Opinion
No. 10-06-00180-CV.
Opinion delivered and filed November 29, 2006.
Appeal From the County Court at Law Number Two Johnson County, Texas Trial Court No. D200500228.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, Justice REYNA.
MEMORANDUM OPINION
After Robert Daulton had sued Stephanie Daulton for divorce on October 20, 2005, he filed her executed waiver of citation on November 14, 2005. The last marital residence had been in Texas, and Robert resided in Texas, but his pro se petition alleged that Stephanie had been residing in Illinois with their four minor children since November 2003. Robert thereafter retained a lawyer and, on May 2, 2006, filed an amended petition and a request for emergency jurisdiction and for a temporary restraining order. He alleged that Stephanie had voluntarily relinquished the children to him in Illinois, that he had returned to Texas with them, and that they had been abused and neglected while in Stephanie's possession in Illinois. His amended petition alleged emergency jurisdiction under section 152.204 of the Family Code: he pled that the children had resided with Stephanie in Illinois for at least the past six months, but because of imminent danger to the children, the trial court should exercise emergency jurisdiction over the children, who were now in Texas with Robert.
Subsection 152.204(a) provides:
(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it 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 ANN. § 152.204(a) (Vernon 2002).
The trial court issued a temporary restraining order on May 3, and it was served on Stephanie on May 9. She then filed a "Petition for Initial Child Custody Determination" against Robert in Illinois on May 16, alleging that the children had been residing with her in Illinois since November 2003 and that on April 30, 2006, while she was hospitalized and in labor, Robert absconded with the children to Texas. She further alleged that she and the children had a significant connection with Illinois.
The Illinois court entered an order on May 17, finding that it had jurisdiction under that state's Uniform Child Custody Jurisdiction and Enforcement Act to make an initial child custody determination because the children had resided in Illinois within six months before Robert had sought custody in Texas and before Stephanie had sought custody in Illinois. The Illinois court ordered Robert to return the children to Stephanie.
Stephanie also filed a plea to the jurisdiction in the court below, alleging that, because of the Illinois court's order, the court below lacked subject matter jurisdiction over the children because the only basis for jurisdiction — emergency jurisdiction under section 152.204 — no longer existed because of the Illinois court's custody order. The Illinois court and the court below corresponded, and in a hearing on Stephanie's plea to the jurisdiction, the court below ruled that it did not have jurisdiction over the children.
Robert appeals that ruling, arguing in one issue that the trial court erred in declining jurisdiction over the children. We review de novo a trial court's jurisdictional ruling over children in a suit affecting the parent child relationship. In re Bellamy, 67 S.W.3d 482, 483 (Tex.App.-Texarkana 2002, no pet.).
Robert pled temporary emergency jurisdiction under section 152.204, which further provides:
(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 152.201 through 152.203.
TEX. FAM. CODE ANN. § 152.204(b) (Vernon 2002) (emphasis added). The Illinois court had jurisdiction under section 152.201, and Texas was not the home state of the children:
(a) Except as otherwise provided in Section 152.204, 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;
Id. § 152.201(a) (Vernon 2002). Moreover, Stephanie's waiver of citation and the trial court's personal jurisdiction over her did not establish subject matter jurisdiction over the children. See id. § 152.204(c) ("Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination."). Nor does Robert's suit for divorce establish subject matter jurisdiction over the children. See id. § 6.308(b)(2) (Vernon 2006) ("The court's authority to resolve the issues in controversy between the parties may be restricted because the court lacks: . . . (2) the required jurisdiction under Chapter 152;"). And finally, the trial court did not have jurisdiction under a "significant connections" test because the children had been living with Stephanie in Illinois for several years and Robert's Texas residence alone is insufficient to meet that test. See id. § 152.201(a)(2)(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;") (emphasis added).
We overrule Robert's issue. The trial court did not err. We affirm its ruling declining to exercise jurisdiction over the Daultons' minor children.