence to dispute Victoria’s argument that she
was breastfeeding C.J.S. exclusively, and to argue Victoria resides in Louisiana.17
Zach argued that based on his arguments, the evidence previously submitted,
and the affidavits attached to his Motion for Reconsideration, the trial court should
reconsider its ruling and hold it lacks subject matter jurisdiction.
C. Motion for New Trial
In the alternative to his Motion to Set Aside and Motion to Reconsider, Zach
moved for a new trial on six grounds. He argued that (1) the orders designating
Victoria as primary joint managing conservator were not in C.J.S.’s best interest and
there was insufficient evidence addressing the “various factors” the court should
17
Zach’s counsel also attempted to introduce into evidence (1) an acknowledgment of
paternity between Victoria and J.’s father; and (2) a letter from Victoria’s attorney
to J.’s father’s attorney. But those exhibits, which Zach attached to his affidavit,
were not admitted into evidence.
23
consider in determining which parent should be designated as primary conservator;
(2) there was legally and factually insufficient evidence offered in support of the
required factors under Section 153.254(a) of the Texas Family Code18 for possession
and access for a child under the age of three; (3) the existing order did not render a
prospective order for possession and access for when C.J.S. turns three; (4) the
orders for possession and access “impose[d] restrictions and limitations on Zach’s
possession with the child which exceed[ed] those required to protect the best interest
of the child” pursuant to Section 153.19319 of the Texas Family Code; (5) the orders
for child support and medical support did not consider the correct amount of Zach’s
monthly net resources or consider evidence of the expenses “that would be incurred
for long distance travel” with C.J.S. to exercise possession; and (6) the attorneys’
fee award is not supported by legally or factually sufficient evidence.
The trial court conducted a hearing on Zach’s post-judgment motions on May
16, 2022.20 At the conclusion of the hearing, the trial court took the motions under
advisement.
18
Section 153.254(a) of the Texas Family Code enumerates the factors that a court
“shall consider” in rendering an order for possession of a child less than three years
of age. See TEX. FAM. CODE § 153.254(a).
19
Section 153.193 of the Texas Family Code states, “The terms of an order that denies
possession of a child to a parent or imposes restrictions or limitations on a parent’s
right to possession of or access to a child may not exceed those that are required to
protect the best interest of the child.” TEX. FAM. CODE § 153.193.
20
We discuss the hearing on the motions below.
24
Findings of Fact and Conclusions of Law and Ruling on Motions
The trial court issued its Findings of Fact and Conclusions of Law on April 22, 2022
and, on May 20, 2022, it issued additional findings and conclusions at Zach’s
request. On May 23, 2022, the trial court signed an order denying Zach’s Motion to
Set Aside, Motion to Reconsider, and his alternative Motion for New Trial. This
appeal ensued.
The Second Louisiana Action
While this appeal was pending, the Louisiana trial court held a hearing on
Victoria’s Motion to Annul and her request to register the Texas March 10, 2022
Final Order. The trial court agreed with Victoria that the August 2, 2021 Louisiana
final judgment “was a nullity because it was signed after [the judge had] issued a
stay order . . . pending supervisory review of the issues of subject matter
jurisdiction.” On February 10, 2023, the Louisiana trial court issued its judgment
declaring the August 2, 2021 Louisiana judgment null, but denying Victoria’s
motion to register the Texas Final Order stating that the Texas court had failed to
“follow the requirements of the UCCJEA once the Louisiana court determined it had
jurisdiction.” See McNeil v. Stern, 371 So.3d 1187, 1191 (La. Ct. App. 2023). The
Louisiana court held it had jurisdiction over the case because “as of March 4, 2021,
the date [on which Zach] filed his original petition,” Victoria and C.J.S. “were
25
domiciled in Louisiana,” and thus “Louisiana, not Texas, was the home state of the
child[.]” 21 Id.The Uniform Child Custody Jurisdiction and Enforcement Act
In his second and third issues, Zach challenges the trial court’s exercise of
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”). In his second issue, Zach argues the trial court abused its discretion
initially by finding it had jurisdiction under the UCCJEA and later by denying his
request to reconsider the denial of his Plea to the Jurisdiction. In his third issue,
Zach argues the Final Order is void for lack of subject matter jurisdiction.
A. Standard of Review
The UCCJEA governs child custody jurisdictional disputes in Texas. In re
Salminen, 492 S.W.3d 31, 38 (Tex. App.—Houston [1st Dist.] 2016, orig.
proceeding) (“Subject matter jurisdiction in child custody matters is determined by
reference to the UCCJEA, set out in Family Code Chapter 152.”); Waltenburg v.
Waltenburg, 270 S.W.3d 308, 313 (Tex. App.—Dallas 2008, no pet.) (stating that
UCCJEA is “exclusive jurisdictional basis for making a child custody determination
21
On September 27, 2023, the Louisiana Third Circuit Court of Appeal affirmed,
holding, among other things, that Louisiana was C.J.S’s home state on the date Zach
filed suit in Louisiana and that the Fifteenth Judicial District Court in Louisiana had
jurisdiction over the custody proceeding at issue. See McNeil, 371 So.3d at 1194.
The Louisiana Supreme Court denied review on January 10, 2024. McNeil v. Stern,
376 So.3d 847 (La. 2024).
26
by a court of this state”); TEX. FAM. CODE. § 152.201. Whether a trial court has
jurisdiction under the UCCJEA implicates subject matter jurisdiction. Cortez v.
Cortez, 639 S.W.3d 298, 305 (Tex. App.—Houston [1st Dist.] 2021, no pet.). The
issue of whether a trial court has subject matter jurisdiction is a question of law we
review de novo. In re Salminen, 492 S.W.3d at 38; see also Powell v. Stover, 165
S.W.3d 322, 324 (Tex. 2005) (orig. proceeding) (“Construction of the UCCJEA’s
‘home state’ provision as codified in the Texas Family Code is a question of law that
we review de novo.”). The party who seeks to invoke the trial court’s jurisdiction
has the burden “to allege facts that affirmatively demonstrate the court’s authority
to hear the case.” Cortez, 639 S.W.3d at 306 (citing Seligman-Hargis v. Hargis, 186
S.W.3d 582, 585 (Tex. App.—Dallas 2006, no pet.)). “We construe the pleadings
in favor of the party invoking jurisdiction and consider relevant evidence when
necessary to resolve the jurisdictional issue.” Id.In our de novo review, we bear in mind that the trial court “is the sole judge
of the credibility of the witnesses and the weight to be given their testimony, and we
will not disturb the court’s resolution of evidentiary conflicts that turn on credibility
determinations or the weight of the evidence.” In re I.I.G.T., 412 S.W.3d 803, 806
(Tex. App.—Dallas 2013, no pet.); see also Weatherford Artificial Lift Sys., Inc. v.
A & E Sys. SDN BHD, 470 S.W.3d 604, 609 (Tex. App.—Houston [1st Dist.] 2015,
no pet.) (observing in de novo review, “[w]e do not ‘disturb a trial court’s resolution
27
of conflicting evidence that turns on the credibility or weight of the evidence’”)
(quoting Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex. App.—Austin 2005, no pet.);
Mariles v. Hector, No. 05-16-00814-CV, 2018 WL 3723104, at *6 (Tex. App.—
Dallas Aug. 6, 2018, no pet.) (mem. op.) (noting under de novo standard, “we defer
to the trial court’s credibility determinations and resolution of [evidentiary]
conflicts”). Further, in conducting our de novo review, we may consider only those
facts that were before the trial court when it made its jurisdictional ruling. See
Shahin v. Mem’l Hermann Health Sys., 527 S.W.3d 484, 487 (Tex. App.—Houston
[1st Dist.] 2017, pet. denied) (noting in de novo review of plea to the jurisdiction,
“[w]e review the actions of the trial court based upon the materials before it at the
time it acted”); see also Trinity Universal Ins. Co. v. Day, 155 S.W.3d 337, 339 (Tex.
App.—El Paso 2004, pet. denied) (observing in de novo review of plea to the
jurisdiction, “[w]e . . . consider evidence relevant to the jurisdictional issue that was
before the trial court when it ruled on the plea”); Dallas-Fort Worth Int’l Airport Bd.
v. Ryan, 52 S.W.3d 426, 427 (Tex. App.—Fort Worth 2001, no pet.) (same);
Anderson v. Wynne, 672 S.W.3d 498, 503 (Tex. App.—Houston [14th Dist.] 2023,
no pet.) (noting in de novo review of dismissal for lack of jurisdiction, “[w]e
determine whether the order is supportable based on the record before the trial court
when it ruled.”); Villarreal v. Villarreal, No. 04-15-00551-CV, 2016 WL 4124067,
at *2 (Tex. App.—San Antonio Aug. 3, 2016, no pet.) (mem. op.) (noting in de novo
28
review of ruling on subject matter jurisdiction, “the trial court’s order can only be
upheld based on the legal theories that were before the court at the time of the
hearing.”).
B. The Texas UCCJEA
Texas adopted the UCCJEA in 1999 to replace the Uniform Child Custody
Jurisdiction Act (“UCCJA”). Powell, 165 S.W.3d at 325. Because the UCCJA
provided four bases for jurisdiction in a custody dispute but did not prioritize them,
courts in different states could simultaneously exercise jurisdiction in child custody
cases. Id. “The UCCJEA was designed, in large part, to remedy this situation by
prioritizing home-state jurisdiction” over any other bases for exercising jurisdiction
in custody disputes. Id.
The Texas UCCJEA is codified in the Texas Family Code. Section 152.201(a)
of the Family Code “is the exclusive jurisdictional basis for making a child custody
determination by a court of this state.” TEX. FAM. CODE § 152.201(b). “Initial [child
custody] determination” refers to the “first child custody determination concerning
a particular child.” Id. § 152.102(8). Section 152.201(a) states that
(a) . . . a court of this state has jurisdiction to make an initial child custody
determination only if:
(1) this state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the
child within six months before the commencement of the
proceeding and the child is absent from this state but a parent or
person acting as a parent continues to live in this state;
29
(2) a court of another state does not have jurisdiction under
Subdivision (1), or a court of the home state of the child has
declined to exercise jurisdiction on the ground that this state is
the more appropriate forum . . . and:
(A) the child and the child’s parents, or the child and at least
one parent or a person acting as a parent, have a significant
connection with this state other than mere physical
presence; and
(B) substantial evidence is available in this state concerning
the child's care, protection, training, and personal
relationships;
(3) all courts having jurisdiction under Subdivision (1) or (2) have
declined to exercise jurisdiction on the ground that a court of this
state is the more appropriate forum to determine the custody of
the child . . . or
(4) no court of any other state would have jurisdiction under the
criteria specified in Subdivision (1), (2), or (3).
TEX. FAM. CODE § 152.201(a) (emphasis added). Under the Texas UCCJEA, “home-
state jurisdiction trumps all other possible bases of jurisdiction in an initial child
custody action.” In re Brown, 203 S.W.3d 888, 891 (Tex. App.—Fort Worth 2006,
no pet.).
The physical location of a child “is the central factor to be considered when
determining the home state” of the child. In re Walker, 428 S.W.3d 212, 216 (Tex.
App.—Houston [1st Dist.] 2014, orig. proceeding); see also Powell, 165 S.W.3d at
328 (holding that “in determining where a child lived for purposes of establishing
home-state jurisdiction, the trial court must consider the child’s physical presence in
30
a state.”). On the other hand, “visitations within a state” do not suffice “to determine
whether a state has become a child’s ‘home state’ under section 152.102(7).” In re
A.S., No. 02-14-00301-CV, 2016 WL 1470034, at *3 (Tex. App.—Fort Worth Apr.
14, 2016, no pet.) (mem. op.) (citing In re Marriage of Marsalis, 338 S.W.3d 131,
136 (Tex. App.—Texarkana 2011, no pet.)).
Texas courts have held that the operative date for determining whether this
state has jurisdiction under the UCCJEA is the date of commencement of the
proceeding in Texas. In re Oates, 104 S.W.3d 571, 576 (Tex. App.—El Paso 2003,
orig. proceeding) (citing In re McCoy, 52 S.W.3d 297, 305 (Tex. App.—Corpus
Christi 2001, orig. proceeding)); see also In re Marriage of Marsalis, 338 S.W.3d at
135 (“Jurisdiction [under the UCCJEA] is determined based upon circumstances
existing at the time suit is filed in Texas.”). “Commencement” is defined as “the
filing of the first pleading in a proceeding.” TEX. FAM. CODE § 152.102(5).
The Family Code also addresses exclusive continuing jurisdiction for matters
involving custody. Section 152.202 of the Family Code provides that
(a) Except as otherwise provided in Section 152.204,22 a court of this
state which has made a child custody determination consistent
22
Section 152.204 of the Family Code, not applicable here, governs temporary
emergency jurisdiction over a child if the child was abandoned of if jurisdiction is
necessary “in an emergency to protect the child because the child, or a sibling or
parent of the child, is subjected to or threatened with mistreatment or abuse.” TEX.
FAM. CODE § 152.204(a).
31
with Section 152.201 or 152.20323 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.
(b) A court of this state which has made a child custody
determination and does not have exclusive, continuing
jurisdiction under this section may modify that determination
only if it has jurisdiction to make an initial determination under
Section 152.201.
Id. § 152.202; see also id. § 152.102(3) (defining “child custody determination” to
mean “a judgment, decree, or other order of a court providing for legal custody,
physical custody, or visitation with respect to a child” and stating that term “includes
permanent, temporary, initial, and modification orders”).
23
Section 152.203 of the Family Code, titled “Jurisdiction to Modify Determination”
and not applicable here, pertains to a Texas court’s modification of a child custody
determination made by a court of another state. TEX. FAM. CODE § 152.203.
Compare with TEX. FAM. CODE § 152.206(a) (“[A] court of this state may not
exercise its jurisdiction under this subchapter if, at the time of the commencement
of the proceeding, a proceeding concerning the custody of the child has been
commenced in a court of another state having jurisdiction substantially in
conformity with this chapter.”).
32
“[E]xclusive jurisdiction continues in the decree-granting state as long as a
significant connection exists or substantial evidence is present.” Cortez, 639 S.W.3d
at 307 (quoting In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004) (observing that
“jurisdiction continues until the court determines that there is not a significant
connection with Texas and that substantial evidence concerning the children’s care,
protection, training, and personal relationships is no longer available here”) (citing
TEX. FAM. CODE § 152.202(a)(1)) (emphasis in original). Even if the child acquires
a new home state, “the state that made the initial child custody determination retains
exclusive continuing jurisdiction ‘so long as the general requisites of the “substantial
connection” jurisdiction provisions are met.’” Cortez, 639 S.W.3d at 307 (quoting
In re Tieri, 283 S.W.3d 889, 894 (Tex. App.—Tyler 2008, orig. proceeding)). “The
state that made the initial child custody determination ‘is the sole determinant of
whether jurisdiction continues.’” Id.24
24
Like Texas, Louisiana has adopted the UCCJEA, and its provisions are similar to
the provisions in the Texas UCCJEA. See LA. STAT. ANN. § 13:1801–1802. As
with the Texas UCCJEA, the Louisiana UCCJEA provides “the exclusive
jurisdictional basis for making a child custody determination” by a Louisiana court,
and it prioritizes “home-state” jurisdiction over any other bases of jurisdiction. See
LA. STAT. ANN. § 13:1813; see also State ex rel. A.U.M., 62 So. 3d 185, 188 (La.
Ct. App. 2011) (stating home-state status has priority over other grounds UCCJEA
identifies as basis for jurisdiction over child in interstate custody litigation).
33
C. The Home State Analysis
The threshold issue in our review is whether Texas was C.J.S.’s home state
when Victoria filed her SAPCR in Texas in March 2021, thus conferring jurisdiction
on the trial court to make an initial custody determination over C.J.S. Section
152.102(7) defines “home state” as
[T]he state in which a child lived with a parent or a person acting as a
parent for at least six consecutive months immediately before the
commencement of a child custody proceeding. In the case of a child
less than six months of age, the term means the state in which the child
lived from birth with a parent or a person acting as a parent. A period
of temporary absence of a parent or a person acting as a parent is part
of the period.
TEX. FAM. CODE § 152.102(7) (emphasis added). C.J.S. was less than six months
old when Victoria filed the SAPCR in March 2021. Thus, for purposes of our home
state analysis, we must determine “the state in which C.J.S. lived from birth with a
parent or a person acting as a parent.” Id. § 152.102(7). And we must consider any
“period of temporary absence of a parent or a person acting as a parent [as] part of
the period.” Id.; see also In re K.Y., 273 S.W.3d 703, 707 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (holding children’s “frequent” visits to Oklahoma while
maintaining home and possessions in Texas “[did] not establish that the children
moved from Texas” for purposes of home state determination).
In conducting our home state analysis, we do so in keeping with the language
of the UCCJEA’s home state provision, which focuses on where the child “lived”
34
with a parent. See TEX. FAM. CODE § 152.102(7). As the Texas Supreme Court
explained in Powell v. Stover, in determining where a child “lived” with a parent,
our inquiry is not “based on the parties’ subjective intent” concerning residence or
domicile. 165 S.W.3d at 326 (noting that a “test for ‘residence’ or ‘domicile’
typically involves an inquiry into a person’s intent.”). The word “lived” as used in
the statute, “strongly connotes physical presence.” Id. (“We think it significant that
the Legislature chose the word ‘lived’ as opposed to ‘resided’ or ‘was domiciled.’”).
Thus, for purpose of our home state analysis, it is the “child’s physical location” that
lies at the center of our analysis. Id. Keeping this central focus in mind, we turn to
the evidence presented to the trial court on this threshold jurisdictional question.
The trial court held it had jurisdiction over the matter because Texas is C.J.S.’s
home state. The trial court issued Findings of Fact supporting its jurisdictional ruling
finding that C.J.S. was born in Texas, and lived exclusively in Texas for the first five
weeks of his life with Victoria, who was a Texas resident; C.J.S. was covered though
Texas Medicaid and had doctors in Texas; C.J.S. was four months old25 when the
Texas Action was first filed and had been “physically present” in Texas with Victoria
more days of his life than he was physically present with Zach in Louisiana; any
absences from the State of Texas before suit was filed were merely “temporary
25
C.J.S. was born on December 1, 2020, and the Texas Action was filed on March 15,
2021.
35
absences;” and substantial evidence was available in the State of Texas regarding
C.J.S.’s “care, protection, training, and personal relationships.” We defer to a trial
court’s findings of fact if the findings are supported by sufficient evidence. In re
T.D.L., 621 S.W.3d 346, 352 (Tex. App.—San Antonio 2021, no pet.).
The following evidence was presented to the trial court when it made its
jurisdictional ruling that Texas was C.J.S.’s home state. C.J.S. was born in Webster,
Texas on December 1, 2020. Victoria received pre-natal care in Texas, and after his
birth, C.J.S. saw a pediatrician in League City, Texas. C.J.S. lived with Victoria in
Texas during the first five weeks of his life, receiving his first set of vaccinations
and attending at least one well-child doctor’s appointment in Texas. In January
2021, when C.J.S. was about five weeks old, Victoria began to travel back and forth
to Louisiana, taking C.J.S. with her, so she could exercise possession of her older
son J., who lived in Louisiana. Victoria was breastfeeding C.J.S., so she took C.J.S.
with her on her visits to Louisiana. Victoria has a temporary place in Louisiana
where she stays when she visits J. She considers her permanent residence to be in
Rosenberg, Texas, where she has resided “since March of 2020.”
Victoria registered C.J.S. with Medicaid in Texas. C.J.S. was covered by his
father’s health insurance in Louisiana. As of the date of the hearing on Zach’s
Plea—April 5, 2021—C.J.S. had spent more than half of his life in Texas. C.J.S.
lived in Texas all of December 2020, and he was present in Texas (1) twelve days
36
in January 2021; (2) ten days in February 2021; (3) eight days in March 2021; and
(4) all of April 2021 (through the date of the hearing). C.J.S. remained in Victoria’s
sole care until June 24, 2021, when Zach took him to Louisiana against Victoria’s
will.
Zach testified that he filed his suit in Louisiana in March 2021, and that
Victoria was served with the Louisiana Action on March 10, 2021 at her residence
in Abbeville, Louisiana. The last time he saw Victoria in person was on March 4,
2021, at her home in Texas where she lived with C.J.S. To Zach’s knowledge,
Victoria had resided at her address in Texas for six months by time of the April 5,
2021 hearing.
In light of this evidence, we conclude that Texas was C.J.S’s home state when
Victoria filed the Texas Action in March 2021, and that the trial court did not err in
exercising jurisdiction under the UCCJEA.
Zach argued during oral argument that the UCCJEA does not require that the
home state be the state in which the child was born. We agree. “The place of birth
is not the relevant consideration. Instead, we look to ‘the State in which the child
lived from birth with [a parent or person acting as a parent].’” In re Dean, 393
S.W.3d 741, 749 (Tex. 2012) (orig. proceeding) (citation omitted) (emphasis in
original). The evidence was undisputed that C.J.S. was born in Texas and that he
lived there exclusively the first five weeks of his life, after which time he began to
37
travel back and forward to Texas with Victoria so that she could visit her other son.
That Victoria may have had a residence in Louisiana or that she traveled to and from
Louisiana does not change the outcome. For purposes of our home state analysis
involving a child younger than six months of age, the statute dictates that we consider
any “period of temporary absence of a parent or a person acting as a parent [as] part
of the period.” See TEX. FAM. CODE § 152.102(7).
In his brief, Zach concedes that Texas was C.J.S.’s home state “at one time,”
but argues that Victoria and C.J.S. “abandoned” Texas as the home state, returning
to Louisiana, and that C.J.S. had no home state when Zach filed his Louisiana suit
on March 4, 2021.26 During oral argument, however, Zach argued that Louisiana
had always been C.J.S.’s home state and that Victoria’s visits to Texas, even the
five-week period beginning with her giving birth to C.J.S. in Texas, were mere
“temporary absences”’ that did not count against the determination that Louisiana
was the home state. See TEX. FAM. CODE § 152.102(7) (“A period of temporary
absence of a parent or a person acting as a parent is part of the [home state
calculation] period.”).
Section 152.107 does not support Zach’s argument. Section 152.107 defines
“home state” as
26
Zach argued in his Motion to Set Aside that Louisiana was Zach’s home state when
suit was filed in the Louisiana court or, in the alternative, that neither Texas nor
Louisiana was C.J.S.’s home state.
38
[T]he state in which a child lived with a parent or a person acting as a
parent for at least six consecutive months immediately before the
commencement of a child custody proceeding. In the case of a child
less than six months of age, the term means the state in which the child
lived from birth with a parent or a person acting as a parent. A period
of temporary absence of a parent or a person acting as a parent is part
of the period.
TEX. FAM. CODE § 152.102(7) (emphasis added). Zach’s argument that we begin
our home state analysis with Victoria’s residence in Louisiana, and that we consider
her subsequent travel to Texas to give birth to C.J.S. and the following five weeks
in Texas as part of Victoria’s “temporary absence” from Louisiana cannot be
reconciled with the statutory mandate that “[i]n the case of a child less than six
months of age, the term means the state in which the child lived from birth with a
parent or a person acting as a parent.” See id. (emphasis added). Indeed, the Texas
Supreme Court has held that a child’s home state “cannot be determined before a
child is born[.]” In re Dean, 393 S.W.3d at 747. Zach is asking us in his novel
argument to do just that.27
27
Zach argues that Victoria lived in Louisiana before C.J.S.’s birth and had
“substantial” prenatal care there, advising her doctor she planned to deliver the child
in Texas. But any actions Victoria may have taken or where she lived prior to
C.J.S.’s birth do not factor into our home state analysis. See In re Dean, 393 S.W.3d
741, 749 (Tex. 2012) (orig. proceeding) (noting home state is based on
determination of where child lived from birth with parent or parental surrogate). Cf.
Waltenburg v. Waltenburg, 270 S.W.3d 308, 317 (Tex. App.—Dallas 2008, no pet.)
(“[T]he text of the UCCJEA precludes its application to unborn children.”). In
Waltenburg, the Dallas Court of Appeals rejected a reading of the UCCJEA that
would allow a party to file suit before a child’s birth to determine jurisdiction over
a custody matter. Id. at 318. Doing so, the court reasoned, would “defeat the clear
39
The rules of statutory construction preclude us from adopting Zach’s
argument. We are required to presume the entire statute is intended to be effective.
See TEX. GOV’T CODE § 311.021(2). The first two sentences of Section 152.102(7)
“must be read together such that in the case of a child less than six months of age,
the home state is that state in which the child lived from birth with a parent
immediately before the commencement of the child custody proceeding.” In re
Calderon-Garza, 81 S.W.3d 899, 903 (Tex. App.—El Paso 2002, no pet.) (emphasis
omitted). “[W]e must always consider the statute as a whole rather than its isolated
provisions. We should not give one provision a meaning out of harmony or
inconsistent with other provisions, although it might be susceptible to such a
construction standing alone.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493
(Tex. 2001) (internal citation omitted).
The court in In re Calderon-Garza rejected an argument similar to the one
Zach makes here. In that case, the mother received all her prenatal care in Mexico,
but the child was born in Texas. 81 S.W.3d at 901. The mother claimed that the
child’s home state was in Mexico because she only went to Texas to give birth and
purpose underlying the legislature’s enactment of the UCCJEA—to prioritize
home-state jurisdiction.” Id. However, in Berwick v. Wagner, 336 S.W.3d 805,
815–16 (Tex. App.—Houston [1st Dist.] 2011, pet. denied), we clarified that (1) in
cases where the pre-birth suit and the child’s home state are the same, UCCJEA
petitions can be filed pre-birth with any jurisdictional analysis reserved for after
birth, and (2) Texas law expressly recognizes that some UCCJEA cases, such as
parental-termination proceedings, can be filed before a child is born.
40
to obtain financial assistance from her parents and intended to return to Mexico after
the birth. Id. at 903. As Zach contends here, the mother claimed that her visit to
Texas, during which her child was born, “was merely a ‘temporary absence’ from
her residence in Mexico” and that she did not actually live in Texas as the term is
used in the Family Code’s definition of “home state.” Id. The court of appeals
disagreed, holding that even if the mother “deems herself temporarily absent from
her domicile in Mexico, the child cannot be considered temporarily absent because
he was never physically present in Mexico” prior to commencement of the father’s
suit. Id. Citing a San Antonio appellate decision, the court stated, “the temporary
absence provision of Section 152.102(7) cannot be construed to include periods
before the child was first present in the claimed home state.” Id. (citing In re
Lambert, 993 S.W.2d 123, 129 (Tex. App.—San Antonio 1999, orig. proceeding)
(observing child’s “presence in Texas for the first week of her life was not an
‘absence’ from Virginia since she had never been there”)); see also Canales v.
Riquelme, No. 13-09-080-CV, 2010 WL 4657951, at *4 (Tex. App.—Corpus
Christi–Edinburg Nov. 18, 2010, no pet.) (mem. op.) (“[Mother’s] residency is of no
import in determining the trial court’s jurisdiction over the initial custody matter;
rather it is the physical presence of the children that is determinative.”).
Here, the jurisdictional evidence established that C.J.S. “lived from birth with
a parent” in Texas, and that Victoria’s subsequent, periodic temporary absences from
41
Texas to visit her son J. in Louisiana were “temporary absences” for purposes of the
UCCJEA.
D. Jurisdiction Evidence
Zach asserts that in reviewing the Texas court’s rulings on his Plea to the
Jurisdiction and the denial of his Motion to Reconsider, we may consider
jurisdictional evidence offered at the April 5, 2021 hearing on his Plea, the
September 8, 2021 re-convened hearing on his Plea, and the documents attached to
Zach’s combined post-judgment motions, including a transcript of the Louisiana
jurisdictional hearing held on June 17, 2021, and the mandamus record previously
filed in this Court.
For purposes of our de novo review, we may consider only the testimony and
the exhibits that were admitted into evidence when the trial court ruled on Zach’s
Plea to the Jurisdiction and his Motion to Reconsider. See Shahin, 527 S.W.3d at
487 (“We review the actions of the trial court based upon the materials before it at
the time it acted.”). During the May 16, 2022 hearing on Zach’s Motion to
Reconsider, the trial court also considered Zach’s Motion to Set Aside the court’s
Final Order based on the Craddock factors and his alternative Motion for New Trial.
At Zach’s request, the trial court took judicial notice of the record in the case,
including transcripts of the trial court’s jurisdictional hearings on April 5, 2021 and
42
September 8, 2021, as well as this Court’s mandamus record and the transcript of
the June 17, 2021 Louisiana court hearing.
Both parties agreed that the trial court take judicial notice of these documents.
But while a “the trial court can take judicial notice of the existence of certain
documents in its records,” it “‘may not take judicial notice of the truth of factual
statements and allegations contained in the pleadings, affidavits, or other documents
in the file.’” Kenny v. Portfolio Recovery Associates, LLC, 464 S.W.3d 29, 34 (Tex.
App.—Houston [1st Dist.] 2015, no pet.) (emphasis in original) (quoting Guyton v.
Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.)).
Texas Rule of Evidence 201, which governs judicial notice, limits the court’s judicial
notice to a fact that either “(1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” TEX. R. EVID. 201(b). “A document’s
contents do not achieve a cannot-reasonably-be-questioned status simply by
appearing in the trial court’s file.” Gonzalez v. Gonzalez, 679 S.W.3d 221, 231 (Tex.
App.—Houston [1st Dist.] 2023, no pet.) (citing Kenny, 464 S.W.3d at 34).
Moreover, it is not sufficient to take judicial notice of a hearing or trial transcript for
purposes of relying on that testimony in a later proceeding. “In order for testimony
from a prior hearing or trial to be considered in a subsequent proceeding, the
transcript of that testimony must be properly authenticated and entered into
43
evidence.” Guyton, 332 S.W.3d at 693; see also Paradigm Oil, Inc. v. Retamco
Operating, Inc., 161 S.W.3d 531, 539–40 (Tex. App.—San Antonio 2004, pet.
denied) (“[T]he trial court cannot take judicial notice of testimony from a previous
proceeding at a subsequent proceeding unless the testimony is admitted into
evidence at the subsequent proceeding.”).
Thus, while during the May 16, 2022 hearing, the trial court agreed to
judicially notice the existence of the record in the case and some documents attached
to Zach’s combined post-judgment motion, to the extent those documents were not
admitted into evidence, we may not consider them for purposes of our jurisdictional
analysis. The same is true with respect to the affidavits attached to Zach’s Motion
to Set Aside. While Zach attached his affidavit and the affidavit of his mother to his
Motion to Set Aside, which the trial court heard on the same day it considered Zach’s
Motion to Reconsider the denial of his plea, Zach did not offer those affidavits into
evidence, nor did he offer them in support of any jurisdictional arguments.28 As he
explained at the hearing on his Motion to Set Aside, Zach attached the affidavits to
his motion in support of the first element of the Craddock analysis, and he did not
28
Even though the affidavits and documents attached to Zach’s Motion to Set Aside
were not admitted into evidence, the parties agreed that the trial court could consider
them for the first element of the Craddock analysis in ruling on Zach’s Motion to
Set Aside, and the trial court agreed to do so. See Strackbein v. Prewitt, 671 S.W.2d
37, 38–39 (Tex. 1984) (holding affidavits may be considered in Craddock analysis,
stating, “It is sufficient that the movant’s motion and affidavits set forth facts which,
if true, would negate intentional or consciously indifferent conduct.”).
44
offer them into evidence. We thus decline to consider such evidence in evaluating
the trial court’s ruling on Zach’s Plea to the Jurisdiction and his Motion to
Reconsider.
E. Substantial Conformity with the UCCJEA
Zach argues that because he filed the Louisiana Action first, and the Louisiana
court was authorized to exercise jurisdiction based on “significant connections”
under the UCCJEA, the Texas trial court erred in exercising jurisdiction. He argues
that the Louisiana court had not deferred its jurisdiction to Texas as a more
appropriate forum and the Texas court was aware, in September 2021 when it
assumed jurisdiction, that Louisiana had already issued a final custody order
concerning C.J.S.29 Zach argues that pursuant to Section 152.206(a) of the Family
Code, the trial court should have declined jurisdiction and granted his Plea. We
disagree.
Section 152.206(a) of the Family Code provides that a court
may not exercise its jurisdiction under this subchapter if, at the time of
the commencement of the proceeding, a proceeding concerning the
custody of the child has been commenced in a court of another state
having jurisdiction substantially in conformity with this chapter . . . .
Id. § 152.206(a) (emphasis added). This provision, also known as the “simultaneous
proceeding” provision, is intended “to deal with situations where a Texas court and
29
That final order, dated August 2, 2021, was later vacated in the Second Louisiana
Action.
45
the court of another state are ‘both legitimately exercising custody jurisdiction at the
same time.’” In re C.H., 595 S.W.3d 272, 278 (Tex. App.—Amarillo 2019, no pet.)
(citing In re J.P.L., 359 S.W.3d 695, 710 (Tex. App.—San Antonio 2011, pet.
denied)). Significantly, a simultaneous-proceedings problem arises only when there
is no home state. Id. (citing TEX. FAM. CODE § 152.206 cmt.).
Under the Texas UCCJEA, “home-state jurisdiction trumps all other possible
bases of jurisdiction in an initial child custody action.” In re Brown, 203 S.W.3d at
891. Thus, if Texas is the home state of the child, no other state can legitimately
exercise jurisdiction “substantially in conformity with the UCCJEA.” In re A.B.G.,
No. 09-11-00545-CV, 2013 WL 257311, at *4 (Tex. App.—Beaumont Jan. 24,
2013, no pet.) (mem. op.); see also In re C.H., 595 S.W.3d at 278 (“Since Texas is
the home state of [the child], the Indiana court could not have exercised jurisdiction
in substantial conformity with the UCCJEA.”). As the comment to Section
152.206(a) explains, “[i]f there is a home state, there can be no exercise of significant
connection jurisdiction in an initial child custody determination and, therefore, no
simultaneous proceedings.” TEX. FAM. CODE § 152.206 cmt.; see also In re E.K.N.,
24 S.W.3d 586, 592 (Tex. App.—Fort Worth 2000, no pet.) (“Because it is
undisputed that Texas qualifies as the home state, the Los Angeles County Superior
Court could not have exercised jurisdiction in substantial conformity with Chapter
152.”); In re Burk, 252 S.W.3d 736, 741 (Tex. App.—Houston [14th Dist.] 2008,
46
orig. proceeding) (“Because there is a court of another state [Texas] that has
jurisdiction under section 152.201(a)(1), the Colorado court does not have
jurisdiction in substantial conformity with chapter 152 to make an initial child
custody determination.”); accord Powell, 165 S.W.3d at 328 (holding because
Tennessee was minor’s home state, Tennessee’s exercise of jurisdiction was
“substantially in accordance with” Texas’ UCCJEA).
On September 8, 2021, when the Texas trial court held that Texas was the
home state of the child and it exercised jurisdiction over the case, no court had made
a home state determination. The Louisiana trial court, in earlier exercising
jurisdiction over the case, never made an initial home state analysis. It neither
determined that Louisiana was the home state of the child or that there was no home
state. Rather, the Louisiana trial court exercised jurisdiction based solely on its
conclusion that Victoria had “significant contact with the State of Louisiana.” The
Louisiana trial court stated during a June 17, 2021 hearing on Victoria’s Exceptions
contesting the court’s jurisdiction:
I’m satisfied that you have significant contact with the State of
Louisiana. You had a residence here, you obviously visit your child [J]
on a regular schedule. Your child that is in question [C.J.S.] is on
Louisiana health insurance, insured through Louisiana. So you have
significant contact and the Court has jurisdiction[.]30
30
On August 5, 2021, Victoria unsuccessfully appealed the Louisiana trial court’s
denial of her jurisdictional challenge to the Louisiana Third Circuit Court of Appeal
and ultimately to the Supreme Court of Louisiana. Although the Court of Appeal
47
Before a court can exercise “significant connection jurisdiction” under the
UCCJEA, it must first determine that another court does not have home state
jurisdiction or that the court with home state jurisdiction declined jurisdiction
because the significant connection court is a more appropriate forum.31 See TEX.
FAM. CODE §§152.201(1), (2). The Louisiana trial court did not undertake this
analysis before the Texas SAPCR was filed in March 2021, or before the trial court
ruled on Zach’s Plea to the Jurisdiction in September 2021 and held Texas was the
child’s home state.32 The Louisiana court therefore did not exercise jurisdiction over
denied Victoria’s writ without opinion, Chief Judge Cooks wrote a dissenting
opinion stating that the Texas court “clearly ha[d] jurisdiction over this child,”
further noting that the Louisiana trial court had applied the wrong legal standard and
failed to comply with mandatory statutory provisions requiring it to confer with the
trial court, who had attempted multiple times to do so without success. See McNeil
v. Stern, 21-00557, 3 (La. App. 3 Cir. 9/20/21) (Cooks, C.J., dissenting). Chief
Justice Cooks wrote that the Louisiana trial judge had
[B]ased subject matter jurisdiction solely on the notion of “significant
contacts” which is not the proper legal standard under the present
UCCJEA. (Even if this were the applicable standard, I believe the
record does not support his conclusion.) The majority engages in the
same error.
Id. (emphasis in original). He concluded, “The [Louisiana] trial court could not
exercise jurisdiction over this minor child whose home state is in Texas.” Id. at 1.
31
The court must also determine whether “the child and the child’s parents, or the
child and at least one party or a person acting as a parent, has a significant
connection with the state other than mere physical presence” and “substantial
evidence is available in the state concerning the child’s care, protection, training and
personal relationships.” See TEX. FAM. CODE § 152.201(2).
32
Zach conceded during oral argument that the Louisiana trial court did not address
home state jurisdiction.
48
C.J.S. “substantially in conformity” with the UCCJEA, and the Texas trial court did
not abuse its discretion by exercising jurisdiction over C.J.S.. See In re C.H., 595
S.W.3d at 278 (explaining that if Texas is the home state, another state cannot be
exercising jurisdiction “in substantial conformity” with the UCCJEA).
We further acknowledge the Texas trial court’s repeated efforts to confer with
the Louisiana trial court judge on this matter to no avail. In her Findings of Fact
issued after the final trial, the Texas trial court judge identified seven specific
attempts she made to confer with the Louisiana court, noting she had made other
attempts before she began to keep track of the date and time of each attempt, but the
Louisiana trial court never returned the calls. While the Louisiana court’s refusal to
confer does not resolve the jurisdictional inquiry, the failure of the trial court judge
to confer, as mandated by the UCCJEA, was a failure of the court to act in
conformity with the UCCJEA.33 See TEX. FAM. CODE § 152.206(b). Both the Texas
33
Victoria appealed the Louisiana Court’s order on her exception for lack of
jurisdiction to the Louisiana Third Circuit Court of Appeal. A divided panel denied
supervisory writ review on September 20, 2021. In his written dissent, Chief Judge
Cooks wrote that the Louisiana trial court judge had complicated matters by
ignoring the mandatory directives of the UCCJEA and refusing to confer with the
trial court judge in Texas. McNeil v. Stern, 21-00557, 4 (La. App. 3 Cir. 9/20/21)
(Cooks, C.J., dissenting). The Supreme Court subsequently denied Victoria’s writ
of review. Judge Griffin wrote a concurrence, with three other justices joining, in
which he expressed his agreement with Chief Judge Cooks that the UCCJEA and
its provisions are mandatory in matters of child support and jurisdiction. He
explained that “the trial court was required . . . to communicate with the Texas court
which did its part in staying its proceedings, made several attempts to contact the
trial court, and was unfortunately ignored. Justice Griffin concluded by noting that
49
and the Louisiana versions of the UCCJEA require judges who are involved in
simultaneous custody proceedings to confer. TEX. FAM. CODE § 152.206(b); LA.
STAT. ANN. § 13:1818(B).34
F. The Unjustifiable Conduct Argument
Last, Zach argues that even if we conclude that Texas is C.J.S.’s home state,
the Texas trial court should have declined to exercise jurisdiction under Section
152.208 of the Texas Family Code, because Victoria engaged in unjustifiable
conduct in securing the court’s jurisdiction. Zach focuses on Victoria’s action in
leaving Louisiana with C.J.S. in March 2021, after she was served with the Louisiana
Action and the court’s temporary restraining order. He argues that “Victoria’s
presence in Texas with the child in violation of a valid Louisiana order” imposed a
mandatory obligation on the Texas court to decline jurisdiction.
“we owe the same respect to Texas courts that we would expect them to show
Louisiana courts.” McNeil v. Stern, 326 So.3d 883, *1 (La. 2021) (Griffin, J.,
concurring).
34
Section 152.206(b) of the Texas Family Code provides: “If the court determines that
a child custody proceeding has been commenced in a court in another state having
jurisdiction substantially in accordance with this chapter, the court of this state shall
stay its proceeding and communicate with the court of the other state. TEX. FAM.
CODE § 152.206(b). The Louisiana UCCJEA has an identical provision. See LA.
STAT. ANN. § 13:1818.
50
Zach did not raise this argument during the first two hearings on his Plea to
the Jurisdiction nor did he present any evidence at those hearings in support of his
argument.35 Even if Zach had raised the issue, he would not prevail.
Section 152.208(a) provides that a Texas court “shall decline to exercise its
jurisdiction” if “a person seeking to invoke its jurisdiction has engaged in
unjustifiable conduct.” TEX. FAM. CODE § 152.208(a).36 Section 152.208(a) is
intended to deal with cases where parents “act in a reprehensible manner, such as
removing, secreting, retaining, or restraining the child.” TEX. FAM. CODE § 152.208
cmt. The section “ensures that abducting parents will not receive an advantage for
their unjustifiable conduct.” Id. Because Victoria sought to invoke the Texas court’s
35
In his Motion for New Trial, Zach referred to “Victoria’s unjustifiable conduct in
removing the child from Louisiana and misrepresenting the child’s time in Texas as
supporting her jurisdictional claims prior to filing the Texas suit.”
36
Section 152.208 of the Family Code provides in part:
(a) Except as otherwise provided in Section 152.204 or other law of this
state, if a court of this state has jurisdiction under this chapter because
a person seeking to invoke its jurisdiction has engaged in unjustifiable
conduct, the court shall decline to exercise its jurisdiction unless:
(1) the parents and all persons acting as parents have acquiesced in the
exercise of jurisdiction;
(2) a court of the state otherwise having jurisdiction under Sections
152.201 through 152.203 determines that this state is a more
appropriate forum under Section 152.207; or
(3) no court of any other state would have jurisdiction under the
criteria specified in Sections 152.201 through 152.203.
TEX. FAM. CODE § 152.208.
51
jurisdiction, it is her conduct that a court examines under the Section 152.208
standard. In re S.L.P., 123 S.W.3d 685, 689 (Tex. App.—Fort Worth 2003, no pet.).
The only allegation of wrongdoing pertains to Victoria’s action in taking
C.J.S. to Texas in early March 2021, after she was served with the Louisiana
temporary restraining order. While her actions purportedly violated the terms of the
temporary restraining order, Victoria argues she believed the Louisiana court lacked
jurisdiction over her or C.J.S. and that she heavily litigated that issue in Louisiana.
There is no evidence that Victoria attempted to hide the Louisiana Action from the
Texas trial court. Indeed, she disclosed the Louisiana Action in the affidavit attached
to her original petition, and the Louisiana proceedings were discussed in the Texas
Action during the hearings on April 5, 2021 and September 8, 2021, and during the
trial on March 10, 2022.
There is also no allegation, and indeed no evidence that, Victoria “secret[ed],
retain[ed], or restrain[ed]” C.J.S.—that is, there is no evidence she abducted C.J.S.
or prevented Zach from seeing the child. To the contrary, Victoria testified that
when she allowed Zach to visit C.J.S. in Texas, Zach absconded to Louisiana with
C.J.S. Zach also knew of C.J.S.’s and Victoria’s whereabouts. He did not dispute
that C.J.S. lived with Victoria in Texas for five weeks following his birth through
January 2021, or that Victoria had a house in Rosenberg, Texas, where C.J.S. stayed
with Victoria. While Zach argues that Victoria resided in Louisiana, the trial court
52
heard evidence that Victoria traveled back and forward between the two states given
her custody obligations over J. and M.G.
In short, there is no evidence supporting Zach’s allegations that Victoria
engaged in the type of unjustifiable conduct contemplated by Section 152.208. See,
e.g., In re S.L.P., 123 S.W.3d at 689 (holding appellant engaged in unjustifiable
conduct because she failed to apprise the trial court that she had participated in
previous court proceedings regarding custody, that her parental rights had been
terminated, and that she had refused to return children to the father for nearly two
years in violation of a standing custody order); In re Carpenter, 835 S.W.2d 760,
762 (Tex. App.—Amarillo 1992, no writ) (finding father engaged in unjustifiable
conduct because he abducted child, removed child from state, and kept child from
mother for four years until father and child were located living in Texas). We thus
conclude the trial court did not abuse its discretion in exercising jurisdiction and
rejecting Zach’s arguments under Section 152.208.
We overrule Zach’s second and third issues.
The Default Judgment
In his first issue, Zach argues the trial court abused its discretion in refusing
to grant his Motion to Set Aside the default Final Order. He argues that under the
Craddock standard, the trial court was required to set aside the Final Order and grant
him a new trial.
53
A. Standard of Review and Applicable Law
The seminal case that establishes the proof a defaulting party must establish
to obtain a new trial is Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex.
1939). Under Craddock, a default judgment must be set aside and a new trial granted
if
(1) the failure to answer or appear was not intentional or the result of
conscious indifference but was rather due to a mistake or accident,
(2) the defendant sets up a meritorious defense, and (3) the granting of
a new trial would not result in delay or otherwise injure the plaintiff.
In re R.R., 209 S.W.3d 112, 114–15 (Tex. 2006) (citing Craddock, 133 S.W.2d at
126). We review a trial court’s denial of a motion for new trial for abuse of
discretion. B. Gregg Price, P.C. v. Series 1 - Virage Master LP, 661 S.W.3d 419,
423 (Tex. 2023).
Under the first Craddock element, the movant must “set forth facts that negate
intentional or consciously indifferent conduct because of a mistake or accident[.]”
Freeman v. Pevehouse, 79 S.W.3d 637, 644 (Tex. App.—Waco 2002, no pet.)
(citing Strackbein v. Prewitt, 671 S.W.2d 37, 38–39 (Tex. 1984)). To determine
whether the movant acted intentionally or with conscious indifference, a trial court
focuses on the knowledge and acts of the defaulting party. Director, State Emp.
Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). A movant
satisfies its burden under the first Craddock element “when the factual assertions, if
true, negate intentional or consciously indifferent conduct by the defendant and the
54
factual assertions are not controverted by the plaintiff.” In re R.R., 209 S.W.3d at
114–15. When, as here, the trial court conducts an evidentiary hearing and the party
who obtained the default judgment controverts the defaulting party’s allegations of
mistake or accident, the trial court must “make an essentially factual inquiry into the
acts and knowledge of the defaulting defendant to determine whether his failure to
answer was intentional.” Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex. App.—
Houston [14th Dist.] 1988, no writ) (citation omitted); see also Strackbein, 671
S.W.2d at 38–39 (noting affidavits may be considered in Craddock analysis); Wal-
Mart Stores, Inc. v. Kelley, 103 S.W.3d 642, 644 (Tex. App.—Fort Worth 2003, no
pet.) (noting movant “must either submit competent evidence to support the
Craddock elements OR attach affidavits to its motion”) (emphasis in original).
Craddock is applicable to the entry of default judgments in SAPCRs. In re
R.R., 209 S.W.3d at 114–15 (applying Craddock standard in parental termination
case); Comanche Nation v. Fox, 128 S.W.3d 745, 749 (Tex. App.—Austin 2004, no
pet.) (“Texas appellate courts have routinely applied the Craddock test to
SAPCRs.”); In re A.P.P., 74 S.W.3d 570, 573 (Tex. App.—Corpus Christi 2002, no
pet.) (applying Craddock in appeal of default judgment where mother was removed
as sole managing conservator of child); Lowe v. Lowe, 971 S.W.2d 720, 722-23
55
(Tex. App.—Houston [14th Dist.] 1998, pet. denied) (applying Craddock in appeal
of default judgment that named father sole managing conservator of children).37
B. The Hearing
Five witnesses testified during the hearing on Zach’s Motion to Set Aside.
1. Zach’s Trial Counsel
Zach’s former trial counsel testified that he was licensed to practice law in
Texas in 1999, and that he practices predominantly family law. Zach hired him to
represent him in this SAPCR case. After reviewing the Texas trial court’s
jurisdiction, Zach’s counsel opted not to file a special appearance and he filed a plea
challenging subject matter jurisdiction instead. He understood that by filing the plea,
Zach had made an appearance in the Texas court.
According to Zach’s counsel, he and Zach’s mother, Michele, discussed on
more than one occasion that Zach would waive his subject matter jurisdiction
challenge if he appeared before the Texas court. He also told Michele that he could
not offer anything into evidence without waiving Zach’s jurisdictional challenge.
In an email exchange with Michele, in response to her question as to whether Zach
37
But see In re T.F., No. 02-18-00299-CV, 2019 WL 2041790, at *3 n.6 (Tex. App.—
Fort Worth May 9, 2019, no pet.) (mem. op.) (noting that several intermediate
appellate courts “have noted that the Craddock test, specifically the second prong,
is ill-suited to SAPCR cases because it fails to expressly consider the best interest
of the affected children, which is the overriding consideration in any SAPCR
determining conservatorship, possession, and access.” (citing TEX. FAM. CODE
§ 153.002). However, the state’s courts “continue to be bound by the test.” Id.
56
should appear at trial, Zach’s counsel answered, “No need to appear. As a matter of
fact, if we do appear, then we will be submitting to the Court’s jurisdiction.” Zach’s
counsel stated in the email exchange that “[e]ntering into any evidence would waive
our right to object to the jurisdiction.”
Asked whether he made a mistake in analyzing the law and concluding Zach
would waive his jurisdictional challenge by appearing at trial, Bosker testified, “I
would agree it was a mistake not appearing and that I wish that we had appeared to
renew and re-urge our objections that Texas was not the home state, Louisiana was
and, again, to re-urge my objection with regards to the subject matter jurisdiction.”
He testified that he believes it is correct that Zach “could have participated in the
temporary order hearing on the final trial without waiving his challenge to the
Court’s subject matter jurisdiction.” He testified he “may have mistakenly applied
the law.”
Zach’s counsel conceded that he advised Zach not to participate in the
temporary order hearing because of his belief that if Zach participated, he would
waive his right to challenge the trial court’s subject matter jurisdiction. He testified,
“I, at one time, did have that belief and understanding, correct.” Based on that
understanding, he also advised Zach not to appear at the final trial. Zach’s counsel
acknowledged that he “may have mistakenly applied the law.” Asked whether Zach
57
made a mistake in relying on his advice about waiver of subject matter jurisdiction,
Zach’s counsel responded, “Zach made a mistake.”
At times, Zach counsel’s testimony was contradictory. He first testified that
he “didn’t know” in September 2021 whether subject matter jurisdiction could be
waived.38 But when asked whether he learned, after entry of the Final Order, that
subject matter jurisdiction could not be waived, he testified, “No, because I knew
that it could not be waived. I also was under the belief that it could be appealed at
any time.” He testified that his understanding is that a party cannot waive subject
matter jurisdiction.
On cross-examination, Zach’s counsel testified that after this Court denied
Zach’s application for a writ of mandamus in January 2022, he conducted further
analysis on jurisdiction and still “determined that [he and Zach] would not appear at
the final trial.”
2. Zach
Zach testified that he filed a SAPCR suit in Louisiana in March 2021. That
same month, he was served with the Texas Action. Zach testified he is challenging
Texas jurisdiction because both he and Victoria lived in Louisiana when he filed
38
Zach’s counsel conceded that he stated during the Temporary Orders hearing that
he “ha[d] strong concerns that by appearing and making argument at a temporary
orders hearing that [Zach] would be submitting [him]self to the Court’s jurisdiction
which is at issue here.” He thus told the trial court that he and Zach would not
participate in the hearing.
58
suit. He understood that the August 2, 2021 Louisiana order was a final order
regarding custody of C.J.S.
Zach testified that his trial counsel told him that participating in the Texas
lawsuit “would waive my rights to an appeal for jurisdiction in Texas and
Louisiana.” Zach testified that he did not participate in the temporary order hearing
because his counsel told him it would “waive my objection to jurisdiction, so I had
no reason to doubt him.” Similarly, Zach testified that he did not participate in the
trial in March 2022 based on his counsel’s advice not to appear. In light of his
counsel’s advice, Zach believed that appearing at trial “would waive [his] right to
object [to] Texas jurisdiction.” Zach testified that it was always his intent to
challenge Texas jurisdiction because he and Victoria lived in Louisiana and there
was a SAPCR in the Louisiana court, which found it had jurisdiction. He testified
there was no reason for him not to appear at trial, other than his counsel’s advice.
In his affidavit, filed in support of his Motion to Set Aside, Zach also testified
that he “completely relied” on the experience, advice and judgment of his then-
attorney who told him if they appeared in any proceedings or submitted evidence it
would create “an appearance” and result in the waiver of Zach’s right to object to
jurisdiction in any appeal. Following his attorney’s advice, Zach did not appear for
the March 10, 2022 trial setting, and a default Final Order was signed that day.
59
3. Michele
Michele is Zach’s mother and C.J.S.’s grandmother. She testified that Zach’s
counsel told her they could not appear for the Temporary Orders hearing “because
we already had jurisdiction in Louisiana and it would possibly jeopardize that
jurisdiction basically admitting Texas had a say so. So that’s what he told us, and
that’s what we did.” She testified she had several conversations, some via email,
with Zach’s counsel concerning the potential waiver of jurisdiction, and that she
relayed the conversations to Zach. She said Zach did not participate in the
Temporary Orders hearing because of counsel’s advice.
4. Victoria
Victoria testified about attorneys’ fees. She testified that she and her counsel
appeared twice for a final trial prior to the default hearing on March 10, 2022. She
testified briefly about C.J.S.’s whereabouts and her living arrangements with him
until Zach took him to Louisiana in June 2021. She testified that she is not “able to
afford attorney’s fees for a new trial in this matter.” She also testified that she
“participate[d] in the Louisiana [Action] even though [she] was objecting to
jurisdiction there,” and that she was still actively involved in challenging the orders
of the Louisiana court.
60
5. Victoria’s Attorney
The attorney who represented Victoria in the Louisiana litigation testified
about the status of the Louisiana proceedings as of the time of the hearing. She
testified they were waiting for an ad hoc judge to be appointed in response to
Victoria’s Motion to Recuse the Louisiana trial court judge from the case. In
addition, they were trying to annul the Louisiana court’s August 2, 2021 final order,
because (1) the Louisiana court lacked subject matter jurisdiction, and (2) the order
was rendered in violation of a stay order. She testified that because there is no basis
for the judgment, which is null, there is no basis for an appeal in Louisiana. She
testified Victoria filed a petition to annul the judgment “because that was the only
permissible attack[.]” She testified they were not able to file a motion for new trial
because the judgment was not “a valid final judgment and thus is not appealable.”
At the conclusion of the hearing, the trial court took Zach’s Motion to Set
Aside under advisement. Later, on May 23, 2022, the court signed an order denying
the motion.
C. Analysis
It is undisputed that Zach failed to appear for trial on March 10, 2022, and that
his actions were deliberate. Zach argues, however, that the trial court erred in
denying his Motion to Set Aside because his actions were justified. He argues his
failure to appear was based on his attorney’s mistaken belief that appearing at trial
61
would result in waiver of his objection to the Texas court’s jurisdiction, and that
such a “mistake of law” can satisfy the first Craddock element.
Victoria argues that because Zach’s failure to appear at trial was intentional
and purposeful, he cannot satisfy the first Craddock prong requiring proof of mistake
or accident. She argues that cases involving justification based on mistakes of law
are cases involving action by the defaulting party, and not deliberate inaction like
the failure to appear at trial. Victoria further argues that given the testimony from
Zach’s counsel that he knew subject matter jurisdiction cannot be waived, “the only
conclusion that can be reached . . . is that his failure to appear along with his client’s
decision not to appear was an intentional act.” She argues that because Zach’s
counsel testified he “was under the belief that [subject matter jurisdiction] could be
appealed at any time,” Zach’s counsel “intentionally didn’t appear because he
planned to appeal. This is clearly intentional conduct and a legal strategy, not a
‘mistake.’”39
Zach’s counsel’s testimony was inconsistent during the hearing.40 Although
he first testified that he knew subject matter jurisdiction could not be waived and
39
In the hearing on the Motion to Set Aside, Zach’s trial counsel conceded that Zach’s
failure to attend trial was a “mistake in [his] strategy.”
40
When contradictory evidence is offered in support of a Craddock motion, it is within
the trial court’s discretion to determine which facts to believe. See Lynch v. Lynch,
540 S.W.3d 107, 122 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (noting if
during evidentiary hearing on motion for new trial, party that obtained default
62
could be appealed at any time,” he later testified that he advised Zach to leave the
temporary order hearing and to forego appearing at the final trial because if Zach
participated, he would waive his right to challenge the court’s subject matter
jurisdiction. He acknowledged admitting he made a mistake in analyzing the law
regarding subject matter jurisdiction.
“Failing to file an answer intentionally or due to conscious indifference means
‘the defendant knew it was sued but did not care.’” In re R.R., 209 S.W.3d at 115
(quoting Fidelity and Guar. Ins. Co. v. Drewery Const. Co., Inc., 186 S.W.3d 571,
576 (Tex. 2006)). “[S]ome excuse, although not necessarily a good one, [however]
will suffice to show that a defendant’s failure to file an answer was not because the
defendant did not care.” Id. at 115 (citing Fidelity, 186 S.W.3d at 576); see also
Rojas v. Scharnberg, No. 01-09-01039-CV, 2011 WL 941616, at *5 (Tex. App.—
Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.) (“Even a slight excuse is
sufficient to satisfy the first prong of Craddock.” (citing P & H Transp., Inc. v.
Robinson, 930 S.W.2d 857, 861 (Tex. App.—Houston [1st Dist.] 1996, writ
denied)).
judgment presents evidence to show defaulting party acted intentionally or with
conscious disregard, “the question of why the defaulted party failed to answer
presents a question of fact, which is resolved by the factfinder.”) (quoting Pekar v.
Pekar, No. 09-14-00464-CV, 2016 WL 240761, at *3 (Tex. App.—Beaumont Jan.
21, 2016, no pet.) (mem. op.)).
63
According to Zach, courts have held that a “mistake of law,” such as the one
here, can satisfy the first Craddock element. He relies on three cases, none of which
is directly on point. See Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 97
(Tex. 1986) (holding first Craddock requirement satisfied when answer was not filed
because of mistaken belief that payment made on open account would result in
dismissal and negated need for answer)41; Tex. State Bd. of Pharmacy v. Martinez,
658 S.W.2d 277, 280 (Tex. App.—Corpus Christi–Edinburg 1983, writ ref’d n.r.e.)
(holding first Craddock prong satisfied by appellant’s mistaken belief that answer
filed in other suit where appellant believed venue was proper for instant suit relieved
party of duty to answer instant suit)42; Bank One, Tex., N.A. v. Moody, 830 S.W.2d
81, 84–85 (Tex. 1992) (holding first Craddock element satisfied when bank branch
41
The opinion does not indicate whether the appellant retained an attorney before
failing to file an answer. Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 97
(Tex. 1986). The court held that “Angelo’s failure to answer was not caused by
conscious indifference but by the belief that payment according to the agreed
schedule would cause the suit to be dismissed.” Id.42
Although the opinion refers to the appellant and not its attorney, we presume the
appellant had counsel when it filed a motion to dismiss and appeared at a hearing
on a motion to dismiss in the other county, and that it was counsel’s mistaken belief
“that jurisdiction for the suit was only proper in Travis County, Texas, wherein it
had filed an answer in response to the suit appellee had filed there.” Tex. State Bd.
of Pharmacy v. Martinez, 658 S.W.2d 277, 280 (Tex. App.—Corpus Christi–
Edinburg 1983, writ ref’d n.r.e.).
64
president failed to file written answer to writ because he thought freezing of subject
accounts and tendering balance of accounts to court was “sufficient answer”).43, 44
The most analogous case on which Zach relies is Tex. State Bd. of Pharmacy
v. Martinez, but its holding appears to be limited to cases where “the failure to
answer a lawsuit” is “based upon a mistaken belief that an action taken in another
suit relieved the party of his duty to answer.” 658 S.W.2d at 280. In Martinez, the
appellee sued the appellant in Travis County and subsequently filed an identical suit
in Hidalgo County. Id. at 278. The appellant filed an answer to the Travis County
suit but not to the Hidalgo County suit, as he believed jurisdiction was proper only
in Travis County. Id. After a default judgment was rendered in the Hidalgo County
suit, the appellant filed an answer.
In reversing and remanding for a new trial, the court observed there is “very
little authority” that addresses the failure to answer a lawsuit based on a mistaken
belief that the party need not answer given an action taken in another suit. Id. at 280.
43
The opinion lacks any indicia of whether the appellant retained an attorney before
failing to file an answer. It only says, “Bank One did not file an answer because it
mistakenly believed that freezing the accounts and submitting a check for the
balance in the accounts to the court was a sufficient answer.” Bank One, Tex., N.A.
v. Moody, 830 S.W.2d 81, 84 (Tex. 1992).
44
See Knie v. Piskun, 23 S.W.3d 455, 464 (Tex. App.—Amarillo 2000, pet. denied)
(observing that in Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992),
“the court expressly held that a mistake of law, in contrast to ignorance of the law,
can be sufficient to meet the accident or mistake standard set out in Craddock.”)
(emphasis in original).
65
The court relied on a 1982 Texas Supreme Court case where the appellant filed pleas
of privilege in two suits in order to have the actions transferred from one county to
another. Id. (citing Guaranty Bank v. Thompson, 632 S.W.2d 338, 339 (Tex. 1982)).
The pleas of privilege were overruled and while they were on appeal, default
judgments were entered in both cases. Id. The Supreme Court explained it was not
disputed that appellant had not intentionally failed to answer, but the court did not
reach the issue in reversing and remanding for a new trial. Id.The court of appeals in Martinez also relied on a 1923 appellate decision that
held that a “multiplicity of suits” should not “be tolerated to the confusion and
undoing of an unoffending citizen.” Id. (citing Meckel v. State Bank of Barksdale,
256 S.W. 668, 669 (Tex. App.—San Antonio 1923, no writ)). Finally, the court
relied on an 1858 case that granted a new trial to a defendant who did not file an
answer in a suit but instead “relied on the prayer for an injunction in another cause
as a sufficient answer in this cause.” Id. (citing Dowell v. Winters, 20 Tex. 793, 795
(1858)). Unlike the facts in Martinez, this case does not involve a failure to file an
answer due to a belief that a filed answer in another case was sufficient. Martinez is
thus inapposite.
We find Padilla v. Hollerman Dev., L.P., No. 04-08-00739-CV, 2009 WL
1153324 (Tex. App.—San Antonio 2009, no pet. ) (mem. op.), a more recent case,
more analogous and persuasive. In that case, the appellee sued Padilla and attempted
66
four times to serve him at his home. Id. at *1. After a Rule 10645 motion was
granted, the process server served Padilla by leaving the documents on his front door.
Id. Padilla found the papers in the bushes outside his home and took them to his
attorney. The attorney told Padilla he was not properly served and to “wait and see
what happened.” Id. The trial court entered a default judgment and Padilla filed a
motion for new trial. Among other things, Padilla asserted that his attorney’s
conclusion that he had not been properly served was a mistake of law that satisfied
Craddock’s first prong. Id. at *3. The trial court denied the motion and the court of
appeals affirmed.
During the hearing on the motion for new trial, Padilla’s attorney testified “he
did no research regarding whether an answer was due, and that if he had, he would
have filed an answer.” Id. Based on that testimony, the trial court held Padilla did
not satisfy the first Craddock prong. Id. The appellate court stated, “[N]ot every act
of a defendant that could be characterized as a mistake of law is a sufficient excuse.”
Id. at *3 (quoting Walker v. Gutierrez, 111 S.W.3d 56, 64 (Tex. 2003)). The court
continued:
45
Texas Rule of Civil Procedure 106(b) governs substituted service. TEX. R. CIV. P.
106(b). When Padilla was decided, a prior version of Rule 106(b) was in effect,
but it makes no difference with respect to our analysis of this issue.
67
In determining whether the failure to answer was not intentional or the
result of conscious indifference but rather due to accident or mistake,
we look to the knowledge and acts of the claimant. Generally, when the
claimant relies on an attorney to file an answer, the claimant must
establish that the failure to answer was not intentional or the result of
the conscious indifference of either himself or his attorney.
Id. (internal citations omitted). Padilla argued his failure to answer the lawsuit was
a mistake rather than conscious indifference, because he had acted on his attorney’s
recommendation. Id. The court of appeals disagreed, noting that a mistake of law
usually results “when a party’s mistake caused him to respond affirmatively, but
ineffectively, to the notice.” Id. The court held that Padilla “was properly served
with notice of [the appellee’s] complaint, and his mistaken reliance on his attorney’s
advice [did] not excuse his failure to respond in some way to the lawsuit.” Id. at *4.
Thus, the court held Padilla failed to satisfy the first Craddock requirement.
Zach argues that his situation is different because his failure to show up at trial
was not “inaction,” but rather “specific, actionable conduct following the
instructions and advice of his lawyer.” See Padilla, 2009 WL 1153324 at *3
(observing that “action rather than inaction separated satisfactory mistakes of law
from those which did not excuse a default”). But taken to its logical conclusion, this
would mean that any failure to appear based on an attorney’s misunderstanding of
the law would result in justifiable “action” sufficient to overcome the first Craddock
68
prong. That is not the standard.46, 47 The evidence before the trial court established
that Zach, relying on the advice of counsel, chose not to appear at trial because his
legal strategy was to appeal and challenge the jurisdiction of the Texas trial court.
On these facts, we conclude Zach did not establish he failed to appear at trial based
on mistake or accident. See id.; see also Carey Crutcher, Inc. v. Mid-Coast Diesel
Servs., Inc., 725 S.W.2d 500, 502 (Tex. App.—Corpus Christi–Edinburg 1987, no
writ) (holding attorney’s mistaken belief that answer was not necessary in light of
bankruptcy stay “is not the type of mistake that negates conscious indifference” and
that the testimony “support[ed] the conclusion that the attorney made a conscious
decision not to answer.”); 21st Century Home Mortg. v. City of El Paso, 281 S.W.3d
83, 86–87 (Tex. App.— El Paso 2008, no pet.) (holding trial court did not abuse
discretion in denying motion for new trial when attorney testified he did not file
answer because after reviewing original petition, he determined client was not party
and he “was confused about why his client had been served”).
46
Cf. Walker v. Gutierrez, 111 S.W.3d 56, 62, 65 (Tex. 2003) (applying Craddock
“conscious indifference” analysis in context of failure to serve adequate expert
report in medical malpractice case, holding mistake of law did not excuse conscious
indifference where attorney did not review expert report to ensure it complied with
statutory requirements).
47
Compare with Nalley v. Quevedo, No. 01-20-00400-CV, 2022 WL 1547780, at *6
(Tex. App.—Houston [1st Dist.] May 17, 2022, no pet.) (mem. op.) (holding first
Craddock factor satisfied when attorney explained she mistakenly believed
response to modification petition was due before temporary injunction hearing,
which was nine days after deadline to file response).
69
Because we find that Zach did not satisfy the first Craddock element, we need
not address the second or third elements. We overrule Zach’s first issue.
The Orders Regarding Conservatorship and Possession
In his fourth issue, Zach complains of the trial court’s orders, which he argues
are not in the best interest of the child. He argues the trial court’s orders regarding
conservatorship and possession are based on insufficient evidence, ignore applicable
legal presumptions, and impose restrictions that are not in the child’s best interest.
A. Standard or Review and Applicable Law
We review a trial court’s orders on possession and conservatorship for abuse
of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Syed v.
Masihuddin, 521 S.W.3d 840, 847 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
A trial court abuses its discretion if it acts “without reference to any guiding rules or
principles; in other words, [if] the act was act was arbitrary or unreasonable.”
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
“Under an abuse of discretion standard, legal and factual sufficiency are not
independent grounds of error, but rather are relevant factors in assessing whether the
trial court abused its discretion.” Arevalo v. Fink, No. 01-19-00822-CV, 2020 WL
5778813, *2 (Tex. App.—Houston [1st Dist.] Sept. 29, 2020, no pet.) (mem. op.)
(citing In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—Houston [1st Dist.] 2017, pet.
denied)). “A trial court does not abuse its discretion if it bases its decision on
70
conflicting evidence and some evidence supports its decision.” In re Barber, 982
S.W.2d 364, 366 (Tex. 1998) (orig. proceeding). In considering whether the trial
court abused its discretion, “we look only to the evidence before the trial court when
the trial court rendered its decision.” G. R. v. Tex. Dep’t of Pub. Safety, No. 03-20-
00090-CV, 2020 WL 5099772, at *1 (Tex. App.—Austin Aug. 26, 2020, no pet.)
(mem. op.) (citation omitted).
Custody disputes “are inherently fact-intensive” and we “routinely defer to
the fact finder in matters of credibility and demeanor[.]” In re Vogel, 261 S.W.3d
917, 925 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The trial court is best
able “to observe the demeanor and personalities of the witnesses and [to] ‘feel’ the
forces, powers, and influences that cannot be discerned by merely reading the
record.” Smith v. Payandeh, No. 01-18-00463-CV, 2019 WL 2528197, at *7 (Tex.
App.—Houston [1st Dist.] June 20, 2019, no pet.) (mem. op.) (quoting Echols v.
Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.)).
When, as here, an abuse of discretion standard applies and the trial court issues
findings of fact and conclusions of law, “findings of fact and conclusions of law aid
us in reviewing the propriety of the ruling by providing us with an explanation for
the ruling.” In re M.J.G., 248 S.W.3d 753, 761 (Tex. App.—Fort Worth 2008, no
pet.). We review findings of fact for abuse of discretion “if they involve an
evaluation of witness credibility and demeanor.” In re S.V., 599 S.W.3d 25, 46 (Tex.
71
App.—Dallas 2017, pet. denied). We review conclusions of law de novo. Id.“Findings of fact may be overturned only if they are so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust.” In re Reedle, No.
05-16-01483-CV, 2017 WL 944030, at *2 (Tex. App.—Dallas Mar. 10, 2017, orig.
proceeding) (mem. op.) (citing In re L.A.F., 270 S.W.3d 735, 739 (Tex. App.—
Dallas 2008, pet. denied)).
The child’s best interest “shall always be the primary consideration of the
court in determining the issues of conservatorship and possession of and access to
the child.” TEX. FAM. CODE § 153.002. The trial court is given “wide latitude” in
determining a child’s best interests. Gillespie, 644 S.W.2d at 451. ‘“[B]est interest’
is a term of art encompassing a [broad] facts-and-circumstances based evaluation
that is accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013)
(orig. proceeding). The best-interest determination is made based on several non-
excusive factors:
(1) the desires of the child; (2) the emotional and physical needs of the
child now and in the future; (3) the emotional and physical danger to
the child now and in the future; (4) the parental abilities of the
individuals seeking custody; (5) the programs available to assist these
individuals to promote the best interest of the child; (6) the plans for the
child by these individuals or by the agency seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions
of the parent which may indicate that the existing parent-child
relationship is not a proper one; and (9) any excuse for the acts or
omissions of the parent.
72
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (internal footnotes omitted).
Courts also consider the best-interest factors enumerated in section 153.134 of the
Family Code:
(1) whether the physical, psychological, or emotional needs and
development of the child will benefit from the appointment of joint
managing conservators; (2) the ability of the parents to give first
priority to the welfare of the child and reach shared decisions in the
child’s best interest; (3) whether each parent can encourage and accept
a positive relationship between the child and the other parent; (4)
whether both parents participated in child rearing before the filing of
the suit; (5) the geographical proximity of the parents’ residences; (6)
if the child is 12 years of age or older, the child’s preference, if any,
regarding the person to have the exclusive right to designate the primary
residence of the child; and (7) any other relevant factor.
TEX. FAM. CODE §153.134(a). And in making a possession order for a child under
three years old, the court must consider in determining the best interest of the child:
(1) the caregiving provided to the child before and during the current
suit; (2) the effect on the child that may result from separation from
either party; (3) the availability of the parties as caregivers and the
willingness of the parties to personally care for the child; (4) the
physical, medical, behavioral, and developmental needs of the child;
(5) the physical, medical, emotional, economic, and social conditions
of the parties; (6) the impact and influence of individuals, other than the
parties, who will be present during periods of possession; (7) the
presence of siblings during periods of possession; (8) the child’s need
to develop healthy attachments to both parents; (9) the child’s need for
continuity of routine; (10) the location and proximity of the residences
of the parties; (11) the need for a temporary possession schedule that
incrementally shifts to a standard possession order . . . based on the age
of the child or minimal or inconsistent contact with the child by a party;
(12) the ability of the parties to share in the responsibilities, rights, and
duties of parenting; and (13) any other evidence of the best interest of
the child.
73
TEX. FAM. CODE § 153.254(a).48
When as here, a defendant files an answer but fails to appear at trial, a trial
court may not render a default judgment on the pleadings. Arevalo, 2020 WL
5778813 at *3. The plaintiff is required to offer evidence and prove all aspects of
its claim. Id. Thus, Victoria was required to provide the court with sufficient
evidence to support her requests with respect to conservatorship and possession. See
Smith v. Hickman, No. 04-19-00182-CV, 2020 WL 1442663, at *2 (Tex. App.—San
Antonio Mar. 25, 2020, no pet.) (mem. op.) (in default context, “with regard to
conservatorship, evidence must be presented to support a finding” of best interest of
child).
B. Analysis
Zach argues it was unreasonable for the trial court to ignore the Louisiana
orders awarding Victoria supervised visitation, and that the record shows that the
Texas trial court, frustrated with the Louisiana court’s refusal to confer as required
by the UCCJEA, made the “unreasonable choice” of exercising jurisdiction even
though declining jurisdiction would have “eliminated all jurisdictional conflicts
between the states.” Zach asserts that the only evidence proffered at trial—that
proffered by Victoria—does not support the best-interest determination the trial
48
We note that C.J.S. turned three in December 2023, thus Section 153.254 is no
longer applicable. However, we review the evidence before the trial court when it
made its ruling, which occurred before C.J.S.’s third birthday.
74
court made in its conservatorship and possession orders awarding Victoria exclusive
and primary rights regarding C.J.S’s residence and education, and ordering that
Zach’s periods of possession be supervised.
As we have already concluded, the trial court did not err in exercising
jurisdiction over Victoria’s SAPCR or in declining jurisdiction in favor of the
Louisiana Action. We further conclude that sufficient evidence supported the trial
court’s conservatorship and possession orders.
The evidence at trial included testimony that C.J.S. was born in Webster,
Texas, and that he was “a little over a month” when he and Victoria began to travel
to Louisiana to visit Victoria’s son J. According to Victoria, her possession
arrangement with respect to her older son J. was a 2/2/3 schedule, so she had to travel
frequently from Texas to Louisiana to visit J. During that time, she maintained a
residence in Texas and C.J.S. was registered on Medicaid in Texas. Victoria testified
that she and C.J.S. lived in Texas until Zach took him to Louisiana in June 2021,
without Victoria’s consent.
Victoria testified that Zach worked on a boat as a deckhand either “working a
week offshore or two weeks offshore and then only a week home.” When Zach is
away at work, Zach’s mother cares for C.J.S. Victoria stated she did not believe it
was in C.J.S.’s best interest for his paternal grandparents to raise him. Victoria
requested that she and Zach be appointed joint managing conservators of C.J.S., but
75
that she be awarded the exclusive right to make decisions regarding invasive medical
procedures, education, and psychological or psychiatric treatment. She testified that
she believed such an arrangement was in C.J.S.’s best interest. She also requested
that Zach have supervised visits with C.J.S. at this time, based on his taking the child
and not allowing her to see him without supervision. Victoria testified that if Zach
were granted unsupervised access to C.J.S., she believed Zach would try to take
C.J.S. back to Louisiana. She also testified that she believed Zach would continue
to violate the orders of the court because Zach believes Louisiana is the court with
jurisdiction.
Victoria testified that after Zach took C.J.S. to Louisiana, she tried to coparent
with Zach by texting him, “asking about doctor’s appointments, things that [C.J.S.]
is doing. And he gives me no answer saying that he has it handled.” According to
Victoria, when she learned that her son had been prescribed allergy medicine, Zach
refused to tell Victoria what types of allergies C.J.S. had. She testified that C.J.S.
was breastfed when Zach took him Louisiana in June 2021, and that Zach did not
communicate with her regarding transitioning C.J.S. off breast milk or give her
information about how C.J.S. was doing.
Victoria said her visits with C.J.S. had been “[r]ocky because my son doesn’t
know, really, who I am anymore,” and the noisy environment in which she had
supervised visitation made him “fussy” and “just uncomfortable.” She testified that
76
she had not seen C.J.S. for approximately two months at the time of trial. She
testified that her Louisiana attorney had not been successful in scheduling visits with
C.J.S.
In its Findings of Fact, the trial court found that Zach
failed to act in the child’s best interest, including by forcibly removing
the child from [Victoria] after verbally agreeing with [her] to visit with
and return the child to [her], by refusing to allow [Victoria] any contact
at all with the child for numerous months after [Zach] took the child
from [her], and by failing to communicate with [Victoria] concerning
the child’s condition, medical issues, and other important needs.
The court further stated in its Findings of Fact that Zach had not demonstrated “an
ability to co-parent” with Victoria or to “facilitate or encourage” Victoria’s
relationship with C.J.S.; he had not shown an ability to put C.J.S.’s needs above his
own; he was not available as a primary caregiver to C.J.S., given that his job requires
him to work offshore for at least two weeks each month; his contact with C.J.S. was
“minimal and/or inconsistent;” C.J.S. spends at least half of his time with Zach being
cared for by Zach’s parents; it is not in C.J.S.’s best interest to have no contact with
Victoria or his half-siblings; Zach is likely to abscond with C.J.S. if he does not have
supervised visitation; his actions have prevented C.J.S. from forming “healthy
attachments” to Victoria and his siblings, adversely affecting his physical, medical,
behavioral, and developmental needs; and C.J.S.’s current environment
“significantly impairs [his] emotional development.”
77
Zach argues that it was impossible for the trial court to consider many of the
best-interest factors “because there was no evidence in the record offered to support
them.” Indeed, the court had a limited amount of information before it when it made
its determination, in part because Zach did not participate at trial. But while limited,
the trial court had sufficient evidence to support its best-interest findings. See
Payandeh, 2019 WL 2528197 at *6 (“The factfinder is not required to consider all
the factors, and the presence of a single factor may, in some instances, be adequate
to support a best-interest finding.”) (citing M.C. v. Tex. Dep’t of Family & Protective
Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied)).
Victoria’s testimony with respect to Zach’s work schedule and Zach’s parents
caring for C.J.S. at least two weeks a month implicated several of the Holley best-
interest factors: the emotional needs of the child now and in the future, the parental
abilities of the individuals seeking custody, the plans for the child by those
individuals seeking custody, and the stability of the home. See In re D.L.N., 609
S.W.3d 237, 246 (Tex. App.—Texarkana 2020, no pet.) (holding trial court did not
abuse discretion in ruling best interest of child required mother to have exclusive
right to designate children’s primary residence; noting children were primarily raised
by paternal grandmother and great-grandmother during father’s possession).49
49
In In re D.L.N., 609 S.W.3d 237 (Tex. App.—Texarkana 2020, no pet.), the trial
court stated:
78
Evidence of Zach’s refusal to coparent with Victoria, including his refusal to keep
her updated as to the child’s medical condition, his taking C.J.S. from Victoria in
June 2021, and Victoria’s difficulty in scheduling more visits with C.J.S. also speak
to the factors contemplating the child’s physical and emotional needs and Zach’s
parental abilities. See Interest of J.C.K., No. 14-22-00936-CV, 2024 WL 236592, at
*5 (Tex. App.—Houston [14th Dist.] Jan. 23, 2024, no pet. h.) (mem. op.) (holding
trial court did not abuse discretion in determining it was in child’s best interest to
have relationship with both parents and that Mother should have exclusive right to
designate child’s residence in light of ad litem’s concern that “if Father continued to
be the primary custodial parent, the [c]hild would never see his mother”). The trial
court was within its discretion to the extent it found these facts bode against Zach in
its best-interest analysis.
Similarly, while evidence was not presented on every factor identified in
Sections 153.134 and 153.254 of the Family Code, the evidence supported the trial
court’s possession order in light of the factors that were addressed. For example,
The Supreme Court has held—and so have the cases that followed it
—that it is in the children’s best interest that whenever possible they
be raised by a parent. And I know, [Father], that you are doing the
best that you can, that you have a lot of obligations with your job, but
it appears to the Court that the children are being primarily raised by
your mother and grandmother and you whenever your job allows it.
Id. at 245.
79
with respect to Section 153.134, Victoria testified that it was not in C.J.S.’s best
interest for his paternal grandparents to raise him, addressing the element of C.J.S.’s
“physical, psychological, or emotional needs and development.” See TEX. FAM.
CODE § 153.134(a)(1). In addition, there was evidence concerning the parents’
ability to “reach shared decisions” in C.J.S.’s best interest or “encourage and accept
a positive relationship” between C.J.S. and both parents. See id. § 153.134(a)(2),
(3). In support of these elements, Victoria testified that Zach refused to provide
current information to Victoria regarding C.J.S.’s medical condition and refused to
allow her to visit C.J.S. for months at a time. It is unclear to what extent, if any,
Zach shared in the child-rearing before the filing of Victoria’s SAPCR, as it is
undisputed that C.J.S. lived with Victoria until Zach took him to Louisiana in June
2021.
With respect to Section 153.254, the evidence established that C.J.S. was in
Victoria’s primary care from birth until June 2021, and that Zach’s offshore job,
requiring him to be gone two weeks a month, called into question his availability as
a primary caregiver. See TEX. FAM. CODE § 153.254(a)(1), (3). Victoria was able
to offer C.J.S. access to his half-siblings during her periods of possession. See id.
§ 153.254(7). And there was evidence that Zach’s refusal to coparent with Victoria
hindered her ability to share in the responsibilities, rights, and duties of parenting.
See id. § 153.254(12).
80
Zach relies on two cases from this Court in support of his argument that the
trial court did not have sufficient evidence from which to make a best-interest
determination. In Giles v. Giles, No. 01-20-00571-CV, 2022 WL 2251814, at *8
(Tex. App.—Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.)., a mother who
defaulted in the trial court filed a restricted appeal after the father of her children
was awarded rights commensurate with being named sole managing conservator of
their children. Id. at *7. At trial, the evidence showed the father did not “present[]
any evidence of any of the facts or circumstances of the children, or of either parent,
from which a best-interest determination could have been made” and, thus, we
concluded the trial court “lacked sufficient information upon which to exercise its
discretion.” Id. at *8. In holding the trial court abused its discretion in rendering its
order of conservatorship rights, we noted (1) the evidence was legally insufficient to
support the best interest finding, and (2) the trial court granted the father relief not
requested in his petition. Id.
Arevalo v. Fink, No. 01-19-00822-CV, 2020 WL 5778813 (Tex. App.—
Houston [1st Dist.] Sept. 29, 2020, no pet.) (mem. op.) also involved a trial where
one parent defaulted. We held the father’s failure to appear at trial did not relieve
the mother of “her burden to present evidence to support her appointment as sole
managing conservator” of her daughter. Id. We observed there was “no evidence
in the record regarding any of the required factors or any other evidence from which
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the trial court could have determined the best interest of the child.” Id. at *3. The
mother testified only that her six–year-old daughter lived with her and attended
elementary school. Id. She “did not testify regarding any of the circumstances of
the child or of either parent.” Id. We held the mother’s conclusory statement that
her appointment as sole managing conservator was in her daughter’s best interest
did “not rise to the level of competent evidence that the trial court could use to
determine the best interest of the child.” Id.
Giles and Arevalo are distinguishable, because in those cases, there was no
testimony regarding any circumstances of the children or the parents. In contrast,
Victoria testified about Zach’s job and the fact Zach’s parents are responsible for
taking care of C.J.S. for at least two weeks each month while Zach is away at work;
that Zach took C.J.S. to live with him in Louisiana without her consent; that Zach
refused to co-parent or communicate with Victoria about C.J.S.’s medical issues,
doctor’s visits, or transitioning him off of breast milk; that she had difficulty
scheduling visits to visit C.J.S.; and that Zach’s parents were equally
uncommunicative with Victoria when they were caring for C.J.S. In addition, unlike
the present case, the trial courts in Giles and Arevalo did not issue findings of fact
and conclusions of law that specified why their determinations were in the best
82
interest of the child(ren). Finally, Giles is distinguishable because the trial court
awarded the prevailing parent relief that was not requested.50
On the record before us, we conclude the trial court did not abuse its discretion
in its conservatorship and possession orders awarding Victoria exclusive and
primary rights regarding residence and education, and ordering that Zach’s periods
of possession occur under supervised circumstances. While we acknowledge that
supervised visitation is rare in joint managing conservatorship, it may be appropriate
when dictated by the circumstances. See In re P.A. C., 498 S.W.3d 210, 219 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied) (“The trial court does not abuse its
50
Zach also argues the trial court’s failure to render a prospective order to take effect
on C.J.S.’s birthday was an abuse of discretion and violates Section 153.254(d) of
the Family Code. We disagree. The Final Order provides prospective relief,
negating the need for a new order after C.J.S. turns three. That is, because the Final
Order attempts to cover matters that are not applicable at this time, such as marriage
and enlistment in the armed forces, “it can be assumed that this order was intended
to apply after the child[’s] third birthday” and “the presumptive application of the
standard possession order should be applied for the time after” C.J.S. reaches his
third birthday.” See In re Marriage of Bertram, 981 S.W.2d 820, 828–29 (Tex.
App.—Texarkana 1998, no pet.) (“[B]ecause the order attempts to cover matters
involving attendance at school, which is not applicable at this time, and situations
in which the parents reside 100 miles or less apart, which is not the situation at this
time, it can be assumed that this order was intended to apply after the children’s
third birthday.”); cf. In re K.L.S., No. 11-21-00094-CV, 2022 WL 401474, at *10
(Tex. App.—Eastland Feb. 10, 2022, no pet.) (mem. op.) (holding no new
possession order needed on third birthday because final order signed when child
was two years and ten months was to apply to child while “under the age of eighteen
years and not otherwise emancipated”); but see In re J.R., No. 05-19-00904-CV,
2020 WL 219315, at *6 (Tex. App.—Dallas Jan. 15, 2020, no pet.) (mem. op.)
(remanding “for the sole purpose” of trial court’s rendering of prospective order
effective on child’s third birthday in compliance with Section 153.254(d)).
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discretion in fashioning restrictions on a parent’s possession and access if the record
contains evidence to support a finding that such restrictions are in the best interest
of the children.”) (citations omitted).
We overrule Zach’s fourth issue.51
Attorneys’ Fees
In Zach’s sixth and seventh issues, he complains about the award of attorneys’
fees to Victoria.
A. Standard of Review and Applicable Law
Section 106.002 of the Texas Family Code addresses the award of attorneys’
fees in a SAPCR:
In a suit under this title, the court may render judgment for reasonable
attorney’s fees and expenses and order the judgment and postjudgment
interest to be paid directly to an attorney.
TEX. FAM. CODE § 106.002(a). We review an award of attorneys’ fees under Section
106.002 of the Family Code for abuse of discretion. In re R.E.S., 482 S.W.3d 584,
586 (Tex. App.—San Antonio 2015, no pet.); In re S.V., No. 05-17-01294-CV, 2019
WL 1529379, at *5 (Tex. App.—Dallas Apr. 9, 2019, no pet.) (mem. op.) (citing In
re C.R.G., No. 05-10-01472-CV, 2012 WL 3133785, at *5 (Tex. App.—Dallas Aug.
51
In his fifth issue, Zach argues that if the possession and conservatorship orders are
reversed, the trial court’s orders regarding medical support and child support should
likewise be reversed because they were materially influenced by a final
determination on conservatorship and possession. Because we overrule Zach’s
fourth issue, we need not reach his fifth issue on appeal.
84
2, 2012, no pet.) (mem. op.)). In evaluating a fee award in a suit affecting the parent-
child relationship, “we consider first whether the trial court had sufficient evidence
upon which to exercise its discretion, and then whether it erred in its application of
that discretion.” In re S.V., 2019 WL 1529379 at *5 (quoting In re S.V., No. 05-16-
00519-CV, 2017 WL 3725981, at *5 (Tex. App.—Dallas Aug. 30, 2017, pet. denied)
(mem. op.)). A trial court abuses its discretion “when it acts arbitrarily or
unreasonably, without reference to guiding rules or principles.” Illif v. Illif, 339
S.W.3d 74, 78 (Tex. 2011).
The reasonableness of an attorneys’ fee award under Section 106.002 is a
question of fact that must be supported by competent evidence. In re M.A.N.M., 231
S.W.3d 562, 567 (Tex. App.—Dallas 2007, no pet.). The Texas Supreme Court has
held that the factfinder’s “starting point for calculating an attorney’s fee award is
determining the reasonable hours worked multiplied by a reasonable hourly rate, and
the fee claimant bears the burden of providing sufficient evidence on both counts.”
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex.
2019) (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012)). The
Rohrmoos court stated:
Sufficient evidence includes, at a minimum, evidence of (1) particular
services performed, (2) who performed those services, (3)
approximately when the services were performed, (4) the reasonable
amount of time required to perform the services, and (5) the reasonable
hourly rate for each person performing such services.
85
Id. This “lodestar” analysis applies to “any situation in which an objective
calculation of reasonable hours worked times a reasonable rate can be employed.”
Id.52 As we recently explained:
The lodestar method of calculating attorney’s fees is an objective
analysis of whether attorney’s fees are reasonable and necessary and
provides a base figure that is “presumptively reasonable.” Under the
lodestar method, the court determines the reasonable hours spent by
counsel in a case and the reasonable hourly rate for that work, then
multiples the number of hours by the applicable rate. This number is
the base fee or lodestar. The court may then adjust the number up or
52
Prior to Rohrmoos, Texas courts considering attorneys’ fee awards relied on factors
enumerated in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997). The lodestar method “developed as a ‘short hand version’ of the Arthur
Andersen factors and was never intended to be a separate test or method.”
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 490 (Tex.
2019). The Arthur Andersen factors are
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal service
properly; (2) the likelihood . . . that the acceptance of the particular
employment will preclude other employment by the lawyer; (3) the
fee customarily charged in the locality for similar legal services; (4)
the amount involved and the results obtained; (5) the time limitations
imposed by the client or by the circumstances; (6) the nature and
length of the professional relationship with the client; (7) the
experience, reputation, and ability of the lawyer or lawyers
performing the services; and (8) whether the fee is fixed or contingent
on results obtained or uncertainty of collection before the legal
services have been rendered.
Arthur Andersen, 945 S.W.2d at 818 (quoting TEX. DISCIPLINARY R. PROF’L
CONDUCT 1.04, reprinted in TEX. GOVT’ CODE, tit. 2, subtit. G app. (TEX. STATE
BAR R. art. X, § 9)).
86
down “if relevant factors indicate an adjustment is necessary.”
Jones v. Baker, No. 01-22-00013-CV, 2023 WL 5353374, at *2 (Tex. App.—
Houston [1st Dist.] Aug. 22, 2023, no pet.) (mem. op.) (citing Rohrmoos, 578
S.W.3d at 494, 496).
Rohrmoos’s lodestar method does not apply to an award of contingent
appellate attorneys’ fees. Yowell v. Granite Operating Co., 620 S.W.3d 335, 355
(Tex. 2020). Rather, the party who seeks contingent appellate fees must “provide
opinion testimony about the services it reasonably believes will be necessary to
defend the appeal and a reasonable hourly rate for those services.” Id.B. The $35,000 Attorneys’ Fee Award
Zach complains that the evidence was insufficient to support the trial court’s
award of attorneys’ fees with respect to work done by Victoria’s counsel, Victoria
Venza and Carrie Westbrook.53 The evidence submitted during trial was that
Victoria incurred $19,750 in legal fees when Venza represented Victoria, and
$15,700 in legal fees when Westbrook represented her.
Venza did not testify. Westbrook testified that her hourly fee was $400 per
hour for appellate work and $350 per hour for trial work, but she did not testify about
Venza’s hourly rate or the number of hours each attorney worked on the case. She
53
Venza and Westbrook represented Victoria at trial and Westbrook represented
Victoria during the mandamus proceeding in this Court in 2021.
87
testified that both she and Venza had been licensed attorneys for twenty years.
Westbrook testified that the case “involves somewhat novel issues concerning
UCCJEA, issues of jurisdiction, home state of the child and various issues of that
concerning the jurisdiction disputes in the case.” Westbrook further testified that
the attorneys’ fees “were necessary in this case especially given the fact that the
appeal occurred and took several months to conclude as well as the fact that we’ve
had issues of the other party absconding with the child, having to confer with counsel
from another state and all of these issues that have occurred in this case.”
The trial court stated in its Findings of Fact and Conclusions of Law that in
awarding attorneys’ fees, it “considered the Lodestar method and the factors set
forth” in Rohrmoos. The trial court further found that the $35,000 in attorney fees
Victoria incurred in this case “were reasonable and necessary for the safety and
welfare of the child;” that the case “presented complex issues concerning
jurisdiction” and a petition for writ of mandamus to the court of appeals; and that
the hourly rates of Victoria’s attorneys “are reasonable in Fort Bend County, Texas,
and the surrounding area” for attorneys with the level of experience of Victoria’s
attorneys.
Zach argues the evidence was insufficient to support the trial court’s apparent
finding that “the admitted evidence justified the reasonableness and necessity of
those fees as charged” by Victoria’s attorneys, including the rates charged, services
88
performed, and nature of issues involved in the trial court and in the court of appeals
during the mandamus proceeding. We agree. The evidence Victoria presented did
not satisfy the “sufficient evidence” standard established in Rohrmoos. See
Rohrmoos, 578 S.W.3d at 502. The proffered testimony concerning attorneys’ fees
did not identify who performed the particular services or when they were performed,
the reasonable amount of time required to perform the services, or the reasonable
hourly rate for each person performing the services.
The decision in Sims v. Sims, 623 S.W.3d 47 (Tex. App.—El Paso 2021, pet.
denied), a SAPCR case, is instructive. There, the appellee sought attorneys’ fees
and, during trial, his counsel “generally described the length of the case, the volume
of motion of practice and hearing attendance involved, and the number of hours he
spent on the case.” Id. at 67. He testified as to his hourly rate, stating it was
reasonable for attorneys in El Paso County. Id. The court held the appellee failed
to meet his burden proving the reasonableness and necessity of his incurred fees:
“Appellee did not offer billing records54 substantiating the tasks performed or time
54
Although they are “strongly encouraged,” billing records are not required to prove
that requested fees are reasonable and necessary. Rohrmoos, 578 S.W.3d at 502.
While billing records are not required,
legally-sufficient evidence to establish a reasonable and necessary fee
needs to include a description of the particular services performed, the
identity of each attorney who and approximately when that attorney
performed the services, the reasonable amount of time required to
89
spent thereon, nor did he offer specific testimony regarding the ‘particular services
performed, . . . who performed those services, . . . approximately when the services
were performed, [or] the reasonable amount of time required to perform the
services[.]’” Id. at 67–68 (footnote added). The court held that because the evidence
was insufficient to justify awarding attorneys’ fees, the trial court abused its
discretion in doing so. Id. at 68; see also In re K.A.M.S., 583 S.W.3d 335, 350 (Tex.
App.—Houston [14th Dist.] 2019, no pet.) (“Without details about the work done,
how much time was spent on the tasks, and how she arrived at the total fees in
Mother’s case, we conclude that Mother’s attorney’s testimony ‘lacks the substance
required to uphold a fee award’ and thus is legally insufficient.”); Martinez Jardon
v. Pfister, 593 S.W.3d 810, 841 (Tex. App.—El Paso 2019, no pet.) (holding that in
absence of “detail about the particular services performed, who performed the
services, the reasonable amount of time required to perform the services, and the
reasonable hourly rate for each person performing such services,” attorney’s
testimony and accompanying exhibits “lack the substance required to uphold an
award by the trial court for attorney’s fees and expenses.”).
perform the services, and the reasonable hourly rate for each attorney
performing the services.
In re K.A.M.S., 583 S.W.3d 335, 349 (Tex. App.—Houston [14th Dist.] 2019, no
pet.) (citing Rohrmoos, 578 S.W.3d at 497–98, 501–02, 502–03).
90
Similarly, in the present case, there was no testimony regarding the services
performed by each attorney, the amount of time it took to perform any task, or when
the task was performed. Nor was there any testimony regarding Venza’s rates.
Therefore, we conclude the trial court abused its discretion in awarding attorneys’
fees to Victoria.55
We sustain Zach’s sixth issue.
C. The Award of Contingent Appellate Fees
Zach complains that the trial court’s award of “attorneys[’] fees on appeal” in
favor of Victoria is “wholly unsupported by sufficient evidence justifying reversal.”
With respect to appellate attorneys’ fees, the trial court’s order states, “The Court
FURTHER ORDERS attorney fees on appeal in favor of VICTORIA STERN.”56
This award is problematic for several reasons. First, the appellate attorney fee
award is unconditional. “An unconditional award of an appellant’s appellate
attorney’s fees is improper.” Keith v. Keith, 221 S.W.3d 156, 171 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (citing Sipco Serv’s Marine v. Wyatt Field Serv.,
857 S.W.2d 602, 607–08 (Tex. App.—Houston [1st Dist.] 1993, no writ)). See also
55
If we reverse a trial court’s attorneys’ fee determination for lack of sufficient
evidence, we remand the case to the trial court for a redetermination of fees. In re
K.N.H., No. 13-20-00347-CV, 2022 WL 243188, at *6 (Tex. App.—Corpus
Christi–Edinburg Jan. 27, 2022, no pet.) (citing cases).
56
The trial court did not make findings of fact or conclusions of law with respect to
the appellate attorneys’ fee award.
91
Messier v. Messier, 458 S.W.3d 155, 170 (Tex. App.—Houston [14th Dist.] 2015,
no pet.) (“A trial court may not grant a party an unconditional award of appellate
attorney’s fees because to do so could penalize a party for taking a meritorious
appeal.”).
The award is also problematic because it does not provide a specific amount
to be awarded and was not supported by expert testimony about the services likely
to be performed on appeal. The Supreme Court addressed the standard for a
contingent award of appellate fees in Yowell, stating “with respect to contingent
appellate fees, which have not yet been incurred and thus must be projected based
on expert opinion testimony,” “[t]here is no certainty regarding who will represent
the appellee in the appellate courts, what counsel’s hourly rate(s) will be, or what
services will be necessary to ensure appropriate representation in light of the issues
the appellant chooses to raise.” 620 S.W.3d at 355. But “this uncertainty does not
excuse a party seeking to recover contingent appellate fees from the need to provide
opinion testimony about the services it reasonably believes will be necessary to
defend the appeal and a reasonable hourly rate for those services.” Id.; see also
Walsh v. Gonzalez, No. 01-21-00729-CV, 2023 WL 4110851, at *11 (Tex. App.—
Houston [1st Dist.] June 22, 2023, no pet.) (mem. op.) (reversing and remanding fee
award for redetermination of fees after determining evidence in support of fees was
legally insufficient); Trujillo v. Shafaii Invs., Ltd., No. 01-22-00819-CV, 2024 WL
922001612, at *11 (Tex. App.—Houston [1st Dist.] May 7, 2024, no pet. h.) (mem.
op.) (“We may not uphold a trial court’s award of attorney’s fees unless the record
contains sufficient evidence to support the award. ‘The party seeking attorney’s fees
bears the burden of proof’ to support the trial court’s award. If the evidence
supporting the award is insufficient, we must reverse.”) (citing Yowell, 620 S.W.3d
at 354); QJD Peking Duck Rest., Inc. v. TCP Spectrum Partners, Ltd., No. 01-22-
00545-CV, 2023 WL 5436907, at *3 (Tex. App.—Houston [1st Dist.] Aug. 24,
2023, no pet.) (mem. op.) (listing cases where contingent appellate attorney’s fee
awards were reversed because “the evidence did not address the services to be
rendered on appeal or simply stated a lump-sum fee amount for appeal to the court
of appeals or to the Texas Supreme Court”).
During trial, Victoria’s counsel stated only with respect to appellate attorneys’
fees:
In addition, Your Honor, we are requesting attorneys’ fees if this does
go up on appeal. We anticipate that once this order is finalized, Mr.
Zach will appeal it up to the Texas appellate court, again, to challenge
jurisdiction, even though that’s already, in my opinion, been decided
by the appellate court here.
This testimony is insufficient to support the award of contingent appellate fees.
We sustain Zach’s seventh issue.
93
Conclusion
We reverse the court’s judgment as to the awards of attorneys’ fees and
appellate fees and we remand to the trial court for a determination of fees consistent
with this opinion. We affirm the trial court’s Final Order in all other respects.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.
94