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

NO. 03-10-00006- CV

In the interestof K.M.P .

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -F M- 04- 0044 16, H ONO RAB LE GUS J. STRAUSS JR., JUDGE P RESIDING

O P I N I O N

K.M.P.’s fathe r, J ason Perry , filed a motion to enfor ce the possession terms of the custody portion of the couple’ s divorce decr ee ag ainst K.M.P.’s mother, Mandy Boy t. Boy t filed a specia l ap p ea ra n ce and a plea to the jurisdiction, collater ally attacking the court’s orig inal 2004 decr ee as void for lack of subject-matter jurisdiction. The trial court grant ed Bo y t ’s s pecia l appea ranc e and plea to the jurisdiction and dismiss ed Perry ’s enfor ceme nt action. Perry appea ls in three issues, asser

ting that the trial court misapplied the presumptions of validity g iven to the decr ee

on collater al attack and there fore err ed in (1) g ranting Boy t’s specia l appea

ranc e, (2) finding that the
court lacke d jurisdiction over Perry ’s enfor ceme nt action, and (3) dismiss ing t h at s u i t for lack of jurisdiction. W e will aff

irm the trial cour

t’s dismiss al orde r.

F ACTUAL AND P ROCEDURAL BACK GR OUND P er ry and Boy

t divorce d in 2004. The divorce decr ee contained an initial cus t o d y deter mination for K.M.P., the couple’ s only child. T he possession provisions of the decr ee wer eamende d in 2008. After Boy t alleg edly failed to comply with the terms of the modified decr ee, Perry filed an enfor ceme nt action. I n response , Boy t asser ted that the trial court lacke d subject-matter jurisdiction over the enfor ceme nt action beca use it had lacke d jurisdiction from the outset to rende r the custody portion of its orig inal decr ee. Boy t argued that, beca

use it lacke d initial jurisdiction, the
court now lacke d continuing, exclusive jurisdiction to modify or enfor ce the void decr ee. She also contended that, beca

use the court lacke d continuing, exclusive jurisdiction over the case and the parties, and beca

use she had not been otherwise serve d with proce ss in the enfor ceme nt action, the
court a lso lacked persona l jur isdiction ove r her. The trial c ourt g rante d Boy t’s specia l appea

ranc e and plea to the jurisdiction and dismiss ed Perry ’s enfor ceme nt a ction. Perry perf ecte d this a

ppeal.

STANDARD OF REVIEW Whether a court has subject-matter jurisdiction is a question of law that we review de novo. Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 2 2 5 (T ex . 2 0 0 4 ). Subject-matter jurisdiction is never presumed and cannot be waived. Texas Ass’n of B us. v. Texas Air Control

Bd. , 852 S.W .2d 440, 442-44 (Te x . 1993). I n the prese nt enfor ceme nt action, Boy t is collater ally attacking the orig inal custody deter mination by asser

ting that the 2004 decr ee is void. I f, as Boy t as s er t s , the court lacke d subject-matter jurisdiction or pers o n a l ju r is d ic ti o n w h e n it r e n d e r e d th e initial custody deter mination, that judgme nt would be void and subject to collater al attack. See Austin Indep. Sch. Dist. v. Sierra Club , 495 S.W .2d 878, 881 (Tex. 1973); W agner v. D’Lorm , __ S.W .3d __, 2010 WL 2218644, at *3 (Tex. App.—Austin 2010, no pet.). “I n a collater al attack, the judgme nt under attack is presumed valid,” Stewart v. USA Custom Paint & Body Shop, Inc. , 870 S.W .2d 18, 20 (Tex. 1994), and
2“eve ry rea sonable presumption to uphold [t he judgme nt] will be indulge d,” Rolison v. Puck ett , 198 S.W .2d 74, 7 7 (T ex . 1946). “I n order for a collater al attack to be succe ssful the rec ord must aff irmatively

reve al the jurisdictional def ect.” W hite v. W hite , 179 S.W .2d 503, 506 (Tex. 1944).
[I ]f the rec ord in th e cause does not neg ative the exis tence of fac ts authorizing the court to rende r the judgme nt, the law conclusively p re s u mes that such fac ts wer e established befor e the court when such judgme nt was rende red, and evidenc e dehors the re cord to the c ontrary will not be rec eived.

Id. We limit our revie w to d e te r mi n in g w h e th e r the rec ord aff irmatively and conclusively neg ates the exis ten c e o f

jurisdiction, not whether the court otherwise err ed in rende ring its judgme nt. See id. Whil e we indulge ever y rea sonable presumption in favor of the judgme nt’s validity , we may consider only the fac e of the rec ord and may not presume that “something omitted from the cler k’s

rec ord might have supported jurisdiction” when fac ed with a rec ord that otherwise neg ates jurisdiction. Alfonso v. Skadden , 251 S.W .3d 52, 55 (Tex. 2008).

DISCUSSIO N Subj ect- Matter Juri

sdiction & Collat

eral Attack We beg in by addre ssing Perry ’s second and third i s s u es re g arding the court’s subject-matter jurisdiction. Boy t asser ts that the court lacke d subject-matter jurisdiction to make its orig inal child-custody deter mination beca

use the court’s finding s of jurisdictional fac t as rec ited in the 2004 decr ee, taken in conjunction with the jurisdiction provisions in t h e fa m i ly code, aff irmatively neg ated the court’s jurisdiction. Boy t argues that, lacking jurisdiction from the outset,

3the court had no “continuing , exclusive jurisdiction” over the custody issue and thus no jurisdiction

to modify or enf orce its decre e. Section 152.201 of th e fa mily code confe rs subject-matter jurisdiction on Texas courts to dec ide initial matters of child custody only if ce rtain pre requisites ar e met: (a) Ex cept as otherwise provided in Section 152.204, [which g overns temporar y emer g ency jurisdiction,] a court of this st at e h as jurisdiction to make an initial child custody

deter mination only

if: (1) this state is the home state of the child on the date of the commence ment of the proce eding , or was the home state of the child within six months befor e the commence ment of t he procee ding a nd the child is absent from this sta t e but a pare nt or person acting as a pare nt continues to live in this s tate; (2) a court of another state does not have jurisdiction under Subdivis ion (1), or a court of the home state of the child has declined to e x erc ise jurisdiction on the g round that this state is the more appropr iate forum under Sec tion 152.207 or 152.208, and: (A) the child and the ch i ld’s pare nts, or the child and at least one pare n t o r a person acting as a pare nt, have a signific ant connec tion with this state other than mere phy sical prese nce; a

nd (B ) substantial evidenc e i s available in this state conce rning the child’s ca re, pr otection, training , and per sonal rela tionships; (3) all courts having j u ri sdiction under Subdivis ion (1) or (2) have declined to exercise jurisdiction on the g round that a co urt of this state is the more appropr iate forum to deter mine the custod y o f the child under Sec tion 152.207 or 152.208; or (4) no court of any other state would have jurisdiction under the criter ia specifie d in Subdivi sion (1), (2) , or (3)

. (b) Subsection (a) is the exclusive jurisdictional basis for making a child custody deter mination by

a cour t of this state.
4(c) Phy sical prese nce of, or perso n al j u ri sdiction over, a party or a child is not nece ssary or suffic ient to make a c hild custody deter mination.

Tex. Fam. Code Ann. § 152.201 (West 2009). “‘Com m ence ment’ means the filing of the first pleading in a proce eding .” Id. § 152.102(5) (West 2009). T h e t er m “home state” is define d as follows:

“Home state” means the state in which a child lived with a pare nt or a person acting as a pare nt for at least six consec utive months immediately before the comme ncem ent of a child custody procee ding

. I n the case of a child less than six months of ag e, the term means the state in which the ch ild lived from birth with a pare nt or a person acting as a pa

rent. A pe riod of tempora ry absenc e of a

pare nt or a person acting as a par ent is part of the period.

Id. § 152.102(7) ( emphasis adde d).

I n support of her

asser tion that the court lac ked initial jur isdiction ove r the custody matter, Boy

t point s to the 2004 divorce decr ee itself. I n finding and reciting pertinent facts about the “child of the marria g e,” that decr ee lists K.M.P.’s “Home state” as “Ge org ia.” Boy t argues that such a finding of jurisdictional fac t conclusively neg ates the court’s jurisdiction. Noting that, on collater al attack, we must presume the court’s jurisdiction, Perry asser ts that the court’s home-state fin d ing may be construed consistently with its exercise of jurisdiction. I n further support of that presumption, he points to the following r ecital in the de cre e:

T h e C o urt finds that the pleading s of [P err y ] are in due form and contain all th e alleg ations, information, an d prer equisites require d by law. The Court, afte r rec eiving evidenc e, finds that it has jurisdiction of the case and of all the parties and that at least six ty day s have elapse d since the date the suit was filed.

. . . All persons entitled to citation were proper ly cited.

5Af ter examining the rec ord and attempting to rec oncile the court’s seeming ly inconsistent finding s in light of our defe rential standard of revie w on collater al attack, we ag ree with Boy t that, beca

use the court expressly found Geor gi a t o b e K.M.P.’s home state, it lacke d subject-matter jurisdiction over t h e i n i tial custody deter mination. See id. § 152.201(a) (1). Perry , howeve r, urg es us to presume that the court applied one of the alternate provisions in section 152.201 to e stablish its jurisdiction. W e conc lude that none of those provisions is consistent with the court’s home-state finding or otherwise applies in light of that finding

. Subsection 152.201(a) (2) applies only if there is no state that has jurisdiction under (a) (1), or if a sta t e wi t h j urisdiction in (a) (1) has declined to exercise jur i s d i ct i on. The court’s finding that Geor g ia was K.M.P.’s home
state means that Geor g ia had jurisdiction over the initial custody decision, so the first clause of (a) (2) does not apply

. The second clause, which requires a finding that Geor g ia decline d j u ri s d i ction in favor of Tex as, finds no support in the record and would be unreasonable to presume. See W hite , 179 S.W .2d at 506 (cour

t indulge s all reasonable presu m p t i o n s in favor of judgme nt’s validity ). Subsections (a) (3) and (a) (4) do not apply for the rea sons we have just articula ted: Geor g ia met the require ment of (a) (1), and a presumption that Geor g ia declined jurisdiction is not supported by the

rec ord. Finding no basis in section 152.201(a) for Texas’s initial child-custody jurisdiction, we hold that the trial court lacke d jurisdiction to make an initial custody deter mination. See Tex. Fam. Code Ann. § 152.201(b) (“Subsec tion (a) is the exclusive jurisdictional ba sis f or making a child custody deter mination by a court of this state.”)

. Acc ording ly , the child-custody portion of the 2004 decr ee is void and without effe ct. See A ustin Indep. Sch. Dist. , 495 S.W .2d at 881.

6Perry argues that the 2004 decr ee did not state that K.M.P.’s home state was Geor g ia

on the date of the comme ncem ent of the procee ding —the key date for the jurisdictional inquiry —but only constituted a finding of K.M.P.’s home state on the date the dec ree was e ntered

. The court’s finding mere ly stated: “Home state: Geor g ia.” Thus, asser ts Perry , the court could have conclude d that K.M.P.’s home state was Texas when the proceed i n gs commence d but later beca me Geor g ia in the months that elapse d while the action was pending

. We d i sag ree that this is a rea sonable

rea ding of the court’s finding

. First, the family code’ s definition of “home state” for children older than six months contains a temporal require ment, itself based on the date that custody proce eding s

commence d: “‘H ome state’ means the state in which a child lived with a pare nt or a person acting

as a pare nt for at least six consec utive months immediately before the comme ncem ent of a chil d

cu s t ody procee ding

. . . .” Tex. Fam. Code Ann. § 152.102(7) (empha sis added)

. Therefo re , i n finding that K.M.P.’s home state was Geor gi a, the court implicitl y —and nece ssarily

—found that K.M.P. had lived in Georg ia for at least six consec utive months before the commenc ement of this custody proce eding . Such a finding prec ludes any possibili ty that Texas w as K.M.P.’s home state
at the time the proce eding was commence d. Second, we may not assume that the court’s home-state fac t-finding ref

err ed to the decr ee’ s rendition date instead of the date t h e p roceeding was

commence d. The rele vant date for the home-state jurisdictional inquiry is the latter. Construing the court’s clea

r, unambig uous finding of jurisdictional fac t to mean the opposite would be

unrea sonable. See W

hite , 179 S.W .2d at 506. Be cause we co n cl u d e that the fac e of the decr ee itself aff irmatively neg ates the jurisdictional fac ts nece ssary to support the trial court’s subject-matter jurisdiction over its orig inal

7custody deter mination, the trial court also lacke d continuing, exclusive j u risdiction over Perry ’s enfor ceme nt action. Ac cording ly , the cour t did not err in g ranting Boy t’s plea to the jurisdiction. We overr ule Perry ’s second and third issues. Having deter mined that the court lacke d jurisdiction, we do not conside r Perr

y ’s re maining issue.

CONCLUSION Be cause the trial court corr ectly deter mined that it lacke d subject-matter jurisdiction,

we a ffirm the c ourt’s dismissal order.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: Aug ust 31, 2010

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