

Opinion issued November 10, 2011
 

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00660-CV
———————————
Maria Guadalupe Sosa Razo, Appellant
V.
Hector
Cuevas Vargas,
Appellee

 

 
On Appeal from the 310th District Court
Harris County, Texas

Trial Court Case No. 2009-13146
 

 
O P I N I O N
          This
is an appeal from orders of the trial court in an international child custody
dispute.  Appellee Hector Cuevas Vargas
(“Hector”) registered the decrees of a Mexican civil court regarding custody of
the child, G.S., in Texas state court and asked that they be confirmed and
enforced.  Appellant Maria Guadalupe Sosa
Razo (“Maria”) asked for a hearing to contest the validity of the registered
decrees and filed a supplemental petition requesting that she be appointed sole
managing conservator of G.S.  The trial
court (1) denied Maria the right to an evidentiary hearing on her affirmative
defenses to confirmation and enforcement of the Mexican court’s decrees; (2)
held a non-evidentiary hearing at which Hector appeared through counsel and
argued that the decrees be enforced and that Maria should not be allowed to
present evidence; (3) signed orders confirming the Mexican court’s decrees and
ordering their immediate enforcement and issued a writ of attachment for G.S.; (4) granted
the special appearance filed by Hector with respect to Maria’s supplemental
petition, concluding that Hector was not subject to the jurisdiction of Texas; and
(5) dismissed Maria’s supplemental petition with prejudice.  Maria appeals.
In seven issues, Maria argues that (1)
the trial court’s order confirming the decrees issued by the Mexican court and registered
by Hector is void; (2) the trial court’s order enforcing the Mexican court’s decrees
filed by Hector and ordering that G.S. be seized by any sheriff or constable in
Texas and turned over to the possession of Hector’s counsel is void; (3) and
(4) the trial court erred in signing the orders of confirmation and enforcement
when Hector offered no evidence to meet his initial burden of proof beyond
offering a properly authenticated copy of the orders he intended to have confirmed;[1] (5) the evidence is legally
insufficient to support the trial court’s confirmation and enforcement orders;
(6) the trial court erred in not allowing Maria to present evidence at the
confirmation and enforcement hearing; and (7) the trial court erred in
sustaining Hector’s special appearance and dismissing with prejudice Maria’s
supplemental petition.
          We modify
the trial court’s order dismissing Maria’s supplemental petition and affirm as
modified, and we reverse the trial court’s orders confirming and enforcing the
Mexican orders and remand for further proceedings consistent with this opinion.
Background
          Maria
and Hector were married in Mexico on July 28, 1999.  Their daughter G.S. was born in Mexico during
the marriage.
          On
March 16, 2004, a Mexican civil court in the State of Guanajuato, Mexico,
signed a mutual consent judgment of divorce that incorporated a February 9,
2004 agreement signed by both Maria and Hector concerning custody and
visitation rights over G.S. (the “Custody Agreement”).  This agreement provided that G.S. would spend
summer and winter vacations in Mexico with Hector in the town of Valle de
Santiago, Guanajuato, but would spend the rest of the year with Maria at a
specific address in Houston, Texas (the “Houston address”).  The Custody Agreement further provided that
if a party breached its terms, sole custody of G.S. would vest in the
non-breaching party (the “Agreed Penalty Provision”).  The judgment specifically provided that the
parties must abide by its provisions, “which has the force of res judicata,
taking into consideration the settlement reached in the second conciliation
meeting concerning their minor daughter.”
          No
party disputes these recitals in the Mexican decree.  However, the parties do dispute what occurred
next.  According to Hector, in December
2004, when he called Maria to ask about the date of G.S.’s winter vacation so
he could exercise his visitation rights, one of her relatives answered the call
and told him that Maria was not at home. 
After Maria did not contact Hector regarding the dates of G.S.’s
vacation, Hector learned the dates from a Houston relative and traveled to
Houston to pick up G.S.  He arrived at
the Houston address and was told by one of Maria’s relatives that Maria and G.S.
did not live there anymore and that she did not know their whereabouts.  Hector tried again the next day but was told
by a different relative that G.S. did not live there.  Hector then went to the Mexican Consulate in
Houston to report that he could not locate his daughter and that Maria had
breached the Custody Agreement.
Maria claims that she had witnesses
who would challenge the veracity of all these statements.
          The
record reflects that Hector returned to Mexico and the Mexican court that
issued the original divorce decree. 
Maria was served by publication in Mexico with notice of a hearing
concerning child custody.  Maria did not
appear in this proceeding.  Hector
invoked the Agreed Penalty Provision and asked for sole custody of G.S.  The Mexican court determined that Hector had proved
Maria had breached the Custody Agreement, and it further found that her
whereabouts were unknown and that she had been properly served by publication
in accordance with Mexican law.  On May
31, 2005, the Mexican court entered an order granting Hector sole custody of G.S.
(the “Sole Custody Order”).
Hector then registered the Mexican
court’s orders in the 310th District Court in Harris County, Texas, pursuant to
Section 152.305 of the Family Code.  See Tex.
Fam. Code Ann. § 152.305 (Vernon 2008). 
Maria requested a hearing to contest the validity of the registered decrees.  Hector moved to confirm and enforce the Sole
Custody Order.  Maria filed a
“Supplemental Petition” asking the court (1) to declare that the two
Mexican orders sought to be confirmed and enforced are unenforceable and void
and (2) to appoint Maria as sole managing conservator of G.S.  In response, Hector specially appeared.
          The
trial court held a non-evidentiary hearing on these issues.  Maria’s attorney repeatedly requested that
the court hear testimony before ruling, but the court refused.  Maria’s attorney then put on a bill of
exceptions describing the available witnesses and outlining their proposed testimony.  Maria’s counsel explained that he would have
called Maria herself, as well as her husband, José Bonilla, her brother, Sidro Sosa, her sister, also named Maria Sosa, her
sister’s husband, José Sosa, and
her mother, Otilia Roso.  Sidro and Maria
would have testified that Maria did live at the Houston address “at the time in
question,” and only moved to a new location nearby within two or three years
before the confirmation and enforcement hearing.  Maria would have testified that her family
members live at the Houston address, that she now lives less than two blocks
away from that address, and that she has “daily contact with the people at that
address.”  Maria’s counsel further
informed the trial court that Maria’s family members would have testified that,
had Maria been served at the Houston address and not been present to accept
service, they would have immediately given any documents to Maria.
On the day of the hearing, the
court signed an order confirming the Mexican orders.  The next day, the court granted Hector’s
special appearance and dismissed Maria’s supplemental petition with
prejudice.  On July 27, 2009, the trial
court signed an order enforcing the two Mexican orders and issuing a writ of
attachment, requiring that G.S. be delivered to Hector’s attorneys.
 
 
Standard of Review
When a matter involving both
factual determinations and legal conclusions is decided by the trial court, we
review the trial court’s decision for an abuse of discretion.  Flores
v. Contreras, 981 S.W.2d 246, 249 (Tex. App.—San Antonio 1998, pet. denied).  In applying the abuse of discretion standard,
we defer to the trial court’s factual determinations while determining questions
of law de novo.  See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig.
proceeding) (stating that appellate review of trial court’s legal
determinations is “much less deferential” than review of factual determinations);
see also Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
In a family law case, the abuse of
discretion standard of review “overlaps with the traditional sufficiency
standard of review.”  Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex.
App.—Fort Worth 2004, no pet.).  Legal
and factual insufficiency are not “independent reversible grounds of error” but
are relevant factors in assessing whether the trial court abused its
discretion.  Id.  A trial court may be
reversed for abusing its discretion only when we find that the court acted in
an unreasonable or arbitrary manner.  See Downer, 701 S.W.2d at 241–42 (holding that mere fact that trial court may
decide discretionary matter differently from appellate court does not
demonstrate abuse of discretion).  In
other words, an abuse of discretion occurs when a trial court acts without
reference to any guiding rules and principles. 
Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223, 226 (Tex. 1991).
The Necessity of an Evidentiary Hearing Before Ruling
on the Confirmation and Enforcement Orders
 
In her first, second, and sixth issues,
Maria argues that the trial court abused its discretion by ruling on the confirmation
and enforcement of the Mexican court’s decrees without allowing her to present
evidence on her affirmative defenses and that the resulting confirmation and
enforcement orders are therefore void.  We
consider these issues together.
The Family Code provides for a
procedure whereby a foreign child custody determination may be registered in
this state and thus become enforceable.  See Tex.
Fam. Code Ann. § 152.305.  First,
a party must send a request to the appropriate court, along with (1) two copies
(one certified) of the determination sought to be registered; (2) a sworn
statement that the order sought to be registered has not been modified; and (3)
the name and address of the person seeking registration and any other parent or
person who has been awarded custody or visitation in the order sought to be
registered.  Id. § 152.305(a).
Next, the registering court causes
the determination to be filed as a foreign judgment and serves notice upon the
interested parties, providing them with an opportunity to contest the
registration “in accordance with this section.” 
Id. § 152.305(b).  The notice, among other things, must tell all
parties that a hearing to contest the validity of the registered determination
must be requested within twenty days after the service of the notice.  Id.
§ 152.305(c)(2).  It also must tell
the interested parties that failure to contest the registration results in an
automatic confirmation of the determination and precludes further contest of
the determination.  Id. § 152.305(c)(3).
If an interested party requests a
hearing, the Family Code requires the trial court to confirm the registered
order unless the party contesting it establishes one of three things:  (1) that the issuing court did not have
jurisdiction under Subchapter C of the UCCJEA; (2) that the determination
sought to be registered has been “vacated, stayed, or modified” by a court
having jurisdiction to do so; or (3) that the person contesting registration
was entitled to notice, “but notice was not given in accordance with the
standards of Section 152.108, in the proceedings before the court that issued
the order for which registration is sought.” 
Id. § 152.305(d).  Family Code section 152.108(a) provides:
Notice required for the
exercise of jurisdiction when a person is outside this state may be given in a
manner prescribed by the law of this state for service of process or by the law
of the state in which the service is made. 
Notice must be given in a manner reasonably calculated to give actual
notice but may be by publication if other
means are not effective.
 
Id.
§ 152.108(a) (Vernon 2008) (emphasis added).  If personal service or service by registered
or certified mail is not successful, Texas Rule of Civil Procedure 106 provides
that, upon motion and supporting affidavit by the party seeking service, the
court may authorize service by leaving a copy of the petition with anyone over
sixteen years of age at the location specified in the affidavit or service “in
any other manner that the affidavit or other evidence before the court shows
will be reasonably effective to give the defendant notice of the suit.”  Tex.
R. Civ. P. 106(b).
As Hector points out, Section 152.305
does not specifically require that the trial court hold an evidentiary hearing.  The question thus becomes whether, under the
facts of this case, the trial court abused its discretion by failing to allow
evidence during the confirmation and enforcement hearing.
In the absence of evidence, a
hearing is a summary disposition of a case, which is the exception under our
rules of civil procedure.  Jack B. Anglin Co. v. Tipps, 842 S.W.2d
266, 269 (Tex. 1992) (orig. proceeding). 
“Ordinarily, contested issues are decided after a plenary hearing, that
is, a hearing at which witnesses present sworn testimony in person or by
deposition rather than by affidavit.”  Id. 
A hearing on a motion for summary judgment, for example, where no
testimony is allowed at the hearing, is an exception to this general rule.  Id.  In a situation in which an evidentiary
hearing is not specifically required by statute, the issue turns on whether
material facts necessary to determine the issue at hand are controverted.  Id.  If not, a trial court may summarily decide
the issue; if so, “the trial court must conduct an evidentiary hearing to
determine the disputed material facts.”  Id. 
The Texas Supreme Court laid down
this rule in the context of when to grant an evidentiary hearing to determine
the applicability of an arbitration provision in an agreement.  See id.
at 267.  In that situation, if a party
contests the applicability of an agreement to arbitrate, a court has statutory
authority to “summarily determine that issue.” 
See Tex. Civ. Prac. & Rem. Code Ann. § 171.021(b) (Vernon 2011).  Even in light of such authority, however, the
supreme court held that contested issues of fact could not be “summarily”
disposed of without an evidentiary hearing. 
See Jack B. Anglin Co., 842
S.W.2d at 269.
The Dallas Court of Appeals came to
a similar conclusion in a case more nearly on point.  See
Hennessy v. Marshall, 682 S.W.2d 340, 343–45 (Tex. App.—Dallas 1984, no
writ).  In Hennessy, the parties disputed the recognition and enforcement of
an English judgment under the Uniform Foreign Country-Money Judgment
Recognition Act (the “Recognition Act”) and the Uniform Enforcement of Foreign
Judgments Act (the “Enforcement Act”).  See Act of May 31, 1981, 67th Leg.,
R.S., ch. 808, § 5, 1981 Tex. Gen. Laws 3069, 3069–71, repealed by Act of May 17, 1985, 69th
Leg., R.S., ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322 (Recognition
Act); Act of May 14, 1981, 67th Leg., R.S., ch. 195, 1981 Tex. Gen. Laws 464,
464–65, repealed by Act of May 17,
1985, 69th Leg., R.S., ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322
(Enforcement Act).  The question
presented to the Dallas court was “whether the English judgment can be
recognized under the Recognition Act and enforced under the Enforcement Act
absent a plenary suit and hearing.”  Hennessy, 682 S.W.2d at 342.  The court held that the judgment should not
have been so recognized and enforced and, therefore, the trial court’s order of
recognition was void.  Id.
As in this family law case, the
process for the recognition of a foreign judgment began by filing an
authenticated copy of the foreign judgment with a court.  Hennessy,
682 S.W.2d at 343.  The Recognition Act
as written at the time provided that qualifying foreign judgments would be
recognized and enforced in this state “in the same manner as the judgment of a
sister state.”  Id.  However, the statute also
listed seven grounds for nonrecognition, including lack of notice of the
proceedings.  Id. at 343–44.  The Dallas
court held as follows:  
Obviously, these criteria
for nonrecognition can be established only in a plenary hearing by the judgment
holder against the judgment debtor. 
Absent such a plenary hearing, the defendant has not had an opportunity
to present the matters set forth in section 5 [of the Recognition Act], some of
which are in the nature of affirmative defenses and some of which the party
seeking recognition of the foreign country judgment must affirmatively
establish. 
 
Id.  As no plenary hearing was held, the
Dallas court held the trial court’s order was void and, thus, that all
subsequent orders from the trial court were void as well.  Id. at
345.
          Hector
argues that nothing in the Family Code requires an evidentiary hearing, but instead
only a “hearing” is required.  He further
argues that, had the Legislature intended for there to be an evidentiary
hearing, it would have expressly allowed for it, “as it has done with the
current version of the statute that was at issue in Hennessy.”
          The
earlier Recognition Act, however, which the Dallas court construed in Hennessy, did not specifically require
an evidentiary hearing either, and yet the Dallas court held that such a
hearing was required to establish the grounds for nonrecognition.  Moreover, when the legislature revised the Recognition
Act, it specifically provided that a party may ask for an “evidentiary
hearing,” but that the court has discretion to allow it or not.  See
Tex. Civ. Prac. & Rem. Code Ann.
§ 36.0044(e) (Vernon 2008).  
          We hold
that the trial court abused its discretion by failing to hold an evidentiary
hearing.  Maria filed a “Request for
Hearing to Contest Validity of Registered Determination” in which she asserted
that the Mexican court lacked jurisdiction to issue the Sole Custody Order
because she was not given notice and an opportunity to be heard in the child
custody proceeding.  At the confirmation hearing,
she was present with family members and asked the trial court to allow her to
put on testimony.  The trial court
refused to permit testimony.  Her
attorney made a bill of exceptions in which she showed the court what evidence
would have been presented.
          In
the bill of exceptions, Maria’s attorney stated that he would have called Maria
and her brother, Sidro, who would have testified that, although Maria later
moved to a different house close to the Houston address, she actually lived at
the Houston address “at the time in question.” 
Maria would have testified that her family members live at the Houston
address and that she now “lives less than two blocks away and has daily contact
with the people at that address.”  Maria’s
current husband, her sister, her sister’s husband, and her mother all would
have testified that they also lived at the Houston address and that if Hector
had attempted to serve Maria at that address and Maria was not present to
accept service, they would have immediately given any documents to Maria.
          The
testimony of Maria’s proposed witnesses is relevant to her affirmative defense that
she did not receive notice of the Mexican proceeding regarding her alleged
breach of the Custody Agreement.  Family
Code section 152.305(d)(3) allows a party to avoid confirmation of a foreign
order if she can establish that “notice was not given in accordance with the
standards of [Family Code] Section 152.108, in the proceedings before the court
that issued the order for which registration is sought.”  Tex.
Fam. Code Ann. § 152.305(d)(3). 
Section 152.108 provides that notice may be given in accordance with the
laws of Texas or the laws of the state in which service is made, but regardless
of which jurisdiction’s service laws are applied, notice “must be given in a
manner reasonably calculated to give actual
notice . . . .”  Id. § 152.108(a); see Livanos v. Livanos, 333 S.W.3d 868,
877 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (noting that pursuant to
section 152.108, party must follow service requirements of Texas or state in
which service is made and ensure that
respondent is served in manner reasonably calculated to give actual
notice).  This section specifically
allows notice to be given by publication, but only if “other means are not
effective.”  Tex. Fam. Code Ann.
§ 152.108(a).
          Texas
Rule of Civil Procedure 106 allows a party, upon motion and supporting affidavit,
to request alternate methods of service if personal service or service by registered
or certified mail is not successful.  Tex. R. Civ. P. 106(b).  In this circumstance, the court may authorize
service by leaving a copy of the citation and petition with anyone over the age
of sixteen at the location for service specified in the affidavit or service “in
any other manner that the affidavit or other evidence before the court shows
will be reasonably effective to give the defendant notice of the suit.”  Id.
          Two
of Maria’s witnesses, including Maria herself, would have testified that she
still lived at the Houston address at the time Hector sought service upon her
for the second Mexican proceeding.  Her
additional witnesses would have testified that they lived at the Houston
address and, if Maria was not available to accept service, they would have
accepted service on her behalf and immediately given the documents to her.  Thus, the contents of Maria’s bill of
exceptions indicates that, had personal service or service by mail on Maria at the
Houston address been unsuccessful, alternate service pursuant to Rule 106(b)
would have been effective to give Maria notice of the Mexican child custody proceeding.  This proffered evidence is relevant to
Maria’s asserted affirmative defense that she did not obtain notice of the
proceeding “given in accordance with the standards of [Family Code] Section
152.108,” which allows for notice to be made by publication but only if “other
means are not effective.”  See Tex.
Fam. Code Ann. §§ 152.305(d)(3), 152.108(a).
Counsel for Hector pointed out that
“we would have called Mr. Hector Cuevas Vargas as well that would have
contradicted just about every one of [Maria’s] witnesses.”  Thus, there were contested issues of fact the
trial court had to determine before it could confirm the registered order.
On appeal, Hector argues that Maria’s request for an
evidentiary hearing, made after the confirmation and enforcement hearing had
already started, was untimely, and, therefore, she waived her argument that she
was entitled to such a hearing.  After
Hector filed his request for registration of the Mexican orders, Maria timely
requested a hearing to contest the validity of these orders.  Although this request did not specifically
state that Maria sought an “evidentiary hearing,” she did specify two
affirmative defenses to confirmation and enforcement:  (1) the issuing court lacked jurisdiction,
and (2) Maria “was not given notice and an opportunity to be heard in the child
custody proceeding that resulted in the order [to be registered.]”  At the hearing, Hector argued that Maria was
not entitled to present evidence because no evidence was necessary on the
issues of Maria’s affirmative defenses, and the trial court could confirm and
enforce the Mexican orders as a matter of law. 
He did not argue that Maria was not entitled to an evidentiary hearing
because she did not timely request such a hearing.  Furthermore, Hector cites no authority
addressing (1) whether a party seeking to present evidence on an affirmative
defense to confirmation and enforcement of a foreign order must specifically
request an “evidentiary hearing,” as opposed to just a “hearing,” and (2) at
what point such a request must be made to be considered timely.  See Tex. R. App. P. 38.1(i) (“The brief
must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”).
We hold that by refusing to allow
an evidentiary hearing before issuing its orders confirming the Mexican court’s
decrees, ordering their enforcement, and issuing a writ of attachment requiring
that G.S. be taken and delivered into the possession of Hector’s attorneys, the
trial court abused its discretion.  See Jack B. Anglin Co., 842 S.W.2d at
269 (requiring evidentiary hearing when “material facts necessary to determine
the issue are controverted”).  Thus, the trial
court’s order of confirmation and its following order of enforcement and writ
of attachment are void.  See Hennessy, 682 S.W.2d at 345.
          We
sustain Maria’s first, second, and sixth issues.  Having sustained these issues, we do not
reach Maria’s third, fourth, and fifth issues.[2]
Hector’s
Special Appearance and the Dismissal of 
Maria’s
Supplemental Petition
 
          In
her seventh issue, Maria argues that the trial court erred in granting Hector’s
special appearance and in dismissing with prejudice her supplemental petition,
which essentially sought to modify the Mexican custody determinations by naming
Maria as sole managing conservator over G.S. and restricting Hector’s access to
G.S.  Hector contends (1) that the trial
court properly granted his special appearance because he lacks sufficient
contacts with Texas to support personal jurisdiction over him and (2) that the
trial court lacks subject-matter jurisdiction to modify the Mexican court’s
custody determinations because the Mexican court has not determined that it no
longer has exclusive continuing jurisdiction or that Texas would be a more
convenient forum and because Hector presently resides in Mexico.  We agree with Hector that the trial court
lacked subject-matter jurisdiction over Maria’s supplemental petition.
A.              
Standard of Review
Whether a trial court has
subject-matter jurisdiction is a question of law that we review de novo.  See
Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 928 (Tex. 1998).  The party
initiating suit bears the burden to allege sufficient facts to establish subject-matter
jurisdiction.  See In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004) (orig.
proceeding).  We liberally construe the
pleadings in favor of the party invoking the trial court’s jurisdiction.  In re
S.J.A., 272 S.W.3d 678, 682 (Tex. App.—Dallas 2008, no pet.).  When an action is grounded in a statute,
subject-matter jurisdiction must be shown under the applicable statute.  See
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000).  “Subject matter jurisdiction is never
presumed, cannot be waived, and may be raised for the first time on
appeal.”  In re S.J.A., 272 S.W.3d at 682 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44
(Tex. 1993)).
B.              
Jurisdiction to Modify Child Custody
Determination
The Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”) governs jurisdiction over child
custody issues in Texas.  See Tex.
Fam. Code Ann. §§ 152.001–.317 (Vernon 2008 & Supp. 2011); In re S.J.A., 272 S.W.3d at 682.  Generally, the court that makes the initial
child custody determination retains exclusive continuing jurisdiction over
ongoing custody disputes.  In re S.J.A., 272 S.W.3d at 682; Saavedra v. Schmidt, 96 S.W.3d 533, 541
(Tex. App.—Austin 2002, no pet.).  The
UCCJEA defines a “child custody determination” as a “judgment, decree, or other
order of a court providing for legal custody, physical custody, or visitation
with respect to a child,” and it defines the “initial determination” as the
“first child custody determination concerning a particular child.”  Tex.
Fam. Code Ann. § 152.102(3), (8) (Vernon 2008).  Here, it is undisputed that the Mexican
divorce decree was the first determination that provided for the custody of and
visitation with G.S.; therefore, it was a child custody determination.  See In
re S.J.A., 272 S.W.3d at 682.  The
Mexican court thus retains exclusive continuing jurisdiction, and it is the
only court that can determine if it will continue to exercise that
jurisdiction.  See Saavedra, 96 S.W.3d at 541; see
also In re Bellamy, 67 S.W.3d 482, 485 (Tex. App.—Texarkana 2002, no pet.)
(“Under section 152.202, if one of the parents still resides in Texas and if
Texas courts granted the original decree, then a Texas court must determine if
Texas still retains exclusive, continuing jurisdiction over the case.), disapproved of on other grounds, In re Forlenza, 140 S.W.3d 373 (Tex.
2004).
Unless it has temporary emergency
jurisdiction, which is not asserted and is inapplicable here, a Texas court
does not have subject-matter jurisdiction to modify a child custody
determination made by a court of another state[3] unless the Texas court has
jurisdiction to make an initial determination under Family Code section
152.201(a)(1) or (2) and
(1) the court of the other state
determines it no longer has exclusive continuing jurisdiction under Section
152.202 or that a court of this state would be a more convenient forum under
Section 152.207; or
 
(2) a court of this state or a
court of the other state determines that the child, the child’s parents, and
any person acting as a parent do not presently reside in the other state.
 
Tex. Fam. Code Ann.
§ 152.203 (Vernon 2008); In re
S.J.A., 272 S.W.3d at 682; In re
D.A.P., 267 S.W.3d 485, 487–88 (Tex. App.—Houston [14th Dist.] 2008, no
pet.).  Texas courts have jurisdiction to
make an initial child custody determination if “this state is the home state of
the child on the date of the commencement of the
proceeding. . . .”  Tex. Fam. Code Ann.
§ 152.201(a)(1) (Vernon 2008).  The
UCCJEA defines “home state” as “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.”  Id.
§ 152.102(7) (Vernon 2008).
          Here,
it is undisputed that Maria and G.S. have lived in Texas since 2004; thus,
Texas qualifies as G.S.’s “home state” and Texas has jurisdiction to make an
initial child custody determination. 
However, to satisfy the requirements of section 152.203, the Mexican
court must determine either that it no longer has exclusive continuing
jurisdiction or that Texas would be a more convenient forum, or a Texas or
Mexican court must determine that G.S., Maria, Hector, and any person acting as
G.S.’s parent do not presently reside in Mexico.  See id.
§ 152.203.
          Maria
admitted in her supplemental petition that Hector still resides in Mexico.  Maria also has presented no evidence that the
Mexican court ever determined that it no longer had exclusive continuing
jurisdiction or that Texas would be a more convenient forum.  As the party initiating suit, Maria bears the
burden to allege sufficient facts demonstrating that Texas courts have
subject-matter jurisdiction to modify the Mexican custody determinations.  See In
re Forlenza, 140 S.W.3d at 376; In re
S.J.A., 272 S.W.3d at 682.  Because
Maria has not established (1) that the Mexican court determined that it no
longer had exclusive continuing jurisdiction, (2) that the Mexican court
determined that Texas would be a more convenient forum, or (3) that Hector no
longer resides in Mexico, we conclude that section 152.203 of the Family Code
has not been satisfied.  Because
satisfaction of section 152.203 is a condition precedent to the attachment of
jurisdiction of the Texas courts, we hold that the trial court lacks
subject-matter jurisdiction over Maria’s supplemental petition, which seeks to
modify the Mexican custody determinations by naming Maria as G.S.’s sole
managing conservator.  See Saavedra, 96 S.W.3d at 541 (“Absent
the California court’s relinquishment of that exclusive continuing
jurisdiction, the Texas court was without jurisdiction to modify the California
orders.”).
C.              
Modification of Trial Court’s Order Dismissing
Supplemental        Petition with
Prejudice
 
Maria also contends, in her seventh
issue, that even if the trial court correctly dismissed her supplemental
petition, the court erroneously dismissed the petition “with prejudice” and we
should therefore modify the trial court’s judgment to remove this
language.  We agree.
“Dismissal with prejudice
constitutes an adjudication on the merits and operates as if the case had been
fully tried and decided.”  Hickman v. Adams, 35 S.W.3d 120, 124
(Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999) (per curiam)); see also In re. C.S., 264 S.W.3d 864,
875 (Tex. App.—Waco 2008, no pet.) (holding same in case involving modification
of exclusive right to determine primary residence of child).  Thus, an order dismissing a case with
prejudice has full res judicata and collateral estoppel effect and bars the
subsequent relitigation of the same causes of action or issues between the same
parties.  See Hickman, 35 S.W.3d at 124 (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630–31 (Tex.
1992)); see also Garrett v. Williams,
250 S.W.3d 154, 160 (Tex. App.—Fort Worth 2008, no pet.) (“But dismissing a
claim based on lack of subject matter jurisdiction does not operate as res
judicata.”).  “In general, a dismissal
with prejudice is improper when the plaintiff is capable of remedying the jurisdictional
defect.”  Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004); Hickman, 35 S.W.3d at 124 (“If the error
could be remedied, then a dismissal with prejudice is improper.”).
Here, there was no adjudication on
the merits of Maria’s supplemental petition. 
Moreover, the error defeating subject-matter jurisdiction could
potentially be remedied.  For example,
Maria could ask the Mexican court to make a determination either that it no
longer has exclusive continuing jurisdiction or that Texas would be a more
convenient forum to litigate further child custody issues.  Assuming that Texas remains G.S.’s home
state, a Texas court would then have subject-matter jurisdiction to entertain a
modification of the Mexican court’s child custody determinations.  See Tex. Fam. Code Ann. § 152.203.
We therefore conclude that because
the merits were not adjudicated and the jurisdictional defect in this case
could be remedied, the trial court erred in dismissing Maria’s supplemental
petition with prejudice.  We therefore
modify the trial court’s order dismissing the supplemental petition to delete
the words “with prejudice.”  See Hickman, 35 S.W.3d at 125 (modifying
trial court’s judgment to delete erroneous “with prejudice” language).
We sustain this portion of Maria’s
seventh issue.
 
Conclusion
          We
modify the trial court’s order dismissing Maria’s supplemental petition to
delete the phrase “with prejudice,” and we affirm the order as modified.  We reverse the order of the trial court confirming
and enforcing the Mexican court’s decrees and declare that the trial court’s order
of confirmation and its following order of enforcement and writ of attachment
are void.  We remand the case to the
trial court with instructions to hold the evidentiary hearing required under
the circumstances of this case by section 152.305 of the Texas Family Code.  All pending motions are denied as moot.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Sharp, and Massengale.




[1]
          The Texas Family Code provides
that a party seeking to confirm and enforce a foreign order must file “a
statement under penalty of perjury that to the best of the knowledge and belief
of the person seeking registration the order has not been modified.”  Tex.
Fam. Code Ann. § 152.305(a)(2) (Vernon 2008).


[2]
          In her third, fourth, and fifth issues, Maria argues that Hector offered
no evidence to meet his initial burden of proof that the Mexican decrees were
authentic and had not been altered and that the evidence is legally
insufficient to support the trial court’s confirmation and enforcement orders.


[3]
          “A court of this state shall
treat a foreign country as if it were a state of the United States for the
purpose of applying this subchapter and Subchapter C [relating to
jurisdiction].”  Tex. Fam. Code Ann. § 152.105(a) (Vernon Supp. 2011).


