Opinion issued May 31, 2024

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00396-CV

———————————

IN RE C.J.S., A CHILD

On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Case No. 21-DCV-281601

OPINION

This is an appeal from a default final order in a suit to establish paternity and 

suit affecting the parent-child relationship. The trial court held it had jurisdiction to 

make an initial child custody determination under the Uniform Child Custody 

Jurisdiction and Enforcement Act, and it subsequently issued a default final order 

naming the child’s parents joint managing conservators, awarding the mother 

primary conservatorship of the child, ordering supervised visitation for the father, 
2

and ordering the father to pay child support. The child’s father, Zach, filed a postjudgment motion asking the trial court to set aside the default judgment and to 

reconsider its earlier denial of his plea to the jurisdiction. Alternatively, he requested 

a new trial. The trial court conducted a hearing on Zach’s post-judgment motion and 

denied all requested relief. This appeal ensued. 

In his first three issues on appeal, Zach argues (1) the trial court abused its 

discretion by denying his motion to set aside the default judgment under the 

Craddock standard; (2) the trial court abused its discretion initially by holding it had

jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act and

later by denying his request to reconsider the denial of his plea to the jurisdiction; 

and (3) the final judgment is void for lack of subject matter jurisdiction. 

Alternatively, in issues four and five, Zach argues that (4) the trial court’s orders 

regarding conservatorship and possession should be reversed because they were

based on insufficient evidence, ignored applicable legal presumptions, and imposed

restrictions exceeding those necessary to protect the child’s best interest; and (5) 

because the trial court’s orders regarding child support and medical support were 

“materially influenced” by the potential outcome of the trial court’s rulings on 

conservatorship and possession, they too should be reversed. Finally, in issues six 

and seven, Zach argues the trial court abused its discretion in awarding (6) attorneys’
3

fees and (7) “generic, unconditional” appellate fees because the fees are not 

supported by sufficient evidence. 

We reverse the court’s final judgment as to the award of attorneys’ fees and 

remand to the trial court for a determination of fees consistent with this opinion. We 

affirm the trial court’s final judgment in all other respects.

Background

The child involved in this suit is C.J.S. C.J.S. was three months old at the 

time his mother, Victoria, filed the custody proceedings below in March 2021. 

C.J.S. was born in Webster, Texas on December 1, 2020. It is undisputed that he

lived in Texas with Victoria during the first five weeks of his life. C.J.S.’s father, 

Zach, lives in Louisiana. 

In addition to C.J.S., Victoria has two older children from other relationships: 

a daughter, “M.G.”, who lives in Texas, and a son, “J.”, who lives in Louisiana. 

Victoria shares joint custody with the father of each child. Sometime in January 

2021, when C.J.S. was about five weeks old, Victoria began to travel back and forth 

to Louisiana so that she could exercise her visitation rights over J. Victoria was 

breastfeeding C.J.S. at the time, so she took C.J.S. with her when she traveled to 

Louisiana. 

On March 4, 2021, while Victoria was in Louisiana, Zach filed a “Rule to 

Establish Paternity & Custody for Joint Custody Implementation Plan & for 
4

Injunctive Relief” in the 15th Judicial District Court for the Parish of Vermilion, 

Louisiana ( “Louisiana Action”). Zach alleged in his petition that jurisdiction was 

“proper in the State of Louisiana” because Zach and C.J.S. were domiciled in 

Vermillion Parish, Louisiana, and also that “Louisiana [was] the home state of the 

child and his domicile for the entirety of his life.” He requested that a temporary 

restraining order be issued because “Victoria is threatening to remove the minor 

child from the State of Louisiana . . . relocating permanently to the State of Texas.” 

The following day, the Louisiana court issued a temporary restraining order 

enjoining Victoria from taking C.J.S. out of Louisiana. On March 10, 2021, Victoria 

was served with the suit and restraining order at an address in Abbeville, Louisiana, 

which Zach alleged was Victoria’s residence in Louisiana. 

Victoria does not dispute receiving service of the Louisiana Action or the 

issued temporary restraining order. Rather, explaining she believed the Louisiana 

court could not exercise jurisdiction over her or C.J.S., Victoria traveled back to 

Texas with C.J.S. C.J.S. remained in Victoria’s sole care in Texas until June 24, 

2021, when according to Victoria, Zach traveled to Texas to visit C.J.S. and without 

her consent, removed C.J.S. from Texas and took him to Louisiana.1

1 Victoria argued below that Zach “duped her” into meeting Zach and his family “at 

a police station in Richmond, Texas under the guise that they just wanted to briefly 

see the child . . . [but Zach] and his family physically removed the child from 

[Victoria] and fled back to Louisiana with the child.” Zach argued that he came “to 
5

On March 15, 2021, Victoria filed an “Original Petition to Adjudicate 

Parentage and Original Petition in Suit Affecting Parent-Child Relationship” in the 

387th Judicial District Court of Fort Bend County, Texas (the “Texas Action”). She 

executed an affidavit acknowledging the proceedings filed by Zach in Louisiana. 

Subsequently, on April 5, 2021, Victoria filed an “Exception of Lack of 

Subject Matter Jurisdiction, Lis Pendens, and Forum Non Conveniens” 

(“Exceptions”) in the Louisiana Action, contesting the court’s jurisdiction and 

advising the Louisiana court that a child custody proceeding was pending in Texas. 

Also on April 5, 2021, Zach filed a “Plea to the Jurisdiction and Request for Court 

to Decline Jurisdiction” in the Texas Action, urging the Texas trial court to dismiss 

Victoria’s lawsuit for lack of subject matter jurisdiction. In the alternative, Zach 

asked the trial court to decline jurisdiction and to dismiss the case because (1) there

was a pending Louisiana Action; (2) Victoria lived in Louisiana; and (3) Louisiana

was C.J.S.’s home state. 

Plea to the Jurisdiction Hearing: April 5, 2021

The Texas court convened a hearing on Zach’s Plea to the Jurisdiction the 

same day the plea was filed.

2 Only Victoria and Zach testified at the hearing.

Texas with a valid Louisiana order giving [him] custody and got the police to help 

[him] get [his] son.” 

2 The record does not explain the circumstances that allowed the hearing on Zach’s 

Plea to the Jurisdiction to be heard the same day the pleading was filed. Regardless, 
6

A. Victoria’s Testimony

Victoria testified that C.J.S. was born in Webster, Texas on December 1, 2020. 

Victoria received pre-natal care in Texas, and after his birth, C.J.S. saw a pediatrician 

at UTMB in League City, Texas. Victoria testified that as of the date of the 

hearing—April 5, 2021—C.J.S. had spent more than half of his life in Texas. C.J.S. 

lived in Texas all of December 2020, and he was present in Texas (1) twelve days 

in January 2021; (2) ten days in February 2021; (3) eight days in March 2021; and 

(4) all of April 2021 (through the date of the hearing). Victoria testified that she has 

a temporary place in Louisiana where she stays when she visits her older son, J., who 

lives in Louisiana. She shares custody of J. with J.’s father on a 2/2/3 schedule and 

she obtained the temporary housing to visit J. Victoria testified that she considers 

her permanent residence to be in Rosenberg, Texas, where she has resided “[s]ince 

March of 2020.” She met Zach while she was living in Texas.

On cross-examination, Victoria acknowledged there was a pending case 

involving C.J.S. in Louisiana, and she testified that she was served with the 

Louisiana Action at her temporary residence in Louisiana. She also acknowledged 

there was a case involving J. in Louisiana, and that the final order in that case had 

been entered in October 2020. Asked whether it was true “she [had] resided in 

the hearing transcript does not indicate either party objected to the date of the 

hearing.
7

Louisiana for the past several years” and had also resided in Louisiana after “the 

birth of [C.J.S.],” Victoria testified, “Correct.” Zach’s counsel handed Victoria a 

copy of the certified custody order involving J. and confronted her with the statement 

in the order, dated October 1, 2020, where she identified an address in Erath, 

Louisiana as her residence. He also asked Victoria whether she had stated, in the 

same document, that she was employed at LA 14 Lounge in Louisiana. Victoria 

testified she worked at the lounge for about two weeks at the “end of July, beginning 

of September [2020],” and that prior to that she was not employed in Louisiana. The 

last time she received a paycheck from the lounge was in October 2020. 

Also on cross-examination, Victoria testified she has an older daughter, M.G.,

who resides in Texas and that there is a custody case involving M.G. in Harris 

County, Texas. M.G.’s father has primary custody. She testified that, in 2017, she 

told M.G.’s father that she had moved to Louisiana and she filed for a modification 

to “change the pick[-]up and drop off location” for M.G. “to a halfway point between 

[her] residence in Louisiana and [M.G.’s] residence” in Texas. She testified that 

since then, she had given notice to M.G.’s father that Victoria’s address is now in 

Rosenberg, Texas. 

On re-direct, Victoria testified that because of the Texas custody order 

involving M.G. and the Louisiana custody order involving J., she travels back and 

forth between Texas and Louisiana. She testified, however, that C.J.S. was born in 
8

Texas, that his pediatrician is in Texas, that he received his vaccinations in Texas, 

and that his maternal grandparents are in Texas. 

B. Zach’s Testimony

Zach testified that he works as a deckhand on a tugboat in Louisiana. He 

works on the tugboat offshore about two weeks at a time. Zach testified that he and 

Victoria met through a mutual friend, and that their interactions were in Louisiana. 

According to Zach, he and Victoria “hooked up and she ended up pregnant.” 

Victoria told Zach she was unsure whether the child was his. Zach testified that the 

last time he saw Victoria in person was on March 4, 2020, at her residence in Texas, 

where she lives with C.J.S. Zach testified that to his knowledge, Victoria has resided 

at her address in Texas for six months. Zach testified that he filed the Louisiana 

Action involving C.J.S. in early March 2020, and that Victoria was served with the 

suit on March 10, 2020, at her home in Abbeville, Louisiana.3

After hearing testimony from both parties, the trial court judge recessed the 

hearing so that she could confer with the Louisiana court as required by Section 

152.206(b) of the Uniform Child Custody Jurisdiction and Enforcement Act. Both 

parties agreed such conference was appropriate. Despite the trial court’s multiple 

3 No further testimony or evidence was offered at the hearing. 
9

diligent efforts to confer with the Louisiana court, however, the Louisiana trial court 

judge refused to confer with the Texas trial court judge.

4

 

Proceedings in Louisiana

On June 17, 2021, the Louisiana court conducted a hearing on Victoria’s 

Exceptions. The Louisiana court held that Victoria and C.J.S had “significant 

contact with the State of Louisiana,” and it thus denied Victoria’s Exceptions in a 

judgment dated June 23, 2021. The Louisiana court did not make any determinations 

concerning the home state of the child, as required under the Uniform Child Custody 

Jurisdiction and Enforcement Act, nor did it consider whether Texas would be a 

more appropriate forum. The Louisiana court directed the parties to work out a 

schedule where both could have access to C.J.S. 

On July 22, 2022, Victoria filed in the Louisiana Action a “Notice of Intention 

to Apply for Supervisory Writs of Review and Request for Stay.” The Louisiana 

court signed an order on July 26, 2022, granting Victoria until August 26, 2022 to 

file an application for supervisory writs and staying the proceedings in the trial court 

“pending resolution of the Application for Writs of Review.” Within the provided 

4

In her issued Findings of Fact, the Texas trial court stated that pursuant to Texas 

Family Code §152.110 and an Agreed Motion to Confer signed by the parties, she 

“attempted on multiple occasions to schedule a UCCJEA conference with the 

Louisiana Court.” She called and left messages for the Louisiana trial court judge 

on April 12, 19, 27, and 28, 2021 and again on May 14 and 15, 2021 to no avail. 

“[N]o return call was ever received.” 
10

time, Victoria appealed the Louisiana trial court’s denial of her Exceptions to the 

Louisiana Third Circuit Court of Appeal, which denied supervisory writ review on 

September 20, 2021. She also filed an application for writ of review with the 

Louisiana Supreme Court, which denied review on October 28, 2021. 

Despite its July 26, 2021 order granting a stay while Victoria’s supervisory 

writs remained pending, on August 2, 2021, the Louisiana court judge signed a final 

order granting sole custody of C.J.S. to Zach and ordering supervised visitation for 

Victoria, among other things.

Ruling on Plea to the Jurisdiction in Texas: September 8, 2021

While Victoria’s supervisory writs remained pending in Louisiana, the Texas 

trial court reconvened the hearing on Zach’s Plea to the Jurisdiction on September 

8, 2021. At that time, no court had exercised jurisdiction over the case based on a 

finding of “home state” jurisdiction under the Uniform Child Custody Jurisdiction

and Enforcement Act.

No further evidence was presented to the trial court on the jurisdictional 

question. The parties offered only the argument of counsel. Zach argued that the 

court should grant his Plea because Zach had filed his action in Louisiana first, the 

Louisiana court had already conducted a hearing “specifically dealing with the 

jurisdictional issues brought by [Victoria] in Louisiana,” and the trial court in 

Louisiana had already entered a final judgment on August 2, 2021 that “addressed 
11

all of the SAPCR” issues.”5 Thus, he argued, his Plea was meritorious because 

“Louisiana ha[d] already been ruled as the home state of the child,”6“[j]udgment 

ha[d] already been entered in Louisiana,”7and “Louisiana [was] the court of 

continuing exclusive jurisdiction.” 

Victoria argued that Zach’s Plea should be denied because the Louisiana court 

had failed to confer as required under the Uniform Child Custody Jurisdiction and 

Enforcement Act and further because Texas was the home state of the child. Victoria 

argued that Texas was the home state of the child because C.J.S. was born in Texas, 

C.J.S.’s pediatrician was in Texas, and, at the time she filed suit, C.J.S. had spent

more time in Texas than in Louisiana. 

5 A SAPCR is a Suit Affecting the Parent-Child Relationship.

6 Contrary to Zach’s statement, no court had conducted a home state analysis or 

otherwise held Louisiana was the home state of the child at the time of the 

September 8, 2021 hearing. Although the Louisiana court had exercised jurisdiction 

and entered a final judgment in the Louisiana Action, the court did not conduct a 

home state analysis, as required under the Uniform Child Custody Jurisdiction and 

Enforcement Act, but instead exercised jurisdiction based on a finding of 

“significant contacts” jurisdiction. The significant connection analysis may be 

conducted only after a home state analysis proves fruitless. See In re Oates, 104 

S.W.3d 571, 578 (Tex. App.—El Paso 2003, orig. proceeding) (“Significant 

connection jurisdiction should be employed only when Texas is not the home state 

and it appears that no other state could assert home state jurisdiction.”); Barabarawi

v. Rayyan, 406 S.W.3d 767, 772 (Tex. App.—Houston [14th Dist.] 2013, no pet.) 

(Significant connection jurisdiction “applies only if no other state can exercise home 

state jurisdiction, or if the state that can exercise home state jurisdiction has declined 

jurisdiction for other specified reasons.”) (citing TEX. FAM. CODE § 152.201(a)(2)). 

7 As we discuss below, the Louisiana court’s final judgment dated August 2, 2021 

was later vacated.
12

The trial court denied Zach’s Plea, stating:

The Court finds that we did try to follow the UCCJEA and tried to make 

contact with the Louisiana court. We tried numerous times over several 

weeks, the Louisiana court just apparently thumbed their nose at us and 

did not reply. So because of that and based on what the Court has 

previously heard about where the child was born, where the child’s 

doctors have been, the Court is going to take jurisdiction over this 

case[.]”

After denying Zach’s Plea, the Texas trial court conducted a temporary orders 

hearing concerning conservatorship, possession and access, and child support. Zach

and his attorney elected not to participate in the hearing for fear of waving their 

objection to the court’s jurisdiction.8 

At the conclusion of the temporary orders hearing, the Texas trial court

entered temporary orders naming Zach and Victoria joint managing conservators of 

C.J.S. and granting Victoria the exclusive right to determine C.J.S.’s residence in 

Fort Bend and contiguous counties, the right to receive child support, and the right 

to make health- and education-related decisions for C.J.S. The trial court determined 

it had jurisdiction over the case and personal jurisdiction over the parties. The trial 

court also entered orders of possession, ordering that Zach’s possession over C.J.S. 

8 An objection to lack of subject matter jurisdiction cannot be waived. Tex. Ass’n of

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993); see also Alfonso

v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (“Subject-matter jurisdiction cannot be 

waived, and can be raised at any time.”).
13

take place in Fort Bend and contiguous counties, and be restricted to “keeping the 

child in those counties.” 

After the temporary orders hearing, Zach filed a petition for writ of mandamus 

in this Court, asserting the Texas trial court improperly exercised jurisdiction over 

the parties and the child. This Court denied the petition without opinion on January 

13, 2022.9

Meanwhile, on December 20, 2021, Victoria filed a Petition to Annul 

Judgment, for Stay Order, and for Injunctive Relief (“Motion to Annul”) in a 

separate docket number in Louisiana state court. She argued that the Louisiana 

court’s August 2, 2021 final judgment should be annulled because Louisiana is not 

C.J.S.’s home state, the trial court issued its judgment without a legal finding on 

paternity, and the judgment was issued while a stay order was in place (“Second 

Louisiana Action.”).10 

The Texas Trial: March 10, 2022

On March 10, 2022, the Texas trial court conducted a final trial. Although it 

is undisputed that Zach and his attorney had notice of the trial, neither Zach nor his 

attorney appeared. Victoria and her attorney were the only witnesses who testified.

9 See In re McNeil, No. 01-21-00538-CV, 2022 WL 120137 (Tex. App.—Houston 

[1st Dist.] Jan. 13, 2022, orig. proceeding) (mem. op.).

10 Victoria also filed a motion to recuse the Louisiana trial judge who issued the final 

judgment. After a hearing before an ad hoc judge, the judge granted her motion, 

and the case was reallotted to another Louisiana judge. 
14

Victoria testified that on June 24, 2021, Zach traveled to Texas to visit C.J.S. 

and, without her consent, “took off” to Louisiana with C.J.S., where C.J.S. remains 

with Zach. Since the temporary orders hearing on September 8, 2021, Victoria had 

“been able to see” her son only “three times supervised in the state of Louisiana.” 

Victoria testified that Zach violated the Temporary Orders the Texas court entered 

pertaining to possession and access to C.J.S. 

Victoria testified that C.J.S. was born in Webster, Texas on December 1, 2020,

and that he lived in Texas “until he was taken [on] June 24[, 2021].” Victoria was 

breastfeeding C.J.S. exclusively, and Zach did not communicate with her about 

transitioning C.J.S. off breast milk when he took him to Louisiana or tell her how 

C.J.S. was doing. Victoria believed Zach would continue to violate the Texas court’s 

orders and that if C.J.S. were returned to her, Zach would again try to take him to 

Louisiana. 

Victoria registered C.J.S. with Medicaid in Texas. To her knowledge, Zach 

did not have Medicaid for C.J.S. in Louisiana, but he had C.J.S. registered “on the 

insurance he has through work.” She testified C.J.S. was “a little over a month” 

when he and Victoria began to travel from Texas to Louisiana to visit her son J. Her 

possession arrangement with respect to J. was a 2/2/3 schedule, so she had to travel 
15

frequently from Texas to Louisiana. During that time, she maintained a residence 

in Texas.

11

Victoria testified that Zach “work[ed] on a boat as a deckhand either working 

a week off shore or two weeks offshore and then only a week home.” According to 

Victoria, when Zach is offshore, Zach’s mother cares for C.J.S. Victoria testified 

she did not believe it was in C.J.S.’s best interest for his paternal grandparents to 

raise him. Victoria testified that her communications with Zach’s parents have been 

“bland” and lack information about C.J.S.’s condition. 

Victoria requested that she and Zach be appointed joint managing 

conservators, but that she be awarded the exclusive right to make decisions regarding 

invasive medical procedures, education, and psychological or psychiatric treatment. 

She testified that she believed such an arrangement was in her son’s best interest. 

She also requested that Zach be ordered to return C.J.S. to Victoria and that he have 

supervised visits with C.J.S., based on his taking the child and not allowing her to 

see him without supervision. 

According to Victoria, after Zach took C.J.S. to Louisiana, he did not provide 

her with information concerning C.J.S.’s medical appointments, medical needs or 

“things that he is doing.” Victoria testified that she tried to coparent with Zach by 

11 Victoria also has a daughter, M.G. in Texas. M.G.’s father is her primary caretaker 

and has the right to establish residence for her in Harris County, Texas. 
16

texting him, “asking about doctor’s appointments, things that [C.J.S.] is doing. And 

he gives me no answer saying that he has it handled.” According to Victoria, when 

she learned that her son was prescribed allergy medicine, Zach refused to tell 

Victoria what types of allergies he had. 

Victoria testified that her visits with C.J.S. in Louisiana have been “[r]ocky 

because my son doesn’t know, really, who I am anymore,” and the noisy 

environment in which she was required to visit made him “fussy” and “just 

uncomfortable.” She testified she had not seen C.J.S. for approximately two months, 

because her Louisiana attorney had not been successful in scheduling visits since 

she had last seen C.J.S. in January 2022. 

At the conclusion of the trial, on March 10, 2022, the court rendered its 

judgment from the bench, ordering that Victoria and Zach be appointed joint 

managing conservators, that Victoria have the exclusive right to make medical and 

educational decisions and to determine C.J.S.’s primary residence, that Zach pay 

$523.32 a month in child support, that Zach’s possession and access be supervised,

and that all other rights be joint. The trial court ordered that Zach return the child to 

Victoria by March 18, 2022, and it awarded Victoria attorneys’ fees and appellate 

attorneys’ fees. That same day, the trial court signed a written Final Order. 

Victoria filed a copy of the Texas Final Order in the Second Louisiana Action 

requesting that the order “be registered in [the] case pursuant to La. R.S. 13:1827 
17

and La.Ch.Code art. 1306.5.” Zach timely filed an objection to the registration of 

the Texas order, and the Louisiana court set a hearing for August 24, 2022 to hear 

the matter. See McNeil v. Stern, 371 So. 3d 1187, 1190 (La. Ct. App. 2023).

Zach’s Post-Judgment Motions in Texas

On April 1, 2022, after securing new counsel, Zach filed in the Texas Action 

a combined Motion to Set Aside Default Judgment (“Motion to Set Aside”) and to 

Reconsider Dismissal for Lack of Subject Matter Jurisdiction (“Motion for 

Reconsideration”), Alternatively, to Grant a New Trial” (“Motion for New Trial”).

A. Motion to Set Aside Default Judgment

In his Motion to Set Aside, Zach requested that the trial court set aside the 

default Final Order entered on March 10, 2022. He argued he was entitled to relief 

under the Craddock factors.12 He argued that his failure to appear at trial “was the 

result of accident and mistake, rather than intentional or conscious indifference, 

because Zach fully relied upon the erroneous advice of his trial counsel, advice that 

directed Zach “not to appear and/or participate in trial (and/or in an earlier temporary 

orders hearing)” to avoid waiving his objections to the trial court’s jurisdiction. Zach 

also argued that he had a meritorious defense to Victoria’s SAPCR because the trial 

court lacked subject matter jurisdiction under the Uniform Child Custody 

12 See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939) (listing 

factors a movant must establish to set aside a default judgment).
18

Jurisdiction and Enforcement Act, and because the terms of the Texas order were 

not in C.J.S.’s best interest. Finally, Zach argued that setting aside the Final Order 

and dismissing the Texas suit would not result in delay, prejudice, or injury to 

Victoria.

In his affidavit attached to the Motion to Set Aside, Zach stated that he did not 

appear at trial based on the advice of his counsel who told him that “if the trial court 

denied [his] challenge to Texas jurisdiction, then we would not participate in any 

other hearings because it would create ‘an appearance’ and I would waive my right 

to object to jurisdiction in any appeal.” His attorney told him that he “could not 

submit evidence in the proceedings because it would have the same effect.” Zach 

averred “he had no reason to doubt the legal advice or instructions” his trial counsel 

gave him with respect to waiving his right to contest subject matter jurisdiction. On 

the advice of counsel, he did not participate either at the temporary orders hearing 

or at trial. Zach stated the Final Order in Texas conflicted with the Louisiana court’s 

award of sole custody to him, and having two conflicting orders would create a lot 

of difficulty.

13

Zach also attached an affidavit from his mother, Michele, to his Motion to Set 

Aside. In her affidavit, Michele testified that she communicated with Zach’s trial 

13 The affidavit also contained arguments intended to establish a meritorious defense 

to Victoria’s SAPCR.
19

counsel, who told her that Zach would contest the Texas court’s jurisdiction but that 

he should “not participate in any hearings dealing with other issues because if [he]

did not win the jurisdiction issue Zach would waive his right to object on appeal.” 

She “made sure to confirm” with trial counsel that Zach need not appear for the 

March 2022 trial and Zach’s counsel “told us [Zach] could not appear without 

waiving his rights.” She attached emails from trial counsel to her affidavit 

“demonstrating his advice and his instructions that Zach should not appear for trial.”

In response to the Motion to Set Aside, Victoria objected globally to “the 

numerous hearsay statements” in Zach’s motion, but she did not identify any of the 

purported hearsay.

14

 She argued that Zach’s failure to appear at trial was not a 

mistake but rather “intentional or the result of conscious indifference,” given Zach’s 

acknowledgment that he relied on his counsel’s “erroneous advice” not to appear at 

trial. Victoria further argued that Zach’s attempt to set up a meritorious defense to 

her SAPCR fell short because his defense was based in part on his already failed 

attempt to challenge the jurisdiction of the court, and further that Zach could not 

establish the granting of the Motion to Set Aside would “not delay or otherwise work 

14 See Moulton v. Vaughn, 982 S.W.2d 107, 110 (Tex. App.—Houston [1st Dist.] 

1998, pet. denied) (holding objections “directed to the affidavit as a whole” that fail 

to “point out which part is objectionable on which ground . . . preserve nothing for 

review.”); Hanks v. Huntington Nat’l Bank, No. 01-15-00188-CV, 2016 WL 

1235689, at *7 (Tex. App.—Houston [1st Dist.] Mar. 29, 2016, pet. denied) (mem. 

op.) (“Absent a specific objection, the complaining party waives any argument 

concerning the improper admission of the evidence.”).
20

an injury to the plaintiff” because the trial court had already reset the final hearing 

twice, once to allow time for this Court to rule on Zach’s Petition for Writ of 

Mandamus, and a second time to give Zach “additional notice of the final hearing so 

that [he] could appear and participate.”15 Victoria argued that further delay would 

only result in harm to C.J.S. and Victoria, who had already expended $35,000 in 

attorneys’ fees, which Zach did not agree to tender in full, and she had “wholly 

exhausted her funds.” 

B. Motion to Reconsider for Lack of Subject Matter Jurisdiction

In his Motion to Reconsider, Zach asked the Court to reconsider its ruling on 

his Plea to the Jurisdiction, arguing that Louisiana was C.J.S.’s home state when 

Victoria filed the Texas Action or that simultaneous proceedings in Louisiana 

prevented the Texas court from exercising jurisdiction over C.J.S. Zach based his 

motion on the following arguments: (1) Zach filed the Louisiana Action first; (2) he 

served Victoria with the Louisiana Action at her home in Louisiana, despite her 

claiming Texas residency; (3) Victoria intentionally left Texas to give birth to C.J.S.

and remained in Texas for only thirty days before returning to Louisiana, where 

C.J.S. had predominantly resided when he filed the Louisiana Action; (4) Louisiana

and Texas have virtually identical versions of the Uniform Child Custody 

15 Victoria’s response to the Motion to Set Aside did not address the Motion to 

Reconsider for Lack of Subject Matter Jurisdiction or the Motion for New Trial.
21

Jurisdiction and Enforcement Act; (5) the Louisiana courts, including the Louisiana 

Supreme Court, had all affirmed the trial court’s jurisdiction over C.J.S.; (6) no 

Texas appellate court had considered the merits of the Texas court’s ruling on 

jurisdiction; (7) Victoria violated Louisiana orders by bringing C.J.S. to Texas when 

she filed the Texas Action and thus the court’s jurisdiction resulted from Victoria’s 

unjustifiable conduct;16 (8) the Texas court had authority to decline its perceived 

jurisdiction in favor of Louisiana “where proper UCCJEA jurisdiction ha[d] already 

been determined through Louisiana’s highest court;” (9) the evidence supported a 

finding that Louisiana was C.J.S.’s home state and Victoria’s claims to the contrary 

“lack credibility;” (10) in the alternative, neither court has home state jurisdiction 

over C.J.S.; (11) if neither court has home state jurisdiction over C.J.S., the court 

must consider whether there are “significant connections” in Texas, and Zach 

contended both parents and C.J.S. had more significant connections to Louisiana; 

(12) the Louisiana court’s failure to communicate with the Texas court has no 

bearing on the jurisdictional ruling; and (13) Section 152.206 of the Texas Family 

Code requires Texas “to dismiss any child custody proceeding . . . if it determines 

that such a proceeding has been commenced in another state having jurisdiction in 

substantial conformity to the Texas UCCJEA and that the other state proceeding has 

16 Zach relied on Section 152.208 of the Texas Family Code, which pertains to 

unjustifiable conduct by the party seeking to invoke Texas jurisdiction. We discuss 

this argument below.
22

not been terminated or the court of that other state has not deferred to Texas upon a 

finding that Texas is a more convenient forum.” 

Zach and Victoria testified during the hearing on the Motion for 

Reconsideration. As it concerns the court’s jurisdiction, Victoria testified that C.J.S. 

was born on December 1, 2020 in Webster, Texas. He lived with her in Rosenberg, 

Texas, and he was under her continued care from the time he was born until January 

2021. At that time, she started traveling to Louisiana to visit her older son J. She 

had a “two days on, two days off, three days on again” schedule with J. Because of 

her possession schedule over J., she made living arrangements in Louisiana, first 

staying with a friend and later renting a trailer. When she traveled between Texas 

and Louisiana with C.J.S. to visit J., C.J.S. returned to Texas with her between visits. 

She lived in Rosenberg, Texas in early 2021, found a pediatrician for C.J.S. near her 

home, and obtained insurance for him in Texas. She testified that Zach “stated 

multiple times . . . that he is not going to follow Texas rulings, [and] that Louisiana 

has jurisdiction.” 

Relevant to the jurisdictional issues before the court, Zach testified that there 

were two orders concerning custody over C.J.S., one in Texas and one in Louisiana, 

and that this caused him concern. He testified that Victoria was “living in 

Louisiana.” He stated he did not know when C.J.S. first left Texas, after being born 

and that he had no evidence “as to whether the child was present in Texas and for 
23

how long.” During Zach's testimony, his counsel admitted into evidence a 

“Correcting Birth Certificate” form filled out by Victoria in February 2021, in which 

Victoria sought to identify Zach as the father on C.J.S.’s birth certificate. On page 

4 of the form, Victoria lists her address as Rosenberg, Texas, but on page 5, she lists 

her address as Abbeville, Louisiana. Zach also admitted into evidence a text 

exchange with Victoria where Victoria gives Zach information concerning food she 

has been feeding C.J.S. and some of his required care due to having severe sensitive 

skin. Zach presumably offered this evidence to dispute Victoria’s argument that she 

was breastfeeding C.J.S. exclusively, and to argue Victoria resides in Louisiana.17

Zach argued that based on his arguments, the evidence previously submitted, 

and the affidavits attached to his Motion for Reconsideration, the trial court should 

reconsider its ruling and hold it lacks subject matter jurisdiction. 

C. Motion for New Trial

In the alternative to his Motion to Set Aside and Motion to Reconsider, Zach

moved for a new trial on six grounds. He argued that (1) the orders designating 

Victoria as primary joint managing conservator were not in C.J.S.’s best interest and 

there was insufficient evidence addressing the “various factors” the court should 

17 Zach’s counsel also attempted to introduce into evidence (1) an acknowledgment of 

paternity between Victoria and J.’s father; and (2) a letter from Victoria’s attorney 

to J.’s father’s attorney. But those exhibits, which Zach attached to his affidavit, 

were not admitted into evidence. 
24

consider in determining which parent should be designated as primary conservator; 

(2) there was legally and factually insufficient evidence offered in support of the 

required factors under Section 153.254(a) of the Texas Family Code18 for possession 

and access for a child under the age of three; (3) the existing order did not render a 

prospective order for possession and access for when C.J.S. turns three; (4) the 

orders for possession and access “impose[d] restrictions and limitations on Zach’s 

possession with the child which exceed[ed] those required to protect the best interest 

of the child” pursuant to Section 153.19319 of the Texas Family Code; (5) the orders 

for child support and medical support did not consider the correct amount of Zach’s 

monthly net resources or consider evidence of the expenses “that would be incurred 

for long distance travel” with C.J.S. to exercise possession; and (6) the attorneys’

fee award is not supported by legally or factually sufficient evidence. 

The trial court conducted a hearing on Zach’s post-judgment motions on May 

16, 2022.20 At the conclusion of the hearing, the trial court took the motions under 

advisement.

18 Section 153.254(a) of the Texas Family Code enumerates the factors that a court 

“shall consider” in rendering an order for possession of a child less than three years 

of age. See TEX. FAM. CODE § 153.254(a).

19 Section 153.193 of the Texas Family Code states, “The terms of an order that denies 

possession of a child to a parent or imposes restrictions or limitations on a parent’s 

right to possession of or access to a child may not exceed those that are required to 

protect the best interest of the child.” TEX. FAM. CODE § 153.193.

20 We discuss the hearing on the motions below.
25

 Findings of Fact and Conclusions of Law and Ruling on Motions

The trial court issued its Findings of Fact and Conclusions of Law on April 22, 2022

and, on May 20, 2022, it issued additional findings and conclusions at Zach’s 

request. On May 23, 2022, the trial court signed an order denying Zach’s Motion to 

Set Aside, Motion to Reconsider, and his alternative Motion for New Trial. This 

appeal ensued.

The Second Louisiana Action

While this appeal was pending, the Louisiana trial court held a hearing on 

Victoria’s Motion to Annul and her request to register the Texas March 10, 2022 

Final Order. The trial court agreed with Victoria that the August 2, 2021 Louisiana 

final judgment “was a nullity because it was signed after [the judge had] issued a 

stay order . . . pending supervisory review of the issues of subject matter 

jurisdiction.” On February 10, 2023, the Louisiana trial court issued its judgment 

declaring the August 2, 2021 Louisiana judgment null, but denying Victoria’s 

motion to register the Texas Final Order stating that the Texas court had failed to 

“follow the requirements of the UCCJEA once the Louisiana court determined it had 

jurisdiction.” See McNeil v. Stern, 371 So.3d 1187, 1191 (La. Ct. App. 2023). The 

Louisiana court held it had jurisdiction over the case because “as of March 4, 2021, 

the date [on which Zach] filed his original petition,” Victoria and C.J.S. “were 
26

domiciled in Louisiana,” and thus “Louisiana, not Texas, was the home state of the 

child[.]”

21

 Id. 

The Uniform Child Custody Jurisdiction and Enforcement Act

In his second and third issues, Zach challenges the trial court’s exercise of 

jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act 

(“UCCJEA”). In his second issue, Zach argues the trial court abused its discretion 

initially by finding it had jurisdiction under the UCCJEA and later by denying his 

request to reconsider the denial of his Plea to the Jurisdiction. In his third issue, 

Zach argues the Final Order is void for lack of subject matter jurisdiction.

A. Standard of Review 

The UCCJEA governs child custody jurisdictional disputes in Texas. In re

Salminen, 492 S.W.3d 31, 38 (Tex. App.—Houston [1st Dist.] 2016, orig. 

proceeding) (“Subject matter jurisdiction in child custody matters is determined by 

reference to the UCCJEA, set out in Family Code Chapter 152.”); Waltenburg v.

Waltenburg, 270 S.W.3d 308, 313 (Tex. App.—Dallas 2008, no pet.) (stating that 

UCCJEA is “exclusive jurisdictional basis for making a child custody determination 

21 On September 27, 2023, the Louisiana Third Circuit Court of Appeal affirmed, 

holding, among other things, that Louisiana was C.J.S’s home state on the date Zach 

filed suit in Louisiana and that the Fifteenth Judicial District Court in Louisiana had

jurisdiction over the custody proceeding at issue. See McNeil, 371 So.3d at 1194. 

The Louisiana Supreme Court denied review on January 10, 2024. McNeil v. Stern, 

376 So.3d 847 (La. 2024). 
27

by a court of this state”); TEX. FAM. CODE. § 152.201. Whether a trial court has 

jurisdiction under the UCCJEA implicates subject matter jurisdiction. Cortez v.

Cortez, 639 S.W.3d 298, 305 (Tex. App.—Houston [1st Dist.] 2021, no pet.). The 

issue of whether a trial court has subject matter jurisdiction is a question of law we 

review de novo. In re Salminen, 492 S.W.3d at 38; see also Powell v. Stover, 165 

S.W.3d 322, 324 (Tex. 2005) (orig. proceeding) (“Construction of the UCCJEA’s

‘home state’ provision as codified in the Texas Family Code is a question of law that 

we review de novo.”). The party who seeks to invoke the trial court’s jurisdiction 

has the burden “to allege facts that affirmatively demonstrate the court’s authority 

to hear the case.” Cortez, 639 S.W.3d at 306 (citing Seligman-Hargis v. Hargis, 186 

S.W.3d 582, 585 (Tex. App.—Dallas 2006, no pet.)). “We construe the pleadings 

in favor of the party invoking jurisdiction and consider relevant evidence when 

necessary to resolve the jurisdictional issue.” Id.

In our de novo review, we bear in mind that the trial court “is the sole judge 

of the credibility of the witnesses and the weight to be given their testimony, and we 

will not disturb the court’s resolution of evidentiary conflicts that turn on credibility 

determinations or the weight of the evidence.” In re I.I.G.T., 412 S.W.3d 803, 806 

(Tex. App.—Dallas 2013, no pet.); see also Weatherford Artificial Lift Sys., Inc. v.

A & E Sys. SDN BHD, 470 S.W.3d 604, 609 (Tex. App.—Houston [1st Dist.] 2015, 

no pet.) (observing in de novo review, “[w]e do not ‘disturb a trial court’s resolution 
28

of conflicting evidence that turns on the credibility or weight of the evidence’”) 

(quoting Ennis v. Loiseau, 164 S.W.3d 698, 706 (Tex. App.—Austin 2005, no pet.); 

Mariles v. Hector, No. 05-16-00814-CV, 2018 WL 3723104, at *6 (Tex. App.—

Dallas Aug. 6, 2018, no pet.) (mem. op.) (noting under de novo standard, “we defer 

to the trial court’s credibility determinations and resolution of [evidentiary] 

conflicts”). Further, in conducting our de novo review, we may consider only those 

facts that were before the trial court when it made its jurisdictional ruling. See 

Shahin v. Mem’l Hermann Health Sys., 527 S.W.3d 484, 487 (Tex. App.—Houston 

[1st Dist.] 2017, pet. denied) (noting in de novo review of plea to the jurisdiction, 

“[w]e review the actions of the trial court based upon the materials before it at the 

time it acted”); see also Trinity Universal Ins. Co. v. Day, 155 S.W.3d 337, 339 (Tex. 

App.—El Paso 2004, pet. denied) (observing in de novo review of plea to the 

jurisdiction, “[w]e . . . consider evidence relevant to the jurisdictional issue that was 

before the trial court when it ruled on the plea”); Dallas-Fort Worth Int’l Airport Bd.

v. Ryan, 52 S.W.3d 426, 427 (Tex. App.—Fort Worth 2001, no pet.) (same);

Anderson v. Wynne, 672 S.W.3d 498, 503 (Tex. App.—Houston [14th Dist.] 2023, 

no pet.) (noting in de novo review of dismissal for lack of jurisdiction, “[w]e 

determine whether the order is supportable based on the record before the trial court

when it ruled.”); Villarreal v. Villarreal, No. 04-15-00551-CV, 2016 WL 4124067, 

at *2 (Tex. App.—San Antonio Aug. 3, 2016, no pet.) (mem. op.) (noting in de novo
29

review of ruling on subject matter jurisdiction, “the trial court’s order can only be 

upheld based on the legal theories that were before the court at the time of the 

hearing.”).

B. The Texas UCCJEA 

Texas adopted the UCCJEA in 1999 to replace the Uniform Child Custody 

Jurisdiction Act (“UCCJA”). Powell, 165 S.W.3d at 325. Because the UCCJA 

provided four bases for jurisdiction in a custody dispute but did not prioritize them, 

courts in different states could simultaneously exercise jurisdiction in child custody 

cases. Id. “The UCCJEA was designed, in large part, to remedy this situation by 

prioritizing home-state jurisdiction” over any other bases for exercising jurisdiction 

in custody disputes. Id. 

The Texas UCCJEA is codified in the Texas Family Code. 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.” TEX. FAM.CODE § 152.201(b). “Initial [child 

custody] determination” refers to the “first child custody determination concerning 

a particular child.” Id. § 152.102(8). Section 152.201(a) states that

(a) . . . 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;
30

(2) a court of another state does not have jurisdiction under 

Subdivision (1), or a court of the home state of the child has 

declined to exercise jurisdiction on the ground that this state is 

the more appropriate forum . . . and:

(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; and

(B) substantial evidence is available in this state concerning 

the child's care, protection, training, and personal 

relationships;

(3) all courts having jurisdiction under Subdivision (1) or (2) have 

declined to exercise jurisdiction on the ground that a court of this 

state is the more appropriate forum to determine the custody of 

the child . . . or

(4) no court of any other state would have jurisdiction under the 

criteria specified in Subdivision (1), (2), or (3).

TEX. FAM.CODE § 152.201(a) (emphasis added). Under the Texas UCCJEA, “homestate jurisdiction trumps all other possible bases of jurisdiction in an initial child

custody action.” In re Brown, 203 S.W.3d 888, 891 (Tex. App.—Fort Worth 2006, 

no pet.). 

The physical location of a child “is the central factor to be considered when 

determining the home state” of the child. In re Walker, 428 S.W.3d 212, 216 (Tex. 

App.—Houston [1st Dist.] 2014, orig. proceeding); see also Powell, 165 S.W.3d at 

328 (holding that “in determining where a child lived for purposes of establishing 

home-state jurisdiction, the trial court must consider the child’s physical presence in 
31

a state.”). On the other hand, “visitations within a state” do not suffice “to determine 

whether a state has become a child’s ‘home state’ under section 152.102(7).” In re

A.S., No. 02-14-00301-CV, 2016 WL 1470034, at *3 (Tex. App.—Fort Worth Apr. 

14, 2016, no pet.) (mem. op.) (citing In re Marriage of Marsalis, 338 S.W.3d 131, 

136 (Tex. App.—Texarkana 2011, no pet.)). 

Texas courts have held that the operative date for determining whether this 

state has jurisdiction under the UCCJEA is the date of commencement of the 

proceeding in Texas. In re Oates, 104 S.W.3d 571, 576 (Tex. App.—El Paso 2003, 

orig. proceeding) (citing In re McCoy, 52 S.W.3d 297, 305 (Tex. App.—Corpus

Christi 2001, orig. proceeding)); see also In re Marriage of Marsalis, 338 S.W.3d at 

135 (“Jurisdiction [under the UCCJEA] is determined based upon circumstances 

existing at the time suit is filed in Texas.”). “Commencement” is defined as “the

filing of the first pleading in a proceeding.” TEX. FAM. CODE § 152.102(5). 

The Family Code also addresses exclusive continuing jurisdiction for matters 

involving custody. Section 152.202 of the Family Code provides that

(a) Except as otherwise provided in Section 152.204,22 a court of this 

state which has made a child custody determination consistent 

22 Section 152.204 of the Family Code, not applicable here, governs temporary 

emergency jurisdiction over a child if the child was abandoned of if jurisdiction 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 § 152.204(a).
32

with Section 152.201 or 152.20323 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.

(b) A court of this state which has made a child custody 

determination and does not have exclusive, continuing 

jurisdiction under this section may modify that determination 

only if it has jurisdiction to make an initial determination under 

Section 152.201.

Id. § 152.202; see also id. § 152.102(3) (defining “child custody determination” to 

mean “a judgment, decree, or other order of a court providing for legal custody, 

physical custody, or visitation with respect to a child” and stating that term “includes 

permanent, temporary, initial, and modification orders”).

23 Section 152.203 of the Family Code, titled “Jurisdiction to Modify Determination”

and not applicable here, pertains to a Texas court’s modification of a child custody 

determination made by a court of another state. TEX. FAM. CODE § 152.203. 

Compare with TEX. FAM. CODE § 152.206(a) (“[A] court of this state may not 

exercise its jurisdiction under this subchapter if, at the time of the commencement 

of the proceeding, a proceeding concerning the custody of the child has been 

commenced in a court of another state having jurisdiction substantially in 

conformity with this chapter.”).
33

“[E]xclusive jurisdiction continues in the decree-granting state as long as a

significant connection exists orsubstantial evidence is present.” Cortez, 639 S.W.3d 

at 307 (quoting In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004) (observing that 

“jurisdiction continues until the court determines that there is not a significant 

connection with Texas and that substantial evidence concerning the children’s care, 

protection, training, and personal relationships is no longer available here”) (citing 

TEX. FAM. CODE § 152.202(a)(1)) (emphasis in original). Even if the child acquires 

a new home state, “the state that made the initial child custody determination retains 

exclusive continuing jurisdiction ‘so long as the general requisites of the “substantial 

connection” jurisdiction provisions are met.’” Cortez, 639 S.W.3d at 307 (quoting 

In re Tieri, 283 S.W.3d 889, 894 (Tex. App.—Tyler 2008, orig. proceeding)). “The 

state that made the initial child custody determination ‘is the sole determinant of 

whether jurisdiction continues.’” Id.

24

24 Like Texas, Louisiana has adopted the UCCJEA, and its provisions are similar to 

the provisions in the Texas UCCJEA. See LA. STAT. ANN. § 13:1801–1802. As 

with the Texas UCCJEA, the Louisiana UCCJEA provides “the exclusive 

jurisdictional basis for making a child custody determination” by a Louisiana court, 

and it prioritizes “home-state” jurisdiction over any other bases of jurisdiction. See 

LA. STAT. ANN. § 13:1813; see also State ex rel. A.U.M., 62 So. 3d 185, 188 (La. 

Ct. App. 2011) (stating home-state status has priority over other grounds UCCJEA 

identifies as basis for jurisdiction over child in interstate custody litigation).
34

C. The Home State Analysis

The threshold issue in our review is whether Texas was C.J.S.’s home state 

when Victoria filed her SAPCR in Texas in March 2021, thus conferring jurisdiction 

on the trial court to make an initial custody determination over C.J.S. Section 

152.102(7) defines “home state” as

[T]he 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. In the case of a child

less than six months of age, the term means the state in which the child

lived from birth with a parent or a person acting as a parent. A period

of temporary absence of a parent or a person acting as a parent is part

of the period.

TEX. FAM. CODE § 152.102(7) (emphasis added). C.J.S. was less than six months 

old when Victoria filed the SAPCR in March 2021. Thus, for purposes of our home 

state analysis, we must determine “the state in which C.J.S. lived from birth with a 

parent or a person acting as a parent.” Id. § 152.102(7). And we must consider any 

“period of temporary absence of a parent or a person acting as a parent [as] part of 

the period.” Id.; see also In re K.Y., 273 S.W.3d 703, 707 (Tex. App.—Houston

[14th Dist.] 2008, no pet.) (holding children’s “frequent” visits to Oklahoma while 

maintaining home and possessions in Texas “[did] not establish that the children 

moved from Texas” for purposes of home state determination). 

In conducting our home state analysis, we do so in keeping with the language 

of the UCCJEA’s home state provision, which focuses on where the child “lived”
35

with a parent. See TEX. FAM. CODE § 152.102(7). As the Texas Supreme Court

explained in Powell v. Stover, in determining where a child “lived” with a parent,

our inquiry is not “based on the parties’ subjective intent” concerning residence or 

domicile. 165 S.W.3d at 326 (noting that a “test for ‘residence’ or ‘domicile’

typically involves an inquiry into a person’s intent.”). The word “lived” as used in 

the statute, “strongly connotes physical presence.” Id. (“We think it significant that 

the Legislature chose the word ‘lived’ as opposed to ‘resided’ or ‘was domiciled.’”). 

Thus, for purpose of our home state analysis, it is the “child’s physical location” that 

lies at the center of our analysis. Id. Keeping this central focus in mind, we turn to 

the evidence presented to the trial court on this threshold jurisdictional question. 

The trial court held it had jurisdiction over the matter because Texas is C.J.S.’s 

home state. The trial court issued Findings of Fact supporting its jurisdictional ruling 

finding that C.J.S. was born in Texas, and lived exclusively in Texas for the first five 

weeks of his life with Victoria, who was a Texas resident; C.J.S. was covered though 

Texas Medicaid and had doctors in Texas; C.J.S. was four months old25 when the 

Texas Action was first filed and had been “physically present” in Texas with Victoria 

more days of his life than he was physically present with Zach in Louisiana; any 

absences from the State of Texas before suit was filed were merely “temporary 

25 C.J.S. was born on December 1, 2020, and the Texas Action was filed on March 15, 

2021. 
36

absences;” and substantial evidence was available in the State of Texas regarding 

C.J.S.’s “care, protection, training, and personal relationships.” We defer to a trial 

court’s findings of fact if the findings are supported by sufficient evidence. In re

T.D.L., 621 S.W.3d 346, 352 (Tex. App.—San Antonio 2021, no pet.).

The following evidence was presented to the trial court when it made its

jurisdictional ruling that Texas was C.J.S.’s home state. C.J.S. was born in Webster, 

Texas on December 1, 2020. Victoria received pre-natal care in Texas, and after his 

birth, C.J.S. saw a pediatrician in League City, Texas. C.J.S. lived with Victoria in 

Texas during the first five weeks of his life, receiving his first set of vaccinations 

and attending at least one well-child doctor’s appointment in Texas. In January 

2021, when C.J.S. was about five weeks old, Victoria began to travel back and forth 

to Louisiana, taking C.J.S. with her, so she could exercise possession of her older 

son J., who lived in Louisiana. Victoria was breastfeeding C.J.S., so she took C.J.S. 

with her on her visits to Louisiana. Victoria has a temporary place in Louisiana 

where she stays when she visits J. She considers her permanent residence to be in 

Rosenberg, Texas, where she has resided “since March of 2020.”

Victoria registered C.J.S. with Medicaid in Texas. C.J.S. was covered by his 

father’s health insurance in Louisiana. As of the date of the hearing on Zach’s 

Plea—April 5, 2021—C.J.S. had spent more than half of his life in Texas. C.J.S. 

lived in Texas all of December 2020, and he was present in Texas (1) twelve days 
37

in January 2021; (2) ten days in February 2021; (3) eight days in March 2021; and 

(4) all of April 2021 (through the date of the hearing). C.J.S. remained in Victoria’s 

sole care until June 24, 2021, when Zach took him to Louisiana against Victoria’s 

will. 

Zach testified that he filed his suit in Louisiana in March 2021, and that 

Victoria was served with the Louisiana Action on March 10, 2021 at her residence 

in Abbeville, Louisiana. The last time he saw Victoria in person was on March 4, 

2021, at her home in Texas where she lived with C.J.S. To Zach’s knowledge, 

Victoria had resided at her address in Texas for six months by time of the April 5, 

2021 hearing. 

In light of this evidence, we conclude that Texas was C.J.S’s home state when 

Victoria filed the Texas Action in March 2021, and that the trial court did not err in 

exercising jurisdiction under the UCCJEA. 

Zach argued during oral argument that the UCCJEA does not require that the 

home state be the state in which the child was born. We agree. “The place of birth

is not the relevant consideration. Instead, we look to ‘the State in which the child

lived from birth with [a parent or person acting as a parent].’” In re Dean, 393 

S.W.3d 741, 749 (Tex. 2012) (orig. proceeding) (citation omitted) (emphasis in 

original). The evidence was undisputed that C.J.S. was born in Texas and that he 

lived there exclusively the first five weeks of his life, after which time he began to 
38

travel back and forward to Texas with Victoria so that she could visit her other son. 

That Victoria may have had a residence in Louisiana or that she traveled to and from 

Louisiana does not change the outcome. For purposes of our home state analysis

involving a child younger than six months of age, the statute dictates that we consider 

any “period of temporary absence of a parent or a person acting as a parent [as] part 

of the period.” See TEX. FAM. CODE § 152.102(7).

In his brief, Zach concedes that Texas was C.J.S.’s home state “at one time,” 

but argues that Victoria and C.J.S. “abandoned” Texas as the home state, returning 

to Louisiana, and that C.J.S. had no home state when Zach filed his Louisiana suit 

on March 4, 2021.26 During oral argument, however, Zach argued that Louisiana 

had always been C.J.S.’s home state and that Victoria’s visits to Texas, even the 

five-week period beginning with her giving birth to C.J.S. in Texas, were mere 

“temporary absences”’ that did not count against the determination that Louisiana 

was the home state. See TEX. FAM. CODE § 152.102(7) (“A period of temporary 

absence of a parent or a person acting as a parent is part of the [home state 

calculation] period.”). 

Section 152.107 does not support Zach’s argument. Section 152.107 defines 

“home state” as

26 Zach argued in his Motion to Set Aside that Louisiana was Zach’s home state when 

suit was filed in the Louisiana court or, in the alternative, that neither Texas nor 

Louisiana was C.J.S.’s home state. 
39

[T]he 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. In the case of a child

less than six months of age, the term means the state in which the child

lived from birth with a parent or a person acting as a parent. A period

of temporary absence of a parent or a person acting as a parent is part

of the period.

TEX. FAM. CODE § 152.102(7) (emphasis added). Zach’s argument that we begin

our home state analysis with Victoria’s residence in Louisiana, and that we consider

her subsequent travel to Texas to give birth to C.J.S. and the following five weeks

in Texas as part of Victoria’s “temporary absence” from Louisiana cannot be

reconciled with the statutory mandate that “[i]n the case of a child less than six

months of age, the term means the state in which the child lived from birth with a

parent or a person acting as a parent.” See id. (emphasis added). Indeed, the Texas

Supreme Court has held that a child’s home state “cannot be determined before a

child is born[.]” In re Dean, 393 S.W.3d at 747. Zach is asking us in his novel 

argument to do just that.27

27 Zach argues that Victoria lived in Louisiana before C.J.S.’s birth and had 

“substantial” prenatal care there, advising her doctor she planned to deliver the child 

in Texas. But any actions Victoria may have taken or where she lived prior to 

C.J.S.’s birth do not factor into our home state analysis. See In re Dean, 393 S.W.3d 

741, 749 (Tex. 2012) (orig. proceeding) (noting home state is based on 

determination of where child lived from birth with parent or parental surrogate). Cf.

Waltenburg v. Waltenburg, 270 S.W.3d 308, 317 (Tex. App.—Dallas 2008, no pet.) 

(“[T]he text of the UCCJEA precludes its application to unborn children.”). In 

Waltenburg, the Dallas Court of Appeals rejected a reading of the UCCJEA that 

would allow a party to file suit before a child’s birth to determine jurisdiction over 

a custody matter. Id. at 318. Doing so, the court reasoned, would “defeat the clear 
40

The rules of statutory construction preclude us from adopting Zach’s 

argument. We are required to presume the entire statute is intended to be effective. 

See TEX. GOV’T CODE § 311.021(2). The first two sentences of Section 152.102(7) 

“must be read together such that in the case of a child less than six months of age, 

the home state is that state in which the child lived from birth with a parent 

immediately before the commencement of the child custody proceeding.” In re

Calderon-Garza, 81 S.W.3d 899, 903 (Tex. App.—El Paso 2002, no pet.) (emphasis 

omitted). “[W]e must always consider the statute as a whole rather than its isolated 

provisions. We should not give one provision a meaning out of harmony or 

inconsistent with other provisions, although it might be susceptible to such a 

construction standing alone.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 

(Tex. 2001) (internal citation omitted). 

The court in In re Calderon-Garza rejected an argument similar to the one

Zach makes here. In that case, the mother received all her prenatal care in Mexico,

but the child was born in Texas. 81 S.W.3d at 901. The mother claimed that the

child’s home state was in Mexico because she only went to Texas to give birth and

purpose underlying the legislature’s enactment of the UCCJEA—to prioritize 

home-state jurisdiction.” Id. However, in Berwick v. Wagner, 336 S.W.3d 805, 

815–16 (Tex. App.—Houston [1st Dist.] 2011, pet. denied), we clarified that (1) in 

cases where the pre-birth suit and the child’s home state are the same, UCCJEA 

petitions can be filed pre-birth with any jurisdictional analysis reserved for after 

birth, and (2) Texas law expressly recognizes that some UCCJEA cases, such as 

parental-termination proceedings, can be filed before a child is born.
41

to obtain financial assistance from her parents and intended to return to Mexico after

the birth. Id. at 903. As Zach contends here, the mother claimed that her visit to

Texas, during which her child was born, “was merely a ‘temporary absence’ from

her residence in Mexico” and that she did not actually live in Texas as the term is

used in the Family Code’s definition of “home state.” Id. The court of appeals

disagreed, holding that even if the mother “deems herself temporarily absent from

her domicile in Mexico, the child cannot be considered temporarily absent because

he was never physically present in Mexico” prior to commencement of the father’s

suit. Id. Citing a San Antonio appellate decision, the court stated, “the temporary

absence provision of Section 152.102(7) cannot be construed to include periods

before the child was first present in the claimed home state.” Id. (citing In re

Lambert, 993 S.W.2d 123, 129 (Tex. App.—San Antonio 1999, orig. proceeding) 

(observing child’s “presence in Texas for the first week of her life was not an 

‘absence’ from Virginia since she had never been there”)); see also Canales v.

Riquelme, No. 13-09-080-CV, 2010 WL 4657951, at *4 (Tex. App.—Corpus 

Christi–Edinburg Nov. 18, 2010, no pet.) (mem. op.) (“[Mother’s] residency is of no 

import in determining the trial court’s jurisdiction over the initial custody matter; 

rather it is the physical presence of the children that is determinative.”).

Here, the jurisdictional evidence established that C.J.S. “lived from birth with 

a parent” in Texas, and that Victoria’s subsequent, periodic temporary absences from 
42

Texas to visit her son J. in Louisiana were “temporary absences” for purposes of the 

UCCJEA. 

D. Jurisdiction Evidence

Zach asserts that in reviewing the Texas court’s rulings on his Plea to the 

Jurisdiction and the denial of his Motion to Reconsider, we may consider 

jurisdictional evidence offered at the April 5, 2021 hearing on his Plea, the 

September 8, 2021 re-convened hearing on his Plea, and the documents attached to 

Zach’s combined post-judgment motions, including a transcript of the Louisiana 

jurisdictional hearing held on June 17, 2021, and the mandamus record previously 

filed in this Court. 

For purposes of our de novo review, we may consider only the testimony and 

the exhibits that were admitted into evidence when the trial court ruled on Zach’s 

Plea to the Jurisdiction and his Motion to Reconsider. See Shahin, 527 S.W.3d at

487 (“We review the actions of the trial court based upon the materials before it at 

the time it acted.”). During the May 16, 2022 hearing on Zach’s Motion to 

Reconsider, the trial court also considered Zach’s Motion to Set Aside the court’s 

Final Order based on the Craddock factors and his alternative Motion for New Trial. 

At Zach’s request, the trial court took judicial notice of the record in the case, 

including transcripts of the trial court’s jurisdictional hearings on April 5, 2021 and 
43

September 8, 2021, as well as this Court’s mandamus record and the transcript of 

the June 17, 2021 Louisiana court hearing. 

Both parties agreed that the trial court take judicial notice of these documents.

But while a “the trial court can take judicial notice of the existence of certain 

documents in its records,” it “‘may not take judicial notice of the truth of factual 

statements and allegations contained in the pleadings, affidavits, or other documents 

in the file.’” Kenny v. Portfolio Recovery Associates, LLC, 464 S.W.3d 29, 34 (Tex. 

App.—Houston [1st Dist.] 2015, no pet.) (emphasis in original) (quoting Guyton v.

Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.)). 

Texas Rule of Evidence 201, which governs judicial notice, limits the court’s judicial 

notice to a fact that either “(1) is generally known within the trial court’s territorial 

jurisdiction; or (2) can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.” TEX. R. EVID. 201(b). “A document’s 

contents do not achieve a cannot-reasonably-be-questioned status simply by 

appearing in the trial court’s file.” Gonzalez v. Gonzalez, 679 S.W.3d 221, 231 (Tex. 

App.—Houston [1st Dist.] 2023, no pet.) (citing Kenny, 464 S.W.3d at 34). 

Moreover, it is not sufficient to take judicial notice of a hearing or trial transcript for 

purposes of relying on that testimony in a later proceeding. “In order for testimony 

from a prior hearing or trial to be considered in a subsequent proceeding, the 

transcript of that testimony must be properly authenticated and entered into 
44

evidence.” Guyton, 332 S.W.3d at 693; see also Paradigm Oil, Inc. v. Retamco

Operating, Inc., 161 S.W.3d 531, 539–40 (Tex. App.—San Antonio 2004, pet. 

denied) (“[T]he trial court cannot take judicial notice of testimony from a previous 

proceeding at a subsequent proceeding unless the testimony is admitted into 

evidence at the subsequent proceeding.”). 

Thus, while during the May 16, 2022 hearing, the trial court agreed to 

judicially notice the existence of the record in the case and some documents attached 

to Zach’s combined post-judgment motion, to the extent those documents were not 

admitted into evidence, we may not consider them for purposes of our jurisdictional 

analysis. The same is true with respect to the affidavits attached to Zach’s Motion 

to Set Aside. While Zach attached his affidavit and the affidavit of his mother to his 

Motion to Set Aside, which the trial court heard on the same day it considered Zach’s 

Motion to Reconsider the denial of his plea, Zach did not offer those affidavits into 

evidence, nor did he offer them in support of any jurisdictional arguments.28 As he 

explained at the hearing on his Motion to Set Aside, Zach attached the affidavits to 

his motion in support of the first element of the Craddock analysis, and he did not 

28 Even though the affidavits and documents attached to Zach’s Motion to Set Aside 

were not admitted into evidence, the parties agreed that the trial court could consider 

them for the first element of the Craddock analysis in ruling on Zach’s Motion to 

Set Aside, and the trial court agreed to do so. See Strackbein v. Prewitt, 671 S.W.2d 

37, 38–39 (Tex. 1984) (holding affidavits may be considered in Craddock analysis, 

stating, “It is sufficient that the movant’s motion and affidavits set forth facts which, 

if true, would negate intentional or consciously indifferent conduct.”).
45

offer them into evidence. We thus decline to consider such evidence in evaluating 

the trial court’s ruling on Zach’s Plea to the Jurisdiction and his Motion to 

Reconsider.

E. Substantial Conformity with the UCCJEA

Zach argues that because he filed the Louisiana Action first, and the Louisiana 

court was authorized to exercise jurisdiction based on “significant connections” 

under the UCCJEA, the Texas trial court erred in exercising jurisdiction. He argues 

that the Louisiana court had not deferred its jurisdiction to Texas as a more 

appropriate forum and the Texas court was aware, in September 2021 when it 

assumed jurisdiction, that Louisiana had already issued a final custody order 

concerning C.J.S.29 Zach argues that pursuant to Section 152.206(a) of the Family 

Code, the trial court should have declined jurisdiction and granted his Plea. We 

disagree. 

Section 152.206(a) of the Family Code provides that a court

may not exercise its jurisdiction under this subchapter if, at the time of 

the commencement of the proceeding, a proceeding concerning the 

custody of the child has been commenced in a court of another state 

having jurisdiction substantially in conformity with this chapter . . . .

Id. § 152.206(a) (emphasis added). This provision, also known as the “simultaneous 

proceeding” provision, is intended “to deal with situations where a Texas court and 

29 That final order, dated August 2, 2021, was later vacated in the Second Louisiana 

Action. 
46

the court of another state are ‘both legitimately exercising custody jurisdiction at the 

same time.’” In re C.H., 595 S.W.3d 272, 278 (Tex. App.—Amarillo 2019, no pet.) 

(citing In re J.P.L., 359 S.W.3d 695, 710 (Tex. App.—San Antonio 2011, pet. 

denied)). Significantly, a simultaneous-proceedings problem arises only when there 

is no home state. Id. (citing TEX. FAM. CODE § 152.206 cmt.). 

Under the Texas UCCJEA, “home-state jurisdiction trumps all other possible

bases of jurisdiction in an initial child custody action.” In re Brown, 203 S.W.3d at

891. Thus, if Texas is the home state of the child, no other state can legitimately 

exercise jurisdiction “substantially in conformity with the UCCJEA.” In re A.B.G., 

No. 09-11-00545-CV, 2013 WL 257311, at *4 (Tex. App.—Beaumont Jan. 24, 

2013, no pet.) (mem. op.); see also In re C.H., 595 S.W.3d at 278 (“Since Texas is 

the home state of [the child], the Indiana court could not have exercised jurisdiction 

in substantial conformity with the UCCJEA.”). As the comment to Section 

152.206(a) explains, “[i]f there is a home state, there can be no exercise of significant 

connection jurisdiction in an initial child custody determination and, therefore, no 

simultaneous proceedings.” TEX. FAM. CODE § 152.206 cmt.; see also In re E.K.N., 

24 S.W.3d 586, 592 (Tex. App.—Fort Worth 2000, no pet.) (“Because it is 

undisputed that Texas qualifies as the home state, the Los Angeles County Superior 

Court could not have exercised jurisdiction in substantial conformity with Chapter 

152.”); In re Burk, 252 S.W.3d 736, 741 (Tex. App.—Houston [14th Dist.] 2008, 
47

orig. proceeding) (“Because there is a court of another state [Texas] that has

jurisdiction under section 152.201(a)(1), the Colorado court does not have

jurisdiction in substantial conformity with chapter 152 to make an initial child

custody determination.”); accord Powell, 165 S.W.3d at 328 (holding because

Tennessee was minor’s home state, Tennessee’s exercise of jurisdiction was

“substantially in accordance with” Texas’ UCCJEA). 

On September 8, 2021, when the Texas trial court held that Texas was the 

home state of the child and it exercised jurisdiction over the case, no court had made 

a home state determination. The Louisiana trial court, in earlier exercising 

jurisdiction over the case, never made an initial home state analysis. It neither 

determined that Louisiana was the home state of the child or that there was no home 

state. Rather, the Louisiana trial court exercised jurisdiction based solely on its 

conclusion that Victoria had “significant contact with the State of Louisiana.” The 

Louisiana trial court stated during a June 17, 2021 hearing on Victoria’s Exceptions 

contesting the court’s jurisdiction:

I’m satisfied that you have significant contact with the State of 

Louisiana. You had a residence here, you obviously visit your child [J] 

on a regular schedule. Your child that is in question [C.J.S.] is on 

Louisiana health insurance, insured through Louisiana. So you have 

significant contact and the Court has jurisdiction[.]30 

30 On August 5, 2021, Victoria unsuccessfully appealed the Louisiana trial court’s 

denial of her jurisdictional challenge to the Louisiana Third Circuit Court of Appeal

and ultimately to the Supreme Court of Louisiana. Although the Court of Appeal 
48

Before a court can exercise “significant connection jurisdiction” under the 

UCCJEA, it must first determine that another court does not have home state 

jurisdiction or that the court with home state jurisdiction declined jurisdiction 

because the significant connection court is a more appropriate forum.31 See TEX.

FAM. CODE §§152.201(1), (2). The Louisiana trial court did not undertake this 

analysis before the Texas SAPCR was filed in March 2021, or before the trial court 

ruled on Zach’s Plea to the Jurisdiction in September 2021 and held Texas was the 

child’s home state.

32

 The Louisiana court therefore did not exercise jurisdiction over 

denied Victoria’s writ without opinion, Chief Judge Cooks wrote a dissenting 

opinion stating that the Texas court “clearly ha[d] jurisdiction over this child,” 

further noting that the Louisiana trial court had applied the wrong legal standard and 

failed to comply with mandatory statutory provisions requiring it to confer with the 

trial court, who had attempted multiple times to do so without success. See McNeil 

v. Stern, 21-00557, 3 (La. App. 3 Cir. 9/20/21) (Cooks, C.J., dissenting). Chief 

Justice Cooks wrote that the Louisiana trial judge had 

[B]ased subject matter jurisdiction solely on the notion of “significant 

contacts” which is not the proper legal standard under the present 

UCCJEA. (Even if this were the applicable standard, I believe the 

record does not support his conclusion.) The majority engages in the 

same error.

Id. (emphasis in original). He concluded, “The [Louisiana] trial court could not 

exercise jurisdiction over this minor child whose home state is in Texas.” Id. at 1.

31 The court must also determine whether “the child and the child’s parents, or the 

child and at least one party or a person acting as a parent, has a significant 

connection with the state other than mere physical presence” and “substantial 

evidence is available in the state concerning the child’s care, protection, training and 

personal relationships.” See TEX. FAM. CODE § 152.201(2).

32 Zach conceded during oral argument that the Louisiana trial court did not address 

home state jurisdiction.
49

C.J.S. “substantially in conformity” with the UCCJEA, and the Texas trial court did 

not abuse its discretion by exercising jurisdiction over C.J.S.. See In re C.H., 595 

S.W.3d at 278 (explaining that if Texas is the home state, another state cannot be 

exercising jurisdiction “in substantial conformity” with the UCCJEA). 

We further acknowledge the Texas trial court’s repeated efforts to confer with 

the Louisiana trial court judge on this matter to no avail. In her Findings of Fact 

issued after the final trial, the Texas trial court judge identified seven specific

attempts she made to confer with the Louisiana court, noting she had made other 

attempts before she began to keep track of the date and time of each attempt, but the 

Louisiana trial court never returned the calls. While the Louisiana court’s refusal to 

confer does not resolve the jurisdictional inquiry, the failure of the trial court judge 

to confer, as mandated by the UCCJEA, was a failure of the court to act in 

conformity with the UCCJEA.33 See TEX. FAM. CODE § 152.206(b). Both the Texas 

33 Victoria appealed the Louisiana Court’s order on her exception for lack of 

jurisdiction to the Louisiana Third Circuit Court of Appeal. A divided panel denied 

supervisory writ review on September 20, 2021. In his written dissent, Chief Judge

Cooks wrote that the Louisiana trial court judge had complicated matters by 

ignoring the mandatory directives of the UCCJEA and refusing to confer with the 

trial court judge in Texas. McNeil v. Stern, 21-00557, 4 (La. App. 3 Cir. 9/20/21) 

(Cooks, C.J., dissenting). The Supreme Court subsequently denied Victoria’s writ 

of review. Judge Griffin wrote a concurrence, with three other justices joining, in 

which he expressed his agreement with Chief Judge Cooks that the UCCJEA and 

its provisions are mandatory in matters of child support and jurisdiction. He 

explained that “the trial court was required . . . to communicate with the Texas court 

which did its part in staying its proceedings, made several attempts to contact the 

trial court, and was unfortunately ignored. Justice Griffin concluded by noting that 
50

and the Louisiana versions of the UCCJEA require judges who are involved in 

simultaneous custody proceedings to confer. TEX. FAM. CODE § 152.206(b); LA.

STAT. ANN. § 13:1818(B).

34

 

F. The Unjustifiable Conduct Argument

Last, Zach argues that even if we conclude that Texas is C.J.S.’s home state, 

the Texas trial court should have declined to exercise jurisdiction under Section 

152.208 of the Texas Family Code, because Victoria engaged in unjustifiable 

conduct in securing the court’s jurisdiction. Zach focuses on Victoria’s action in 

leaving Louisiana with C.J.S. in March 2021, after she was served with the Louisiana 

Action and the court’s temporary restraining order. He argues that “Victoria’s 

presence in Texas with the child in violation of a valid Louisiana order” imposed a 

mandatory obligation on the Texas court to decline jurisdiction. 

“we owe the same respect to Texas courts that we would expect them to show 

Louisiana courts.” McNeil v. Stern, 326 So.3d 883, *1 (La. 2021) (Griffin, J., 

concurring).

34 Section 152.206(b) of the Texas Family Code provides: “If the court determines that 

a child custody proceeding has been commenced in a court in another state having 

jurisdiction substantially in accordance with this chapter, the court of this state shall

stay its proceeding and communicate with the court of the other state. TEX. FAM.

CODE § 152.206(b). The Louisiana UCCJEA has an identical provision. See LA.

STAT. ANN. § 13:1818.
51

Zach did not raise this argument during the first two hearings on his Plea to 

the Jurisdiction nor did he present any evidence at those hearings in support of his 

argument.35 Even if Zach had raised the issue, he would not prevail. 

Section 152.208(a) provides that a Texas court “shall decline to exercise its 

jurisdiction” if “a person seeking to invoke its jurisdiction has engaged in 

unjustifiable conduct.” TEX. FAM. CODE § 152.208(a).36 Section 152.208(a) is 

intended to deal with cases where parents “act in a reprehensible manner, such as 

removing, secreting, retaining, or restraining the child.” TEX. FAM. CODE § 152.208 

cmt. The section “ensures that abducting parents will not receive an advantage for 

their unjustifiable conduct.” Id. Because Victoria sought to invoke the Texas court’s 

35 In his Motion for New Trial, Zach referred to “Victoria’s unjustifiable conduct in 

removing the child from Louisiana and misrepresenting the child’s time in Texas as 

supporting her jurisdictional claims prior to filing the Texas suit.” 

36 Section 152.208 of the Family Code provides in part:

(a) Except as otherwise provided in Section 152.204 or other law of this 

state, if a court of this state has jurisdiction under this chapter because 

a person seeking to invoke its jurisdiction has engaged in unjustifiable 

conduct, the court shall decline to exercise its jurisdiction unless:

(1) the parents and all persons acting as parents have acquiesced in the 

exercise of jurisdiction;

(2) a court of the state otherwise having jurisdiction under Sections 

152.201 through 152.203 determines that this state is a more 

appropriate forum under Section 152.207; or

(3) no court of any other state would have jurisdiction under the 

criteria specified in Sections 152.201 through 152.203.

TEX. FAM. CODE § 152.208.
52

jurisdiction, it is her conduct that a court examines under the Section 152.208 

standard. In re S.L.P., 123 S.W.3d 685, 689 (Tex. App.—Fort Worth 2003, no pet.). 

The only allegation of wrongdoing pertains to Victoria’s action in taking 

C.J.S. to Texas in early March 2021, after she was served with the Louisiana 

temporary restraining order. While her actions purportedly violated the terms of the 

temporary restraining order, Victoria argues she believed the Louisiana court lacked 

jurisdiction over her or C.J.S. and that she heavily litigated that issue in Louisiana. 

There is no evidence that Victoria attempted to hide the Louisiana Action from the 

Texas trial court. Indeed, she disclosed the Louisiana Action in the affidavit attached 

to her original petition, and the Louisiana proceedings were discussed in the Texas 

Action during the hearings on April 5, 2021 and September 8, 2021, and during the 

trial on March 10, 2022. 

There is also no allegation, and indeed no evidence that, Victoria “secret[ed], 

retain[ed], or restrain[ed]” C.J.S.—that is, there is no evidence she abducted C.J.S. 

or prevented Zach from seeing the child. To the contrary, Victoria testified that 

when she allowed Zach to visit C.J.S. in Texas, Zach absconded to Louisiana with 

C.J.S. Zach also knew of C.J.S.’s and Victoria’s whereabouts. He did not dispute 

that C.J.S. lived with Victoria in Texas for five weeks following his birth through 

January 2021, or that Victoria had a house in Rosenberg, Texas, where C.J.S. stayed 

with Victoria. While Zach argues that Victoria resided in Louisiana, the trial court 
53

heard evidence that Victoria traveled back and forward between the two states given 

her custody obligations over J. and M.G. 

In short, there is no evidence supporting Zach’s allegations that Victoria 

engaged in the type of unjustifiable conduct contemplated by Section 152.208. See, 

e.g., In re S.L.P., 123 S.W.3d at 689 (holding appellant engaged in unjustifiable 

conduct because she failed to apprise the trial court that she had participated in 

previous court proceedings regarding custody, that her parental rights had been 

terminated, and that she had refused to return children to the father for nearly two 

years in violation of a standing custody order); In re Carpenter, 835 S.W.2d 760, 

762 (Tex. App.—Amarillo 1992, no writ) (finding father engaged in unjustifiable 

conduct because he abducted child, removed child from state, and kept child from 

mother for four years until father and child were located living in Texas). We thus 

conclude the trial court did not abuse its discretion in exercising jurisdiction and 

rejecting Zach’s arguments under Section 152.208. 

We overrule Zach’s second and third issues.

The Default Judgment

In his first issue, Zach argues the trial court abused its discretion in refusing 

to grant his Motion to Set Aside the default Final Order. He argues that under the 

Craddock standard, the trial court was required to set aside the Final Order and grant 

him a new trial.
54

A. Standard of Review and Applicable Law

The seminal case that establishes the proof a defaulting party must establish

to obtain a new trial is Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 

1939). Under Craddock, a default judgment must be set aside and a new trial granted 

if 

(1) the failure to answer or appear was not intentional or the result of 

conscious indifference but was rather due to a mistake or accident, 

(2) the defendant sets up a meritorious defense, and (3) the granting of 

a new trial would not result in delay or otherwise injure the plaintiff.

In re R.R., 209 S.W.3d 112, 114–15 (Tex. 2006) (citing Craddock, 133 S.W.2d at 

126). We review a trial court’s denial of a motion for new trial for abuse of 

discretion. B. Gregg Price, P.C. v. Series 1 - Virage Master LP, 661 S.W.3d 419, 

423 (Tex. 2023). 

Under the first Craddock element, the movant must “set forth facts that negate 

intentional or consciously indifferent conduct because of a mistake or accident[.]” 

Freeman v. Pevehouse, 79 S.W.3d 637, 644 (Tex. App.—Waco 2002, no pet.) 

(citing Strackbein v. Prewitt, 671 S.W.2d 37, 38–39 (Tex. 1984)). To determine

whether the movant acted intentionally or with conscious indifference, a trial court

focuses on the knowledge and acts of the defaulting party. Director, State Emp.

Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). A movant

satisfies its burden under the first Craddock element “when the factual assertions, if

true, negate intentional or consciously indifferent conduct by the defendant and the
55

factual assertions are not controverted by the plaintiff.” In re R.R., 209 S.W.3d at 

114–15. When, as here, the trial court conducts an evidentiary hearing and the party 

who obtained the default judgment controverts the defaulting party’s allegations of 

mistake or accident, the trial court must “make an essentially factual inquiry into the 

acts and knowledge of the defaulting defendant to determine whether his failure to 

answer was intentional.” Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex. App.—

Houston [14th Dist.] 1988, no writ) (citation omitted); see also Strackbein, 671 

S.W.2d at 38–39 (noting affidavits may be considered in Craddock analysis); WalMart Stores, Inc. v. Kelley, 103 S.W.3d 642, 644 (Tex. App.—Fort Worth 2003, no 

pet.) (noting movant “must either submit competent evidence to support the 

Craddock elements OR attach affidavits to its motion”) (emphasis in original).

Craddock is applicable to the entry of default judgments in SAPCRs. In re

R.R., 209 S.W.3d at 114–15 (applying Craddock standard in parental termination 

case); Comanche Nation v. Fox, 128 S.W.3d 745, 749 (Tex. App.—Austin 2004, no 

pet.) (“Texas appellate courts have routinely applied the Craddock test to 

SAPCRs.”); In re A.P.P., 74 S.W.3d 570, 573 (Tex. App.—Corpus Christi 2002, no 

pet.) (applying Craddock in appeal of default judgment where mother was removed 

as sole managing conservator of child); Lowe v. Lowe, 971 S.W.2d 720, 722-23
56

(Tex. App.—Houston [14th Dist.] 1998, pet. denied) (applying Craddock in appeal 

of default judgment that named father sole managing conservator of children).37

B. The Hearing

Five witnesses testified during the hearing on Zach’s Motion to Set Aside.

1. Zach’s Trial Counsel 

Zach’s former trial counsel testified that he was licensed to practice law in 

Texas in 1999, and that he practices predominantly family law. Zach hired him to 

represent him in this SAPCR case. After reviewing the Texas trial court’s 

jurisdiction, Zach’s counsel opted not to file a special appearance and he filed a plea 

challenging subject matter jurisdiction instead. He understood that by filing the plea, 

Zach had made an appearance in the Texas court.

According to Zach’s counsel, he and Zach’s mother, Michele, discussed on 

more than one occasion that Zach would waive his subject matter jurisdiction 

challenge if he appeared before the Texas court. He also told Michele that he could 

not offer anything into evidence without waiving Zach’s jurisdictional challenge. 

In an email exchange with Michele, in response to her question as to whether Zach 

37 But see In re T.F., No. 02-18-00299-CV, 2019 WL 2041790, at *3 n.6 (Tex. App.—

Fort Worth May 9, 2019, no pet.) (mem. op.) (noting that several intermediate 

appellate courts “have noted that the Craddock test, specifically the second prong, 

is ill-suited to SAPCR cases because it fails to expressly consider the best interest 

of the affected children, which is the overriding consideration in any SAPCR

determining conservatorship, possession, and access.” (citing TEX. FAM. CODE 

§ 153.002). However, the state’s courts “continue to be bound by the test.” Id.
57

should appear at trial, Zach’s counsel answered, “No need to appear. As a matter of 

fact, if we do appear, then we will be submitting to the Court’s jurisdiction.” Zach’s 

counsel stated in the email exchange that “[e]ntering into any evidence would waive 

our right to object to the jurisdiction.”

Asked whether he made a mistake in analyzing the law and concluding Zach 

would waive his jurisdictional challenge by appearing at trial, Bosker testified, “I 

would agree it was a mistake not appearing and that I wish that we had appeared to 

renew and re-urge our objections that Texas was not the home state, Louisiana was 

and, again, to re-urge my objection with regards to the subject matter jurisdiction.” 

He testified that he believes it is correct that Zach “could have participated in the 

temporary order hearing on the final trial without waiving his challenge to the 

Court’s subject matter jurisdiction.” He testified he “may have mistakenly applied 

the law.” 

Zach’s counsel conceded that he advised Zach not to participate in the 

temporary order hearing because of his belief that if Zach participated, he would 

waive his right to challenge the trial court’s subject matter jurisdiction. He testified, 

“I, at one time, did have that belief and understanding, correct.” Based on that 

understanding, he also advised Zach not to appear at the final trial. Zach’s counsel 

acknowledged that he “may have mistakenly applied the law.” Asked whether Zach 
58

made a mistake in relying on his advice about waiver of subject matter jurisdiction, 

Zach’s counsel responded, “Zach made a mistake.” 

At times, Zach counsel’s testimony was contradictory. He first testified that 

he “didn’t know” in September 2021 whether subject matter jurisdiction could be 

waived.38 But when asked whether he learned, after entry of the Final Order, that 

subject matter jurisdiction could not be waived, he testified, “No, because I knew 

that it could not be waived. I also was under the belief that it could be appealed at 

any time.” He testified that his understanding is that a party cannot waive subject 

matter jurisdiction. 

On cross-examination, Zach’s counsel testified that after this Court denied 

Zach’s application for a writ of mandamus in January 2022, he conducted further 

analysis on jurisdiction and still “determined that [he and Zach] would not appear at 

the final trial.” 

2. Zach

Zach testified that he filed a SAPCR suit in Louisiana in March 2021. That 

same month, he was served with the Texas Action. Zach testified he is challenging 

Texas jurisdiction because both he and Victoria lived in Louisiana when he filed 

38 Zach’s counsel conceded that he stated during the Temporary Orders hearing that 

he “ha[d] strong concerns that by appearing and making argument at a temporary 

orders hearing that [Zach] would be submitting [him]self to the Court’s jurisdiction 

which is at issue here.” He thus told the trial court that he and Zach would not 

participate in the hearing. 
59

suit. He understood that the August 2, 2021 Louisiana order was a final order 

regarding custody of C.J.S. 

Zach testified that his trial counsel told him that participating in the Texas 

lawsuit “would waive my rights to an appeal for jurisdiction in Texas and 

Louisiana.” Zach testified that he did not participate in the temporary order hearing 

because his counsel told him it would “waive my objection to jurisdiction, so I had 

no reason to doubt him.” Similarly, Zach testified that he did not participate in the 

trial in March 2022 based on his counsel’s advice not to appear. In light of his 

counsel’s advice, Zach believed that appearing at trial “would waive [his] right to 

object [to] Texas jurisdiction.” Zach testified that it was always his intent to 

challenge Texas jurisdiction because he and Victoria lived in Louisiana and there 

was a SAPCR in the Louisiana court, which found it had jurisdiction. He testified 

there was no reason for him not to appear at trial, other than his counsel’s advice. 

In his affidavit, filed in support of his Motion to Set Aside, Zach also testified 

that he “completely relied” on the experience, advice and judgment of his thenattorney who told him if they appeared in any proceedings or submitted evidence it 

would create “an appearance” and result in the waiver of Zach’s right to object to 

jurisdiction in any appeal. Following his attorney’s advice, Zach did not appear for 

the March 10, 2022 trial setting, and a default Final Order was signed that day. 
60

3. Michele 

Michele is Zach’s mother and C.J.S.’s grandmother. She testified that Zach’s 

counsel told her they could not appear for the Temporary Orders hearing “because 

we already had jurisdiction in Louisiana and it would possibly jeopardize that 

jurisdiction basically admitting Texas had a say so. So that’s what he told us, and 

that’s what we did.” She testified she had several conversations, some via email, 

with Zach’s counsel concerning the potential waiver of jurisdiction, and that she 

relayed the conversations to Zach. She said Zach did not participate in the 

Temporary Orders hearing because of counsel’s advice. 

4. Victoria

Victoria testified about attorneys’ fees. She testified that she and her counsel 

appeared twice for a final trial prior to the default hearing on March 10, 2022. She 

testified briefly about C.J.S.’s whereabouts and her living arrangements with him 

until Zach took him to Louisiana in June 2021. She testified that she is not “able to 

afford attorney’s fees for a new trial in this matter.” She also testified that she 

“participate[d] in the Louisiana [Action] even though [she] was objecting to 

jurisdiction there,” and that she was still actively involved in challenging the orders 

of the Louisiana court.
61

5. Victoria’s Attorney 

The attorney who represented Victoria in the Louisiana litigation testified 

about the status of the Louisiana proceedings as of the time of the hearing. She 

testified they were waiting for an ad hoc judge to be appointed in response to 

Victoria’s Motion to Recuse the Louisiana trial court judge from the case. In 

addition, they were trying to annul the Louisiana court’s August 2, 2021 final order, 

because (1) the Louisiana court lacked subject matter jurisdiction, and (2) the order 

was rendered in violation of a stay order. She testified that because there is no basis 

for the judgment, which is null, there is no basis for an appeal in Louisiana. She 

testified Victoria filed a petition to annul the judgment “because that was the only 

permissible attack[.]” She testified they were not able to file a motion for new trial 

because the judgment was not “a valid final judgment and thus is not appealable.” 

At the conclusion of the hearing, the trial court took Zach’s Motion to Set 

Aside under advisement. Later, on May 23, 2022, the court signed an order denying 

the motion.

C. Analysis

It is undisputed that Zach failed to appear for trial on March 10, 2022, and that 

his actions were deliberate. Zach argues, however, that the trial court erred in 

denying his Motion to Set Aside because his actions were justified. He argues his 

failure to appear was based on his attorney’s mistaken belief that appearing at trial 
62

would result in waiver of his objection to the Texas court’s jurisdiction, and that 

such a “mistake of law” can satisfy the first Craddock element. 

Victoria argues that because Zach’s failure to appear at trial was intentional

and purposeful, he cannot satisfy the first Craddock prong requiring proof of mistake

or accident. She argues that cases involving justification based on mistakes of law 

are cases involving action by the defaulting party, and not deliberate inaction like 

the failure to appear at trial. Victoria further argues that given the testimony from 

Zach’s counsel that he knew subject matter jurisdiction cannot be waived, “the only 

conclusion that can be reached . . . is that his failure to appear along with his client’s 

decision not to appear was an intentional act.” She argues that because Zach’s 

counsel testified he “was under the belief that [subject matter jurisdiction] could be 

appealed at any time,” Zach’s counsel “intentionally didn’t appear because he 

planned to appeal. This is clearly intentional conduct and a legal strategy, not a 

‘mistake.’”39

Zach’s counsel’s testimony was inconsistent during the hearing.

40

 Although 

he first testified that he knew subject matter jurisdiction could not be waived and 

39 In the hearing on the Motion to Set Aside, Zach’s trial counsel conceded that Zach’s 

failure to attend trial was a “mistake in [his] strategy.” 

40 When contradictory evidence is offered in support of a Craddock motion, it is within 

the trial court’s discretion to determine which facts to believe. See Lynch v. Lynch, 

540 S.W.3d 107, 122 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (noting if 

during evidentiary hearing on motion for new trial, party that obtained default 
63

could be appealed at any time,” he later testified that he advised Zach to leave the 

temporary order hearing and to forego appearing at the final trial because if Zach 

participated, he would waive his right to challenge the court’s subject matter 

jurisdiction. He acknowledged admitting he made a mistake in analyzing the law 

regarding subject matter jurisdiction. 

“Failing to file an answer intentionally or due to conscious indifference means 

‘the defendant knew it was sued but did not care.’” In re R.R., 209 S.W.3d at 115 

(quoting Fidelity and Guar. Ins. Co. v. Drewery Const. Co., Inc., 186 S.W.3d 571, 

576 (Tex. 2006)). “[S]ome excuse, although not necessarily a good one, [however] 

will suffice to show that a defendant’s failure to file an answer was not because the 

defendant did not care.” Id. at 115 (citing Fidelity, 186 S.W.3d at 576); see also 

Rojas v. Scharnberg, No. 01-09-01039-CV, 2011 WL 941616, at *5 (Tex. App.—

Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.) (“Even a slight excuse is 

sufficient to satisfy the first prong of Craddock.” (citing P & H Transp., Inc. v.

Robinson, 930 S.W.2d 857, 861 (Tex. App.—Houston [1st Dist.] 1996, writ 

denied)). 

judgment presents evidence to show defaulting party acted intentionally or with 

conscious disregard, “the question of why the defaulted party failed to answer 

presents a question of fact, which is resolved by the factfinder.”) (quoting Pekar v.

Pekar, No. 09-14-00464-CV, 2016 WL 240761, at *3 (Tex. App.—Beaumont Jan. 

21, 2016, no pet.) (mem. op.)).
64

According to Zach, courts have held that a “mistake of law,” such as the one 

here, can satisfy the first Craddock element. He relies on three cases, none of which 

is directly on point. See Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 97 

(Tex. 1986) (holding first Craddock requirement satisfied when answer was not filed 

because of mistaken belief that payment made on open account would result in 

dismissal and negated need for answer)41; Tex. State Bd. of Pharmacy v. Martinez, 

658 S.W.2d 277, 280 (Tex. App.—Corpus Christi–Edinburg 1983, writ ref’d n.r.e.) 

(holding first Craddock prong satisfied by appellant’s mistaken belief that answer 

filed in other suit where appellant believed venue was proper for instant suit relieved 

party of duty to answer instant suit)42; Bank One, Tex., N.A. v. Moody, 830 S.W.2d 

81, 84–85 (Tex. 1992) (holding first Craddock element satisfied when bank branch 

41 The opinion does not indicate whether the appellant retained an attorney before 

failing to file an answer. Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 97 

(Tex. 1986). The court held that “Angelo’s failure to answer was not caused by 

conscious indifference but by the belief that payment according to the agreed 

schedule would cause the suit to be dismissed.” Id. 

42 Although the opinion refers to the appellant and not its attorney, we presume the 

appellant had counsel when it filed a motion to dismiss and appeared at a hearing 

on a motion to dismiss in the other county, and that it was counsel’s mistaken belief 

“that jurisdiction for the suit was only proper in Travis County, Texas, wherein it 

had filed an answer in response to the suit appellee had filed there.” Tex. State Bd.

of Pharmacy v. Martinez, 658 S.W.2d 277, 280 (Tex. App.—Corpus Christi–

Edinburg 1983, writ ref’d n.r.e.).
65

president failed to file written answer to writ because he thought freezing of subject 

accounts and tendering balance of accounts to court was “sufficient answer”).43, 44

The most analogous case on which Zach relies is Tex. State Bd. of Pharmacy

v. Martinez, but its holding appears to be limited to cases where “the failure to 

answer a lawsuit” is “based upon a mistaken belief that an action taken in another 

suit relieved the party of his duty to answer.” 658 S.W.2d at 280. In Martinez, the 

appellee sued the appellant in Travis County and subsequently filed an identical suit 

in Hidalgo County. Id. at 278. The appellant filed an answer to the Travis County 

suit but not to the Hidalgo County suit, as he believed jurisdiction was proper only 

in Travis County. Id. After a default judgment was rendered in the Hidalgo County 

suit, the appellant filed an answer. 

In reversing and remanding for a new trial, the court observed there is “very 

little authority” that addresses the failure to answer a lawsuit based on a mistaken 

belief that the party need not answer given an action taken in another suit. Id. at 280.

43 The opinion lacks any indicia of whether the appellant retained an attorney before 

failing to file an answer. It only says, “Bank One did not file an answer because it 

mistakenly believed that freezing the accounts and submitting a check for the 

balance in the accounts to the court was a sufficient answer.” Bank One, Tex., N.A.

v. Moody, 830 S.W.2d 81, 84 (Tex. 1992).

44 See Knie v. Piskun, 23 S.W.3d 455, 464 (Tex. App.—Amarillo 2000, pet. denied) 

(observing that in Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992),

“the court expressly held that a mistake of law, in contrast to ignorance of the law, 

can be sufficient to meet the accident or mistake standard set out in Craddock.”)

(emphasis in original).
66

The court relied on a 1982 Texas Supreme Court case where the appellant filed pleas 

of privilege in two suits in order to have the actions transferred from one county to 

another. Id. (citing Guaranty Bank v. Thompson, 632 S.W.2d 338, 339 (Tex. 1982)). 

The pleas of privilege were overruled and while they were on appeal, default 

judgments were entered in both cases. Id. The Supreme Court explained it was not 

disputed that appellant had not intentionally failed to answer, but the court did not 

reach the issue in reversing and remanding for a new trial. Id.

The court of appeals in Martinez also relied on a 1923 appellate decision that 

held that a “multiplicity of suits” should not “be tolerated to the confusion and 

undoing of an unoffending citizen.” Id. (citing Meckel v. State Bank of Barksdale,

256 S.W. 668, 669 (Tex. App.—San Antonio 1923, no writ)). Finally, the court 

relied on an 1858 case that granted a new trial to a defendant who did not file an 

answer in a suit but instead “relied on the prayer for an injunction in another cause 

as a sufficient answer in this cause.” Id. (citing Dowell v. Winters, 20 Tex. 793, 795 

(1858)). Unlike the facts in Martinez, this case does not involve a failure to file an 

answer due to a belief that a filed answer in another case was sufficient. Martinez is 

thus inapposite. 

We find Padilla v. Hollerman Dev., L.P., No. 04-08-00739-CV, 2009 WL

1153324 (Tex. App.—San Antonio 2009, no pet. ) (mem. op.), a more recent case,

more analogous and persuasive. In that case, the appellee sued Padilla and attempted
67

four times to serve him at his home. Id. at *1. After a Rule 10645 motion was 

granted, the process server served Padilla by leaving the documents on his front door. 

Id. Padilla found the papers in the bushes outside his home and took them to his 

attorney. The attorney told Padilla he was not properly served and to “wait and see 

what happened.” Id. The trial court entered a default judgment and Padilla filed a 

motion for new trial. Among other things, Padilla asserted that his attorney’s 

conclusion that he had not been properly served was a mistake of law that satisfied 

Craddock’s first prong. Id. at *3. The trial court denied the motion and the court of 

appeals affirmed.

During the hearing on the motion for new trial, Padilla’s attorney testified “he 

did no research regarding whether an answer was due, and that if he had, he would 

have filed an answer.” Id. Based on that testimony, the trial court held Padilla did 

not satisfy the first Craddock prong. Id. The appellate court stated, “[N]ot every act 

of a defendant that could be characterized as a mistake of law is a sufficient excuse.” 

Id. at *3 (quoting Walker v. Gutierrez, 111 S.W.3d 56, 64 (Tex. 2003)). The court 

continued:

45 Texas Rule of Civil Procedure 106(b) governs substituted service. TEX. R. CIV. P.

106(b). When Padilla was decided, a prior version of Rule 106(b) was in effect, 

but it makes no difference with respect to our analysis of this issue.
68

In determining whether the failure to answer was not intentional or the 

result of conscious indifference but rather due to accident or mistake, 

we look to the knowledge and acts of the claimant. Generally, when the 

claimant relies on an attorney to file an answer, the claimant must 

establish that the failure to answer was not intentional or the result of 

the conscious indifference of either himself or his attorney.

Id. (internal citations omitted). Padilla argued his failure to answer the lawsuit was 

a mistake rather than conscious indifference, because he had acted on his attorney’s 

recommendation. Id. The court of appeals disagreed, noting that a mistake of law 

usually results “when a party’s mistake caused him to respond affirmatively, but 

ineffectively, to the notice.” Id. The court held that Padilla “was properly served 

with notice of [the appellee’s] complaint, and his mistaken reliance on his attorney’s 

advice [did] not excuse his failure to respond in some way to the lawsuit.” Id. at *4. 

Thus, the court held Padilla failed to satisfy the first Craddock requirement. 

Zach argues that his situation is different because his failure to show up at trial 

was not “inaction,” but rather “specific, actionable conduct following the 

instructions and advice of his lawyer.” See Padilla, 2009 WL 1153324 at *3 

(observing that “action rather than inaction separated satisfactory mistakes of law

from those which did not excuse a default”). But taken to its logical conclusion, this 

would mean that any failure to appear based on an attorney’s misunderstanding of 

the law would result in justifiable “action” sufficient to overcome the first Craddock 
69

prong. That is not the standard.46, 47 The evidence before the trial court established 

that Zach, relying on the advice of counsel, chose not to appear at trial because his 

legal strategy was to appeal and challenge the jurisdiction of the Texas trial court. 

On these facts, we conclude Zach did not establish he failed to appear at trial based 

on mistake or accident. See id.; see also Carey Crutcher, Inc. v. Mid-Coast Diesel

Servs., Inc., 725 S.W.2d 500, 502 (Tex. App.—Corpus Christi–Edinburg 1987, no 

writ) (holding attorney’s mistaken belief that answer was not necessary in light of 

bankruptcy stay “is not the type of mistake that negates conscious indifference” and 

that the testimony “support[ed] the conclusion that the attorney made a conscious 

decision not to answer.”); 21st Century Home Mortg. v. City of El Paso, 281 S.W.3d 

83, 86–87 (Tex. App.— El Paso 2008, no pet.) (holding trial court did not abuse 

discretion in denying motion for new trial when attorney testified he did not file 

answer because after reviewing original petition, he determined client was not party 

and he “was confused about why his client had been served”).

46 Cf. Walker v. Gutierrez, 111 S.W.3d 56, 62, 65 (Tex. 2003) (applying Craddock

“conscious indifference” analysis in context of failure to serve adequate expert 

report in medical malpractice case, holding mistake of law did not excuse conscious 

indifference where attorney did not review expert report to ensure it complied with 

statutory requirements). 

47 Compare with Nalley v. Quevedo, No. 01-20-00400-CV, 2022 WL 1547780, at *6 

(Tex. App.—Houston [1st Dist.] May 17, 2022, no pet.) (mem. op.) (holding first 

Craddock factor satisfied when attorney explained she mistakenly believed 

response to modification petition was due before temporary injunction hearing, 

which was nine days after deadline to file response).
70

Because we find that Zach did not satisfy the first Craddock element, we need 

not address the second or third elements. We overrule Zach’s first issue.

The Orders Regarding Conservatorship and Possession

In his fourth issue, Zach complains of the trial court’s orders, which he argues 

are not in the best interest of the child. He argues the trial court’s orders regarding 

conservatorship and possession are based on insufficient evidence, ignore applicable 

legal presumptions, and impose restrictions that are not in the child’s best interest. 

A. Standard or Review and Applicable Law

We review a trial court’s orders on possession and conservatorship for abuse 

of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Syed v.

Masihuddin, 521 S.W.3d 840, 847 (Tex. App.—Houston [1st Dist.] 2017, no pet.). 

A trial court abuses its discretion if it acts “without reference to any guiding rules or 

principles; in other words, [if] the act was act was arbitrary or unreasonable.” 

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). 

“Under an abuse of discretion standard, legal and factual sufficiency are not 

independent grounds of error, but rather are relevant factors in assessing whether the 

trial court abused its discretion.” Arevalo v. Fink, No. 01-19-00822-CV, 2020 WL 

5778813, *2 (Tex. App.—Houston [1st Dist.] Sept. 29, 2020, no pet.) (mem. op.)

(citing In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—Houston [1st Dist.] 2017, pet. 

denied)). “A trial court does not abuse its discretion if it bases its decision on 
71

conflicting evidence and some evidence supports its decision.” In re Barber, 982 

S.W.2d 364, 366 (Tex. 1998) (orig. proceeding). In considering whether the trial 

court abused its discretion, “we look only to the evidence before the trial court when 

the trial court rendered its decision.” G. R. v. Tex. Dep’t of Pub. Safety, No. 03-20-

00090-CV, 2020 WL 5099772, at *1 (Tex. App.—Austin Aug. 26, 2020, no pet.) 

(mem. op.) (citation omitted).

Custody disputes “are inherently fact-intensive” and we “routinely defer to 

the fact finder in matters of credibility and demeanor[.]” In re Vogel, 261 S.W.3d 

917, 925 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The trial court is best 

able “to observe the demeanor and personalities of the witnesses and [to] ‘feel’ the 

forces, powers, and influences that cannot be discerned by merely reading the 

record.” Smith v. Payandeh, No. 01-18-00463-CV, 2019 WL 2528197, at *7 (Tex. 

App.—Houston [1st Dist.] June 20, 2019, no pet.) (mem. op.) (quoting Echols v.

Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.)).

When, as here, an abuse of discretion standard applies and the trial court issues 

findings of fact and conclusions of law, “findings of fact and conclusions of law aid 

us in reviewing the propriety of the ruling by providing us with an explanation for 

the ruling.” In re M.J.G., 248 S.W.3d 753, 761 (Tex. App.—Fort Worth 2008, no 

pet.). We review findings of fact for abuse of discretion “if they involve an 

evaluation of witness credibility and demeanor.” In re S.V., 599 S.W.3d 25, 46 (Tex. 
72

App.—Dallas 2017, pet. denied). We review conclusions of law de novo. Id.

“Findings of fact may be overturned only if they are so against the great weight and 

preponderance of the evidence as to be clearly wrong and unjust.” In re Reedle, No. 

05-16-01483-CV, 2017 WL 944030, at *2 (Tex. App.—Dallas Mar. 10, 2017, orig. 

proceeding) (mem. op.) (citing In re L.A.F., 270 S.W.3d 735, 739 (Tex. App.—

Dallas 2008, pet. denied)).

The child’s best interest “shall always be the primary consideration of the 

court in determining the issues of conservatorship and possession of and access to 

the child.” TEX. FAM. CODE § 153.002. The trial court is given “wide latitude” in 

determining a child’s best interests. Gillespie, 644 S.W.2d at 451. ‘“[B]est interest’ 

is a term of art encompassing a [broad] facts-and-circumstances based evaluation 

that is accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013) 

(orig. proceeding). The best-interest determination is made based on several nonexcusive factors:

(1) the desires of the child; (2) the emotional and physical needs of the 

child now and in the future; (3) the emotional and physical danger to 

the child now and in the future; (4) the parental abilities of the 

individuals seeking custody; (5) the programs available to assist these 

individuals to promote the best interest of the child; (6) the plans for the 

child by these individuals or by the agency seeking custody; (7) the 

stability of the home or proposed placement; (8) the acts or omissions 

of the parent which may indicate that the existing parent-child 

relationship is not a proper one; and (9) any excuse for the acts or 

omissions of the parent.
73

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (internal footnotes omitted). 

Courts also consider the best-interest factors enumerated in section 153.134 of the 

Family Code:

(1) whether the physical, psychological, or emotional needs and 

development of the child will benefit from the appointment of joint 

managing conservators; (2) the ability of the parents to give first 

priority to the welfare of the child and reach shared decisions in the 

child’s best interest; (3) whether each parent can encourage and accept 

a positive relationship between the child and the other parent; (4) 

whether both parents participated in child rearing before the filing of 

the suit; (5) the geographical proximity of the parents’ residences; (6) 

if the child is 12 years of age or older, the child’s preference, if any, 

regarding the person to have the exclusive right to designate the primary 

residence of the child; and (7) any other relevant factor.

TEX. FAM. CODE §153.134(a). And in making a possession order for a child under 

three years old, the court must consider in determining the best interest of the child:

(1) the caregiving provided to the child before and during the current 

suit; (2) the effect on the child that may result from separation from 

either party; (3) the availability of the parties as caregivers and the 

willingness of the parties to personally care for the child; (4) the 

physical, medical, behavioral, and developmental needs of the child; 

(5) the physical, medical, emotional, economic, and social conditions 

of the parties; (6) the impact and influence of individuals, other than the 

parties, who will be present during periods of possession; (7) the 

presence of siblings during periods of possession; (8) the child’s need 

to develop healthy attachments to both parents; (9) the child’s need for 

continuity of routine; (10) the location and proximity of the residences 

of the parties; (11) the need for a temporary possession schedule that 

incrementally shifts to a standard possession order . . . based on the age 

of the child or minimal or inconsistent contact with the child by a party; 

(12) the ability of the parties to share in the responsibilities, rights, and 

duties of parenting; and (13) any other evidence of the best interest of 

the child. 
74

TEX. FAM. CODE § 153.254(a).

48

When as here, a defendant files an answer but fails to appear at trial, a trial 

court may not render a default judgment on the pleadings. Arevalo, 2020 WL 

5778813 at *3. The plaintiff is required to offer evidence and prove all aspects of 

its claim. Id. Thus, Victoria was required to provide the court with sufficient

evidence to support her requests with respect to conservatorship and possession. See 

Smith v. Hickman, No. 04-19-00182-CV, 2020 WL 1442663, at *2 (Tex. App.—San 

Antonio Mar. 25, 2020, no pet.) (mem. op.) (in default context, “with regard to 

conservatorship, evidence must be presented to support a finding” of best interest of 

child). 

B. Analysis

Zach argues it was unreasonable for the trial court to ignore the Louisiana 

orders awarding Victoria supervised visitation, and that the record shows that the 

Texas trial court, frustrated with the Louisiana court’s refusal to confer as required 

by the UCCJEA, made the “unreasonable choice” of exercising jurisdiction even 

though declining jurisdiction would have “eliminated all jurisdictional conflicts 

between the states.” Zach asserts that the only evidence proffered at trial—that 

proffered by Victoria—does not support the best-interest determination the trial 

48 We note that C.J.S. turned three in December 2023, thus Section 153.254 is no 

longer applicable. However, we review the evidence before the trial court when it 

made its ruling, which occurred before C.J.S.’s third birthday.
75

court made in its conservatorship and possession orders awarding Victoria exclusive 

and primary rights regarding C.J.S’s residence and education, and ordering that 

Zach’s periods of possession be supervised.

As we have already concluded, the trial court did not err in exercising 

jurisdiction over Victoria’s SAPCR or in declining jurisdiction in favor of the 

Louisiana Action. We further conclude that sufficient evidence supported the trial 

court’s conservatorship and possession orders.

The evidence at trial included testimony that C.J.S. was born in Webster, 

Texas, and that he was “a little over a month” when he and Victoria began to travel 

to Louisiana to visit Victoria’s son J. According to Victoria, her possession 

arrangement with respect to her older son J. was a 2/2/3 schedule, so she had to travel 

frequently from Texas to Louisiana to visit J. During that time, she maintained a 

residence in Texas and C.J.S. was registered on Medicaid in Texas. Victoria testified 

that she and C.J.S. lived in Texas until Zach took him to Louisiana in June 2021, 

without Victoria’s consent. 

Victoria testified that Zach worked on a boat as a deckhand either “working a 

week offshore or two weeks offshore and then only a week home.” When Zach is 

away at work, Zach’s mother cares for C.J.S. Victoria stated she did not believe it 

was in C.J.S.’s best interest for his paternal grandparents to raise him. Victoria 

requested that she and Zach be appointed joint managing conservators of C.J.S., but 
76

that she be awarded the exclusive right to make decisions regarding invasive medical 

procedures, education, and psychological or psychiatric treatment. She testified that 

she believed such an arrangement was in C.J.S.’s best interest. She also requested 

that Zach have supervised visits with C.J.S. at this time, based on his taking the child 

and not allowing her to see him without supervision. Victoria testified that if Zach 

were granted unsupervised access to C.J.S., she believed Zach would try to take 

C.J.S. back to Louisiana. She also testified that she believed Zach would continue 

to violate the orders of the court because Zach believes Louisiana is the court with 

jurisdiction. 

Victoria testified that after Zach took C.J.S. to Louisiana, she tried to coparent 

with Zach by texting him, “asking about doctor’s appointments, things that [C.J.S.]

is doing. And he gives me no answer saying that he has it handled.” According to 

Victoria, when she learned that her son had been prescribed allergy medicine, Zach 

refused to tell Victoria what types of allergies C.J.S. had. She testified that C.J.S.

was breastfed when Zach took him Louisiana in June 2021, and that Zach did not 

communicate with her regarding transitioning C.J.S. off breast milk or give her 

information about how C.J.S. was doing. 

Victoria said her visits with C.J.S. had been “[r]ocky because my son doesn’t 

know, really, who I am anymore,” and the noisy environment in which she had 

supervised visitation made him “fussy” and “just uncomfortable.” She testified that 
77

she had not seen C.J.S. for approximately two months at the time of trial. She 

testified that her Louisiana attorney had not been successful in scheduling visits with 

C.J.S. 

In its Findings of Fact, the trial court found that Zach

failed to act in the child’s best interest, including by forcibly removing 

the child from [Victoria] after verbally agreeing with [her] to visit with 

and return the child to [her], by refusing to allow [Victoria] any contact 

at all with the child for numerous months after [Zach] took the child 

from [her], and by failing to communicate with [Victoria] concerning 

the child’s condition, medical issues, and other important needs.

The court further stated in its Findings of Fact that Zach had not demonstrated “an 

ability to co-parent” with Victoria or to “facilitate or encourage” Victoria’s 

relationship with C.J.S.; he had not shown an ability to put C.J.S.’s needs above his 

own; he was not available as a primary caregiver to C.J.S., given that his job requires 

him to work offshore for at least two weeks each month; his contact with C.J.S. was 

“minimal and/or inconsistent;” C.J.S. spends at least half of his time with Zach being 

cared for by Zach’s parents; it is not in C.J.S.’s best interest to have no contact with 

Victoria or his half-siblings; Zach is likely to abscond with C.J.S. if he does not have 

supervised visitation; his actions have prevented C.J.S. from forming “healthy 

attachments” to Victoria and his siblings, adversely affecting his physical, medical, 

behavioral, and developmental needs; and C.J.S.’s current environment 

“significantly impairs [his] emotional development.” 
78

Zach argues that it was impossible for the trial court to consider many of the 

best-interest factors “because there was no evidence in the record offered to support 

them.” Indeed, the court had a limited amount of information before it when it made 

its determination, in part because Zach did not participate at trial. But while limited, 

the trial court had sufficient evidence to support its best-interest findings. See 

Payandeh, 2019 WL 2528197 at *6 (“The factfinder is not required to consider all 

the factors, and the presence of a single factor may, in some instances, be adequate 

to support a best-interest finding.”) (citing M.C. v. Tex. Dep’t of Family & Protective

Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied)). 

Victoria’s testimony with respect to Zach’s work schedule and Zach’s parents 

caring for C.J.S. at least two weeks a month implicated several of the Holley bestinterest factors: the emotional needs of the child now and in the future, the parental 

abilities of the individuals seeking custody, the plans for the child by those 

individuals seeking custody, and the stability of the home. See In re D.L.N., 609 

S.W.3d 237, 246 (Tex. App.—Texarkana 2020, no pet.) (holding trial court did not 

abuse discretion in ruling best interest of child required mother to have exclusive 

right to designate children’s primary residence; noting children were primarily raised 

by paternal grandmother and great-grandmother during father’s possession).49 

49 In In re D.L.N., 609 S.W.3d 237 (Tex. App.—Texarkana 2020, no pet.), the trial 

court stated:
79

Evidence of Zach’s refusal to coparent with Victoria, including his refusal to keep 

her updated as to the child’s medical condition, his taking C.J.S. from Victoria in 

June 2021, and Victoria’s difficulty in scheduling more visits with C.J.S. also speak 

to the factors contemplating the child’s physical and emotional needs and Zach’s 

parental abilities. See Interest of J.C.K., No. 14-22-00936-CV, 2024 WL 236592, at 

*5 (Tex. App.—Houston [14th Dist.] Jan. 23, 2024, no pet. h.) (mem. op.) (holding 

trial court did not abuse discretion in determining it was in child’s best interest to 

have relationship with both parents and that Mother should have exclusive right to 

designate child’s residence in light of ad litem’s concern that “if Father continued to 

be the primary custodial parent, the [c]hild would never see his mother”). The trial 

court was within its discretion to the extent it found these facts bode against Zach in 

its best-interest analysis. 

Similarly, while evidence was not presented on every factor identified in 

Sections 153.134 and 153.254 of the Family Code, the evidence supported the trial 

court’s possession order in light of the factors that were addressed. For example, 

The Supreme Court has held—and so have the cases that followed it 

—that it is in the children’s best interest that whenever possible they 

be raised by a parent. And I know, [Father], that you are doing the 

best that you can, that you have a lot of obligations with your job, but 

it appears to the Court that the children are being primarily raised by 

your mother and grandmother and you whenever your job allows it.

Id. at 245.
80

with respect to Section 153.134, Victoria testified that it was not in C.J.S.’s best 

interest for his paternal grandparents to raise him, addressing the element of C.J.S.’s 

“physical, psychological, or emotional needs and development.” See TEX. FAM.

CODE § 153.134(a)(1). In addition, there was evidence concerning the parents’ 

ability to “reach shared decisions” in C.J.S.’s best interest or “encourage and accept 

a positive relationship” between C.J.S. and both parents. See id. § 153.134(a)(2), 

(3). In support of these elements, Victoria testified that Zach refused to provide 

current information to Victoria regarding C.J.S.’s medical condition and refused to 

allow her to visit C.J.S. for months at a time. It is unclear to what extent, if any, 

Zach shared in the child-rearing before the filing of Victoria’s SAPCR, as it is 

undisputed that C.J.S. lived with Victoria until Zach took him to Louisiana in June 

2021.

With respect to Section 153.254, the evidence established that C.J.S. was in 

Victoria’s primary care from birth until June 2021, and that Zach’s offshore job, 

requiring him to be gone two weeks a month, called into question his availability as 

a primary caregiver. See TEX. FAM. CODE § 153.254(a)(1), (3). Victoria was able 

to offer C.J.S. access to his half-siblings during her periods of possession. See id.

§ 153.254(7). And there was evidence that Zach’s refusal to coparent with Victoria 

hindered her ability to share in the responsibilities, rights, and duties of parenting. 

See id. § 153.254(12). 
81

Zach relies on two cases from this Court in support of his argument that the 

trial court did not have sufficient evidence from which to make a best-interest 

determination. In Giles v. Giles, No. 01-20-00571-CV, 2022 WL 2251814, at *8 

(Tex. App.—Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.)., a mother who 

defaulted in the trial court filed a restricted appeal after the father of her children 

was awarded rights commensurate with being named sole managing conservator of 

their children. Id. at *7. At trial, the evidence showed the father did not “present[] 

any evidence of any of the facts or circumstances of the children, or of either parent, 

from which a best-interest determination could have been made” and, thus, we 

concluded the trial court “lacked sufficient information upon which to exercise its 

discretion.” Id. at *8. In holding the trial court abused its discretion in rendering its 

order of conservatorship rights, we noted (1) the evidence was legally insufficient to 

support the best interest finding, and (2) the trial court granted the father relief not

requested in his petition. Id. 

Arevalo v. Fink, No. 01-19-00822-CV, 2020 WL 5778813 (Tex. App.—

Houston [1st Dist.] Sept. 29, 2020, no pet.) (mem. op.) also involved a trial where 

one parent defaulted. We held the father’s failure to appear at trial did not relieve 

the mother of “her burden to present evidence to support her appointment as sole 

managing conservator” of her daughter. Id. We observed there was “no evidence 

in the record regarding any of the required factors or any other evidence from which 
82

the trial court could have determined the best interest of the child.” Id. at *3. The 

mother testified only that her six–year-old daughter lived with her and attended 

elementary school. Id. She “did not testify regarding any of the circumstances of

the child or of either parent.” Id. We held the mother’s conclusory statement that 

her appointment as sole managing conservator was in her daughter’s best interest 

did “not rise to the level of competent evidence that the trial court could use to 

determine the best interest of the child.” Id.

Giles and Arevalo are distinguishable, because in those cases, there was no 

testimony regarding any circumstances of the children or the parents. In contrast, 

Victoria testified about Zach’s job and the fact Zach’s parents are responsible for 

taking care of C.J.S. for at least two weeks each month while Zach is away at work; 

that Zach took C.J.S. to live with him in Louisiana without her consent; that Zach 

refused to co-parent or communicate with Victoria about C.J.S.’s medical issues, 

doctor’s visits, or transitioning him off of breast milk; that she had difficulty 

scheduling visits to visit C.J.S.; and that Zach’s parents were equally 

uncommunicative with Victoria when they were caring for C.J.S. In addition, unlike 

the present case, the trial courts in Giles and Arevalo did not issue findings of fact 

and conclusions of law that specified why their determinations were in the best 
83

interest of the child(ren). Finally, Giles is distinguishable because the trial court 

awarded the prevailing parent relief that was not requested.50 

On the record before us, we conclude the trial court did not abuse its discretion

in its conservatorship and possession orders awarding Victoria exclusive and 

primary rights regarding residence and education, and ordering that Zach’s periods 

of possession occur under supervised circumstances. While we acknowledge that 

supervised visitation is rare in joint managing conservatorship, it may be appropriate 

when dictated by the circumstances. See In re P.A. C., 498 S.W.3d 210, 219 (Tex. 

App.—Houston [14th Dist.] 2016, pet. denied) (“The trial court does not abuse its 

50 Zach also argues the trial court’s failure to render a prospective order to take effect 

on C.J.S.’s birthday was an abuse of discretion and violates Section 153.254(d) of 

the Family Code. We disagree. The Final Order provides prospective relief, 

negating the need for a new order after C.J.S. turns three. That is, because the Final 

Order attempts to cover matters that are not applicable at this time, such as marriage 

and enlistment in the armed forces, “it can be assumed that this order was intended 

to apply after the child[’s] third birthday” and “the presumptive application of the 

standard possession order should be applied for the time after” C.J.S. reaches his

third birthday.” See In re Marriage of Bertram, 981 S.W.2d 820, 828–29 (Tex. 

App.—Texarkana 1998, no pet.) (“[B]ecause the order attempts to cover matters 

involving attendance at school, which is not applicable at this time, and situations 

in which the parents reside 100 miles or less apart, which is not the situation at this 

time, it can be assumed that this order was intended to apply after the children’s 

third birthday.”); cf. In re K.L.S., No. 11-21-00094-CV, 2022 WL 401474, at *10 

(Tex. App.—Eastland Feb. 10, 2022, no pet.) (mem. op.) (holding no new 

possession order needed on third birthday because final order signed when child 

was two years and ten months was to apply to child while “under the age of eighteen 

years and not otherwise emancipated”); but see In re J.R., No. 05-19-00904-CV, 

2020 WL 219315, at *6 (Tex. App.—Dallas Jan. 15, 2020, no pet.) (mem. op.) 

(remanding “for the sole purpose” of trial court’s rendering of prospective order 

effective on child’s third birthday in compliance with Section 153.254(d)). 
84

discretion in fashioning restrictions on a parent’s possession and access if the record 

contains evidence to support a finding that such restrictions are in the best interest 

of the children.”) (citations omitted). 

We overrule Zach’s fourth issue.51 

Attorneys’ Fees

In Zach’s sixth and seventh issues, he complains about the award of attorneys’

fees to Victoria.

A. Standard of Review and Applicable Law

Section 106.002 of the Texas Family Code addresses the award of attorneys’

fees in a SAPCR:

In a suit under this title, the court may render judgment for reasonable 

attorney’s fees and expenses and order the judgment and postjudgment 

interest to be paid directly to an attorney.

TEX. FAM.CODE § 106.002(a). We review an award of attorneys’ fees under Section 

106.002 of the Family Code for abuse of discretion. In re R.E.S., 482 S.W.3d 584, 

586 (Tex. App.—San Antonio 2015, no pet.); In re S.V., No. 05-17-01294-CV, 2019 

WL 1529379, at *5 (Tex. App.—Dallas Apr. 9, 2019, no pet.) (mem. op.) (citing In

re C.R.G., No. 05-10-01472-CV, 2012 WL 3133785, at *5 (Tex. App.—Dallas Aug. 

51 In his fifth issue, Zach argues that if the possession and conservatorship orders are 

reversed, the trial court’s orders regarding medical support and child support should 

likewise be reversed because they were materially influenced by a final 

determination on conservatorship and possession. Because we overrule Zach’s 

fourth issue, we need not reach his fifth issue on appeal. 
85

2, 2012, no pet.) (mem. op.)). In evaluating a fee award in a suit affecting the parentchild relationship, “we consider first whether the trial court had sufficient evidence 

upon which to exercise its discretion, and then whether it erred in its application of 

that discretion.” In re S.V., 2019 WL 1529379 at *5 (quoting In re S.V., No. 05-16-

00519-CV, 2017 WL 3725981, at *5 (Tex. App.—Dallas Aug. 30, 2017, pet. denied) 

(mem. op.)). A trial court abuses its discretion “when it acts arbitrarily or 

unreasonably, without reference to guiding rules or principles.” Illif v. Illif, 339 

S.W.3d 74, 78 (Tex. 2011).

The reasonableness of an attorneys’ fee award under Section 106.002 is a 

question of fact that must be supported by competent evidence. In re M.A.N.M., 231 

S.W.3d 562, 567 (Tex. App.—Dallas 2007, no pet.). The Texas Supreme Court has 

held that the factfinder’s “starting point for calculating an attorney’s fee award is 

determining the reasonable hours worked multiplied by a reasonable hourly rate, and 

the fee claimant bears the burden of providing sufficient evidence on both counts.” 

Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 

2019) (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012)). The 

Rohrmoos court stated:

Sufficient evidence includes, at a minimum, evidence of (1) particular 

services performed, (2) who performed those services, (3) 

approximately when the services were performed, (4) the reasonable 

amount of time required to perform the services, and (5) the reasonable 

hourly rate for each person performing such services.
86

Id. This “lodestar” analysis applies to “any situation in which an objective 

calculation of reasonable hours worked times a reasonable rate can be employed.” 

Id.

52

 As we recently explained:

The lodestar method of calculating attorney’s fees is an objective 

analysis of whether attorney’s fees are reasonable and necessary and 

provides a base figure that is “presumptively reasonable.” Under the 

lodestar method, the court determines the reasonable hours spent by

counsel in a case and the reasonable hourly rate for that work, then 

multiples the number of hours by the applicable rate. This number is 

the base fee or lodestar. The court may then adjust the number up or 

52 Prior to Rohrmoos, Texas courts considering attorneys’ fee awards relied on factors 

enumerated in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 

(Tex. 1997). The lodestar method “developed as a ‘short hand version’ of the Arthur 

Andersen factors and was never intended to be a separate test or method.” 

Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 490 (Tex. 

2019). The Arthur Andersen factors are 

(1) the time and labor required, the novelty and difficulty of the 

questions involved, and the skill required to perform the legal service 

properly; (2) the likelihood . . . that the acceptance of the particular 

employment will preclude other employment by the lawyer; (3) the 

fee customarily charged in the locality for similar legal services; (4) 

the amount involved and the results obtained; (5) the time limitations 

imposed by the client or by the circumstances; (6) the nature and 

length of the professional relationship with the client; (7) the 

experience, reputation, and ability of the lawyer or lawyers 

performing the services; and (8) whether the fee is fixed or contingent 

on results obtained or uncertainty of collection before the legal 

services have been rendered.

Arthur Andersen, 945 S.W.2d at 818 (quoting TEX. DISCIPLINARY R. PROF’L 

CONDUCT 1.04, reprinted in TEX. GOVT’ CODE, tit. 2, subtit. G app. (TEX. STATE 

BAR R. art. X, § 9)). 
87

down “if relevant factors indicate an adjustment is necessary.”

Jones v. Baker, No. 01-22-00013-CV, 2023 WL 5353374, at *2 (Tex. App.—

Houston [1st Dist.] Aug. 22, 2023, no pet.) (mem. op.) (citing Rohrmoos, 578 

S.W.3d at 494, 496).

Rohrmoos’s lodestar method does not apply to an award of contingent 

appellate attorneys’ fees. Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 

(Tex. 2020). Rather, the party who seeks contingent appellate fees must “provide 

opinion testimony about the services it reasonably believes will be necessary to 

defend the appeal and a reasonable hourly rate for those services.” Id.

B. The $35,000 Attorneys’ Fee Award

Zach complains that the evidence was insufficient to support the trial court’s 

award of attorneys’ fees with respect to work done by Victoria’s counsel, Victoria 

Venza and Carrie Westbrook.53 The evidence submitted during trial was that 

Victoria incurred $19,750 in legal fees when Venza represented Victoria, and 

$15,700 in legal fees when Westbrook represented her. 

Venza did not testify. Westbrook testified that her hourly fee was $400 per 

hour for appellate work and $350 per hour for trial work, but she did not testify about 

Venza’s hourly rate or the number of hours each attorney worked on the case. She 

53

 Venza and Westbrook represented Victoria at trial and Westbrook represented 

Victoria during the mandamus proceeding in this Court in 2021.
88

testified that both she and Venza had been licensed attorneys for twenty years. 

Westbrook testified that the case “involves somewhat novel issues concerning 

UCCJEA, issues of jurisdiction, home state of the child and various issues of that 

concerning the jurisdiction disputes in the case.” Westbrook further testified that 

the attorneys’ fees “were necessary in this case especially given the fact that the 

appeal occurred and took several months to conclude as well as the fact that we’ve 

had issues of the other party absconding with the child, having to confer with counsel 

from another state and all of these issues that have occurred in this case.” 

The trial court stated in its Findings of Fact and Conclusions of Law that in 

awarding attorneys’ fees, it “considered the Lodestar method and the factors set 

forth” in Rohrmoos. The trial court further found that the $35,000 in attorney fees 

Victoria incurred in this case “were reasonable and necessary for the safety and 

welfare of the child;” that the case “presented complex issues concerning 

jurisdiction” and a petition for writ of mandamus to the court of appeals; and that 

the hourly rates of Victoria’s attorneys “are reasonable in Fort Bend County, Texas, 

and the surrounding area” for attorneys with the level of experience of Victoria’s 

attorneys. 

Zach argues the evidence was insufficient to support the trial court’s apparent 

finding that “the admitted evidence justified the reasonableness and necessity of 

those fees as charged” by Victoria’s attorneys, including the rates charged, services 
89

performed, and nature of issues involved in the trial court and in the court of appeals 

during the mandamus proceeding. We agree. The evidence Victoria presented did 

not satisfy the “sufficient evidence” standard established in Rohrmoos. See 

Rohrmoos, 578 S.W.3d at 502. The proffered testimony concerning attorneys’ fees

did not identify who performed the particular services or when they were performed, 

the reasonable amount of time required to perform the services, or the reasonable 

hourly rate for each person performing the services. 

The decision in Sims v. Sims, 623 S.W.3d 47 (Tex. App.—El Paso 2021, pet. 

denied), a SAPCR case, is instructive. There, the appellee sought attorneys’ fees 

and, during trial, his counsel “generally described the length of the case, the volume 

of motion of practice and hearing attendance involved, and the number of hours he 

spent on the case.” Id. at 67. He testified as to his hourly rate, stating it was 

reasonable for attorneys in El Paso County. Id. The court held the appellee failed 

to meet his burden proving the reasonableness and necessity of his incurred fees: 

“Appellee did not offer billing records54 substantiating the tasks performed or time

54 Although they are “strongly encouraged,” billing records are not required to prove 

that requested fees are reasonable and necessary. Rohrmoos, 578 S.W.3d at 502. 

While billing records are not required, 

legally-sufficient evidence to establish a reasonable and necessary fee 

needs to include a description of the particular services performed, the 

identity of each attorney who and approximately when that attorney 

performed the services, the reasonable amount of time required to 
90

spent thereon, nor did he offer specific testimony regarding the ‘particular services

performed, . . . who performed those services, . . . approximately when the services

were performed, [or] the reasonable amount of time required to perform the

services[.]’” Id. at 67–68 (footnote added). The court held that because the evidence

was insufficient to justify awarding attorneys’ fees, the trial court abused its

discretion in doing so. Id. at 68; see also In re K.A.M.S., 583 S.W.3d 335, 350 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.) (“Without details about the work done, 

how much time was spent on the tasks, and how she arrived at the total fees in 

Mother’s case, we conclude that Mother’s attorney’s testimony ‘lacks the substance 

required to uphold a fee award’ and thus is legally insufficient.”); Martinez Jardon

v. Pfister, 593 S.W.3d 810, 841 (Tex. App.—El Paso 2019, no pet.) (holding that in 

absence of “detail about the particular services performed, who performed the 

services, the reasonable amount of time required to perform the services, and the 

reasonable hourly rate for each person performing such services,” attorney’s 

testimony and accompanying exhibits “lack the substance required to uphold an 

award by the trial court for attorney’s fees and expenses.”).

perform the services, and the reasonable hourly rate for each attorney 

performing the services. 

In re K.A.M.S., 583 S.W.3d 335, 349 (Tex. App.—Houston [14th Dist.] 2019, no 

pet.) (citing Rohrmoos, 578 S.W.3d at 497–98, 501–02, 502–03).
91

Similarly, in the present case, there was no testimony regarding the services 

performed by each attorney, the amount of time it took to perform any task, or when 

the task was performed. Nor was there any testimony regarding Venza’s rates. 

Therefore, we conclude the trial court abused its discretion in awarding attorneys’ 

fees to Victoria.55

We sustain Zach’s sixth issue.

C. The Award of Contingent Appellate Fees

Zach complains that the trial court’s award of “attorneys[’] fees on appeal” in 

favor of Victoria is “wholly unsupported by sufficient evidence justifying reversal.” 

With respect to appellate attorneys’ fees, the trial court’s order states, “The Court 

FURTHER ORDERS attorney fees on appeal in favor of VICTORIA STERN.”56

This award is problematic for several reasons. First, the appellate attorney fee 

award is unconditional. “An unconditional award of an appellant’s appellate 

attorney’s fees is improper.” Keith v. Keith, 221 S.W.3d 156, 171 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (citing Sipco Serv’s Marine v. Wyatt Field Serv.,

857 S.W.2d 602, 607–08 (Tex. App.—Houston [1st Dist.] 1993, no writ)). See also 

55 If we reverse a trial court’s attorneys’ fee determination for lack of sufficient 

evidence, we remand the case to the trial court for a redetermination of fees. In re

K.N.H., No. 13-20-00347-CV, 2022 WL 243188, at *6 (Tex. App.—Corpus 

Christi–Edinburg Jan. 27, 2022, no pet.) (citing cases).

56 The trial court did not make findings of fact or conclusions of law with respect to 

the appellate attorneys’ fee award.
92

Messier v. Messier, 458 S.W.3d 155, 170 (Tex. App.—Houston [14th Dist.] 2015, 

no pet.) (“A trial court may not grant a party an unconditional award of appellate 

attorney’s fees because to do so could penalize a party for taking a meritorious 

appeal.”).

The award is also problematic because it does not provide a specific amount 

to be awarded and was not supported by expert testimony about the services likely 

to be performed on appeal. The Supreme Court addressed the standard for a 

contingent award of appellate fees in Yowell, stating “with respect to contingent

appellate fees, which have not yet been incurred and thus must be projected based

on expert opinion testimony,” “[t]here is no certainty regarding who will represent

the appellee in the appellate courts, what counsel’s hourly rate(s) will be, or what

services will be necessary to ensure appropriate representation in light of the issues

the appellant chooses to raise.” 620 S.W.3d at 355. But “this uncertainty does not

excuse a party seeking to recover contingent appellate fees from the need to provide

opinion testimony about the services it reasonably believes will be necessary to

defend the appeal and a reasonable hourly rate for those services.” Id.; see also

Walsh v. Gonzalez, No. 01-21-00729-CV, 2023 WL 4110851, at *11 (Tex. App.—

Houston [1st Dist.] June 22, 2023, no pet.) (mem. op.) (reversing and remanding fee 

award for redetermination of fees after determining evidence in support of fees was 

legally insufficient); Trujillo v. Shafaii Invs., Ltd., No. 01-22-00819-CV, 2024 WL
93

2001612, at *11 (Tex. App.—Houston [1st Dist.] May 7, 2024, no pet. h.) (mem. 

op.) (“We may not uphold a trial court’s award of attorney’s fees unless the record 

contains sufficient evidence to support the award. ‘The party seeking attorney’s fees 

bears the burden of proof’ to support the trial court’s award. If the evidence 

supporting the award is insufficient, we must reverse.”) (citing Yowell, 620 S.W.3d 

at 354); QJD Peking Duck Rest., Inc. v. TCP Spectrum Partners, Ltd., No. 01-22-

00545-CV, 2023 WL 5436907, at *3 (Tex. App.—Houston [1st Dist.] Aug. 24, 

2023, no pet.) (mem. op.) (listing cases where contingent appellate attorney’s fee

awards were reversed because “the evidence did not address the services to be 

rendered on appeal or simply stated a lump-sum fee amount for appeal to the court 

of appeals or to the Texas Supreme Court”).

During trial, Victoria’s counsel stated only with respect to appellate attorneys’ 

fees:

In addition, Your Honor, we are requesting attorneys’ fees if this does 

go up on appeal. We anticipate that once this order is finalized, Mr. 

Zach will appeal it up to the Texas appellate court, again, to challenge 

jurisdiction, even though that’s already, in my opinion, been decided 

by the appellate court here.

This testimony is insufficient to support the award of contingent appellate fees. 

We sustain Zach’s seventh issue. 
94

Conclusion

We reverse the court’s judgment as to the awards of attorneys’ fees and 

appellate fees and we remand to the trial court for a determination of fees consistent 

with this opinion. We affirm the trial court’s Final Order in all other respects.

Veronica Rivas-Molloy

Justice

Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.