in Re Jaclyn Louise Papenfuss

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-22-00127-CV
__________________
IN RE JACLYN LOUISE PAPENFUSS
__________________________________________________________________
Original Proceeding
317th District Court of Jefferson County, Texas
Trial Cause No. C-236,465
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MEMORANDUM OPINION
In a petition for a writ of mandamus, Jaclyn Louise Papenfuss contends the
trial court clearly abused its discretion by failing to properly apply the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”). Papenfuss argues that
because the child’s “home state” was indisputably Michigan when this matter was
filed, that state was the state that had primary jurisdiction over an initial custody
determination. The Real Party in Interest, Vernon Archie Wiggins III, did not
respond to our request for a response to Papenfuss’s petition. We conditionally grant
partial mandamus relief.
1
On December 5, 2019, Wiggins filed an original petition for divorce and suit
affecting the parent-child relationship. In his petition, Wiggins stated that he and
Papenfuss were “common law married” in October of 2017 and ceased to live
together in January of 2019, and that Papenfuss resided in Michigan. Wiggins
alleged that a child, V.A.W., was born in June of 2016, and he sought joint managing
conservatorship and asked the trial court to designate him as the primary custodian.
Acting pro se, Papenfuss filed a general denial, denying that the parties were married
and alleging in part, “I oppose Texas Jurisdiction on [V.A.W.], for the fact that we
have been residents of Michigan for this last year.” Papenfuss retained counsel and
filed a motion to dismiss the case for lack of jurisdiction, alleging in part that Texas
was not the home state of the child when the suit commenced. In response to the
motion to dismiss, Wiggins argued that the trial court had personal jurisdiction
because Papenfuss did not file a special appearance. Wiggins alleged the trial court
had personal and subject matter jurisdiction under Family Code Section
102.011(b)(2), (4), (5), (6) and (8).
The associate judge held a hearing on Wiggins’s motion for temporary orders
and heard from the parties on the motion to dismiss. At the hearing, Wiggins’s
attorney argued the trial court had jurisdiction because Papenfuss filed a general
denial and did not file a special appearance. The attorney for Papenfuss argued
2
Regarding the child, my client had lived in another state for over
a year; and so that state I believe has jurisdiction over the child, unless
there’s a divorce here.
There’s never been a marriage here. I understood that was an
issue for a final hearing. But my client has never been married to this
gentleman. There’s been no common-law marriage. There’s never been
an agreement to be married. There’s never been holding out. They
simply lived together, and they had a child together.
The attorney for Wiggins argued
I will respond. By filing a general denial she submitted to the
jurisdiction of the Court. There are other reasons for jurisdiction, the
fact that the child was conceived in Texas, born in Texas, lived in
Texas; and Ms. Papenfuss even filed a petition for child support through
the office of the Attorney General last year in April, all of which –
there’s plenty of contact with the State of Texas, as well as just
submitting yourself to the jurisdiction of the Court.
The associate judge ruled that the trial court had jurisdiction and denied the motion
to dismiss based on the fact that Papenfuss filed a general denial and subjected
herself to the jurisdiction of the court. With respect to the temporary orders, the trial
court heard testimony from the parties. In the hearing, Wiggins testified that by
mutual agreement Papenfuss left Texas with the child on January 3, 2019. After eight
months of living in Michigan with V.A.W., Papenfuss informed Wiggins that they
would not be returning to Texas. On February 28, 2020, the associate judge signed
an order denying Papenfuss’s motion to dismiss for lack of jurisdiction.
On September 8, 2020, Papenfuss filed a motion to transfer the suit affecting
the parent-child relationship to Shiawassee County, Michigan, pursuant to Section
3
155.301(a) of the Texas Family Code. The following day she filed an amended
motion to dismiss for lack of jurisdiction, adding a UCCJEA affidavit.
In September of 2020, the trial court held a Zoom hearing on Papenfuss’s
amended motion to dismiss, which was held before the 317th District Court Judge.
At that hearing, Wiggins did not dispute that Papenfuss and V.A.W. moved to
Michigan on January 4, 2019, but he argued they had not established permanent
residency in Michigan until more recently. Wiggins argued Papenfuss had
acquiesced to Texas jurisdiction and residency by applying for child support services
through the Office of the Attorney General of Texas. Papenfuss ceased
communicating with him on August 20, 2019, that Papenfuss started thinking she
was not coming back to Texas in August of 2019, and later she informed him that
she would not be returning to Texas. Before that, they were visiting by agreement in
Michigan. At the time of the hearing, the child was living in her paternal
grandfather’s home in Michigan. According to Wiggins, in a social media post
Papenfuss announced she had obtained employment in Michigan on or about
November 17, 2019.
Papenfuss testified she and Wiggins are not married and never agreed to be
married. Papenfuss testified Michigan is her permanent home and as of April 2019
she had decided to stay in Michigan, but she delayed telling Wiggins until later. She
obtained Medicaid for the child in Michigan. She has been working as a home
4
healthcare aide in Michigan since November 2019, but her hours were reduced due
to COVID and she began drawing unemployment.
After the hearing, the trial court signed temporary orders addressing
conservatorship, possession, and access to the child. The Temporary Orders were
approved by both Papenfuss and Wiggins as to “form and substance.” The temporary
orders recite “all necessary prerequisites of the law have been legally satisfied and
that the Court has jurisdiction of this case and of all the parties.”
Section 152.106 of the Family Code states “A child custody determination
made by a court of this state that had jurisdiction under this chapter binds all persons
who have been served in accordance with the laws of this state or notified in
accordance with Section 152.108 or who have submitted to the jurisdiction of the
court and who have been given an opportunity to be heard. As to those persons, the
determination is conclusive as to all decided issues of law and fact except to the
extent the determination is modified.” 1 And, pursuant to section 152.102(3), a child
custody determination includes temporary orders.2
While we agree that the trial court had subject matter jurisdiction over the
divorce proceeding and personal jurisdiction over Papenfuss, that does not mean the
1
See Tex. Fam. Code Ann. § 152.106 (emphasis added).
2
Id. § 152.102(3).
5
court could assume jurisdiction to make an initial child custody determination over
V.A.W. when V.A.W.’s “home state” was Michigan at the time the suit was filed. 3
We review de novo the construction of the UCCJEA home state provisions
codified in the Texas Family Code.4 Under the UCCJEA codified in section 152.102
of the Texas Family Code, the home state of the child is “the state in which a child
lived with a parent . . . for at least six consecutive months immediately before the
commencement of a child custody proceeding.”5 The child’s physical location is the
central factor to be considered in determining a child’s home state.6 The parent’s
subjective intent to return to Texas is immaterial in determining whether another
state acquired home-state status.7 Wiggins developed evidence that Papenfuss
intended to return to Texas in the future when she first moved to Michigan, but it is
undisputed that on the date the suit commenced the child had been living in Michigan
with her mother for more than six months. Michigan was the child’s home state on
the date the suit commenced.8
3
See In re Dean, 393 S.W.3d 741, 747 (Tex. 2012) (orig. proceeding) (a
divorce action and a custody proceeding involve different inquiries); see also
Barajas v. Santiago, No. 01-10-00914-CV, 2012 WL 760921, at *3 (Tex. App.—
Houston [1st Dist.] Mar. 8, 2012, no pet.) (mem. op.) (waiver of service for divorce
does not confer jurisdiction for purposes of the UCCJEA).
4
Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005) (orig. proceeding).
5
Tex. Fam. Code Ann. § 152.102(7).
6
Powell, 165 S.W.3d at 326.
7
Id.
8
See Tex. Fam. Code Ann. § 152.102(5), (7).
6
Except for temporary emergency jurisdiction, a trial court has jurisdiction to
make an initial child custody determination only if (1) Texas is the home state of the
child on the date the proceeding commences, (2) a court of another state does not
have home state jurisdiction, or a court of the child’s home state has declined to
exercise jurisdiction on the ground that Texas is the more appropriate forum, and the
child and at least one parent has a significant connection with Texas other than mere
physical presence and substantial evidence is available in Texas concerning the
child’s care, protection, training, and personal relationships, (3) all courts having
jurisdiction have declined to exercise jurisdiction on the ground that a Texas court
is the more appropriate forum, or (4) no other state would have initial child custody
jurisdiction. 9
When this proceeding began, the child’s home state was Michigan; therefore,
under the UCCJEA as adopted in the Texas Family Code, except for temporary
emergency jurisdiction, a Texas court may only exercise jurisdiction to make an
initial child custody determination if a Michigan court declined to exercise
jurisdiction. 10 A Texas court may communicate with the court of another state
9
See id. § 152.201(a).
10
Id.
7
concerning a case arising out of the UCCJEA.11 In this case, however, no
communication between the trial court and a Michigan court appears in the record.12
A trial court abuses its discretion if it fails to apply the law correctly.13 A writ
of mandamus provides an appropriate means to require a trial court to comply with
the jurisdictional requirements of the UCCJEA.14 The trial court abused its discretion
by exercising jurisdiction over the suit affecting the parent-child relationship when
11
See id. § 152.110.
12
Here, we are dealing with temporary orders and the trial court has not yet
rendered a final custody determination. And the parties have not asked our court to
render the temporary orders void or voidable, so that issue is not before us here. That
said, we note that the Texas Supreme Court stated there is an unresolved issue among
the states as to whether the UCCJEA is a subject-matter jurisdiction statute, yet the
majority of the Court in resolving the decision we refer to decided not to reach the
issue. See In re D.S., 602 S.W.3d 504, 517-18 (Tex. 2020). There, the Court stated:
“We observe that of the states that have considered the jurisdictional issue, some
refer to the UCCJEA as a subject-matter-jurisdiction statute, while others do not.
The issue is not settled.” Id. (citations omitted). In the concurring opinion written by
Justice Lehrmann and joined by Justices Devine and Busby, the concurring Justices
would have reached the issue and concluded that “a court’s lack of ‘jurisdiction’
under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) does
not equate to a lack of ‘subject matter jurisdiction’ that deprives the court of the
power to hear and decide the case, thereby endangering a judgment’s finality.” Id. at
518 (Lehrmann, J., concurring). The concurring opinion reasoned that “the Family
Code provides that a final order in a custody proceeding rendered by a court other
than the court with continuing, exclusive jurisdiction over that proceeding is
‘voidable,’ not void. Tex. Fam. Code § 155.104(b).” Id. at 520. The concurrence
explained it would be inconsistent with one of the UCCJEA’s primary concerns,
which is “avoiding relitigation of custody judgments,” to treat it as a subject-matter
jurisdiction statute. Id. Accordingly, the concurring Justices would “treat a court’s
erroneous application of the UCCJEA’s requirements as [] error, not lack of subject
matter jurisdiction.” Id. at 520-21.
13
Powell, 165 S.W.3d at 324.
14
Id.
8
the undisputed evidence reflects that Michigan is the child’s home state and there is
no evidence in the record that any Michigan court has declined to exercise
jurisdiction. 15 The trial court should vacate its temporary orders and contact a
Michigan court to determine if that court declines to exercise jurisdiction on the
ground that Texas is the more appropriate forum 16 or the trial court will dismiss the
suit affecting the parent-child relationship. The writ shall issue only in the event the
trial court fails to comply.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on May 16, 2022
Opinion Delivered July 14, 2022
Before Golemon, C.J., Horton and Johnson, JJ.
15
See Tex. Fam. Code Ann. § 152.201(a)(2).
16
See id. § 152.110.
9