COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-15-00329-CV 

IN THE INTEREST OF A.J., 

A MINOR CHILD 

 

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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY 

TRIAL COURT NO. 360-583535-15 

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MEMORANDUM OPINION1

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In unnumbered issues, Appellant N.E.H., A.J.’s alleged father (Father), 

contends that the trial court abused its discretion by granting the plea to the 

jurisdiction of Appellee K.A.J., A.J.’s mother (Mother), and by awarding her 

attorney’s fees and costs. Because we hold that the trial court did not have 

home state jurisdiction, did not abuse its discretion by awarding Mother’s trial 

 1See Tex. R. App. P. 47.4. 
2 

counsel $2,000 in attorney’s fees, and did not award Mother costs, we affirm the 

trial court’s order. 

I. Facts and Procedural History 

Mother and Father met online in June 2013. She told him that she was 

pregnant in September 2013, a day after he broke up with her. Mother and 

Father discussed her pregnancy further in January 2014, and she told him that 

she could “almost guarantee” that he was the father. He told her that he “had 

nothing else to offer her,” to let him know when the baby was due, and that he 

would meet her at the hospital after the baby was born to take a DNA test. 

Father testified that he made several attempts to contact Mother in March and 

April 2014 with no success. A.J. was born May 8, 2014. 

Mother testified that she did not know who the father was when A.J. was 

born; she did not notify Father at that time. Mother and A.J. moved to New York 

two months after A.J.’s birth; Mother did not let Father know that she was 

moving. 

Mother and Father did not speak again until March 2015, when A.J. was 

ten months old. Mother called Father to discuss A.J. and told him that he was 

the biological father. A DNA test dated March 18, 2015 confirmed that he was 

the father. He testified that he knew that he was the father when he took the test. 

Father visited the baby in New York at Mother’s invitation on two separate 

occasions, and Mother visited Texas twice with A.J., allowing Father to keep the 

baby for days at a time. Father told Mother that he could not both pay child 
3 

support and visit the child, but he did give Mother small amounts of money on her 

two visits to Texas, and he sent diapers and a car seat to New York when asked. 

On September 23, 2015, while Mother and A.J. were visiting Texas for a 

few days, Father filed a petition to adjudicate parentage in a Tarrant County, 

Texas family district court. Father’s original petition identifies New York as A.J.’s 

“State of Residence.” In addition to the establishment of his parent-child 

relationship with A.J., Father sought temporary orders appointing him as joint 

managing conservator with the exclusive right to designate her primary residence 

and other temporary relief. He further sought and obtained an ex parte 

temporary restraining order (TRO) restraining Mother from (i) disturbing the 

peace of A.J. or of another party; (ii) hiding or secreting A.J. from Father; 

(iii) making disparaging remarks regarding Father or his family in A.J.’s presence 

or within her hearing; and (iv) making changes to A.J.’s insurance coverage. The 

trial court issued the TRO on September 23, 2015, and set a hearing for 

October 5, 2015. 

Father had Mother served at his place of employment when she arrived to 

pick up A.J., who was then in Father’s possession. Father refused to return A.J. 

to Mother. Mother then hired counsel and filed a petition for writ of habeas 

corpus to recover possession of A.J. In her petition, Mother alleged that she had 

a superior right of possession to A.J., that the TRO did not govern possession of 

A.J., and that the trial court lacked subject matter jurisdiction to make a child 
4 

custody determination because A.J.’s home state is New York. Mother also 

requested attorney’s fees. 

Father filed a response as well as a motion for drug screening and 

amended his petition to include requests for expanded temporary orders and 

another TRO that would attach the body of the child and prevent either parent 

from removing her from Tarrant County or contiguous counties. Father’s 

supporting affidavit to his amended petition alleged that Mother abused 

marijuana, alcohol, and prescription drugs. The trial court ordered the clerk to 

issue the writ on September 30, 2015, directing “the person in possession of the 

child” to have her in court on October 5, 2015, at 9:30 a.m. “and to appear and 

show cause” why A.J. should not be returned to Mother. 

On October 1, 2015, Mother filed a plea to the jurisdiction and an answer 

subject to her plea. She alleged in her plea that the trial court lacked subject 

matter jurisdiction because A.J. had lived in New York for six months prior to the 

commencement of the lawsuit. Attached to her plea was a petition for custody 

that was filed in New York on her behalf after Father initiated proceedings here. 

On October 5, 2015, after the hearing and after conferencing with the New 

York judge, the trial court signed a preliminary order declining jurisdiction “save 

and except interim orders until such time that New York Family Courts issue 

orders” and ordering 

 Father to have possession four hours that day; 
5 

 Mother to be accompanied by family on the return flight to New York while 

A.J. was in her possession, to not consume illegal drugs, and to follow 

doctor’s orders regarding prescription drugs and alcohol consumption; and 

 Father to pay $2,000 of Mother’s attorney’s fees, “reduced to judgment.” 

The trial court later signed a formal, typewritten order finding that it did not have 

jurisdiction of “this case and all the parties” but repeating the above listed interim 

orders regarding the parents, awarding Mother’s lawyer a judgment of $2,000 for 

attorney’s fees against Father, and ordering each party to bear his or her own 

costs. 

II. No Subject Matter Jurisdiction Under Section 152.201 

Father contends in unnumbered issues that the trial court abused its 

discretion by granting Mother’s plea to the jurisdiction. Whether a trial court has 

subject matter jurisdiction is a question of law that we review de novo.2 In child 

custody cases involving competing jurisdiction, the Uniform Child Custody 

Jurisdiction and Enforcement Act (UCCJEA), found in Chapter 152 of the family 

code, governs.3 Section 152.201(a) of the family code provides the “exclusive 

jurisdiction basis” for a Texas court to exercise jurisdiction over a child custody 

dispute.4 Section 152.201 states, 

 2Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 

2004). 

3See Tex. Fam. Code Ann. §§ 152.001–.317 (West 2014); In re Dean, 

393 S.W.3d 741, 743 (Tex. 2012) (orig. proceeding). 

4Tex. Fam. Code Ann. § 152.201(b); Dean, 393 S.W.3d at 746. 
6 

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

of this state has jurisdiction to make an initial child custody 

determination only if: 

 (1) this state is the home state of the child on the date of 

the commencement of the proceeding, or was the home state 

of the child within six months before the commencement of the 

proceeding and the child is absent from this state but a parent 

or person acting as a parent continues to live in this state; 

(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 under Section 152.207 or 

152.208, 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 under Section 152.207 or 152.208; or 

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

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

(b) Subsection (a) is the exclusive jurisdictional basis for 

making a child custody determination by a court of this state. 

(c) Physical presence of, or personal jurisdiction over, a party 

or a child is not necessary or sufficient to make a child custody 

determination.5 

There is no dispute that New York is and has been A.J.’s home state. 

Subsections (1) and (4) therefore do not apply. In many of Father’s unnumbered 

 5Tex. Fam. Code Ann. § 152.201. 
7 

issues challenging the trial court’s granting of Mother’s plea to the jurisdiction, he 

attempts to fit this case within the confines of subsection (2). He contends that 

under section 152.208 of the family code, New York must decline home state 

jurisdiction in favor of the trial court because Mother committed “unjustifiable 

conduct.”6 But subsection (2) (and subsection (3)) of section 152.201 operate to 

give the trial court jurisdiction only if the home state declines jurisdiction “on the 

ground that a court of this state is the more appropriate forum” under Section 

152.207 or 152.208.7 New York has not declined to exercise jurisdiction on any 

ground.8 

Further, Father misreads section 152.208. Section 152.208 applies when 

“a person seeking to invoke [the] jurisdiction” of a Texas court “has engaged in 

unjustifiable conduct” to ensure that the court has jurisdiction under the 

UCCJEA.9 The section focuses on the conduct of the party “seeking to invoke” 

 6See id. § 152.208(a). 

7Id. § 152.201(a)(2)–(3). 

8See In re Walker, 428 S.W.3d 212, 220 (Tex. App.—Houston [1st Dist.] 

2014, no pet.) (“Because Georgia did not decline to exercise jurisdiction on the 

ground that Texas is the more appropriate forum under Family Code section 

152.207 or 152.208, the Texas trial court is without jurisdiction.”); Arnold v. Price, 

365 S.W.3d 455, 462 (Tex. App.—Fort Worth 2011, no pet.) (holding because 

home state had not declined to exercise jurisdiction, Texas could not exercise 

subject matter jurisdiction under subsection (2)); see also Dean, 393 S.W.3d at 

750 (noting that New Mexico court had not declined jurisdiction under either 

section 152.207 or 152.208 but solely because Texas had decided to exercise 

jurisdiction, a reason the supreme court held the UCCJEA does not allow). 

9Tex. Fam. Code Ann. § 152.208(a). 
8 

the Texas court’s jurisdiction.10 Mother did not seek to invoke the jurisdiction of 

the Texas court; Father did.11 Additionally, section 152.208 discusses what a 

Texas court must or may do, not what another state’s court must do.12 We 

overrule all of Father’s issues regarding jurisdiction that are grounded in section 

152.208. 

Because New York did not decline jurisdiction, subsections (2) and (3) of 

section 152.201 do not operate to give the trial court jurisdiction, leaving the 

section 152.204 exception as the only avenue for the trial court to have obtained 

jurisdiction.13 Section 152.204 provides, 

 10Id.

11See In re Busaleh, No. 06-14-00073-CV, 2014 WL 4978642, at *2 (Tex. 

App.—Texarkana Oct. 7, 2014, no pet.) (mem. op.) (holding statute inapplicable 

because mother who had moved to Kentucky with children did not seek to invoke 

jurisdiction of Texas court); Dickerson v. Doyle, 170 S.W.3d 713, 720–21 (Tex. 

App.—El Paso 2005, no pet.) (holding statute inapplicable because mother who 

had moved to Alabama with child did not seek to invoke jurisdiction of Texas 

court; alleged father did). 

12Tex. Fam. Code Ann. § 152.208; see In re Marriage of Roman & 

Gonzalez, No. 10-06-00023-CV, 2007 WL 1378493, at *4 (Tex. App.—Waco May 

9, 2007, no pet.) (mem. op.) (holding section 152.208 does not allow a Texas 

court to assert jurisdiction until home state has declined it and that whether party 

committed unjustifiable conduct to give home state jurisdiction is a question for 

the home state court, not the Texas court). 

13See Tex. Fam. Code Ann. § 152.201; In re C.L.B., No. 10-13-00203-CV, 

2014 WL 702798, at *5 (Tex. App.—Waco Feb. 20, 2014, no pet.) (mem. op.) 

(“‘In short, if the child has a home state, if it is one other than Texas, and if the 

courts of that state have not declined to exercise their jurisdiction, then the courts 

of Texas lack jurisdiction over the child.’” (quoting In re J.C.B., 209 S.W.3d 821, 

823 (Tex. App.—Amarillo 2006, no pet.))). 
9 

(a) A court of this state has temporary emergency jurisdiction 

if the child is present in this state and the child has been abandoned 

or it is necessary in an emergency to protect the child because the 

child, or a sibling or parent of the child, is subjected to or threatened 

with mistreatment or abuse. 

(b) If there is no previous child custody determination that is 

entitled to be enforced under this chapter and a child custody 

proceeding has not been commenced in a court of a state having 

jurisdiction under Sections 152.201 through 152.203, a child custody 

determination made under this section remains in effect until an 

order is obtained from a court of a state having jurisdiction under 

Sections 152.201 through 152.203. If a child custody proceeding has 

not been or is not commenced in a court of a state having jurisdiction 

under Sections 152.201 through 152.203, a child custody 

determination made under this section becomes a final 

determination, if it so provides and this state becomes the home 

state of the child. 

(c) If there is a previous child custody determination that is 

entitled to be enforced under this chapter, or a child custody 

proceeding has been commenced in a court of a state having 

jurisdiction under Sections 152.201 through 152.203, any order 

issued by a court of this state under this section must specify in the 

order a period that the court considers adequate to allow the person 

seeking an order to obtain an order from the state having jurisdiction 

under Sections 152.201 through 152.203. The order issued in this 

state remains in effect until an order is obtained from the other state 

within the period specified or the period expires. 

(d) A court of this state which has been asked to make a child 

custody determination under this section, upon being informed that a 

child custody proceeding has been commenced in or a child custody 

determination has been made by a court of a state having 

jurisdiction under Sections 152.201 through 152.203, shall 

immediately communicate with the other court. A court of this state 

which is exercising jurisdiction pursuant to Sections 152.201 through 

152.203, upon being informed that a child custody proceeding has 

been commenced in or a child custody determination has been 

made by a court of another state under a statute similar to this 

section shall immediately communicate with the court of that state to 

resolve the emergency, protect the safety of the parties and the 
10 

child, and determine a period for the duration of the temporary 

order.14

“The exercise of temporary emergency jurisdiction under section 152.204 

is reserved for extraordinary circumstances.”

15 

Father contends that the “trial court abused its discretion by failing to order 

that if no action was brought in New York, or if New York declines jurisdiction, 

then temporary emergency jurisdiction of Texas would develop into Texas 

exercising continuing jurisdiction.” Before the trial court rendered a temporary 

order, Mother filed a petition in New York, and the New York court did not decline 

jurisdiction; thus, the trial court did not abuse its discretion by failing to state in its 

temporary order that if no action was brought in New York, or if New York 

declined jurisdiction, then temporary emergency jurisdiction of Texas would 

transform into continuing jurisdiction over A.J.16 Texas is not A.J.’s home state; 

the trial court did not have subject matter jurisdiction. Instead, the trial court 

properly conferred with the New York court in which a custody petition was filed 

after the petition in this case and, exercising its temporary emergency 

jurisdiction, fashioned a suitably narrow order designed to protect the child 

without interfering with the jurisdiction of the home state court until the home 

 14Tex. Fam. Code Ann. § 152.204. 

15In re Salminen, 492 S.W.3d 31, 40 (Tex. App.—Houston [1st Dist.] 2016, 

orig. proceeding). 

16See Tex. Fam. Code Ann. § 152.204(b). 
11 

state court could act.17 We overrule all of Father’s remaining jurisdictional 

arguments. 

III. Attorney’s Fees 

In his remaining issues, Father complains that the trial court abused its 

discretion by awarding Mother attorney’s fees and costs. The trial court ordered 

that each party bear his or her own costs. We overrule Father’s complaints 

concerning costs. 

 As to attorney’s fees, Father contends that the trial court abused its 

discretion by awarding Mother attorney’s fees because he met his burden of 

establishing the necessity of the trial court’s temporary emergency jurisdiction, 

based on her alleged “unjustifiable conduct” in obtaining out-of-state jurisdiction 

as well as her “other harmful behavior that was not in the best interest of the 

child.” Mother responds that the trial court could have declined to award fees 

against Father only if it had found that such an award was “clearly inappropriate,” 

that Father’s argument is circular and rests on a theory rejected by the trial court, 

and that there is no evidence that the award was not warranted. Both parties rely 

on section 152.208 to support their arguments, but we have already held that the 

trial court did not have jurisdiction beyond the narrow, temporary emergency 

jurisdiction that it exercised under section 152.204 to render the limited interim 

order it issued to tide the parties over until the home state court rendered an 

 17See id. § 152.204(a), (c)–(d). 
12 

order. Consequently, the trial court did not have jurisdiction to decline under 

section 152.208.18 We therefore review the order for an abuse of discretion.19

 A trial court abuses its discretion if the court acts without reference to any 

guiding rules or principles, that is, if the act is arbitrary or unreasonable.20 An 

appellate court cannot conclude that a trial court abused its discretion merely 

because the appellate court would have ruled differently in the same 

circumstances.21 A trial court also abuses its discretion by ruling without 

supporting evidence.22 But an abuse of discretion does not occur when the trial 

court bases its decision on conflicting evidence and some evidence of 

substantive and probative character supports its decision.23

 Father did not challenge the reasonableness or necessity of the attorney’s 

fees. The evidence shows that Mother had incurred $6,577 in attorney’s fees 

and about $665 in legal expenses before the final hearing and that her trial 

 18See id. § 152.208. 

19See id. §§ 106.002, 152.002 (West 2014); In re B.A.B., 124 S.W.3d 417, 

422 (Tex. App.—Dallas 2004, no pet.). 

20Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 

134 S.W.3d 835, 838–39 (Tex. 2004). 

21E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 

1995); see also Low, 221 S.W.3d at 620. 

22Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). 

23Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru 

v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g). 
13 

counsel believed that the total amount earned through his testimony about 

attorney’s fees was $7,500. Mother had paid her lawyer a $5,000 retainer. 

 Father’s theory for at least “part of the emergency” was Mother’s marijuana 

use. He testified that he smelled the “raw odor of marijuana” when he transferred 

the car seat from his truck to her car on September 21, 2015, after A.J. had been 

with him for a couple of days. He testified that he was worried that Mother would 

get pulled over and arrested with A.J. in the car and that the State would take the 

baby because his paternity had not been legally established. While Mother 

admitted that she smoked marijuana not only after her arrival in Texas but after 

Father filed his initial petition, the trial court heard no evidence of abandonment, 

no evidence of a direct threat of abuse or mistreatment, and no evidence that 

Mother smoked marijuana or was under its influence when caring for A.J. 

But there was evidence that Mother’s marijuana use since A.J.’s birth was 

not new information for Father. He testified about observing signs of Mother’s 

marijuana use when he visited A.J. in the home state in both May and August 

2015 and when Mother and A.J. visited Texas in June 2015. But he later testified 

that he did not suspect Mother in May 2015 of abusing marijuana. He admitted 

that he had never seen Mother smoke marijuana in front of the baby and had no 

knowledge of Mother abusing marijuana in front of A.J. 

Father admitted that he had also smoked marijuana but testified that he 

last did so in April 2015, when A.J. was almost a year old and before he met her. 

He also admitted to withholding A.J. from Mother after he obtained the TRO and 
14 

had her served even though he admitted that he did not believe the order gave 

him the right to keep Mother from A.J. 

 Mother admitted that she moved to New York without telling Father 

because she did not want to be trapped in Texas without her family, whose 

support she needed to help her raise a newborn baby. But the trial court also 

heard evidence that Father was aware of Mother’s pregnancy and the general 

due date but did not file legal proceedings to establish paternity before she left 

the state or afterward until he filed this petition, even though a DNA test had 

confirmed his paternity more than six months before the filing and he had visited 

A.J. twice in her home state of New York. 

 Mother testified that she had known that he was the father since the DNA 

test was completed in March or April 2015. Mother admitted that she knew “that 

the father was no one else by that time” but also testified that she did not know 

who the father was when the child was born in May 2014. 

Finally, even though it had been more than six months since a DNA test 

confirmed his paternity, Father had paid no child support, by agreement at first 

because he told Mother he could afford to visit the child or support her but not 

both. He admitted that Mother had requested child support in September 2015 

and that the maternal grandmother had “asked for assistance in [A.J.’s] care; 

things that they needed to help raise the child.” He had “sent stuff that [he] was 

requested to send. And on numerous occasions, [he] had asked what she had 

needed, and they said they had everything handled.” Specifically, Father 
15 

testified that he gave Mother $100 during her September 2015 trip and $60 

during her June 2015 trip and had sent diapers and a car seat to New York when 

requested. 

 The trial court could have properly found that Mother’s marijuana use here 

in Texas necessitated an emergency order for A.J.’s safety while at the same 

time concluding that Father should have filed in a New York court much earlier, 

should not have kept A.J. from Mother without a court order allowing him to do 

so, and should have been supporting his child. Accordingly, we hold that Father 

has not shown that the trial court abused its discretion by ordering him to pay 

$2,000 in attorney’s fees to Mother’s trial counsel. We overrule Father’s 

remaining issues. 

IV. Conclusion 

 Having overruled Father’s issues, we affirm the trial court’s order granting 

Mother’s plea to the jurisdiction. 

/s/ Lee Ann Dauphinot 

LEE ANN DAUPHINOT 

JUSTICE 

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ. 

DELIVERED: December 1, 2016