                                                                                                          ACCEPTED
                                                                                                      12-15-00193-CV
                                                                                         TWELFTH COURT OF APPEALS
                                                                                                       TYLER, TEXAS
                                                                                                 9/21/2015 4:30:36 PM
                                                                                                            Pam Estes
                                                                                                               CLERK

                              Cause Number 12-15-00193-CV

                        ----------------------------------------------------          FILED IN
                                                                               12th COURT OF APPEALS
                                                                                    TYLER, TEXAS
                                   In Court of Appeals                         9/21/2015 4:30:36 PM
                             Twelfth Court of Appeals District                        PAM ESTES
                                                                                        Clerk
                                       Tyler, Texas

                       ------------------------------------------------------

                                 In Re Jamie Majors, Relator

----------------------------------------------------------------------------------------------------

                        REAL PARTY IN INTEREST
                   SECOND AMENDED RESPONSE BRIEF
                TO THE PETITION FOR WRIT OF MANDAMUS

----------------------------------------------------------------------------------------------------




                                              Colin D. McFall
                                              Attorney at Law
                                              513 North Church Street
                                              Palestine, Texas 75801-2962
                                              Telephone: 903-723-1923
                                              Facsimile: 903-723-0269
                                              Email:       cmcfall@mcfall-law-office.com
                                              Counsel for Real Party in Interest
                   IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Rule 52.3 and Rule 52.4, Texas Rules of Appellate Procedure,

Real Party in Interest supplements Relator’s Identity of Parties and Counsel as

follows:

Relator:                        Jamie Majors
                                596 Shenwood Avenue
                                Woodstock, Virginia 22664-1930

Real Party in Interest          The Attorney General of Texas
                                John B. Worley
                                Assistant Attorney General
                                Appellate Litigation Section
                                Child Support Division
                                Mail Code 038-1
                                Post Office Box 12017
                                Austin, Texas 78711-2017

Real Party in Interest:         Heather Majors
                                1005 Anderson County Road 427
                                Palestine, Texas 75803-2869




                                     Page 2 of 24
                                         TABLE OF CONTENTS

Identity of Parties and Counsel...................................................................................2

Table of Contents..................................................................................................….3

Index of Authorities....................................................................................................4

Statement of the Case.................................................................................................6

Statement of Jurisdiction…………...……….………...…….…......................……..7

Issues presented

         I.       The Trial Court properly applied Section 152.202(a)(1),
                  Texas Family Code, to the facts, finding the Trial Court
                  retained exclusive continuing jurisdiction over the
                  modification proceedings, as a result of the children’s
                  significant connections with the state of
                  Texas…………………………………………..…..………..….…..….8

Statement of Facts......................................................................................................9

Argument……………..…...…………………………...…….……...……………..10

Prayer...…….............................................................................................................20

Certification………………………………………...…………...….......………….21

Certificate of Compliance…………...………………………………...………..….22

Certificate of Service………………………...…………………………………….23

Appendix………………………………………...…………….…………………..24


                                                     Page 3 of 24
                     INDEX OF AUTHORITIES

CASES                                                          PAGE

    TEXAS

        In re Bellamy, 67 S.W.3d 482 (Tex.App.-Texarkana 2002)
        …………………………………………...…………………..12, 17, 18

        In re Forlenza, 140 S.W.3d 373 (2004)………………...…....11, 14, 16

        Mills v. Canoy, No. 03-04-00681-CV (Tex.App.-Austin 2005).........18

RULES AND STATUTES                                             PAGE

    TEXAS FAMILY CODE

        Chapter 152, Texas Family Code……………………..…...…..……. 16

        Section 152.201, Texas Family Code…………………….………….10

        Section 152.202, Texas Family Code……………….....…….11, 16, 17

        Section 152.202(a), Texas Family Code……….………...….……….10

        Section 152.202(a) (1), Texas Family Code
              …………………………………………...3, 8, 10, 11, 18, 19, 20

        Section 152.202(a) (2), Texas Family Code……………………..….10

        Section 152.203, Texas Family Code…………………....….……….10

        Section 152.204, Texas Family Code……….……………………….10

        Section 152.207, Texas Family Code…………….………..…….16, 17

                              Page 4 of 24
TEXAS RULES OF APPELLATE PROCEDURE

    Rule 9.4(i) (3), Texas Rules of Appellate Procedure………....…...…22

    Rule 52.3, Texas Rules of Appellate Procedure..………..…..2, 6, 7, 24

    Rule 52.3(j), Texas Rules of Appellate Procedure…………………..21

    Rule 52.4, Texas Rules of Appellate Procedure……..…..…..…...…. .2

    Rule 52.4 (b), Texas Rules of Appellate Procedure………........……..6

    Rule 52.4 (c), Texas Rules of Appellate Procedure……..…..….……..7

    Rule 52.4 (e), Texas Rules of Appellate Procedure……………...…..24




                          Page 5 of 24
                          STATEMENT OF THE CASE

      Pursuant to Rule 52.3 and 52.4(b), Texas Rules of Appellate Procedure,

Relator has adequately asserted the Statement of the Case, and thus the Real Party

in Interest omits a Statement of the Case.




                                     Page 6 of 24
                        STATEMENT OF JURISDICTION

      Pursuant to Rule 52.3 and 52.4(c), Texas Rules of Appellate Procedure,

Relator has adequately asserted valid grounds for jurisdiction, and thus Real Party

in Interest omits a statement of jurisdiction.




                                      Page 7 of 24
                               ISSUE PRESENTED

      The Trial Court properly applied Section 152.202(a)(1), Texas Family Code,

to the facts, finding the Trial Court retained exclusive continuing jurisdiction over

the modification proceedings, as a result of the children’s significant connections

with the State of Texas.




                                      Page 8 of 24
                              STATEMENT OF FACTS

         The Real Party in Interest waives a Statement of Facts. The Real Party in

Interest may reassert the right to file a Third Amended Brief with a Statement of

Facts.




                                      Page 9 of 24
                                    ARGUMENT

      The Trial Court properly applied Section 152.202(a)(1), Texas Family Code,

to the facts, finding the Trial Court retained exclusive continuing jurisdiction over

the modification proceedings, as a result of the children’s significant connections

with the State of Texas.

      The Relator does not challenge the prior child custody Order’s compliance

with Section 152.201, Texas Family Code. (R.R., Pg. 103, L. 14). Section

152.202(a)(2), Texas Family Code, does not apply because the Real Party in

Interest continues to reside in Texas. (R.R., Pg. 89, L. 19) (R.R., Pg. 97, L. 25).

Therefore, the Appellate Court must decide whether the Trial Court properly

applied Section 152.202(a)(1), Texas Family Code, to the facts, finding the Trial

Court retained exclusive continuing jurisdiction over the modification proceedings,

as a result of the children’s significant connections with the State of Texas.

      Section 152.202(a), Texas Family Code, provides as follows:

             (a)    Except as otherwise provided in Section 152.204, Texas Family
                    Code, a Court of this State which has made a child custody
                    determination consistent with Section 152.201 or Section
                    152.203, Texas Family Code, has exclusive continuing
                    jurisdiction over the determination until:

                    (1)    A court of this State determines that neither the child, nor
                           the child and one parent, nor the child and a person acting
                                     Page 10 of 24
                          as a parent, have a significant connection with this State
                          and that substantial evidence is no longer available in this
                          State concerning the child’s care, protection, training,
                          and personal relationships; or

                    (2)   A Court of this State or a court of another State
                          determines that the child, the child’s parents, and any
                          person acting as a parent do not presently reside in this
                          State.

      Relator appears to argue that Section 152.202(a)(1), Texas Family Code,

requires the Trial Court to find both a significant connection with Texas and that

substantial evidence exists before it can exercise exclusive continuing jurisdiction.

However, exclusive jurisdiction continues in the decree granting State as long as a

significant connection exists or substantial evidence is present. In re Forlenza, 140

S.W.3d 373, 379 (2004). Clearly, both significant connection and substantial

evidence is not required. Because we conclude the Trial Court did not error in

concluding the children had a substantial connection with Texas, we need not

address whether substantial evidence existed. In re Forlenza, 140 S.W.3d 373, 379

(2004).

      Under Section 152.202, Texas Family Code, Jurisdiction terminates if the

relationship between the child and the parent remaining in the State with exclusive,

continuing jurisdiction becomes so attenuated that the Court can no longer find

                                     Page 11 of 24
significant connections and substantial evidence. In re Bellamy, 67 S.W.3d 482

(Tex.App.-Texarkana 2002),

      Relator points to numerous examples of substantial evidence located outside

of the State of Texas. However, just because the Relator introduced evidence from

another States, does not mean substantial evidence in Texas is lacking. In re

Bellamy, 67 S.W.3d 482 (Tex.App.-Texarkana 2002).

      Relator also points to the lack of the children’s travel to Texas. However, the

Real Party in Interest clearly explained why the children had not traveled to Texas.

The Relator restricted the children’s travel. In fact, Relator’s mistrust of the Real

Party in Interest was so significant, that even when the Real Party in Interest

traveled to Virginia to see her children, the Relator required the Real Party in

Interest’s visitation be supervised by Relator’s girlfriend (R.R., Pg. 39, L. 17),

(R.R., Pg. 57, L. 5), (R.R., Pg. 57, L. 7), or Relator. (R.R., Pg. 57, L. 7). In

addition, supervision was restricted to Relator’s home. (R.R., Pg. 57, L. 9). Relator

(R.R., Pg. 39, L. 20) forbade the children from traveling to Texas. (R.R., Pg. 39, L.

22). In fact, Relator required the Real Party in Interest take Relator’s, girlfriend’s

daughter, as a chaperone, on the Real Party in Interest’s visitation with her children.

(R.R., Pg. 31, L. 5) (R.R., Pg. 56, L. 25). Relator knew the Real Party in Interest

                                      Page 12 of 24
would not leave the state of Virginia, with a child not her own. (R.R., Pg. 31, L. 14)

(R.R., Pg. 39, L. 20), nor her own child, without a proper Order. (R.R., Pg. 30, L.

6), (R.R., Pg. 30, L. 10), (R.R., Pg. 30, L. 13).

        The Relator also required the Real Party in Interest sign a Rule 11 Order, just

to visit her children. (R.R., Pg. 30, L. 22). Relator testified the purpose of the Rule

11 Order was to prevent the Real Party in Interest from kidnapping her children.

(R.R., Pg. 89, L. 9). Relator testified it was a very good possibility that the Real

Party in Interest would have returned with her children to Texas. (R.R., Pg. 89, L.

22).

        In addition, the Real Party in Interest testified the Relator failed to return the

children to the Real Party in Interest at the termination of the one (1) year

agreement (R.R., Pg. 27, L. 11). Thus, the Relator defied the current Court Order

and withheld the children from the Real Party in Interest for one (1) addition year.

The Relator’s withholding of the children from the Real Party in Interest, in

violation of the Trial Court’s Final Decree of Divorce, continues to this date. The

Relator argues the children have not visited Texas in two (2) years, yet ignores the

fact that Relator is the sole reason the children have not visited Texas in the last

year.

                                       Page 13 of 24
      Clearly, the Relator forbade the children’s travel to Texas. As a result, the

Appellate Court may presume the Trial Court accepted as true the Real Party in

Interest’s testimony that more visitation would have occurred in Texas but for the

Relator’s actions and the fact that the Relator did not allow the children to travel to

Texas to visit the Real Party in Interest. In re Forlenza, 140 S.W.3d 373 (2004).

      The Party in Real Interest testified about significant connections with family

in Texas (R.R., Pg. 15, L. 10). Specifically, the Real Party in Interest testified the

children’s Texas family consisted of their mother, the Real Party in Interest (R.R.,

Pg. 15, L. 13), a grandmother (R.R., Pg. 15, L. 13), grandfather (R.R., Pg. 34, L.

25), Aunt June (R.R., Pg. 36, L. 10) or Aunt Leslie (R.R., Pg. 37, L. 17), her

husband (R.R., Pg. 35, L. 20) Uncle Poke (R.R., Pg. 37, L. 17) and their child

(R.R., Pg. 36, L. 11), Uncle Matt (R.R., Pg. 36, L. 23) (R.R., Pg. 37, L. 9), Aunt

Teresa (R.R., Pg. 36, L. 23) (R.R., Pg. 37, L. 9), and three of their children (R.R.,

Pg. 36, L. 23), Billy Sugar (R.R., Pg. 37, L. 22), cousin Kristin (R.R., Pg. 38, L. 1),

a second cousin Jackson (R.R., Pg. 38, L. 2), Real Party in Interest’s father (R.R.,

Pg. 38, L. 5), and two family members on the Real Party in Interest’s father’s side

of the family. Even the Relator had to admitted the children have close connections

(R.R., Pg. 99, L. 4), relationships (R.R., Pg. 99, L. 11), and bond (R.R., Pg. 93, L.

                                     Page 14 of 24
8) with the family in Texas. Relator has witnessed the close relationship the

children have with the Real Party in Interest’s family in Texas. (R.R., Pg. 99, L.

13). Furthermore, Relator testified he believed it was important for the children to

maintain their relationship with the Real Party in Interest’s family in Texas. (R.R.,

Pg. 99, L. 17). Relator testified the significant connections with the Real Party in

Interest’s family continued while the children were in Virginia (R.R., Pg. 93, L.

22).

       It is undisputed the Real Party in Interest has a close relationship with her

children (R.R., Pg. 103, L. 5) (R.R., Pg. 103, L. 11) (R.R., Pg. 126, L. 9).

       In addition to the numerous, personal visits the children had with individual

family members (R.R., Pg. 35, L. 12) (R.R., Pg. 35, L. 20) (R.R., Pg. 36, L. 14)

(R.R., Pg. 37, L. 3) (R.R., Pg. 37, L. 14) (R.R., Pg. 38, L. 1), the relationships have

grown out of numerous family gatherings such as birthdays (R.R., Pg. 38, L. 14),

Thanksgiving (R.R., Pg. 38, L. 16), Christmas (R.R., Pg. 38, L. 17) (R.R., Pg. 38,

L. 19), Easter (R.R., Pg. 38, L. 20), and a June gathering (R.R., Pg. 38, L. 20).

The testimony of both the Real Party in Interest and the Relator clearly shows the

children maintain a significant connection with family in Texas.

       The Relator would also have this Court conduct some kind of balancing test.

                                      Page 15 of 24
However, the UCCJEA (Chapter 152, Texas Family Code) does not premise the

exclusive continuing jurisdiction determination on which State has the most

significant connection with the child. In re Forlenza, 140 S.W.3d 373 (2004). This

relative type of inquire is appropriate under Section 152.207, Texas Family Code,

which allows a Court with exclusive continuing jurisdiction to decline in favor of a

more convenient forum, but it does not affect the initial Section 152.202, Texas

Family Code, jurisdictional analysis. In re Forlenza, 140 S.W.3d 373 (2004).

      Relator would further have the Appellate Court forget the Real Party in

Interest testified the children lived with the Real Party in Interest since the Real

Party in Interest and the Relator separated in November of 2012 (R.R., Pg. 22, L.

24), until the Real Party in Interest and the Relator reached an agreement that the

children reside with the Relator for a one (1) year period in Virginia around August

2013 (R.R., Pg. 7, L. 8). The Relator argues the children have only seen a Virginia

physician (First Amended Petition for Writ of Mandamus, Page 6). The Relator’s

assertion is clearly misleading. The Relator testified the children also have doctors

in Anderson County. (R.R., Pg. 87, L. 2). Of course, the Relator has withheld the

children from the Real Party in Interest for the past year, so the children, while

living in Virginia for the past two (2) years, have only seen Virginia physicians.

                                      Page 16 of 24
(R.R., Pg. 15, L. 4) (R.R., Pg. 86, L. 18).

      The Relator also argues that hardship upon the Real Party in Interest is not a

statutory provision of a Section 152.202, Texas Family Code, jurisdictional

analysis. The Relator is correct in that assertion. However, in addition to a Section

152.202, Texas Family Code, jurisdictional argument, the Relator also moved the

Court to consider a Section 152.207, Texas Family Code, inconvenient forum

argument. Pursuant to Section 152.207, Texas Family Code, the Trial Court shall

consider the distance between the Court in Texas and the Court in Virginia, as well

as the relative financial circumstances of the parties, in determining an inconvenient

forum.

      The Relator argues In re Bellamy, 67 S.W.3d 482 (Tex.App.-Texarkana

2002) is not analogous to the facts of the instant case simply because the quantum

of physical contact is lacking. However, nowhere does the Court suggest this

quantum of physical contact was necessary to meet the statutory standard. Rather,

the Court emphasized the nature and the quality of the child’s relationship with the

parent and family members who resided in Texas. In re Bellamy, 67 S.W.3d 482

(Tex.App.-Texarkana 2002). Clearly, the nature and the quality of the instant

children’s relationship with the Real Party in Interest and family members who

                                     Page 17 of 24
reside in Texas are significant.

      Relator also argues that Mills v. Canoy, No. 03-04-00681-CV (Tex.App.-

Austin 2005), presents facts entirely in line with the instant case. However, the

case again affirms the proposition that Texas Courts look at the nature and quality

of the child’s contacts with the parents residing in Texas Mills v. Canoy, No. 03-04-

00681-CV (Tex.App.-Austin 2005), as opposed to the quantum of physical contact.

In re Bellamy, 67 S.W.3d 482 (Tex.App.-Texarkana 2002). Mills v. Canoy, No. 03-

04-00681-CV (Tex.App.-Austin 2005) also confirms the importance of maintaining

close relations with Texas family members. Finally, Mills v. Canoy, No. 03-04-

00681-CV (Tex.App.-Austin 2005) goes as far as to specifically state that a high

level of physical presence in Texas is not necessary to satisfy the significant

connection standard. Nor does the statute base the jurisdiction determination on

which State has the most significant connection with the child. Mills v. Canoy, No.

03-04-00681-CV (Tex.App.-Austin 2005).

      The question before the Appellate Court is whether the Trial Court properly

applied Section 152.202(a)(1), Texas Family Code, to the facts, finding the Trial

Court retained exclusive continuing jurisdiction over the modification proceedings,

as a result of the children’s significant connections with the State of Texas.

                                     Page 18 of 24
      A review of the Reporters Record clearly indicates the Trial Court considered

and applied the facts of the instant case to Section 152.202(a) (1), Texas Family

Code. Thus, there is no abuse of discretion. The Appellate Court may differ in the

decision the Trial Court ultimately made in its discretion, but a differing opinion as

to outcome is not the test. The test is, as the Relator argues, whether the Trial Court

failed to analyze or apply the law correctly, in reviewing the provisions under the

UCCJEA. To argue the Real Party in Interest presented no evidence, during the

evidentiary hearing, substantiating the Court’s denial of the Relator’s plea to the

jurisdiction is unsupportable.




                                     Page 19 of 24
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, the Real Party in Interest prays

the Appellate Court find the Trial Court properly applied Section 152.202(a)(1),

Texas Family Code, to the facts, finding the Trial Court retained exclusive

continuing jurisdiction over the modification proceedings, as a result of the

children’s significant connections with the State of Texas.




                                     Page 20 of 24
                                CERTIFICATION

      I, Colin D. McFall, Attorney of Record for the above styled Real Party in

Interest, pursuant to Rule 52.3(j), Texas Rules of Appellate Procedure, hereby

certify I have reviewed the Real Party in Interest’s Brief and concluded that the

Real Part In Interest has supported every factual statement in the Real Party in

Interest’s Brief with competent evidence included in the appendix or record.

RESPECTFULLY SUBMITTED,



                                       513 North Church Street
__________________________             Palestine, Texas 75801-2965
COLIN D. MCFALL                        Telephone: 903-723-1923
Attorney at Law                        Facsimile: 903-723-0269
Texas Bar Number:    24027498          Email: cmcfall@mcfall-law-office.com




                                     Page 21 of 24
                       CERTIFICATE OF COMPLIANCE

      I, Colin D. McFall, Attorney of Record for the Real Party in Interest,

pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, hereby certify the

number of words within the Real Party in Interest’s Response Brief is three

thousand, thirty four (3,034).

RESPECTFULLY SUBMITTED,



                                       513 North Church Street
__________________________             Palestine, Texas 75801-2962
COLIN D. MCFALL                        Telephone: 903-723-1923
Attorney at Law                        Facsimile: 903-723-0269
Texas Bar Number:    24027498          Email: cmcfall@mcfall-law-office.com




                                    Page 22 of 24
                          CERTIFICATE OF SERVICE

      I, Colin D. McFall, Attorney of Record for the above styled Real Party in

Interest, hereby certify service of a true and correct copy of the above and foregoing

document upon Jeffrey L. Coe, Attorney for Relator, at jeff@coelawfirm.com, by

email transmission, on the 21st day of September 2015.

RESPECTFULLY SUBMITTED,



                                       513 North Church Street
__________________________             Palestine, Texas 75801-2962
COLIN D. MCFALL                        Telephone: 903-723-1923
Attorney at Law                        Facsimile: 903-723-0269
Texas Bar Number:    24027498          Email: cmcfall@mcfall-law-office.com




                                    Page 23 of 24
                                   APPENDIX

      Pursuant to Rule 52.3 and 52.4(e), Texas Rules of Appellate Procedure,

Relator has adequately provided an Appendix, and thus, the Real Party in Interest

omits an Appendix.




                                   Page 24 of 24
