            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-01-00647-CV



                                       Thomas Retzlaff, Appellant

                                                      v.

                                       Monica Courteau, Appellee




            FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
                 NO. 162,752-C, HONORABLE RICK MORRIS, JUDGE PRESIDING




                 At issue in this child-custody case, is the district court=s order holding that the State of

Texas was an inconvenient forum for determining the best interest of the child, L.C., and declining

jurisdiction over L.C. in favor of a court in the State of New York. The New York court, in an order

transmitted to the Texas district court, assumed jurisdiction over L.C. and all issues related to her custody.

Accordingly, the Texas district court dismissed its proceedings related to L.C.1 Thomas Retzlaff, an inmate,

appeals pro se and in forma pauperis, and contends that the district court abused its discretion in ruling

that Texas was an inconvenient forum for determining the best interest of L.C. and declining to exercise

jurisdiction over the child. We will affirm the district court=s order declining jurisdiction over L.C. and

dismissing the case.


        1
           Additionally, the district court severed other actions pending against other parties and transferred
those actions into a new cause.
                                               Background

                 L.C. was born in 1995 to Laura who at the time was living with Kenneth Courteau. 2 In

December 1996, Laura and Kenneth were involved in a car accident. Laura was killed; Kenneth was

seriously injured and remained in a coma for some time. Shortly after the accident, Kenneth=s parents,

Roger and Monica Courteau, came to Texas from New York to care for Kenneth and L.C. While in

Texas, the Courteaus filed suit seeking to be named L.C.=s managing conservators. Kenneth was the

named respondent. Martin and Gloria Lopez, Laura=s father and stepmother, intervened also seeking to be

named L.C.=s managing conservators.3 Finally, Retzlaff intervened in the suit, contending that he was L.C.=s

biological father and seeking conservatorship of the child. At some point in 1997, the Courteaus, Kenneth,

and L.C. moved from Texas to New York to be near family. 4


        2
          L.C.=s mother is identified in court records as ALaura Courteau@ and ALaura Anel Ellison.@
Because it is unclear what Laura=s last name was, we will use her first name. Whether a common-law
marriage existed is not addressed or established in the record.
        3
           The record reflects that the district court allowed the Lopezes= attorney to withdraw from the case
in May 1999. The record further reflects that despite their attorney=s withdrawal from the case, the
Lopezes, as parties, continued to be notified of pleadings and court actions. The Lopezes, however, have
not participated in any court proceedings since May 1999.
        4
            Roger Courteau, Kenneth=s father, died in 1998.




                                                      2
                 For additional background on this custody dispute, we refer to our previous opinion. See

Retzlaff v. Courteau, No. 03-00-00321-CV, 2001 Tex. App. LEXIS 1258 (Tex. App.CAustin Feb. 28,

2001, no pet.) (not released for publication). In the previous opinion, we reversed the district court=s

dismissal of all trial-court proceedings. In that case, this Court determined that because Retzlaff proved that

he did not timely learn of the district court=s dismissal, the district court abused its discretion in declining to

reinstate Retzlaff=s pleadings absent a showing that it considered other options. Id. In the previous opinion,

we noted specifically that Athe circumstances of [L.C.=s] domicile and conservatorship may have changed

during the pendency of this appeal, affecting Retzlaff=s ability to proceed with this suit as pled in Bell County.

. . . This suit is subject on remand to those potentially changed circumstances.@

                 Indeed, since this Court=s previous opinion, circumstances related to L.C. and the parties

have changed. In March 2001, Kenneth commenced a paternity and child custody proceeding in the State

of New York. Kenneth submitted as evidence to the New York court a sworn statement that he had sexual

intercourse with the deceased mother of L.C. during the possible time of her conception. Kenneth also

presented a copy of L.C.=s birth certificate identifying him as the father, along with a DNA paternity

LabCorp report reflecting a probability of 99.98% that he was L.C.=s biological father. The New York

court appointed a law guardian who recommended to the court that it would be in L.C.=s best interest for

the New York court to grant Kenneth=s requests. In May 2001, the court declared that Kenneth is L.C.=s

biological father and awarded him custody of L.C.


Retzlaff corresponds with the New York court




                                                        3
                 On July 3, 2001, the New York court received a letter from Retzlaff requesting that the

court set aside or otherwise void its order of paternity and custody. Retzlaff informed the New York court

that in January 1997, a child custody proceeding was commenced in Texas and that, as a result, the State of

Texas had exclusive jurisdiction over L.C. pursuant to the Uniform Child Custody Jurisdiction Act

(AUCCJA@) and the Federal Parental Kidnapping Prevention Act (APKPA@). Therefore, he asserted that

the New York court was acting without jurisdiction.

                 In light of Retzlaff=s assertions, the New York court appointed another law guardian to

investigate any matters pending in the Texas courts and sent letters to the Texas district court and to Retzlaff

notifying them of the court=s action. Retzlaff responded by letter to the New York court and law guardian

on July 10. The New York court found that in his letter Retzlaff made it clear that his interest in L.C. was to

exact a monetary settlement from the Courteaus by persisting in litigation. In his letter to the law guardian

and the New York court, Retzlaff emphasized that he was Anot going away anytime soon@ and that he

would Acontinue litigating this case, using every legal means at [his] disposal.@ Also in the letter, Retzlaff

stated that he hoped the law guardian Amight help facilitate a fair settlement.@ In another letter to the New

York court and the law guardian on July 27, Retzlaff moved that the paternity suit be reopened because the

proceeding in Texas was not a paternity action, that A[his] paternity had already been established as a matter

of law via Kenneth Courteau=s [deemed] admissions in which he admitted that he is not this child=s father,

and also via the child=s mother=s Affidavit of Paternity which is equivalent to a judicial determination pursuant

to Tex. Fam. Code ' 160.205(a).@ The New York court responded with letters to Retzlaff and the Texas

district court instructing Retzlaff that if he is the legal father of L.C. under Texas law, it was his responsibility


                                                         4
to forward a certified copy of any document evidencing his status to the New York court by August 28.

The New York court informed Retzlaff that these documents were necessary for the court to determine

whether he was a necessary party to the paternity action and whether he had standing to challenge the New

York court=s exercise of jurisdiction.

Texas proceedings

                On May 4, 2001, Monica Courteau, who was a party in the underlying district court

proceeding, moved to transfer the child custody portion of the Texas case to New York, contending that

L.C. had resided in New York for more than two years and that all evidence regarding the child=s best

interest was located in New York.

                In June 2001, Retzlaff filed a second amended suit in intervention in Texas requesting that he

be declared L.C.=s biological father and that he be named the child=s sole managing conservator. Monica

responded and moved to strike Retzlaff=s second intervention on the basis that the New York court had

jurisdiction over L.C., that the New York court had adjudicated Kenneth to be the biological father of L.C.

such that the child=s paternity was res judicata, and that the New York order disposed of any issues

Retzlaff might have regarding the child. Retzlaff responded and the Texas district court held a hearing on

August 16.5 At the hearing, the district court addressed various pending motions, but focused primarily on

Monica=s motion to transfer, which urged that Texas was an inconvenient forum for determining what was in

L.C.=s best interest and that the New York court was a more convenient forum. At the conclusion of the


        5
         The ad litem attorney for L.C. and Monica=s attorney appeared at the hearing while Retzlaff
appeared via telephone conference.


                                                     5
hearing, the court rendered an order from the bench that Texas would decline jurisdiction over L.C., and

that all further proceedings in Texas regarding the child were stayed pending confirmation that the New

York court would assume jurisdiction.

                 On August 31, 2001, the Texas district court signed a written order concluding that New

York is L.C.=s home state and has a closer connection than Texas with the child who is living there with her

father and grandmother; the court also concluded that evidence concerning L.C.=s welfare is more readily

available in New York, and a New York court can best decide what is in L.C.=s best interest, while Texas

is an inconvenient forum to make that determination. Further, the district court declined jurisdiction

regarding custody of L.C., stayed all proceedings in Texas until the New York court agreed to assume

jurisdiction, and announced that once the New York court assumed jurisdiction, the case pending in Texas

would be dismissed. The district court also severed all other actions pending against Monica and Kenneth

into a separate cause. The district court rendered findings of fact and conclusions of law related to the

portion of its order declining jurisdiction.


New York order

                 On August 28, 2001, at a court appearance, the law guardian reported to the New York

court that despite Retzlaff=s claim that an Aaffidavit of paternity@ existed, Texas court officials were unable to

produce any such document from Retzlaff=s files. The law guardian also informed the court that Retzlaff had

failed to produce such a document and was now claiming that Texas court officials had lost this crucial

document. Retzlaff informed the law guardian by letter that $5000 was his price for discontinuing his claims

against the Courteaus and agreeing to have no further contact with the Courteau family.

                                                        6
                On August 29, the New York court determined that it would continue to exercise

jurisdiction over L.C. The court=s order and decision outlined the Texas court=s findings that New York

was the child=s home state and that New York, rather than Texas, was best suited to determine what was in

L.C.=s best interest. The order provided that the Texas court=s findings were consistent with New York law

and that the New York court agreed with the Texas court=s findings. The remaining issue for the New York

court was whether its exercise of jurisdiction over L.C. was consistent with the PKPA. See 28 U.S.C.A.

' 1738A. The court determined that any issue of whether New York could exercise jurisdiction over

custody of L.C. consistent with the PKPA was resolved when the Texas court declined jurisdiction over the

child. The New York court transmitted a copy of its order to the Bell County District Court. Finally, the

court denied Retzlaff=s motion for rehearing Awithout prejudice to [Retzlaff=s] right to initiate appropriate

proceedings in Erie County Family Court by the filing of a sufficient petition.@


Texas dismissal

                On August 31, 2001, the Texas district court dismissed the underlying cause, noting that the

New York court had assumed jurisdiction over L.C. Retzlaff raises three issues in this appeal. He

contends that the district court (1) abused its discretion in ruling that Texas was an inconvenient forum to

determine the best interest of L.C.; (2) erred in admitting testimony from L.C.=s attorney ad litem over

Retzlaff=s objections; and (3) erred in denying his motion for new trial.


                               Uniform Child Custody Jurisdiction Act




                                                     7
                 Because this custody case commenced in 1997 and was pending on September 1, 1999,

the issues before us are governed by the former Texas version of the UCCJA. See Act of April 22, 1999,

76th Leg., R.S., ch. 34, ' 2, 1999 Tex. Gen. Laws 70; Act of April 6, 1995, 74th Leg., R.S., ch. 20, ' 1,

1995 Tex. Gen. Laws 140-46 (formerly Tex. Fam. Code Ann. '' 152.001-.025, since repealed).6

                 A Texas court with jurisdiction to make a child custody determination may, sua sponte, on

a motion of a party or guardian ad litem, or on a motion of any other representative of the child, decline to

exercise its jurisdiction at any time before rendering a decree if it finds that it is an inconvenient forum to

make a custody determination under the circumstances of the case and that a court of another state is a

more appropriate forum. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws

143-44, (formerly Tex. Fam. Code Ann. ' 152.007 (a),(b), since repealed). For convenience we refer to

this governing section as Aformer section 152.007.@ In determining whether it is an inconvenient forum, the

court shall consider whether it is in the best interest of the child that another state assume jurisdiction.

Former ' 152.007(c). The court may consider, among other factors, whether (1) another state is the child=s

home state; (2) another state has a closer connection with the child and the child=s family or with the child

and one or more of the contestants; (3) substantial evidence concerning the child=s present or future care,

protection, training, and personal relationships is more readily available in another state; (4) the parties have


        6
         In 1999, Texas adopted the Uniform Child Custody Jurisdiction Enforcement Act (AUCCJEA@)
which replaced the UCCJA. See Act of April 22, 1999, 76th Leg., R.S., ch. 34, ' 1, 1999 Tex. Gen.
Laws 52-70 (UCCJEA is set out in Texas Family Code Ann. '' 152.001-.317 (West 2002)).




                                                       8
agreed on another forum that is no less appropriate; and (5) the exercise of jurisdiction would contravene

any of the stated purposes of the UCCJA. Id. Before determining whether to decline or retain jurisdiction,

the court may communicate with a court of another state and exchange information pertinent to the

assumption of jurisdiction by either court with a view to ensuring that jurisdiction will be exercised by the

more appropriate court. Id. ' 152.007(d).

                Also relevant to the issue is the UCCJA provision requiring that when a Texas court is

informed, during the pendency of a custody proceeding, that a proceeding concerning custody of the same

child is pending in another state, before assuming jurisdiction, the Texas court shall stay the proceeding and

communicate with the other court to the end that the custody issue may be litigated in the more appropriate

forum. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 142 (formerly Tex.

Fam Code Ann. ' 152.006 (c), since repealed). Further, if a Texas court is informed that a custody

proceeding was commenced in another state after the Texas court assumed jurisdiction, it shall likewise

inform the other court to the end that the custody issues may be litigated in the more appropriate forum. Id.


                                                Discussion

Inconvenient forum

                All of Retzlaff=s contentions center around his complaint that the district court abused its

discretion in ruling that Texas was an inconvenient forum to determine custody issues regarding L.C. and

that the New York court was a more appropriate forum to determine what was in her best interest. The

district court=s determination will not be disturbed on appeal absent an abuse of discretion. See Coots v.

Leonard, 959 S.W.2d 299, 301 (Tex. App.CEl Paso 1997, no pet.) (citing Creavin v. Moloney, 773

                                                      9
S.W.2d 698, 702 (Tex. App.CCorpus Christi 1989, writ denied)). In determining whether the Texas court

abused its discretion, we review whether the court acted without reference to any guiding rules and

principles and whether the court=s actions were arbitrary and unreasonable. Id. (citing Craddock v.

Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), Smithson v. Cessna Aircraft Co., 665

S.W.2d 439, 443 (Tex. 1984)). The fact that the trial court may decide a matter within its discretion

differently than would the appellate court does not demonstrate an abuse of discretion. Id. (citing Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).

                It was uncontested that L.C. has been living with the Courteaus in New York since 1997

and that New York is her home state. It is also undisputed that all information regarding L.C.=s current care

and all of her known family relationships exist in New York. There is nothing in the record reflecting that

any evidence exists in Texas regarding her care or her significant relationships. The only alleged connection

between L.C. and the State of Texas is Retzlaff, who continues to purport to be L.C.=s biological father,

despite a New York court order, based on paternity tests and other relevant evidence, declaring that

Kenneth is L.C.=s biological father. We must give full faith and credit to the facially valid New York

paternity order. See Villanueva v. Office of Atty. Gen., 935 S.W.2d 953, 956 (Tex. App.CSan Antonio

1996, writ denied) (citing Durfee v. Duke, 375 U.S. 106, 111 (1963)). Further, we afford the New York

paternity order naming Kenneth the biological father of L.C. the same res judicata effect it would have in

New York. Id. (citing Durfee, 375 U.S. at 109). Despite Retzlaff=s assertions, the New York court=s

order is res judicata regarding L.C.=s paternity.




                                                     10
                Among the stated goals of the UCCJA is the avoidance of jurisdictional competition and

continued relitigation of custody decisions, and the promotion of cooperation between the states to ensure

that a custody decision is rendered in the state that can better determine the best interest of the child. See

Act of April 6, 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 140 (formerly Tex. Fam Code

Ann. ' 152.001, since repealed). In this instance, the courts in Texas and New York communicated in an

exemplary fashion to meet the stated goal of the UCCJACto determine the forum best suited to review and

determine issues regarding L.C.=s custody. We hold that there was no abuse of discretion by the district

court in declining jurisdiction over L.C. in favor of the New York court. Retzlaff=s first issue is overruled.

                In his second issue, Retzlaff contends that the district court erred in admitting testimony from

Michael Gibbs, L.C.=s attorney ad litem, over objection. The admission of evidence is within the district

court=s discretion. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). To obtain

reversal of a judgment based on error in the admission of evidence, Retzlaff must show that the district

court=s ruling was in error and that the error was calculated to cause and probably did cause the rendition of

an improper judgment. See id. We hold that Retzlaff has failed to show that error, if any, in the district

court=s admission of testimony from Gibbs was calculated to cause and probably did cause the rendition of

an improper judgment. See Tex. R. Evid. 103; Tex. R. App. P. 44.1. Retzlaff=s second issue is overruled.

                Finally, Retzlaff contends that the district court erred in overruling his motion for new trial.7

In his motion for new trial, Retzlaff contended that the court=s findings of fact and conclusions of law were


        7
           The clerk=s record reflects that the district court set a hearing on the motion for November 1,
2001, and that notices were sent to all parties, return receipt requested. The district court=s docket sheet
reflects that on November 1, the court called the case, no one appeared, the court reviewed the file, and

                                                      11
unsupported by the evidence and that the district court abused its discretion in declining jurisdiction. Having

determined that the district court did not abuse its discretion in declining jurisdiction over L.C. in favor of a

New York court, we overrule Retzlaff=s third issue.

                 We affirm the district court=s order declining jurisdiction over L.C. and dismissing the case.




                                                    Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: October 24, 2002

Do Not Publish




overruled the motion for new trial.


                                                      12
