Affirmed and Opinion filed November 18, 2014.




                                            In the

                       Fourteenth Court of Appeals

                                   NO. 14-13-01063-CV

                     IN THE INTEREST OF S.A.H., A CHILD


                      On Appeal from the 245th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2006-75715

                                      OPINION


       In this appeal arising from an original suit affecting the parent-child
relationship (SAPCR), 1 a mother challenges the trial court’s order granting an
alleged father’s petition to declare an agreed order adjudicating parentage void and
voiding such order based on a lack of subject-matter jurisdiction. We affirm.



       1
         A SAPCR is defined under the Texas Family Code as a suit “in which the appointment
of a managing conservator or a possessory conservator, access to or support of a child, or
establishment or termination of the parent-child relationship is requested.” Tex. Fam. Code Ann.
§ 101.032(a) (West 2014).
                 I.       FACTUAL AND PROCEDURAL BACKGROUND

       The child at issue, S.A.H., was born on September 23, 2001, in Monterrey,
Nuevo Leon, Mexico. The child’s mother, appellant Mirna Leticia Alcantar, filed
an original petition to adjudicate parentage on November 29, 2006. The petition
stated that the child resided in Mexico; the alleged father was appellee Nicolas
Froylan Perez, who could be served in Houston, Harris County, Texas; and the
purpose of the suit was to establish the parent-child relationship between Perez and
S.A.H.     Alcantar alleged that S.A.H. had no presumed, acknowledged, or
adjudicated father. In addition to requesting genetic testing of Perez, Alcantar also
requested that she be appointed as joint managing conservator and that Perez pay
child support, including health care expenses. Alcantar attached as an exhibit an
affidavit for UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act)
Information, 2 in which she averred that S.A.H. presently lived at an address in
Monterrey, Nuevo Leon, Mexico; S.A.H. had lived at this address with Alcantar
and the child’s maternal grandfather since June 2004; from January 1, 2004 to June
2004, S.A.H. lived at the same address in Monterrey, Nuevo Leon, Mexico, with
Alcantar and both maternal grandparents prior to the grandmother’s death; and
from “September 23, 2003 [sic], the date of the child’s birth, until December 31,
2003,” SAH lived at another address in Monterrey, Nuevo Leon, Mexico, with
Alcantar and both maternal grandparents. Perez answered, denying paternity and
requesting that Alcantar pay for the genetic testing. Perez denied having any
knowledge of the whereabouts or existence of then five-year-old S.A.H.

       On September 28, 2007, the trial court signed an agreed order adjudicating
parentage (the “2007 order”). In addition to adjudicating that Perez is the father of
       2
          See Tex. Fam. Code Ann. § 152.209 (West 2014) (requiring each party in its initial
pleading or by affidavit to provide trial court with information regarding child’s residence over
past five years).

                                               2
S.A.H., the court in the 2007 order also adjudicated conservatorship, possession
and access, child support, and health care expenses. 3 With regard to jurisdiction,
the trial court found that “it has jurisdiction of this case and of all of the parties.”
The court noted that the parties waived making a record of testimony. In the 2007
order, the trial court found that S.A.H.’s country of residence is Mexico, and
included information indicating Alcantar’s residence and work addresses were
located in Monterrey, Nuevo Leon, Mexico, while Perez’s residence and work
addresses were located in Houston, Texas.

       On July 16, 2012, Alcantar filed a petition to modify parent-child
relationship 4 and a motion for enforcement of child support order and order to
appear. Perez answered Alcantar’s petition and motion.

       On November 17, 2012, Perez filed a petition to declare the 2007 order void.
Perez argued that the trial court lacked subject-matter jurisdiction to make orders
regarding conservatorship and child support because neither S.A.H. nor Alcantar
has ever lived in Harris County or Texas. Alcantar responded, arguing that Perez’s
petition was an impermissible collateral attack. The trial court held an evidentiary
hearing; no record was requested or made. On November 13, 2013, the trial court
signed an order granting Perez’s petition to declare order void and declaring the
2007 order to be void (the “2013 order”). Alcantar timely appealed.

                                   II.        ANALYSIS

       Alcantar presents two issues for this court’s review. First, whether the 2007
order is void on its face, and second, whether Perez has overcome the presumption


       3
          As part of child support, the trial court ordered that Perez apply for and obtain legal
resident status and citizenship for S.A.H.
       4
          Essentially, Alcantar requested an increase in child support due to S.A.H’s physical
disability.

                                               3
that judgments are supported by jurisdictional facts established at the time the
cause was tried. Both of these issues implicate whether the trial court erred in
declaring the 2007 order void; therefore, we consider them together.

       Subject-matter jurisdiction is essential to a court’s power to decide a case.
City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam). Subject-
matter jurisdiction cannot be conferred by consent, estoppel or waiver. Waite v.
Waite, 150 S.W.3d 797, 800 (Tex. App.—Houston [14th Dist.] 2004, pet. denied);
see Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex.
1993). Subject-matter jurisdiction can be raised at any time. Alfonso v. Skadden,
251 S.W.3d 52, 55 (Tex. 2008) (per curiam). Whether a trial court has subject-
matter jurisdiction is a question of law we review de novo. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); In re K.Y., 273 S.W.3d
703, 706 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see Powell v. Stover,
165 S.W.3d 322, 324–25 (Tex. 2005) (orig. proceeding) (UCCJEA’s “home state”
jurisdictional requirement is question of law).

       A trial court’s prior judgment is void and subject to collateral attack if the
record affirmatively demonstrates that the court lacked subject-matter jurisdiction
over the suit. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex. 2012).
Although a judgment attacked collaterally, i.e., after the time to bring a direct
attack has expired, is presumed valid, this presumption disappears when the record
establishes a jurisdictional defect.5 Id. We may look beyond the face of the

       5
          There appears to be some inconsistency among Texas cases as to whether a court
entertaining a collateral attack may ever base its decision on evidence or matters that were not
part of the record before the court when it rendered the judgment under collateral attack and, if
so, under what circumstances it is appropriate to base the ruling in a collateral attack upon such
evidence or matters. See PNS Stores, 379 S.W.3d at 273–75 & n.13; York v. State, 373 S.W.3d
32, 41–42 (Tex. 2012); Alfonso, 251 S.W.3d at 55; Bandy v. First State Bank, Overton, Tex., 835
S.W.2d 609, 614–15 (Tex. 1992); White v. White, 179 S.W.2d 503, 506 (Tex. 1944); Templeton
v. Ferguson, 33 S.W. 329, 332–33 (Tex. 1895); Crawford v. McDonald, 33 S.W. 325, 328 (Tex.
                                                4
judgment at issue to determine whether the record affirmatively demonstrates that
the trial court lacked subject-matter jurisdiction.6 Id. A collateral attack may be
brought against a void judgment “at any time.” Id. at 272. Moreover, a trial court
retains jurisdiction to vacate void orders or judgments. See Alfonso, 251 S.W.3d at
55; Metro. Transit Auth. v. Jackson, 212 S.W.3d 797, 802 (Tex. App.—Houston
[1st Dist.] 2006, pet. denied).

       A trial court’s subject-matter jurisdiction over an initial child custody suit is
governed by section 152.201 of the Texas Family Code. Tex. Fam. Code Ann.
§ 152.201(a) (West 2014). Under the UCCJEA, a Texas state court has subject-
matter jurisdiction to make an initial child custody determination only if one of the
following four bases of jurisdiction applies:

       (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;

1895). We need not address this issue in today’s case because the record before the trial court
when it rendered the 2007 order is sufficient to affirmatively demonstrate that the trial court
lacked subject-matter jurisdiction. Thus, we need not and do not rely on matters that were not
before the trial court when it rendered the 2007 order.
       6
         Alcantar’s argument that this court is limited to the face of the 2007 order is contrary to
binding precedent from the Supreme Court of Texas. See PNS Stores, 379 S.W.3d at 273.

                                                 5
      (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).

Id. Section 152.201(a) is the exclusive jurisdictional basis for a Texas court to
make a child custody determination. Id. § 152.201(b). The UCCJEA prioritizes
“home state” jurisdiction. See id. § 152.201(a)(1); In re Dean, 393 S.W.3d 741,
746 (Tex. 2012) (orig. proceeding); Powell, 165 S.W.3d at 325; Parker v. Dennis,
No. 14-12-00085-CV, 2013 WL 5346417, at *2 (Tex. App.—Houston [14th Dist.]
Aug. 27, 2013, no pet.) (mem. op.). “Commencement” means the filing of the first
pleading in a proceeding. Tex. Fam. Code Ann. § 152.102(5) (West 2014). The
term “home state” means:

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

Id. § 152.102(7).

      In determining where a child lived for purposes of establishing home state
jurisdiction, courts focus on the child’s “physical presence” in a state, not the legal
residency of the child’s parents. Powell, 165 S.W.3d at 326–28. For purposes of
applying the UCCJEA, a foreign country is to be treated as if it were a state of the
United States. Tex. Fam. Code Ann. § 152.105(a) (West 2014). “[T]he operative
date for determining whether Texas has jurisdiction is the date the suit was filed in
Texas.” In re Walker, 428 S.W.3d 212, 219 (Tex. App.—Houston [1st Dist.] 2014,

                                          6
orig. proceeding) (internal quotation marks omitted). Because this case involves
an initial child custody determination, and home-state jurisdiction has priority, the
question presented is whether, on the date the proceeding was commenced, Texas
was S.A.H.’s home state. See Tex. Fam. Code Ann. § 152.102(8); Powell, 165
S.W.3d at 325.

         The SAPCR petitioner has the burden to allege facts establishing the trial
court’s subject-matter jurisdiction under the UCCJEA. See Barabarawi v. Rayyan,
406 S.W.3d 767, 773 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Barajas v.
Santiago, No. 01-10-00914-CV, 2012 WL 760921, at *3 (Tex. App.—Houston
[1st Dist.] Mar. 8, 2012, no pet.) (mem. op.).

         Alcantar is correct the 2007 order recites that the trial court has jurisdiction
of this case and of all the parties. Alcantar is also correct that the 2007 order does
not state anything about where S.A.H. lived at the time of the commencement of
the proceeding, only that S.A.H. resided in Mexico as of the signing of the 2007
order.     However, Alcantar’s original petition, including her affidavit attached
thereto, affirmatively demonstrates that S.A.H.’s only home state from birth
through the filing date of Alcantar’s original petition was Mexico. This petition
showed that Texas was neither S.A.H.’s home state on the date of the
commencement of the proceeding, nor S.A.H.’s home state within six months
before the commencement of the proceeding. In addition, in her affidavit, Alcantar
testified that: (1) she had not participated, as a party or as a witness or in any other
capacity, in any other proceeding concerning the custody of or visitation with
S.A.H. in Texas or any other state; and (2) she did not know of any proceeding that
could affect this proceeding, including proceedings for enforcement and
proceedings relating to domestic violence, protective orders, termination of
parental rights, and adoptions. Under Alcantar’s petition, there was no case in

                                             7
which a Mexican court declined to exercise jurisdiction on the ground that a Texas
court is the more appropriate forum to determine the custody of S.A.H. under
Texas Family Code section 152.207 or 152.208. Therefore, the trial court did not
have subject-matter jurisdiction under any of the four subsections of Texas Family
Code section 152.201(a). See Tex. Fam. Code Ann. § 152.201(a); Parker, 2013
WL 5346417, at *2. 7

      The 2007 order is an agreed order signed by counsel for both Alcantar and
Perez, and the order reflects that both parties requested rendition of the order. The
2007 order indicates that Mexico was S.A.H.’s home state when the trial court
rendered that order. Alcantar’s original petition affirmatively demonstrates that the
trial court lacked subject-matter jurisdiction when the trial court rendered the 2007
order. Though the 2007 order reflects that the trial court considered unspecified
evidence and that the parties waived the making of a record of this evidence, under
these circumstances, it would not be reasonable to presume the evidence
considered by the trial court showed that the trial court had subject-matter
jurisdiction to enter the custody provisions in the 2007 order. See Alfonso, 251
S.W.3d at 53–55.

          Even indulging every reasonable presumption in favor of the trial court’s
having had subject-matter jurisdiction over Alcantar’s petition, the record
affirmatively demonstrates that the trial court lacked subject-matter jurisdiction to
make an initial child custody determination. See Parker, 2013 WL 5346417, at
*2–3 (affirming order setting aside and declaring void ab initio child custody
default judgment where record before trial court at time of judgment affirmatively
showed that trial court lacked subject-matter jurisdiction to make initial child
      7
         Moreover, the record does not indicate S.A.H. ever lived in Texas, much less that
S.A.H. established “significant connection jurisdiction” in Texas. See Tex. Fam. Code Ann.
§ 152.201(a)(2); Barabarawi, 406 S.W.3d at 772–73.

                                            8
custody determination). 8

       Accordingly, insofar as the trial court lacked subject-matter jurisdiction over
the child custody issues in Alcantar’s suit, the court did not err in granting Perez’s
petition to declare the 2007 order void and declaring that order void. See id. at *3;
Okonwo v. Okonwo, 365 S.W.3d 801, 803 (Tex. App.—San Antonio 2012, no
pet.).9 We overrule Alcantar’s first and second issues.

                                 III.        CONCLUSION

       We affirm the 2013 order.


                                                     /s/    Marc W. Brown
                                                            Justice

Panel consists of Chief Justice Frost, and Justices Donovan and Brown.




       8
         To the extent that Alcantar also invokes the Uniform Interstate Family Support Act
(UIFSA), chapter 159 of the Texas Family Code, the UIFSA is inapplicable to the jurisdictional
issue before this court because section 152.201(a) provides the exclusive jurisdictional basis for
making a child custody determination by a Texas court. See Tex. Fam. Code Ann. § 152.201(b);
Barajas, 2012 WL 760921, at *3.
       9
          On appeal, Alcantar does not raise any issue or brief any argument that the trial court
erred in declaring only a portion of the 2007 order void rather than declaring the entire order
void. Therefore, Alcantar has waived any such issue or argument. See Tex. R. App. P. 38.1(f),
(i); Tex. Fam. Code Ann. § 102.012 (West 2014); San Saba Energy, L.P. v. Crawford, 171
S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Barajas, 2012 WL 760921, at
*3 n.4 (“By failing to provide any argument, authority, or citations to the record on this issue,
[father] waives any argument that the trial court abused its discretion by refusing to exercise its
partial jurisdiction over the portion of his case seeking a divorce.”).

                                                9
