                                Fourth Court of Appeals
                                        San Antonio, Texas

                                                 OPINION
                                            No. 04-14-00536-CV

                                       In re Dennis J. MARTINEZ

                                    Original Mandamus Proceedings 1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: October 15, 2014

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           This original proceeding concerns a child support dispute involving two states: New York

and Texas. Relator Dennis J. Martinez filed a petition for writ of mandamus challenging the trial

court’s assumption of subject matter and personal jurisdiction. We conditionally grant mandamus

relief.

                                               BACKGROUND

           Martinez and Hannia B. Pastor married in New York in 1981. In 1995, Pastor filed a

petition for divorce in New York seeking a divorce and custody and support for the children of the

marriage, including D.E.M, who was born February 13, 1992. The parties settled and a judgment

of divorce was rendered in 1995 based on the settlement agreement. Pursuant to the settlement



1
 This proceeding arises out of Cause No. 2014-CI-08209, styled In the Interest of D.E.M., a Child, pending in the
57th Judicial District Court, Bexar County, Texas, the Honorable Janet P. Littlejohn presiding.
                                                                                     04-14-00536-CV


agreement, as incorporated in the decree of divorce, Martinez was obligated to provide child

support for D.E.M. until she was emancipated. The parties’ settlement and the divorce decree

provided D.E.M. would become emancipated when she reached the age of twenty-one or

completed four years of college, whichever came last, but in no event past the age of twenty-two.

       In 1998, D.E.M. was in an automobile accident and as a result of the accident “became

pretty much quadriplegic.” In 2006, Pastor approached Martinez about moving to Texas with

D.E.M. According to Martinez’s affidavit, Pastor wanted to move D.E.M. to Texas because of the

warmer climate, which would be better for the child’s health. Martinez said that because Pastor

represented that the move was for the child’s health and well-being, he agreed to modify their prior

settlement agreement to allow Pastor to take D.E.M. to Texas.

       Pastor ultimately moved to Texas with D.E.M. Since the move, Martinez has visited

D.E.M. in Texas three times. According to Martinez, two of the visits to Texas came about because

Pastor failed to bring D.E.M. to New York. The last visit was for D.E.M.’s “graduation celebration

party.” Martinez denied discussing child support with Pastor during any visit to Texas.

       Shortly before D.E.M.’s twenty-first birthday, Pastor filed a petition in New York seeking

to modify the judgment of divorce with regard to child support for D.E.M. The modification

request was based on the child’s disability. However, as the parties stipulated, New York law does

not provide for support of adult disabled children. See Genther v. Genther, 579 N.Y.S.2d 707,

708–09 (N.Y. App. Div. 1992). Accordingly, in January 2013, the New York Family Court found

that Pastor “had not demonstrated sufficient changes of circumstance to warrant the relief

requested,” i.e., to extend Martinez’s child support obligation beyond that originally agreed to by

the parties and included in the divorce decree. The court found that D.E.M. would turn twenty-

one on February 13, 2013 and is not a college student. Accordingly, the court held Martinez’s

child support obligation “shall continue . . . until February 13, 2013 only.” (emphasis in the
                                                -2-
                                                                                        04-14-00536-CV


original). In addition to its findings, the New York Family Court rendered an order of dismissal

denying Pastor’s request for modification and dismissing it with prejudice.

        After failing in her attempt to obtain a modification of the child support obligation in New

York, Pastor filed in Bexar County, Texas what she designated an original petition in a suit

affecting the parent child-relationship. In the petition, Pastor sought the same relief that had been

denied her in New York — child support beyond D.E.M.’s twenty-first birthday based on her

disability status.

        In response, Martinez filed a plea to the jurisdiction, challenging the trial court’s subject

matter jurisdiction, and a special appearance, challenging the trial court’s personal jurisdiction.

After a hearing, the trial court denied both the plea to the jurisdiction and the special appearance,

seeming to accept Pastor’s contention that this was an original suit as opposed to an attempted

modification. The trial court rendered temporary orders providing for child support. Martinez

then filed this petition for writ of mandamus and request for emergency stay. We granted the

request for emergency stay, staying all proceedings in the trial court pending our determination of

the issues.

                                              ANALYSIS

        As noted above, after his ex-wife filed a petition in Texas seeking, in essence, to reinstate

and extend his child support obligation after it expired pursuant to the New York judgment,

Martinez filed a plea to the jurisdiction, asserting the trial court lacked subject matter jurisdiction,

and a special appearance, asserting the trial court lacked personal jurisdiction. In this original

proceeding, Martinez contends the trial court erred in denying both his plea and special appearance.

Because we find the issue relating to subject matter jurisdiction dispositive, we need not address

the personal jurisdiction issue.



                                                  -3-
                                                                                     04-14-00536-CV


                                       Standard of Review

       Mandamus is an extraordinary remedy that generally issues only to correct a clear abuse of

discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal.

In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005); Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992); In re Barnes, 127 S.W.3d 843, 846 (Tex. App.—San Antonio 2003, orig. proceeding).

With respect to factual matters, we must not substitute our judgment for that of the trial court.

Barnes, 127 S.W.3d at 846. However, such deference does not apply to the determination of what

the law is or applying it to the facts of a particular case. Id. A trial court abuses its discretion

when it errs in determining what the law is or in applying the law to the undisputed facts. In re

Bruce Terminix Co., 988 S.W.2d 702, 703–04 (Tex. 1998) (per curiam) (orig. proceeding); Barnes,

127 S.W.3d at 846.

       Mandamus is generally proper if a trial court acts without jurisdiction. Barnes, 127 S.W.3d

at 846 (citing In re Sw. Bell, 35 S.W.3d 602, 605 (Tex. 2000); In re Dickason, 987 S.W.2d 570,

571 (Tex. 1998)). The existence or absence of subject matter jurisdiction is a question of law we

review de novo. Barnes, 127 S.W.3d at 846. Despite the general requirement that a party seeking

relief by mandamus must establish he has no adequate remedy by appeal, such is not the case when

the trial court lacks subject matter jurisdiction. In re Office of Attorney Gen. of Tex., 264 S.W.3d

800, 805 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (holding mandamus will lie to

prevent trial court from exercising jurisdiction it does not have even if there is adequate remedy

by appeal); see In re Oates, 104 S.W.3d 571, 575 (Tex. App.—El Paso 2003, orig. proceeding)

(holding that in jurisdictional disputes arising from child custody proceedings, relator need not

demonstrate inadequacy of appellate remedy).




                                                -4-
                                                                                       04-14-00536-CV


                                             Application

       When a party seeks to modify a child support order rendered by another state, the Uniform

Interstate Family Support Act (“UIFSA”) applies. TEX. FAM. CODE ANN. § 156.408(a) (West

2014); In re Casseb, 119 S.W.3d 841, 843 (Tex. App.—San Antonio 2003, orig. proceeding)

(citing Link v. Alvarado, 929 S.W.2d 674, 676 (Tex. App.—San Antonio 1996, writ dism’d

w.o.j.)). UIFSA, which is codified in Chapter 159 of the Texas Family Code, has been adopted by

all fifty states. See TEX. FAM. CODE ANN. § 159.001–.901; Office of Attorney Gen. of Tex. v. Long,

401 S.W.3d 911, 912–13 (Tex. App.—Houston [14th Dist.] 2013, no pet.). UIFSA contains

procedural rules for establishing, modifying, and enforcing child support obligations. Long, 401

S.W.3d at 913. The rules in UIFSA were designed to “maintain a ‘one-order-at-a-time world,’

ensuring that only a single controlling support order exists and is enforced consistently among the

states.” Id. (citing Commissioner’s Official Comment to UIFSA Section 207, reprinted in

Sampson & Tindall’s Texas Family Code Annotated § 159.207 (2011 ed.)). UIFSA achieves the

goal of a single, controlling support order through the concept of “continuing, exclusive

jurisdiction.” Long, 401 S.W.3d at 913 (citing TEX. FAM. CODE ANN. §§ 155.001, 159.205–.206).

Under this concept, once a trial court with jurisdiction renders a support decree, that trial court is

the only court authorized to modify the support decree as long as it retains jurisdiction. Long, 401

S.W.3d 913 (citing TEX. FAM. CODE ANN. § 159.205).

       Under UIFSA, as codified in the Texas Family Code, the trial court that rendered the

original support decree retains continuing, exclusive jurisdiction as long as at least one person

affected by the decree — the obligor, the obligee, or the child — still resides in the rendering state,

or the parties consent “in a record or in open court” to alter jurisdiction. Id. This means courts in

other states must enforce the support decree as written unless the rendering state loses its

continuing, exclusive jurisdiction. Long, 401 S.W.3d at 913 (citing TEX. FAM. CODE ANN.
                                                 -5-
                                                                                       04-14-00536-CV


§ 159.611 (setting forth circumstances in which court may modify support order from rendering

state). It is undisputed in this case that Martinez, the original obligor under the New York support

decree, still resides in New York and there is nothing in the record to establish the parties consented

to surrender jurisdiction to the Texas courts. Accordingly, New York retains continuing, exclusive

jurisdiction. See Long, 401 S.W.3d 913.

           It is the burden of the party seeking to modify a support decree from another state to

establish the trial court’s jurisdiction pursuant to UIFSA. In re T.L., 316 S.W.3d 78, 83 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied) (citing Link, 929 S.W.2d at 676). As noted above,

the circumstances under which a court may modify a support decree from another state are found

in section 159.611 of the Family Code. See TEX. FAM. CODE ANN. § 159.611. A modification is

permitted by the non-rendering state under the circumstances set forth in section 159.611 because

under such circumstances the rendering state no longer has a sufficient interest in the modification

of its order. T.L., 316 S.W.3d at 83 (citing TEX. FAM. CODE ANN. § 159.611). Accordingly, we

turn to section 159.611 to determine if Pastor established New York no longer has a sufficient

interest in the modification of its prior support decree, i.e., whether Texas, as the responding state

under UIFSA, could go beyond mere enforcement and assume jurisdiction to modify the New

York decree. 2

           Section 159.611 of the Family Code provides a Texas court may not modify a child support

order rendered in another state unless: (1) the child, the obligor, and the obligee do not reside in

the issuing state, a non-resident petitioner seeks the modification, and the respondent is subject to

personal jurisdiction in Texas courts; or (2) Texas is the child’s residence, or a party is subject to

the personal jurisdiction of Texas courts, and all of the parties have filed consents in a record in



2
    A non-rendering state is required under UIFSA to enforce the support decree.

                                                         -6-
                                                                                      04-14-00536-CV


Texas, permitting a Texas court to modify the support decrees and assume continuing, exclusive

jurisdiction. TEX. FAM. CODE ANN. § 159.611(a), (b). As the party seeking a modification, it was

incumbent upon Pastor to establish the Texas court’s jurisdiction to modify the New York decree.

We hold Pastor did not establish the mandates that would have permitted the Texas trial court in

this case to modify the New York support decree.

       The record establishes, and it is undisputed, that Martinez still resides in New York and

Pastor, the petitioner, is a Texas resident. Thus, Pastor did not produce evidence to meet the

mandates of section 159.611(a). See id. § 159.611(a). Likewise, she did not produce evidence to

meet the mandates of the alternative provision, section 159.611(b). There is nothing in the record

to establish that Pastor, much less Martinez, filed a written consent in a record in Texas, permitting

a Texas court to modify the support decree and assume continuing, exclusive jurisdiction. See id.

§ 159.611(b). Thus, from the foregoing it appears New York retains continuing, exclusive

jurisdiction in this matter and Texas is not permitted to assume jurisdiction to modify the New

York support decree.

       Pastor attempts to avoid section 159.611, and in fact the entire UIFSA scheme, by arguing

the action she filed in the Texas trial court was an “original” action as opposed to a modification.

Pastor has two bases for this assertion. First, she contends her action was per force an original

action because the New York decree terminated pursuant to its own provisions before she filed

suit in Texas. As we set out in the background portion of this opinion, under the New York decree,

Martinez’s child support obligation ended when D.E.M. turned twenty-one on February 13, 2013,

and was not still in school. Thus, according to Pastor, there was no decree to modify. The trial

court seemed to agree with Pastor’s assertion. At the hearing, the trial court queried Martinez:

       THE COURT: How is the issuing state New York if the child turned 21 and there
       is no child support order in place in New York.


                                                 -7-
                                                                                         04-14-00536-CV


        [MARTINEZ’S COUNSEL]: There was a child support order.

        THE COURT: Was. It’s not current, is it?

        Second, Pastor contends her Texas suit was an original action because she never registered

the New York decree in Texas, and therefore her suit was an original action as opposed to a

modification. The trial court seemed to accept this position as well. The trial court asked Martinez

if the New York decree was filed as a foreign order. Admittedly, it was not, so the trial court then

asked: “Okay. So this is an original suit?” Martinez advised that Pastor attempted to file it as an

original suit, but countered that in reality it is an action to modify an existing order. The trial court

specifically stated the New York support decree could not be modified unless it was previously

filed in Texas: “[Y]ou can’t modify it unless you have filed a foreign decree and registered in the

State of Texas and then seek to modify. . . . [I]t’s not a modification then. It can’t be a

modification.”

        We disagree with both of Pastor’s contentions and reject her attempt to avoid the mandates

of UIFSA. As for her claim that her suit is an original action as opposed to a modification because

the New York support decree expired by its own terms, Pastor provided no authority for this

position and, in fact, UIFSA provides to the contrary. To begin with, as set forth above, section

159.205 provides only two ways in which a court may lose its continuing exclusive jurisdiction:

(1) the obligor, the obligee, and the child move out of the rendering state; or (2) all individuals file

written consents in Texas allowing a Texas court to assume jurisdiction and modify the other

state’s decree. TEX. FAM. CODE ANN. § 159.205. We agree with Martinez that if the Texas

Legislature had intended to provide an additional opportunity for Texas courts to gain jurisdiction

it certainly could have, but did not. See, e.g., Mid-Century Svs. Co. of Tex. v. Kidd, 997 S.W.2d

265, 273–74 (Tex. 1996) (holding that maxim of expression of one implies exclusion of another is

aid to determine legislative intent). Accordingly, despite the expiration of the New York decree
                                                  -8-
                                                                                     04-14-00536-CV


by its terms, under UIFSA, New York never lost continuing, exclusive jurisdiction over this child

support matter.

       Moreover, and as is specifically applicable here, section 159.611(c) states that a Texas

court “may not modify any aspect of a child support order, including the duration of the obligation

of support, that may not be modified under the law of the issuing state.” TEX. FAM. CODE ANN.

§ 159.611(c) (emphasis added). As Martinez points out, the rationale for this provision is

explained in the Official Comments to UIFSA:

       The 2003 amendment to Subsection (c) . . . [is] designed to eliminate scattered
       attempts to subvert a significant policy decision made when UIFSA was first
       promulgated. Prior to 1993, American case law was thoroughly in chaos over
       modification of the duration of a child-support obligation when an obligor or
       obligee moved from one state to another state and the states had different ages for
       the duration of child support.

                                            *    *    *

       From its original promulgation, UIFSA determined that the duration of a child-
       support obligation should be fixed by the controlling order. If the language was
       insufficiently specific before . . . 2003, the amendments should make this decision
       absolutely clear. The original time frame for support is not modifiable unless the
       law of the controlling State provides for modification of its duration.

Commissioner’s Official Comment to UIFSA Section 611, reprinted in Sampson & Tindall’s

Texas Family Code Annotated § 159.611 (2013 ed.) (citations omitted) (emphasis added).

Unfortunately, the Commissioner’s comment was insufficient because parties began making

arguments nearly identical to the one raised by Pastor in this case in an attempt to avoid the

duration restriction:

       Some courts have sought to subvert this policy by holding that completion of the
       obligation to support a child . . . established by the now-completed controlling order
       does not preclude the imposition of a new obligation thereafter . . . Subsection [(e)]
       is designed to eliminate these attempts to create multiple, albeit successive, support
       obligations.




                                                -9-
                                                                                       04-14-00536-CV


Id. Therefore, section 159.611(e) was enacted. Subsection (e) specifically provides that in a

modification proceeding, the law of the state that issued the original order governs the duration

of the support obligation. TEX. FAM. CODE ANN. § 159.611(e) (emphasis added). Moreover, the

obligor’s fulfillment of the duty of support established under the original order precludes the

imposition of a further obligation of support by a Texas court. Id.

       Accordingly, based on subsections (c) and (e) and the comments thereto, the trial court in

this case could not modify the duration of the New York decree to impose a further support

obligation upon Martinez or create a new obligation based on D.E.M.’s disability. The duration

of the New York support decree is governed by New York law, which the parties stipulated does

not provide for support of adult disabled children. See Genther, 579 N.Y.S.2d at 708–09. Hence,

the New York court’s decision to reject Pastor’s modification attempt.

       Moreover, Texas law mandates a finding that New York retains exclusive controlling

jurisdiction and Pastor’s suit had to be filed as a modification of the New York decree. Pastor’s

suit was brought pursuant to Chapter 154, Subchapter F of the Family Code, which governs support

obligations for minor or adult disabled children. See TEX. FAM. CODE ANN. §§ 154.301-.309.

Section 154.309(c) specifically states that a court that obtains continuing, exclusive jurisdiction of

a suit affecting the parent-child relationship involving a disabled person who is a child, retains its

continuing exclusive jurisdiction even after the child becomes an adult.            Id. § 154.309(c).

Additionally, section 154.305 specifically states that a suit for child support for a disabled child or

adult may be filed as an original suit only if “no court has continuing, exclusive jurisdiction of the

child.” Id. § 154.305(b). However, if a court already has continuing, exclusive jurisdiction of the

child, the suit may be filed as a modification of the support obligation. Id. § 154.305(b). Thus,

based on Subchapter F, Pastor’s Texas filing could not be an original suit because as we have

determined, the New York court retained continuing, exclusive jurisdiction of D.E.M.’s support.
                                                 - 10 -
                                                                                      04-14-00536-CV


       As for Pastor’s argument that her Texas suit constitutes an original action as opposed to a

modification because she never registered the New York decree in Texas, we hold this lacks merit

as well. This contention defies the policies underlying UIFSA. If Pastor is correct, any party could

circumvent the modification rules under UIFSA by simply refusing to register the foreign support

order and filing an “original” action. This does not comport with the purpose of UIFSA, which is

to “maintain a ‘one-order-at-a-time world,’ ensuring that only a single controlling support order

exists and is enforced consistently among the states.”         Long, 401 S.W.3d at 913 (citing

Commissioner’s Official Comment to UIFSA Section 207, reprinted in Sampson & Tindall’s

Texas Family Code Annotated § 159.207 (2011 ed.)). Thus, the trial court’s focus on whether or

not the New York decree has been registered is misplaced. The only relevant factor in determining

whether Pastor’s action was an original suit or a modification is the existence or absence of a prior

controlling support order. See TEX. FAM. CODE ANN. § 159.207(a) (stating that if only one tribunal

has issued child support order, order of that tribunal controls and must be recognized). It is

undisputed that such an order existed in this case — the New York decree. Accordingly, the

absence of registration does not convert Pastor’s obvious attempt to modify a pre-existing, foreign

order into an original action.

                                           CONCLUSION

       Based on the foregoing analysis, as to the trial court’s subject matter jurisdiction in this

matter, we hold New York rendered the controlling order and retained continuing, exclusive

jurisdiction over Martinez’s support obligation to D.E.M. As such, it was incumbent upon Pastor

to establish New York no longer has a sufficient interest in the modification of its prior order by

proving one of the provisions in section 159.611. See T.L., 316 S.W.3d at 83 (citing TEX. FAM.

CODE ANN. § 159.611). Pastor did not meet this burden, and her claim that she was not required



                                                - 11 -
                                                                                       04-14-00536-CV


to establish a lack of interest by New York because her action was an original suit as opposed to a

modification is without merit.

       Although we are sympathetic to Pastor’s attempt to obtain support for her disabled child,

we are bound by the statutory mandates of UIFSA. We hold the trial court lacked subject matter

jurisdiction over this action and the trial court erred in denying Martinez’s plea to the jurisdiction.

Given our disposition of the subject matter jurisdiction issue, we need not consider Martinez’s

issue relating to personal jurisdiction.

       Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial

court to render an order granting Martinez’s plea to the jurisdiction and vacate its prior temporary

orders. The writ will issue only if the trial court fails to render an order granting Martinez’s plea

and vacating its temporary orders as directed within ten days from the date of this court’s order.

The temporary stay previously granted by this court will remain in effect until the trial court

renders an order granting the plea to the jurisdiction and vacating its temporary orders.


                                                    Marialyn Barnard, Justice




                                                 - 12 -
