Opinion
NO. 09-11-00219-CV
01-19-2012
IN THE INTEREST OF S.E.B.S.
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 10-06-06904 CV
MEMORANDUM OPINION
In this restricted appeal, appellant argues that the trial court erred in granting a default judgment against her. In his first amended petition, appellee stated that he is a resident or a domiciliary of Texas, and appellant is a nonresident of Texas. Appellee pleaded that Texas is the last state in which marital residence occurred, and that the suit was filed before the second anniversary of the date on which the marital residence ended. He asserted they ceased living together as husband and wife in July 2009. Appellee and appellant have one child together, S.E.B.S. The petition states that S.E.B.S. is not under the continuing jurisdiction of any other court and that appellee anticipated that a written agreement would be entered into regarding the "conservatorship of, possession of, access to, and support of the child." Appellee requested in his petition that, in the event that an agreement is not reached, he and appellant be appointed temporary joint managing conservators of the child, and that a standard possession order be signed in regards to visitation with and access to S.E.B.S.
Appellant was served with citation, and the officer's return of service was filed with the trial court. After appellant failed to appear, appellee requested that the trial court grant a default judgment. The trial court heard testimony from appellee and rendered judgment granting the divorce. Appellant filed a late special appearance, plea to the jurisdiction, motion to dismiss for lack of jurisdiction and a supporting affidavit, and a "motion to suspend or void judgment[.]" She then filed this restricted appeal.
RESTRICTED APPEAL
Appellant argues the trial court erred in granting the final decree of divorce because appellee failed to properly plead subject matter jurisdiction. She maintains appellee was required to plead that Texas was S.E.B.S.'s home state. She claims appellee's first amended petition "is clearly void of any facts which would place [a]ppellant on notice of the in rem jurisdiction of the trial court, [and] a finding by the court that the home state of the child at issue is Texas does not correct [a]ppellee's improper pleading requirements."
A direct attack on a judgment by restricted appeal must: (1) be brought within six months after the trial court signs the judgment (2) by a party to the suit (3) who did not participate in the actual trial; and (4) the error complained of must be apparent from the face of the record. Tex. R. App. P. 26.1(c); Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Appellant meets the first three requirements. The issue in this appeal concerns error on the face of the record. The face of the record, for purpose of a restricted appeal, consists of all the papers on file in the appeal, including the reporter's record, as they existed in the trial court at the time of the default judgment. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Miles v. Peacock, 229 S.W.3d 384, 387 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Stankiewicz v. Oca, 991 S.W.2d 308, 311 (Tex. App.—Fort Worth 1999, no pet.).
JURISDICTION
A Texas court may exercise personal jurisdiction over a nonresident respondent in a suit for divorce if the petitioner is a resident or domiciliary of Texas at the time the suit is filed, Texas is the last marital residence of the petitioner and respondent, and the suit is filed before the second anniversary of the date on which the marital residence ceased. Tex. Fam. Code Ann. § 6.305(a)(1) (West 2006). Although a court acquiring jurisdiction over the nonresident respondent in a suit for divorce under section 6.305 also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship, 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. See Tex. Fam. Code Ann. §§ 6.305(b)(West 2006), 152.201(b)(West 2008); Seligman-Hargis v. Hargis, 186 S.W.3d 582, 586 (Tex. App.—Dallas 2006, no pet.).
Under section 152.201(a), a Texas court has jurisdiction to make an initial custody determination only if this 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; a court of another state does not have "home state" jurisdiction or the court having home state jurisdiction has "declined to exercise jurisdiction on the ground that [Texas] is the more appropriate forum" and the child and his parents, or the child and at least one parent or a person acting as a parent, have a significant connection with the state; or all courts otherwise having jurisdiction have declined jurisdiction on the ground that Texas is the more appropriate forum; or no court of another state would have jurisdiction under the above-stated provisions. See Tex. Fam. Code. Ann. § 152.201(a). A child's "home state" is "the 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." Id. § 152.102(7) (West 2008); see also Powell v. Stover, 165 S.W.3d 322, 325-26 (Tex. 2005).
Generally, when a party to a suit affecting the parent-child relationship is a nonresident, "each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period." See Tex. Fam. Code Ann. § 152.209(a) (West 2008). The pleading or affidavit must state whether the party has participated in any capacity in any other proceeding concerning the custody of or visitation with the child, "and, if so, identify the court, the case number, and the date of the child custody determination, if any[.]" Id. § 152.209(a)(1). The pleading or affidavit must also state whether the party knows of any proceeding that could affect the current proceeding, and must provide certain identifying information about that proceeding. Id. § 152.209(a)(2). The party must also provide, if known, the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of custody or visitation with the child. Id. § 152.209(a)(3). If this information is not provided to the court, the trial court may stay the proceeding, upon its own motion or a party's motion, until the information is provided. Id. § 152.209(b).
Appellant asserts the trial court lacked in rem jurisdiction over the child custody determination. She does not challenge the trial court's exercise of jurisdiction over the divorce, or otherwise contest the court's jurisdiction to sign the judgment. See Dawson-Austin v. Austin, 968 S.W.2d 319, 324 (Tex. 1998); see also Tex. Fam. Code Ann. §§ 6.305, 6.308 (West 2006).
Section 152.201(a) is the exclusive jurisdictional basis for making a child custody determination. See Tex. Fam. Code Ann. § 152.201(a),(b). The court's jurisdiction under section 6.305(b) does not extend to a child custody determination. Hargis, 186 S.W.3d at 586. Appellee's pleadings do not provide the required information to establish jurisdiction to decide the child custody issues. See In re S.L.P., 123 S.W.3d 685, 687, 689 (Tex. App.—Fort Worth 2003, no pet.).
Evidence regarding S.E.B.S.'s home state was presented at the hearing, but the record does not support the trial court's finding that Texas is S.E.B.S.'s home state. Appellee testified that he has lived in Willis, Texas, for thirteen years, and that appellant and S.E.B.S. lived at the marital residence in Willis until appellant and appellee separated on July 17, 2009. When appellant and appellee separated, appellant and S.E.B.S. moved to Louisiana. Appellee also testified that he had seen S.E.B.S. once since appellant was served with the suit.
The evidence presented does not indicate that Texas was S.E.B.S.'s home state within six months of the commencement of the proceeding. See Tex. Fam. Code Ann. §§ 152.102(7); 152.201(a). Nothing suggests that a court of another state does not have "home state" jurisdiction, that any court has declined to exercise jurisdiction, or that no court of another state would have jurisdiction under section 152.201(a). See id. § 152.201(a). The record does not reflect that the trial court had in rem jurisdiction to make the child custody determination. See Tex. R. App. P. 26.1(c); Tex. R. App. P. 30; Norman Commc'ns, 955 S.W.2d at 270; Miles, 229 S.W.3d at 387; Stankiewicz, 991 S.W.2d at 311. We sustain appellant's issue. We reverse the part of the judgment addressing child custody and remand the case to the trial court for further proceedings consistent with this opinion. See Hargis, 186 S.W.3d at 587. We affirm the remainder of the judgment.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
___________
DAVID GAULTNEY
Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.