in the Interest of C. C. B. and M. J. B., Children

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE INTEREST OF C.C.B. AND M.J.B., CHILDREN.

' ' ' ' '  '

No. 08-01-00353-CV Appeal from the 394th District Court of Brewster County, Texas (TC# 7172)

O P I N I O N

Joseph Gary Barnett, father to C.C.B. and M.J.B., the children subject to this suit affecting parent-child relationship (SAPCR), appeals the trial court=s order transferring jurisdiction to the court of Fremont County, Colorado. He also appeals the trial court=s refusal to transfer venue of the SAPCR to Harris County, Texas.  We affirm.

Facts

Since at least January 1997, Joseph Gary Barnett and Amanda V. Russell Dahl have been engaged in a series of disputes over their two children. Barnett and Dahl agree that Barnett is the father of the children, as reflected in the agreed paternity decree filed June 9, 1997 in Galveston County, Texas.  This agreement made the parties joint managing conservators of the children, with Dahl having primary custody, and Barnett having the standard visitation rights and child support obligations.

After Barnett filed a motion to modify in November 1997, the parties agreed to transfer the cause to Brewster County.  Dahl, by pro se letter to the court, requested permission to move with the children to Canon City, Colorado on December 13, 1999.  On March 1, 2000, Dahl then filed a Motion to Transfer SAPCR jurisdiction to Fremont County, Colorado.  An Amended Motion to Transfer SAPCR jurisdiction was filed on July 17, 2000. On August 2, 2000, the parties had filed a Joint Motion to Dismiss motions to enforce, but an October 3 Notice of Docketing Foreign Pleadings stated amended motion to transfer was pending. On August 4, 2000, Dahl filed her Petition for Writ of Habeas Corpus in Brewster County for return of the children, as Barnett was keeping them in violation of the visitation agreement.  Dahl filed in Fremont County, Colorado her Notice of Docketing Foreign Pleadings and Petition for Recognition, Enforcement and Transfer of Child Custody and Child Support Order on October 3, 2000.  The District Court of Brewster County entered an order granting the transfer of SAPCR jurisdiction to Fremont County, Colorado, on October 11, 2000, finding that no controverting affidavit had been filed by Barnett.  Barnett filed a Motion for Reconsideration of Order Transferring Case on October 30. On December 21, Barnett also filed a Petition for Writ of Habeas Corpus in the Brewster County District Court to get the children from Dahl for visitation, and a Request for Writ of Attachment the following day.  The petition was denied on December 22 for want of jurisdiction Apursuant to Section 157.371 of the Texas Family Code in that the children are not within Brewster County and this court is no longer a court of continuing jurisdiction in this case.@

Undeterred, Barnett filed a Petition to Modify Parent-Child Relationship and a Motion to Transfer to Harris County, Texas on May 14, 2001, both in Brewster County. The petition alleged that as Barnett still lives in Texas, and as the District Court of Fremont County has not accepted the case transferred there, Brewster County retains continuing jurisdiction over these matters.  He further contended that because he is the only remaining party living in Texas, and now lives in Harris County, therefore venue is proper in Harris County under Section 155.301 of the Texas Family Code.

Barnett also filed an Answer to Petitioner=s Motion for UCCJA Communication Between Judges and Motion to Refuse Transfer with the District Court of Fremont County, Colorado, on May 23, 2001. There, Barnett contended that the Colorado version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Section 203 allows Colorado to modify child custody initially made by another state only if Athis state has jurisdiction [to] make an initial determination under section 14-13-201(1)(a) or 14-13-201(1)(b) and . . . (b) A court of this state or a court of the other state determines that the child, the child=s parents, and any person acting as a parent do not presently reside in the other state.@  Second, Barnett=s petition claimed that as the underlying cause of action had been dismissed, there is no Motion to Enforce pending in Brewster County for the Colorado court to accept, and the UCCJA communication is moot.  Third, Barnett asserted that since the UCCJEA has replaced the Uniform Child Custody Jurisdiction Act (UCCJA) in both Texas and Colorado, that the UCCJA communication requested by Dahl is moot. The Motion for Reconsideration of Order Transferring Case to Fremont County, Colorado, was denied on August 8, 2001. It is from this order, and the order on petitioner=s motion to transfer SAPCR, that Barnett appeals.

The trial court=s order was a ceding of jurisdiction, not a transfer

In his first point of error, Barnett seems to claim that the trial court used the wrong standard for Atransferring@ the suit to Colorado.  We must first decide whether this order was truly a transfer, where it contemplated relinquishing jurisdiction to a Colorado court.  We conclude that the Atransfer@ of this order is really a ceding of jurisdiction under Tex. Fam. Code Ann. ' 152.202.

It is true that the order appealed from speaks in terms of transfer, and Barnett is correct in his assertion that a transfer, as contemplated by the Texas Family Code and Texas civil law in general, is an intrastate action in which a Texas trial court with proper jurisdiction sends the case to another Texas court.  See Tex. Fam. Code Ann. '' 103.002, 103.003, 152.110, 155.201 (Vernon 2002); Tex. Civ. Prac. & Rem. Code Ann. ' 15.063 (Vernon 2002). Such was the case in 1997, prior to the adoption of the UCCJEA in Texas.  Coots v. Leonard, 959 S.W.2d 299, 307 (Tex. App.--El Paso 1997, no pet.).  When the Legislature enacted the UCCJEA in 1999, that did not change.  Although the trial court=s order speaks in terms of a transfer to Colorado, we interpret this not as a transfer as it is generally understood in Texas, but rather as a ceding of exclusive continuous jurisdiction under the UCCJEA.  The difference is technical and does not affect the substance of the action. Id.  With this in mind, we turn to the merits of Point of Error One.

The trial court correctly ceded jurisdiction to the

Courts of Fremont County, Colorado

All relevant motions and orders were filed after September 1, 1999, therefore the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs.  Tex. Fam. Code Ann. '' 152.001 to 152.317 historical notes (Vernon 2002) [Acts 1999, 76th Leg., ch. 34, ' 1]. Both Colorado and Texas have adopted the UCCJEA.  Id.; Colo. Rev. Stat. Ann. '' 14-13-101 to 14-13-403 (West Supp. 2002).  In his first point of error, appellant contends that because he remained in the state, the Texas Family Code Section 152.202 requires that exclusive continuing jurisdiction must be maintained by a Texas court.  We are therefore called upon to determine whether the trial court could have properly ceded exclusive continuing jurisdiction to the District Court of Fremont County, Colorado under the UCCJEA.

A trial court=s determination that it will not exercise jurisdiction over a suit affecting the parent-child relationship is reviewed on an abuse of discretion standard. Coots, 959 S.W.2d at 301. The test for abuse of discretion is not whether, in our view, the facts present an appropriate case for the trial court=s action.  Instead, the court of appeals determines whether the court acted without reference to any guiding rules and principles.  Id. (citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)).  In other words, the court of appeals looks to whether the trial court=s act was arbitrary or unreasonable.  Id. (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex. 1970)).  The fact that the trial court may decide a matter within its discretion in a different manner than the court of appeals would does not demonstrate that an abuse of discretion has occurred.  Id. (citing Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959)).

Exclusive continuing jurisdiction was in Brewster County, Texas at the time the children and their mother moved to Colorado.  Thus, under the Texas version of the UCCJEA:

[A] court of this state which has made a child custody determination consistent with Section 152.201 or 152.203 has exclusive continuing jurisdiction over the determination until:

(1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child=s care, protection, training, and personal relationships; 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.  Tex. Fam. Code Ann. ' 152.202(a) (Vernon 2002).

Barnett reads this provision as requiring the trial court to make formal findings of the loss of significant contacts with the state of continuing jurisdiction.  It is true that no formal findings were made, other than that no controverting affidavit to the Atransfer@ had been filed and the motion should be granted.  We find that the uncontroverted affidavit of Amanda Dahl stating that the primary residence of the children had been Canon City, Colorado for over thirty days, was sufficient to meet the statutory requirement of section 152.202(a)(1).

Conversely, Barnett claims that because he still lives in Texas, continuing exclusive jurisdiction must remain here.  That he has remained in Texas, albeit hundreds of miles from the county of continuing jurisdiction, only indicates that the Texas court must affirmatively act to yield jurisdiction to the Colorado court, and the foreign court is not free to make that determination unilaterally.  Tex. Fam. Code Ann. ' 152.202(a)(2) (Vernon 2002).  No such unilateral action took place here; as required by the UCCJEA, the Texas court ceded jurisdiction.

With regard to the requirements of section 152.202 that the child and one parent have significant connection to Texas and substantial evidence on care, protection, training and personal relationships is not longer available in the state, we note the following.  Dahl has lived in Canon City, Colorado with her children C.C.B. and M.J.B. since January 2000.  Since Dahl had primary custody and control of the children, they were presumably housed and enrolled in school in Colorado.  Nevertheless, we recognize that a change in the children=s home state is not wholly dispositive of which state should exercise jurisdiction under the UCCJEA.  In re Bellamy, 67 S.W.3d 482 (Tex. App.--Texarkana 2002, no pet.).  In Bellamy, the court of appeals noted that ATexas retains jurisdiction if a parent remains in Texas, regardless of the child=s home state, so long as there is still a significant connection with Texas and substantial evidence is still available in Texas.@  Id. at 484.  The child lived just across the border from Texas in Louisiana, she attended school in Texas, was picked up for school from her maternal grandmother=s house in Texas, and maintained significant, daily personal relationships with people who lived just inside the Texas border.  Id. at 485.  These are the types of significant contacts that might cause a Texas court to retain jurisdiction in Texas even when a child moves from the state.

Nothing comparable exists here.  Nothing in this record counters the trial court=s implied conclusion that C.C.B. and M.J.B. have no significant contacts with Texas and substantial evidence concerning their care, protection, training and personal relationships is no longer available here.  We thus cannot conclude that the trial court abused its discretion in determining that the interests of C.C.B. and M.J.B. could best be considered by the court in Fremont County, Colorado, where they live.  We overrule Point of Error One.

Appellant=s second point of error appears to claim it was error for the Brewster County Court to relinquish jurisdiction where there was no pending issue before that court awaiting resolution.  We find no authority for this assertion.  If the Colorado court is willing to register the Texas order and assume continuing jurisdiction pursuant to the Colorado Uniform Child Custody Jurisdiction and Enforcement Act Sections 14-13-101 to 14-13-403, then Texas law clearly allows a UCCJEA communication between the two courts under Texas Family Code Section 152.110. Since there was a motion before the Colorado court in the matter of C.C.B. and M.J.B., and since the Texas court did send copies of its files concerning the case, absent any sign of an abuse of discretion by the trial court, the matter was properly handed to the Colorado court.  The second point of error is overruled.

The trial court properly denied reconsideration of its Atransfer@ order

Appellant=s third point of error challenges the trial court=s denial of his motion for reconsideration without a full hearing including taking evidence.  A trial court has broad discretion in denying a motion for reconsideration, which we will not reverse absent abuse of that discretion.  Champion Int=l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988).

After considering briefs of counsel and an article AUCCJEA:  Bright Line Rules are Emerging@ by Harry L. Tindall and Angela G. Pence, the trial court concluded there was no need to reconsider its ceding of jurisdiction over the custody and visitation matters concerning C.C.B. and M.J.B.  Having found there was not error in the trial court=s initial order, we likewise find the court did not abuse its discretion in refusing to reconsider its actions.  The third point of error is overruled.

Conclusion

The order of the trial court relinquishing jurisdiction over this SAPCR is affirmed.

SUSAN LARSEN, Justice

December 5, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)