### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-547- CV

In re Annette Shu rtz

ORI GINAL P ROCEEDI NG F ROM B ASTROP CO UNTY

M E M O R A N D U M O P I N I O N

This orig inal proce eding arises from a custody dispute; rela tor Annette Shurtz is the materna l g randmother of the children who are the subject of the dispute. The children’ s fathe r, rea l party in interest J ames Hug hes, initia t ed t h e custody proce eding seeking to enfor ce and modify the trial court’s initial custody deter mination. Shurtz responde d to the enfor ceme nt action and intervene d in the modification proce eding , assert i n g b y p lea to the jurisdiction that the trial court lacks subject-matter j u ri s d i ction over the proce eding

. Specifica lly , she arg ued that the initial custody deter mination is void for lack of subject-matter jurisdiction under the Uniform Child Custody J urisdiction and Enforc ement Act (UCCJ EA), and as a result, the court lacks subject-matter jurisdiction to enfor ce or modify the o rd er . Shurtz has filed a petition for writ of mandamus, complaining that the trial court abused its discretion in deny ing her plea to t h e j u ri s d iction. Ba sed on the rec ord prese nted, we ag ree . We conditionally

g rant the w rit.BACK GR OUND
J ames Hug hes and Rache l Shurtz have never marrie d, but have two children. G.H., 1

curr ently four y ear s old, was born i n Texas, though the family moved to Kansa s shortly afte r his birth. L .H. was born i n Kansa s and is curr ently two y ear s old. I n J une 2010, Hughe s left Rache l 2
and the children in Kansa s and moved to Texas. On J ul y 3 1 , 2 0 10, Hug hes met Rache l and the children in Oklahoma. At this meeting , Rache l voluntarily relinquished possession of the children to Hug hes, and he returne d to Texas with the children.

On Aug ust 5, 2010, less than a wee k afte r the children arr ived in Texas, Hug hes filed

a pro se petition in a suit aff ecting t h e p ar en t -c h i ld rela tionship (SAPCR ) in Ba strop County (the “initial SAPC R petition”). I n the initial SAPC R peti t i o n , Hu ghes reque sted that the trial court appoint him sole manag ing conser vator of the children. The petition states that Rache l does not live
in Texas, is homeless, and “has no perma nent addre ss.” Service of citation on Rache l is direc ted to

an addre ss in Over land Park, Kansa s. An addendum attache d to the initial SAPC R petition provides in releva nt part:

After the birth of our second child, the birth mother, Rache l, beg an us i n g m et h amphetamines. She is also medically diag nosed as “B ipolar” and she cea sed taking her presc ribed m ed i ca t i on due to her methamphetamine usag e. Rache l’s mother and I have basica lly been the primary car eg ivers for both kids since L .H. was born in Octobe r 2009.
I am a lifelong resident of Ba strop County , Texas, howeve r[] I have been working in Kansa s for the past couple of y ear s. I n J une 2010, I trave led to Texas for work.

Be cause the rela tor and the children’ s mother have the same last name, we will ref er to the 1 children’ s mother by

her f irst name in orde r to avoid conf usion. These backg round fac ts are based on undisputed testimony of Hug hes and Rache l from the 2 hear ing on the plea to the jurisdiction. 2During this time, Rache l’s mother was the primary car eg iver for the children with

Rache l being involved with their car e at times. Since leaving Kansa s, I have been in contac t with Rache l and the kids and have voiced my desire to have the kids with me in Texas as I am conce rned for their safe ty due to her drug use. Rache l’s mother will not allow Rache l to live with her due to her drug use. S h e h as been living with random people since I left Kansa s and has had [L .H.] in multipl e homes in the short time I h av e been in Texas. I have conce rns that Rache l’s drug use and sporadic living conditions are not safe f or my children.
At the end of J uly 2010, Rache l contac ted me to tell me that I could have the kids for a wh i l e s o t h at she could “g et clea n.” She stated I could have the kids on the condition that I g ive her $200 cash. On Saturday , J uly 31st, I met Rache l, ga ve her $200 and broug ht my

children ba ck to Texas.

Rachel was serve d with the initial SAPC R petition on October 29, 2010, in Smit hville, Texas. On April 18, 2011, she and Hug hes j o i n t l y ap pear ed before the trial court and
reque sted a final order appointing them joint manag ing conser vators and restric ting the g eog raphic residenc e of the children to Ba strop County and the contig uous counti es t h er et o , plus Hay s and Wil liamson Counties. The trial court orally g rante d their reque sted relief and asked them to prepa re

a draf t order for the court’s signa ture. Sometime afte r this joint appea ranc e, but befor e the t ri al
court signe d the final order on May 4th, Rache l took the children and returne d to Kansa s. The enfor ceme nt and modification proc eeding underly ing this manda mus then ensued.
On May 23, 2011, Hug hes filed a writ of habea s corpus, seeking to r e c o v er possession of the children from Rache l a nd her mother, Shurtz , in K ansas. The same day , Hug hes also filed a motion for enfor ceme nt of possession or acc ess and order to appea r, reque st for writ of attachme nt, and petition to modify pare nt-child rela tionship, reque sting that the court appoint him sole manag ing

conser vator. Upon service of these pleading s, Rache l a nd Shurtz returne d the childre n to H ug hes.
On J une 17, 2011, Shurtz filed a re sponse to Hug hes’s e nforc ement action, including a plea to the

3jurisdiction. Shurtz also filed a petition in intervention in the modification action filed by Hug hes, 3
reque sting that she be appointed sole mana g ing c onserva tor.

On J une 22, 2011, the trial court held an evidentiar y hear ing on Shurtz ’s plea to the jurisdiction. At the conclusion of the hear ing, the trial court orally denied the plea. I n this orig inal
proce eding , Shurtz asser t s t h at t h e trial court abused its discretion in deny ing her plea to the j u ri s d iction beca

use (1) Kansa s, not Texas, had subject-matter jurisdiction under the UCCJ EA to make the initial custody deter mination, and acc ording ly , the trial court no w l ac k s continuing, exclusive jurisdiction to modi fy or enfor ce the order ; (2) she was denied a timely opportunity to object to the issue of subjec t-matter jurisdiction in the initial SAP CR proc eeding beca use she wa s
not serve d with t h e initial SAPC R petition; and (3) the trial court failed to decline to exercise jurisdiction based on Hug hes’s unjustifiable c onduct.

STANDARD OF REVIEW Mandamus will issue only to corr ect a clea r abuse of discretion or a violation of a duty imposed by law when there is no other reme dy

. W alker v. Pack

er , 827 S.W .2d 833, 839 (Tex. 1992). Subject-matter jurisdiction is essential to the authority of a court to decide a case ; it is never presumed and cannot b e wa i v ed

. T ex a s Ass’n of Bus. v. T

exas Air Control Bd. , 852 S.W .2d 440,
442-44 (Tex. 1993). Subject-matter jurisdiction in this case is predic ated upon the UCCJ EA. A writ of mandamus is an appropr iate means to require a trial court to comply with the UCCJ EA’s jurisdictional require ments. Powell v. Stover , 165 S.W .3d 322, 324 (Tex. 2005).

Rache l filed a counter -petition to Hug hes’s petition to modify pare n t-child rela tionship, 3 reque sting the c ourt appoint them joint manag ing c onserva tors without ge og raphic restric tion.

4The issue in this mandamus action is whether the trial court abused its discretion in

deny ing Shurtz’s plea to the jurisdiction. A trial court abuses its discretion if it fails to ana ly ze or apply the law corr ectly

. W alker , 827 S.W .2d at 840. Construction of the UCCJ EA’s jurisdiction as codified in the Texas Family Code is a question of law that we revie w de novo. Powell , 165 S.W .3d
at 324-25. Also, whether a court has subject-matter jurisdiction is a question of law that we revie w de novo. Texas De

p’t of Parks & W

ildlif e v. M iranda , 133 S.W .3d 217, 225 (Tex. 2004).
A coll at er al at t ack, unlike a direc t appea l, is “an attempt to avoid the eff ect of a judgme nt in a proce eding broug ht for some other purpose.” Kendall v. Kendall , 340 S.W .3d 483,
503 (Tex. App.—Houston [1st Dist.] 2011, no pet.). I f a court lacks subject-matter jurisdiction
to rende r a judgme nt, the judgme nt is voi d an d subject to collater al attack. Browning v. Prostok , 165 S.W .3d 336, 346 (Tex. 2005). I n the prese nt modification and enfor ceme nt proce eding s, Shurtz is collater ally attacking the trial court’s initial custody deter mination beca

use she asser

ts that the trial court lac ked subjec t-matter jurisdiction to enter the initial custody

order s. When revie wing a collater al attack, we presume t h at t h e judgme nt under attack is valid. Stewart v. USA Custom Paint & Body Shop , 870 S.W .2d 18, 20 (Tex. 1994). I f the rec ord
in the underly ing cause does not neg ate the exis tence of fac ts authorizing the court to rende r the judgme nt, t h e l aw conclusively presumes that such fac ts wer e established befor e the court wh en s u ch j u dg ment was rende red. W hite v. W hite , 179 S.W .2d 503, 506 (Tex. 1944); see a l s o Alfonso v. Skadden , 251 S.W .3d 52, 54 (Tex. 2008) (holding that presumption supporting judgme nts does not appl y wh en re cord aff irmatively reve als jurisdictional defe ct). Acc ording ly , our revie w is limit ed to deter

mining whether the rec ord in the initial custody deter mination affi rm at i v ely

5and co n cl u s i v el y neg ates the exis tence of jurisdiction. In re K.M.P. , 323 S.W .3d 601, 603 (Tex.

App.—Austin 2010, pet. denied)

. We consider only the fac e of the rec ord and do not presume that something omitted from the cler k’s rec ord might have supported jurisdiction when the rec ord in the underly ing proce eding establishes otherwise. Alfonso , 251 S.W .3d at 55 (“We disag ree wi t h the
court of appea ls that it should have presumed something that the rec ord in the underly ing proce eding
repe atedly

showed wa s not true.”)

.

DISCUSSIO N Under the UCCJ EA, as codified in the Texas Family Code, a co u rt that makes an initial custody deter

mination gen er all y reta ins exclusive jurisdiction over that deter mination, including any action to modify or enfor ce its terms. Tex. Fam. Code Ann. § 152.202 (West 2008).
A t ri al co u rt has subject-matter jurisdiction to make an initial custody deter mination only if the require ments of section 152.201of the family code are met. Id

. § 152.201 (West 2008)

. Howeve r, section 152.201 provides a nd prioritizes sever al bases for establishing subj ect- matter jurisdiction. Powell , 165 S.W .3d at 325. Under this prior itiz ation, a court of the child’s home state alway s has primary jurisdiction over initial custody proce eding s. Id

. Acc ording ly , we first deter mine whether the rec ord in the suit for the initial custody deter mination aff

irmatively and conclusively neg ates the exis tence of the trial c ourt’s home-sta te jurisdiction. A child’s home state is:

the state in which a child lived with a pare nt or a person acting as a pare nt for at least six consec utive months immediately befor e the commence ment of the child custody proce eding

. I n the case of a child less than six months of ag e, the term means the state in which the chil d l i v ed from birth with a pare nt or a person acting as a
6pare nt. A period of temporar y absenc e of a pare nt or person acting as a pare nt is part of the pe riod.

Id . § 152.102(7) ( West 2008). A Texas court has home- state jurisdiction if:
[1] this state is the child’s home state on the date of the comm ence ment of the proce eding or [2] this state was the child’s home s t at e wi t hin six months of the commencem ent of the proce eding , and the child is absent but a pare nt or a person acting as par ent continues to re side in the state.

Id

. § 152.201(a) (1). “Commence ment” means the fil ing of the first pl ea d i n g in a procee ding. Id

. § 152.102(5) (West 2 0 0 8 ). T h u s, home-state jurisdiction is based on the circ umstances as they exis ted on the date suit for an initial custody deter mination is filed. See In re K.M.P. , 323 S.W .3d
at 605. The SAPC R petitioner has the burden to alleg e fac ts that aff irmatively show the trial court ha s subject-matter jurisdiction unde r the UCCJ EA. In re Brilliant , 86 S.W .3d 680, 684 (Tex. App.—El Paso 2002, no pet.); see also Tex. Fam. Code Ann. § 152.209 (West 2008) (re quiring

eac h party in its initial pleading to provide trial court with information reg arding children’ s residenc e

over past five y ear s). I n h is initial SAPC R petition, Hug hes provides very limit ed information

conce rning the parties’ and children’ s past and curr ent a d d r e s s e s . H oweve r, Hug hes’s initial SAPC R petition c lear ly states that he had been working and living in K ansas for the “past couple of y ear s” and in J une 2010 trave led to Texas for work. On J uly 31, 2010, Hug hes broug ht the children, who had rema ined in Kansa s when he left, to Texas. Thus, the initial SAPC R petition, filed on Aug ust 5, 2010, aff irmatively demonstrates that the children had not liv ed wi t h a pare nt in Texas for the requisite six months immediately befor e commence ment o f t h e proce eding

. Acc ording ly , the

7petition aff irmatively establis h es that the trial court did not have home-state jurisdiction over the initial custody

proce eding

. Hug hes does not arg ue that the t ri al co urt had home-state jurisdiction to make the initial custody deter

mination. Rather, Hug hes contends that th e t ri al court had subject-matter ju r is d ic ti o n o v e r th e in it ia l c u s to d y p r o c e e d in g p u

r s u a n t to o n e o f th e U CC JE A ’ s a lt e r n a ti v e b a s e s f

o r

s u b je c t- ma tt e r ju r is d ic ti o n , p r im a

r il y s ig n if ic a n t- c o n n e c ti o n ju r is d ic ti o n u

n d e r s e c ti o n 1 5 2

. 2 0 1 ( a ) ( 2 )

. Tex. Fam. Code Ann. § 152.201(a) (2). Under the UCCJ EA’s prioritization of jurisdictional bases, a trial court lacking home-state jur isdiction may alterna tively asser t subject-matter jurisdiction on the basis of signific ant-c onnection jurisdiction when (1) the child and at least one pare nt or person acting as a pare nt have a signific ant connec tion with this state other than mere phy sical prese nce and (2) substantial evidenc e is available in this state conce rning the child’s car e, protec tion, training , and
persona l rela tionships. Id

. Howeve r, this alterna tive basis for subject-matter jurisdiction only applies if (1) a court of another state would not have home-stat e j u ri s d i ct ion or (2) a court with home-state jurisdiction has declined to exercise jurisdiction on g rounds that Texas is the more
appropr iate forum under section 152.207 (inconve n i en t fo rum ) or section 152.208 (jurisdiction declined by rea son of conduct)

. Id .; In re K.M.P. , 323 S.W .3d at 604-05; In re Barnes , 127 S.W .3d 4

The rec ord from the initial custody proce eding does not c ontain any evidenc e that would 4 support a finding that a court of anothe r state de clined jurisdiction in favor of Texas unde r section 1 5 2

. 2 0 1 ( a ) ( 2 ) , a

n d it w o u ld b e u

n r e a s o n a b le to p r e s u

me o th e r w is e
. S e e I n r e K. M

. P

. , 3 2 3 S. W. 3 d 6 0 1 , 605 (Tex. App.—Austin 2010, pet. denied) (noting in collater al attack that it was not rea sonable to presume that court declined to exercise jurisdiction when there wer e no finding s or support in rec ord to this eff ect)

. Hug hes arg ues that on May 31, 2011, a state district court in Kansa s declined to exercise jurisdiction in a g uardia nship proceeding over G.H. initiated by Shurtz

. Howeve r, the Kansa s order , enter ed more than three wee ks afte r the Texas court’s initial custody order s, indicates that the court declined jurisdiction beca use the Texas court had previously deter mined custody , not 8843, 848 (Tex. App.—San Antonio 2003, no pet.). Consequently , befor e we can deter mine whether the trial court co u ld have proper ly asser ted signific ant-c onnection jurisdiction, we must consider whether a cour t of another

state would have had home- state jurisdiction. Having asser

ted fac ts that aff

irmatively neg ate Texas as the children’ s home s tate, Hug hes did not alleg e or plead any fac ts establishing that Kansa s or some other state lack ed home-state jurisdiction. There fore , Hug hes failed t o meet his burden to alleg e fac ts sufficie nt to show that the trial court had subject-matter jurisdiction under any alterna tive basis. See In re Zavala , No. 04-10-00835- CV, 2010 Tex. App. L EXI S 10094, at *5 (Tex. App.—San Antonio Dec

. 22, 2010, orig

. proce eding ) (conc luding that tr ia l court did not have subject-matter jurisdiction when petitioner failed to establish that Ohio was not home state or had declined to exercise jurisdiction). I f this wer e

a direc t appea l of the initial custody order , our inquiry would likely end here

. See id

. Howeve r, beca use this is a collat eral attack on the initial custody deter mination, we must deter

mine if the

rec ord affirmatively and conclusively neg ates the exis tence of si g nificant-c onnection jurisdi ction.
See In re K.M.P. , 323 S.W .3d at 603 (“We limit our review to deter mining whether the rec ord aff irmatively and conclusively neg ates the exis tence of jurisdiction, not whether the court otherwise

err ed in rende ring its judgme nt.”). This includes, as a threshold matter, a deter mination of whether the rec ord aff

irmatively and conclusively demonstrates that a court of another state would have had home-state jur isdiction.

beca use Texas was a more appropr iate forum under section 152.207 or 152.208. Cf

. Tex. Fam. Code Ann. § 152.203 (West 2008) (re quiring court to ref rain from modify in g c h il d

- c u s tody deter minations made by courts of other states); Kan. Stat. Ann. § 38-1350 (2011) (identica l UCCJ EA provision adopted by Kansa s)

. The subsequent Kansa s order is not part of the rec ord in the underly ing initial custody deter

mination and, acc ording ly , has no bear ing on whether the Texas court had jurisdiction to make the initial custody deter mination. 9I n h is in it ial SAPC R petition, Hug hes stated that befor e coming to Texas in J une 2010 he had lived in Kansa s for sever al y ear s and had been a primary careg iver to his children since October 2009. Fur

ther, Hug hes stated that when he left Kansa s the children rema ined with Rache l’s mother, with R ac h el “b eing involved in their car e at times.” Hug hes rema ined in contac t with Rache l and the children and informed Rache l that he wanted the children with him in Texas. On J uly
3 1 , 2 0 1 0 , he met Rache l and the children and broug ht the children back to Texas. The p et i t i o n clea rly provides that at the time of filing Rache l was not living in Texas. Thoug h the petition states that Rache l is homele ss, it direc ts se rvice of citation on Rache l a t a n addre ss in Ka

nsas. Hug hes’s alleg ations establish that at the commencement of the i nitial custody proce eding Kansa s had bee n the children’ s home state within the past six months and a pare nt continu ed t o reside there

. Ac cording ly , the initial SAPC R petition aff irmatively establishes that Kansa s, not Tex as , h ad
h o me - s ta te ju r is d ic ti o n o n th e d a

te o f th e c o mm e n c e me n t o f th e p r o c e e d in g . S e e A lf o n s o , 2 5 1 S. W. 3 d
at 53 (noting that “f

i l ing affir matively established that Spain was [ responde nt’s] ‘home state’ and
Texas was not”). Be cause a state with home-state jurisdiction has priority under the UCCJ EA, if the alleg ations in the petition are conclusive, t h e trial court could not have asser ted subject-matter jurisdiction over the initial custody proce eding under an y o f the UCCJ EA’s alterna tive bases, including sig nificant-c onnection jurisdiction.

We now turn to the rema ining rec ord in the underly ing initial custody deter

mination
to deter mine whether the allega t ions in the initial SAPC R petition are uncontrove rted, such that the rec ord as a whole aff

irmat i v el y and conclusively reve als a jurisdictional defe ct. See id. at 54 (noti n g t h at co urt should not presume something omitted from rec ord might have supported

10jurisdiction when rec ord otherwise neg ates jurisdiction). When enter ing its order on t h e i n itial

custody deter

mination, the trial court did not make any fac tual finding s rele vant to its subject-matter jurisdiction. The order simply states, “The Court finds that it has jurisdiction of this case and all of the parties.” The transcr ipt of the parties’ joint appea ranc e o n Ap ri l 18, 2011, shows that no evidenc e was rec eived by the trial court reg arding its jurisd i ction over the case . Neither party testified as to how long the children had lived in Texas or wher e the parties we re re s i d i n g at the time the proce eding commence d. The only evidenc e rec eived by the trial co u rt wi t h respe ct to jurisdiction was Hug hes’s testimony that he had “lived in Ba strop County for a lmost a y ear

now.”
Acc ording ly , the allega tions in Hughe s’s initial S APCR petit ion are uncontrove rted, and thus, the

rec ord conc lusively

reve als a jurisdictional def ect.
Be cause the re cord a ffirma tively and conclusively neg ates the trial court’s subjec tmatter jurisdiction over the initial custody deter mination, the trial court lacks continuing, exclusive jurisdiction ove r the curr ent enfor ceme nt a nd modification proce eding

. See Tex. Fam. Code Ann. § 152.202. The trial court err ed in deny ing Shurtz ’s plea to the jurisdiction beca use subject-matter jurisdiction cannot be waived and can be raised at any time. Having deter mined that the trial court lacks subject-matter jurisdiction, we do not consider the other issues raised by Shurtz in this mandamus. We conditionally g rant the petition for writ of mandamus and order the trial court to withdraw the order in sui t af fe ct i n g the pare nt child rela tionship enter ed on May 4, 2010, and to dismiss the pending enfor ceme nt and modification proce eding on the same within twenty day s of our opinion. I f the trial c ourt fails to comply , we will issue the wr it.

11__________________________________________ Diane M. H enson, Jus tice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Filed: De cembe r 30, 2011

12