   TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-547-CV



                                     In re Annette Shurtz


                  ORIGINAL PROCEEDING FROM BASTROP COUNTY



                          MEMORANDUM OPINION


                This original proceeding arises from a custody dispute; relator Annette Shurtz

is the maternal grandmother of the children who are the subject of the dispute. The children’s

father, real party in interest James Hughes, initiated the custody proceeding seeking to

enforce and modify the trial court’s initial custody determination. Shurtz responded to the

enforcement action and intervened in the modification proceeding, asserting by plea to the

jurisdiction that the trial court lacks subject-matter jurisdiction over the proceeding.

Specifically, she argued that the initial custody determination is void for lack of subject-matter

jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),

and as a result, the court lacks subject-matter jurisdiction to enforce or modify the order.

Shurtz has filed a petition for writ of mandamus, complaining that the trial court abused its

discretion in denying her plea to the jurisdiction. Based on the record presented, we agree.

We conditionally grant the writ.
                                         BACKGROUND

                James Hughes and Rachel Shurtz have never married, but have two children.1 G.H.,

currently four years old, was born in Texas, though the family moved to Kansas shortly after his

birth. L.H. was born in Kansas and is currently two years old.2 In June 2010, Hughes left Rachel

and the children in Kansas and moved to Texas. On July 31, 2010, Hughes met Rachel and the

children in Oklahoma. At this meeting, Rachel voluntarily relinquished possession of the children

to Hughes, and he returned to Texas with the children.

                On August 5, 2010, less than a week after the children arrived in Texas, Hughes filed

a pro se petition in a suit affecting the parent-child relationship (SAPCR) in Bastrop County (the

“initial SAPCR petition”). In the initial SAPCR petition, Hughes requested that the trial court

appoint him sole managing conservator of the children. The petition states that Rachel does not live

in Texas, is homeless, and “has no permanent address.” Service of citation on Rachel is directed to

an address in Overland Park, Kansas. An addendum attached to the initial SAPCR petition provides

in relevant part:


        After the birth of our second child, the birth mother, Rachel, began using
        methamphetamines. She is also medically diagnosed as “Bipolar” and she ceased
        taking her prescribed medication due to her methamphetamine usage. Rachel’s
        mother and I have basically been the primary caregivers for both kids since L.H. was
        born in October 2009.

        I am a lifelong resident of Bastrop County, Texas, however[] I have been working in
        Kansas for the past couple of years. In June 2010, I traveled to Texas for work.

        1
         Because the relator and the children’s mother have the same last name, we will refer to the
children’s mother by her first name in order to avoid confusion.
        2
         These background facts are based on undisputed testimony of Hughes and Rachel from the
hearing on the plea to the jurisdiction.

                                                  2
       During this time, Rachel’s mother was the primary caregiver for the children with
       Rachel being involved with their care at times. Since leaving Kansas, I have been in
       contact with Rachel and the kids and have voiced my desire to have the kids with me
       in Texas as I am concerned for their safety due to her drug use. Rachel’s mother will
       not allow Rachel to live with her due to her drug use. She has been living with
       random people since I left Kansas and has had [L.H.] in multiple homes in the short
       time I have been in Texas. I have concerns that Rachel’s drug use and sporadic
       living conditions are not safe for my children.

       At the end of July 2010, Rachel contacted me to tell me that I could have the kids for
       a while so that she could “get clean.” She stated I could have the kids on the
       condition that I give her $200 cash. On Saturday, July 31st, I met Rachel, gave her
       $200 and brought my children back to Texas.


               Rachel was served with the initial SAPCR petition on October 29, 2010, in

Smithville, Texas. On April 18, 2011, she and Hughes jointly appeared before the trial court and

requested a final order appointing them joint managing conservators and restricting the geographic

residence of the children to Bastrop County and the contiguous counties thereto, plus Hays and

Williamson Counties. The trial court orally granted their requested relief and asked them to prepare

a draft order for the court’s signature. Sometime after this joint appearance, but before the trial

court signed the final order on May 4th, Rachel took the children and returned to Kansas. The

enforcement and modification proceeding underlying this mandamus then ensued.

               On May 23, 2011, Hughes filed a writ of habeas corpus, seeking to recover possession

of the children from Rachel and her mother, Shurtz, in Kansas. The same day, Hughes also filed a

motion for enforcement of possession or access and order to appear, request for writ of attachment,

and petition to modify parent-child relationship, requesting that the court appoint him sole managing

conservator. Upon service of these pleadings, Rachel and Shurtz returned the children to Hughes.

On June 17, 2011, Shurtz filed a response to Hughes’s enforcement action, including a plea to the

                                                 3
jurisdiction.3 Shurtz also filed a petition in intervention in the modification action filed by Hughes,

requesting that she be appointed sole managing conservator.

                On June 22, 2011, the trial court held an evidentiary hearing on Shurtz’s plea to the

jurisdiction. At the conclusion of the hearing, the trial court orally denied the plea. In this original

proceeding, Shurtz asserts that the trial court abused its discretion in denying her plea to the

jurisdiction because (1) Kansas, not Texas, had subject-matter jurisdiction under the UCCJEA to

make the initial custody determination, and accordingly, the trial court now lacks continuing,

exclusive jurisdiction to modify or enforce the order; (2) she was denied a timely opportunity to

object to the issue of subject-matter jurisdiction in the initial SAPCR proceeding because she was

not served with the initial SAPCR petition; and (3) the trial court failed to decline to exercise

jurisdiction based on Hughes’s unjustifiable conduct.


                                    STANDARD OF REVIEW

                Mandamus will issue only to correct a clear abuse of discretion or a violation of a

duty imposed by law when there is no other remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.

1992). Subject-matter jurisdiction is essential to the authority of a court to decide a case; it is never

presumed and cannot be waived. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440,

442-44 (Tex. 1993). Subject-matter jurisdiction in this case is predicated upon the UCCJEA. A writ

of mandamus is an appropriate means to require a trial court to comply with the UCCJEA’s

jurisdictional requirements. Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005).


        3
         Rachel filed a counter-petition to Hughes’s petition to modify parent-child relationship,
requesting the court appoint them joint managing conservators without geographic restriction.


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

denying Shurtz’s plea to the jurisdiction. A trial court abuses its discretion if it fails to analyze or

apply the law correctly. Walker, 827 S.W.2d at 840. Construction of the UCCJEA’s jurisdiction as

codified in the Texas Family Code is a question of law that we review de novo. Powell, 165 S.W.3d

at 324-25. Also, whether a court has subject-matter jurisdiction is a question of law that we review

de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004).

                A collateral attack, unlike a direct appeal, is “an attempt to avoid the effect of a

judgment in a proceeding brought for some other purpose.” Kendall v. Kendall, 340 S.W.3d 483,

503 (Tex. App.—Houston [1st Dist.] 2011, no pet.). If a court lacks subject-matter jurisdiction

to render a judgment, the judgment is void and subject to collateral attack. Browning v. Prostok,

165 S.W.3d 336, 346 (Tex. 2005). In the present modification and enforcement proceedings, Shurtz

is collaterally attacking the trial court’s initial custody determination because she asserts that the trial

court lacked subject-matter jurisdiction to enter the initial custody orders.

                When reviewing a collateral attack, we presume that the judgment under attack

is valid. Stewart v. USA Custom Paint & Body Shop, 870 S.W.2d 18, 20 (Tex. 1994). If the record

in the underlying cause does not negate the existence of facts authorizing the court to render

the judgment, the law conclusively presumes that such facts were established before the court

when such judgment was rendered. White v. White, 179 S.W.2d 503, 506 (Tex. 1944); see also

Alfonso v. Skadden, 251 S.W.3d 52, 54 (Tex. 2008) (holding that presumption supporting judgments

does not apply when record affirmatively reveals jurisdictional defect). Accordingly, our review

is limited to determining whether the record in the initial custody determination affirmatively



                                                     5
and conclusively negates the existence of jurisdiction. In re K.M.P., 323 S.W.3d 601, 603 (Tex.

App.—Austin 2010, pet. denied). We consider only the face of the record and do not presume that

something omitted from the clerk’s record might have supported jurisdiction when the record in the

underlying proceeding establishes otherwise. Alfonso, 251 S.W.3d at 55 (“We disagree with the

court of appeals that it should have presumed something that the record in the underlying proceeding

repeatedly showed was not true.”).


                                           DISCUSSION

               Under the UCCJEA, as codified in the Texas Family Code, a court that makes an

initial custody determination generally retains exclusive jurisdiction over that determination,

including any action to modify or enforce its terms. Tex. Fam. Code Ann. § 152.202 (West 2008).

A trial court has subject-matter jurisdiction to make an initial custody determination only if the

requirements of section 152.201of the family code are met. Id. § 152.201 (West 2008). However,

section 152.201 provides and prioritizes several bases for establishing subject-matter jurisdiction.

Powell, 165 S.W.3d at 325. Under this prioritization, a court of the child’s home state always has

primary jurisdiction over initial custody proceedings. Id. Accordingly, we first determine whether

the record in the suit for the initial custody determination affirmatively and conclusively negates the

existence of the trial court’s home-state jurisdiction.

               A child’s home state is:


       the state in which a child lived with a parent or a person acting as a parent for at least
       six consecutive months immediately before the commencement of the 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

                                                   6
          parent. A period of temporary absence of a parent or person acting as a parent is part
          of the period.


Id. § 152.102(7) (West 2008). A Texas court has home-state jurisdiction if:


          [1] this state is the child’s home state on the date of the commencement of the
          proceeding or [2] this state was the child’s home state within six months of the
          commencement of the proceeding, and the child is absent but a parent or a person
          acting as parent continues to reside in the state.


Id. § 152.201(a)(1). “Commencement” means the filing of the first pleading in a proceeding. Id.

§ 152.102(5) (West 2008). Thus, home-state jurisdiction is based on the circumstances as they

existed on the date suit for an initial custody determination is filed. See In re K.M.P., 323 S.W.3d

at 605.

                 The SAPCR petitioner has the burden to allege facts that affirmatively show the

trial court has subject-matter jurisdiction under the UCCJEA. In re Brilliant, 86 S.W.3d 680, 684

(Tex. App.—El Paso 2002, no pet.); see also Tex. Fam. Code Ann. § 152.209 (West 2008) (requiring

each party in its initial pleading to provide trial court with information regarding children’s residence

over past five years). In his initial SAPCR petition, Hughes provides very limited information

concerning the parties’ and children’s past and current addresses. However, Hughes’s initial SAPCR

petition clearly states that he had been working and living in Kansas for the “past couple of years”

and in June 2010 traveled to Texas for work. On July 31, 2010, Hughes brought the children, who

had remained in Kansas when he left, to Texas. Thus, the initial SAPCR petition, filed on August 5,

2010, affirmatively demonstrates that the children had not lived with a parent in Texas for the

requisite six months immediately before commencement of the proceeding. Accordingly, the

                                                    7
petition affirmatively establishes that the trial court did not have home-state jurisdiction over the

initial custody proceeding.

                Hughes does not argue that the trial court had home-state jurisdiction to make the

initial custody determination. Rather, Hughes contends that the trial court had subject-matter

jurisdiction over the initial custody proceeding pursuant to one of the UCCJEA’s alternative bases for

subject-matter jurisdiction, primarily significant-connection jurisdiction under section 152.201(a)(2).

Tex. Fam. Code Ann. § 152.201(a)(2). Under the UCCJEA’s prioritization of jurisdictional bases,

a trial court lacking home-state jurisdiction may alternatively assert subject-matter jurisdiction on

the basis of significant-connection jurisdiction when (1) the child and at least one parent or person

acting as a parent have a significant connection with this state other than mere physical presence and

(2) substantial evidence is available in this state concerning the child’s care, protection, training, and

personal relationships. Id. However, this alternative basis for subject-matter jurisdiction only

applies if (1) a court of another state would not have home-state jurisdiction or (2) a court with

home-state jurisdiction has declined to exercise jurisdiction on grounds that Texas is the more

appropriate forum under section 152.207 (inconvenient forum) or section 152.208 (jurisdiction

declined by reason of conduct).4 Id.; In re K.M.P., 323 S.W.3d at 604-05; In re Barnes, 127 S.W.3d


        4
          The record from the initial custody proceeding does not contain any evidence that would
support a finding that a court of another state declined jurisdiction in favor of Texas under section
152.201(a)(2), and it would be unreasonable to presume otherwise. See In re K.M.P., 323 S.W.3d 601,
605 (Tex. App.—Austin 2010, pet. denied) (noting in collateral attack that it was not reasonable to
presume that court declined to exercise jurisdiction when there were no findings or support in record
to this effect). Hughes argues that on May 31, 2011, a state district court in Kansas declined to
exercise jurisdiction in a guardianship proceeding over G.H. initiated by Shurtz. However, the
Kansas order, entered more than three weeks after the Texas court’s initial custody orders, indicates
that the court declined jurisdiction because the Texas court had previously determined custody, not

                                                    8
843, 848 (Tex. App.—San Antonio 2003, no pet.). Consequently, before we can determine whether

the trial court could have properly asserted significant-connection jurisdiction, we must consider

whether a court of another state would have had home-state jurisdiction.

                Having asserted facts that affirmatively negate Texas as the children’s home state,

Hughes did not allege or plead any facts establishing that Kansas or some other state lacked

home-state jurisdiction. Therefore, Hughes failed to meet his burden to allege facts sufficient to

show that the trial court had subject-matter jurisdiction under any alternative basis. See In re Zavala,

No. 04-10-00835-CV, 2010 Tex. App. LEXIS 10094, at *5 (Tex. App.—San Antonio Dec. 22, 2010,

orig. proceeding) (concluding that trial court did not have subject-matter jurisdiction when petitioner

failed to establish that Ohio was not home state or had declined to exercise jurisdiction). If this were

a direct appeal of the initial custody order, our inquiry would likely end here. See id. However,

because this is a collateral attack on the initial custody determination, we must determine if the

record affirmatively and conclusively negates the existence of significant-connection jurisdiction.

See In re K.M.P., 323 S.W.3d at 603 (“We limit our review to determining whether the record

affirmatively and conclusively negates the existence of jurisdiction, not whether the court otherwise

erred in rendering its judgment.”). This includes, as a threshold matter, a determination of whether

the record affirmatively and conclusively demonstrates that a court of another state would have had

home-state jurisdiction.


because Texas was a more appropriate forum under section 152.207 or 152.208. Cf. Tex. Fam. Code
Ann. § 152.203 (West 2008) (requiring court to refrain from modifying child-custody determinations
made by courts of other states); Kan. Stat. Ann. § 38-1350 (2011) (identical UCCJEA provision
adopted by Kansas). The subsequent Kansas order is not part of the record in the underlying initial
custody determination and, accordingly, has no bearing on whether the Texas court had jurisdiction
to make the initial custody determination.

                                                   9
               In his initial SAPCR petition, Hughes stated that before coming to Texas in June 2010

he had lived in Kansas for several years and had been a primary caregiver to his children since

October 2009. Further, Hughes stated that when he left Kansas the children remained with Rachel’s

mother, with Rachel “being involved in their care at times.” Hughes remained in contact with

Rachel and the children and informed Rachel that he wanted the children with him in Texas. On July

31, 2010, he met Rachel and the children and brought the children back to Texas. The petition

clearly provides that at the time of filing Rachel was not living in Texas. Though the petition states

that Rachel is homeless, it directs service of citation on Rachel at an address in Kansas. Hughes’s

allegations establish that at the commencement of the initial custody proceeding Kansas had been

the children’s home state within the past six months and a parent continued to reside there.

Accordingly, the initial SAPCR petition affirmatively establishes that Kansas, not Texas, had

home-state jurisdiction on the date of the commencement of the proceeding. See Alfonso, 251 S.W.3d

at 53 (noting that “filing affirmatively established that Spain was [respondent’s] ‘home state’ and

Texas was not”). Because a state with home-state jurisdiction has priority under the UCCJEA, if the

allegations in the petition are conclusive, the trial court could not have asserted subject-matter

jurisdiction over the initial custody proceeding under any of the UCCJEA’s alternative bases,

including significant-connection jurisdiction.

               We now turn to the remaining record in the underlying initial custody determination

to determine whether the allegations in the initial SAPCR petition are uncontroverted, such that

the record as a whole affirmatively and conclusively reveals a jurisdictional defect. See id. at 54

(noting that court should not presume something omitted from record might have supported



                                                 10
jurisdiction when record otherwise negates jurisdiction). When entering its order on the initial

custody determination, the trial court did not make any factual findings relevant to its subject-matter

jurisdiction. The order simply states, “The Court finds that it has jurisdiction of this case and all of

the parties.” The transcript of the parties’ joint appearance on April 18, 2011, shows that no

evidence was received by the trial court regarding its jurisdiction over the case. Neither party

testified as to how long the children had lived in Texas or where the parties were residing at the

time the proceeding commenced. The only evidence received by the trial court with respect to

jurisdiction was Hughes’s testimony that he had “lived in Bastrop County for almost a year now.”

Accordingly, the allegations in Hughes’s initial SAPCR petition are uncontroverted, and thus, the

record conclusively reveals a jurisdictional defect.

                Because the record affirmatively and conclusively negates the trial court’s subject-

matter jurisdiction over the initial custody determination, the trial court lacks continuing, exclusive

jurisdiction over the current enforcement and modification proceeding. See Tex. Fam. Code Ann.

§ 152.202. The trial court erred in denying Shurtz’s plea to the jurisdiction because subject-matter

jurisdiction cannot be waived and can be raised at any time. Having determined that the trial court

lacks subject-matter jurisdiction, we do not consider the other issues raised by Shurtz in this

mandamus. We conditionally grant the petition for writ of mandamus and order the trial court to

withdraw the order in suit affecting the parent child relationship entered on May 4, 2010, and to

dismiss the pending enforcement and modification proceeding on the same within twenty days of our

opinion. If the trial court fails to comply, we will issue the writ.




                                                  11
                                           __________________________________________

                                           Diane M. Henson, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Filed: December 30, 2011




                                             12
