




02-10-054-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO.  02-10-00054-CV
 
 



Jeanna Nicole Arnold


 


APPELLANT




 
V.
 




Matthew Price


 


APPELLEE



 
 
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FROM THE 324th
District Court OF Tarrant COUNTY
----------
 
OPINION
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I. 
Introduction
          Appellant
Jeanna Nicole Arnold, the respondent below, appeals the trial court’s final
decree of divorce appointing Appellee Matthew Price as sole managing
conservator of their young daughter.  Arnold contends in her first issue that
the trial court did not have personal jurisdiction over her and that the trial
court did not have subject matter jurisdiction pursuant to the Uniform Child
Custody Jurisdiction Enforcement Act (UCCJEA)[1] to make an initial child
custody determination.  We affirm in part and dismiss in part for lack of subject
matter jurisdiction.
II. 
Background
          Arnold
and Price were married in early September 2006 and ceased living together in
early December 2006, but they continued to have a marital relationship through
June 2007.  Price filed an original petition for divorce on July 16, 2007.  He
alleged in his original petition that he was stationed in Pennsylvania as a
member of the United States Navy and that Arnold resided in Yuba City,
California; he asserted that jurisdiction over Arnold was proper in Texas because
their last marital residence was in Texas and he filed suit before the second
anniversary of the date on which the marital residence ended.[2]
 Price also alleged in the original petition that Arnold was pregnant.  Price later
amended his petition and sought appointment as sole managing conservator of his
daughter.
          Arnold
filed an original answer to Price’s petition in August 2007.  In her answer,
Arnold objected to the trial court’s jurisdiction over the unborn child, alleging
that “[t]he child will not be born in Tarrant County, Texas[;] therefore,
jurisdiction and venue will be proper in another County and/or State.”  Arnold
did not, however, challenge personal jurisdiction in her original answer. 
Arnold also filed an original counter-petition for divorce.  In the
counter-petition, Arnold did not object to or otherwise challenge personal
jurisdiction, and she requested that the court divide the parties’ community
property, confirm her separate property, enter temporary orders, award her
attorney’s fees, and grant a divorce.  Arnold did, however, state in the
counter-petition that she and Price were expecting a child and that she
“objects to a Court in Tarrant County, Texas taking jurisdiction over an unborn
child and/or a child who has never resided in the State of Texas.”
          The
child was born in California on December 7, 2007.  It is undisputed that the
child, other than during brief visitations with Price, lived in California with
Arnold from the time of her birth through the time of trial.
          The
appellate record does not contain the transcript of any hearing on Arnold’s
objection to jurisdiction, but it does contain an order denying the objection
to jurisdiction.  The record also contains a letter from the trial court stating
in part, “The Court does accept jurisdiction of the parties and this child.  I
am not sure that Texas is necessarily the proper state for jurisdiction;
however, neither of the parties filed any action in any other state that might
have jurisdiction so as to leave us with very little choice.”
          Following
a jury trial on the sole issue of conservatorship, the jury returned a verdict
that Price should be appointed the child’s sole managing conservator.  The
parties submitted the issue of custody to the court, and the trial court
ordered that for the first three years, Price would have custody of the child
in two-month increments and that Arnold would have custody in one-month
increments. After the first three years, the trial court ordered that the
parties would have custody in accordance with the standard possession orders
for parents residing more than 100 miles apart.  This appeal followed.
III. 
Personal Jurisdiction
          Arnold
argues in part of her first issue that the trial court did not have personal
jurisdiction over her because she is a resident of California. 
A.  Applicable
Law
“Whether
a court has personal jurisdiction over a nonresident defendant is a question of
law, which we review de novo.”  Zinc Nacional, S.A. v. Bouche Trucking, Inc.,
308 S.W.3d 395, 397 (Tex. 2010) (citing BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002)).  Unlike subject matter
jurisdiction, the lack of personal jurisdiction may be waived.  See Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14, 105 S. Ct. 2174, 2182 n.14
(1985) (“[T]he personal jurisdiction requirement is a waivable right.”).  Strict
compliance with rule of civil procedure 120a is required, and a nonresident
defendant will be subject to personal jurisdiction in Texas courts if the defendant
enters a general appearance.  Morris v. Morris, 894 S.W.2d 859, 862
(Tex. App.—Fort Worth 1995, no writ).
Under
rule 120a, a properly entered special appearance enables a nonresident
defendant to challenge personal jurisdiction in a Texas court.  Tex. R. Civ. P.
120a.  As applicable here, rule 120a provides that “[e]very appearance, prior
to judgment, not in compliance with this rule is a general appearance.”  Tex. R.
Civ. P. 120a(1); see also Kawasaki Steel Corp. v. Middleton, 699 S.W.2d
199, 201 (Tex. 1985).  A party enters a general appearance and waives a special
appearance “when it (1) invokes the judgment of the court on any question other
than the court’s jurisdiction, (2) recognizes by its acts that an action is
properly pending, or (3) seeks affirmative action from the court.”  Exito
Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (citing Dawson–Austin
v. Austin, 968 S.W.2d 319, 322 (Tex. 1998), cert. denied, 525 U.S.
1067 (1999)).  The test for a general appearance is whether a party requests
affirmative relief inconsistent with an assertion that the trial court lacks
jurisdiction.  Dawson–Austin, 968 S.W.2d at 323.
In
this case, Arnold filed an answer to Price’s petition for divorce but did not
file a special appearance or any other pleading that could be construed as a
special appearance.  Moreover, Arnold requested in her original
counter-petition for divorce that the trial court divide the parties’ community
property, confirm her separate property, enter temporary orders, award her
attorney’s fees, and grant a divorce.  Because Arnold did not file a special
appearance, she did not comply with rule 120a(1)’s procedure for objecting to
personal jurisdiction.  See Tex. R. Civ. P. 120a(1).  And the requests
for affirmative relief in her counter-petition for divorce are inconsistent
with her contention that the trial court lacked personal jurisdiction.  See
Dawson–Austin, 968 S.W.2d at 323; Office of the Attorney Gen. of Tex. v.
Phillips, No. 01-05-00973-CV, 2007 WL 1559804, at *4 (Tex. App.—Houston
[1st Dist.] May 31, 2007, no pet.) (mem. op.) (holding husband entered general
appearance by filing motions for a temporary restraining order, sanctions, and
attorney’s fees).  Arnold therefore entered a general appearance and cannot
complain that the trial court lacked personal jurisdiction over her for either
the divorce or the child custody determinations.  See Morris, 894 S.W.2d
at 862 (holding husband entered general appearance by filing answer instead of
special appearance); see also Tex. Fam. Code Ann. § 6.305(b) (providing
that court acquiring personal jurisdiction over nonresident respondent “also
acquires jurisdiction over the respondent in a suit affecting the parent-child
relationship”).  We overrule the portion of Arnold’s first issue that
challenges personal jurisdiction.
IV. 
Subject Matter Jurisdiction
          Arnold
contends in the remainder of her first issue that the trial court did not have
jurisdiction over the child custody determination pursuant to the UCCJEA.[3]

A. 
Applicable Law
Subject
matter jurisdiction is a question of law that we review de novo.  Powell v.
Stover, 165 S.W.3d 322, 324 (Tex. 2005).  “A court must possess both
subject matter jurisdiction over a case and personal jurisdiction over a party
to issue a binding judgment.”  CSR Ltd. v. Link, 925 S.W.2d 591, 594
(Tex. 1996).  Subject matter jurisdiction refers to the power of a court to
hear a particular type of suit.  Id.  When an action is grounded in
statute, subject matter jurisdiction must be shown under the applicable statute. 
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); In re
Barnes, 127 S.W.3d 843, 846–47 (Tex. App.―San Antonio 2003,
orig. proceeding).  “Subject matter jurisdiction is never presumed and cannot
be waived.”  Barnes, 127 S.W.3d at 846. 
Rather, it “‘exists by operation of law only, and cannot be conferred upon any
court by consent or waiver.’”  In re A.D.D., 974 S.W.2d 299, 303 (Tex. App.—San
Antonio 1998, no pet.) (quoting Fed. Underwriters Exch. v. Pugh, 141
Tex. 539, 541, 174 S.W.2d 598, 600 (1943)).
Jurisdiction
over child custody issues in Texas is exclusively governed by the UCCJEA.  See
Tex. Fam. Code Ann. § 152.201(b) (stating section 152.201(a) “is the exclusive
jurisdictional basis for making a child custody determination by a court of
this state”); In re Brown, 203 S.W.3d 888, 890 (Tex. App.―Fort
Worth 2006, orig proceeding).  The UCCJEA was largely designed to avoid having multiple
states simultaneously claim jurisdiction by prioritizing home-state
jurisdiction.  Powell, 165 S.W.3d at 325; In re S.J.A., 272
S.W.3d 678, 684 (Tex. App.―Dallas 2008, no
pet.).
Family
code section 152.201(a) provides that a Texas court has jurisdiction to make an
initial child custody determination only if:
(1) [Texas] 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
[inconvenient forum] or 152.208 [jurisdiction declined by reason of conduct],
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;
 
(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).
Tex.
Fam. Code Ann. § 152.201(a).
          A
child’s home state is determined as of the date of the commencement of the child
custody proceeding.  Waltenburg v. Waltenburg, 270 S.W.3d 308, 314 (Tex.
App.―Dallas
2008, no pet.); Brown, 203 S.W.3d at 891.  “Commencement” is defined as
“the filing of the first pleading in a proceeding.”  Tex. Fam. Code Ann. §
152.102(5).  When a child is less than six months old, the
home state is “the state in which the child lived from birth with a parent.”  Id.
§ 152.102(7); Waltenburg, 270 S.W.3d at 315.  The UCCJEA does not,
however, “authorize jurisdiction over a child custody proceeding concerning an
unborn child.  Waltenburg, 270 S.W.3d at 316 (interpreting the plain
language of the UCCJEA’s definition of a child and considering holdings of
other states).
B. 
Analysis
          It
is undisputed that Arnold and Price’s child was born in California in December
2007, several months after Price filed his original petition for divorce and
Arnold filed her counter-petition.  It is also undisputed that, other than
brief visitations with Price, the child had lived only with Arnold in
California since birth.
          1. 
The UCCJEA and Unborn Children
          Price
argues that the trial court had subject matter jurisdiction over the child
custody issues because the UCCJEA does not apply to unborn children, the child
had not been born at the time Price filed for divorce, and jurisdiction is
determined based on the circumstances at the time the suit is commenced.  But
this argument has been rejected by our sister court of appeals.  In Waltenburg,
the mother and father had lived in Arizona, but the mother moved to Texas
shortly before she gave birth to their child.  See 270 S.W.3d at 311. 
The father filed for divorce and custody in Arizona before the child was born
in Texas, and the mother filed for divorce and custody in Texas four months
after the child’s birth.  Id.  Father argued that the Arizona court had
subject matter jurisdiction because the UCCJEA does not apply to unborn
children.  Id. at 316.  Rejecting the father’s argument, the court
stated,
[R]eading the UCCJEA
to authorize jurisdiction over a custody matter concerning an unborn child
would defeat the clear purpose underlying the legislature’s enactment of the
UCCJEA—to prioritize home-state jurisdiction.  See Powell, 165 S.W.3d at
325.  Under such a reading, a party could file suit pre-birth under the UCCJEA
provision authorizing jurisdiction when “no other court has jurisdiction,” and
use the “simultaneous proceeding” provision to control, post-birth, whether the
child’s home state can ever exercise that “priority” jurisdiction.  We reject
this reading of the UCCJEA.
Id. at
318.  Instead, the Waltenburg court held that Texas became the child’s
home state immediately upon birth and that “a court in a state that has adopted
the UCCJEA cannot exercise jurisdiction over a custody claim asserted regarding
an unborn child.”  Id.  Thus, we reject Price’s contention that the
trial court had subject matter jurisdiction simply because the UCCJEA does not
apply to unborn children and jurisdiction was proper as to Arnold.
          2. 
Texas Family Code Section 152.201(a)
As
stated above, family code section 152.201(a) states that a Texas court may make
an initial child custody determination only if one of four circumstances
exist.  See Tex. Fam. Code Ann. § 152.201(a).  We address each circumstance
in turn.
          As
applicable here, section 152.201(a)(1) provides that a Texas court may exercise
subject matter jurisdiction if Texas was the child’s home state at the time
Price filed his original petition.  Tex. Fam. Code Ann. § 152.201(a)(1).  But
the child had not yet been born when Price filed for divorce, and the child’s
home state could not yet be determined.  The Waltenburg court held that
although subject matter jurisdiction is typically determined based on the
pleadings at the time the proceeding is commenced, subject matter jurisdiction
for a child that had not been born at the time of commencement is determined
“on the pleadings of the parties and the undisputed evidence as to the date and
location of [the child]’s birth.”  270 S.W.3d at 315; see also Tex. Fam.
Code Ann. § 152.102(2) (defining a “child” as “an individual who has not
attained 18 years of age”); Tex. Fam. Code Ann. § 152.102(7) (defining “home
state” for a child under six months of age as “the state in which the child
lived from birth with a parent or a person acting as a parent”).  Thus,
California became the child’s home state immediately upon birth, and a Texas
court therefore could not exercise jurisdiction over the child custody
proceeding pursuant to section 152.201(a)(1) as the child’s home state.  See
Waltenburg, 270 S.W.3d at 318 (holding that Texas became child’s home state
immediately upon birth, “thus precluding the Arizona court from exercising
jurisdiction” over custody claim); see also Tex. Fam. Code Ann. § 152.102(7).
          Section
152.201(a)(2) states that a Texas court may make an initial child custody
decision if another state does not have home state jurisdiction or if another
state has declined to exercise jurisdiction pursuant to sections 152.207
(inconvenient forum) or 152.208 (unjustifiable conduct).  See Tex. Fam.
Code Ann. § 152.201(a)(2).  “This ‘significant connection jurisdiction should
only be employed when Texas is not the home state and it appears that no other
state could assert home state jurisdiction.’”  Barnes, 127 S.W.3d at 847
(quoting In re Oates, 104 S.W.3d 571, 578 (Tex. App.—El Paso 2003, orig.
proceeding).  Here, California did have jurisdiction of the child custody
proceeding because California was the child’s home state as of the date of her
birth.  See Tex. Fam. Code Ann. §§ 152.102(7), .201(a)(1); see
also Cal. Fam. Code §§ 3402(g), 3421(a) (West 2000) (California versions of
Texas Family Code sections 152.102(7) and 152.201(a)).  Furthermore, California
had not declined to exercise jurisdiction.  See Tex. Fam. Code Ann. §§
152.207, .208.  Texas could not therefore exercise subject matter jurisdiction
pursuant to section 152.201(a)(2).  See id. § 152.201(a)(2); Barnes,
127 S.W.3d at 848 (holding Texas could not exercise jurisdiction over custody
proceeding until other proper forums declined to exercise jurisdiction).
          Texas
courts may also make an initial child custody determination if all courts with
jurisdiction under section 152.201(a)(1) and (2) have declined jurisdiction on
the ground that Texas is a more appropriate forum.  See Tex. Fam. Code
Ann.. § 152.201(a)(3).  But this provision cannot apply because
California had jurisdiction under section 152.201(a)(1) and had not declined to
exercise jurisdiction.  Finally, Texas cannot exercise subject matter
jurisdiction over the child custody proceeding under section
152.201(a)(4)—which provides that a Texas court may exercise subject matter
jurisdiction if no other state would have jurisdiction under section
152.201(a)(1), (2), or (3)—because California has jurisdiction over the
proceeding under section 152.201(a)(1).  See id. § 152.201(a)(4). 
Therefore, none of the four exclusive circumstances listed in family code
section 152.201(a) exist in this case.
          3. 
No Pending California Proceeding 
          Price
argues that the trial court still could exercise subject matter jurisdiction
because Arnold never initiated a custody proceeding in California. While it is
true that Arnold did not commence a proceeding in California, this fact is not
dispositive because Texas is not the child’s home state, and the UCCJEA
prioritizes home-state jurisdiction.  See generally Powell, 165 S.W.3d
at 325; S.J.A., 272 S.W.3d at 684.  Moreover, it is apparent from the
UCCJEA as a whole that the legislature contemplated that a Texas court could
decline to exercise jurisdiction, even if there was not a pending proceeding in
another state.  For example, family code section 152.207 provides that a Texas
court may decline to exercise jurisdiction on inconvenient forum grounds.  Tex.
Fam. Code Ann. § 152.207(a).  But there is no requirement that there be a
currently pending proceeding in another state.  See id.  This is so
because section 152.207(c) provides that, after the trial court determines that
another forum is more appropriate, the trial court “shall stay the proceedings upon
condition that a child custody proceeding be promptly commenced in another
designated state.”  Id. § 152.207(c) (emphasis added).[4] 
Therefore, the legislature clearly contemplated scenarios in which Texas courts
decline to exercise jurisdiction over child custody determinations even though
there is not a pending proceeding in the more appropriate state.
          4. 
Conclusion
Family
code section 152.201(b) states that “[s]ubsection (a) is the exclusive jurisdictional
basis for making a child custody determination by a court of this state.”  Id.
§ 152.201(b).  Because a Texas court could not properly exercise subject matter
jurisdiction under section 152.201(a) at the time Price commenced this
proceeding or at the time of the child’s birth, we hold that the trial court
did not have subject matter jurisdiction to make the initial child custody
determination.  See id. § 152.201(a), (b); see also Waltenburg,
270 S.W.3d at 318 (holding Texas rather than Arizona courts had subject matter
jurisdiction over custody proceeding involving a child born in Texas after the
initial petition was filed in Arizona).  We therefore sustain the remainder of
Arnold’s first issue. 
IV. 
Conclusion
          Having
sustained Arnold’s first issue in part and having not reached her second issue,[5]
we reverse the portions of the trial court’s judgment relating to conservatorship
and custody of the child and dismiss those portions for lack of subject matter
jurisdiction.  Having overruled the portion of Arnold’s first issue challenging
personal jurisdiction, we affirm the remainder of the trial court’s judgment.
 
ANNE GARDNER
JUSTICE
 
PANEL: 
LIVINGSTON,
C.J.; GARDNER and WALKER, JJ.
 
DELIVERED:  December 22,
2011




[1]See Tex. Fam. Code
Ann. § 152.001–.104 (West 2008), .105 (West Supp. 2011), .106–.310 (West 2008),
.311 (West Supp. 2011), .312–.317 (West 2008).


[2]See Tex. Fam. Code
Ann. § 6.305(a) (West 2006).


[3]See Tex. Fam. Code
Ann. § 152.001–.317.


[4]We also note that section
152.207(d) provides that a Texas trial court may decline jurisdiction of a
child custody determination while retaining jurisdiction over other portions of
the same proceeding, such as for divorce.  Id. § 152.207(d).


[5]We do not reach Arnold’s
second issue in which she argues that the trial court abused its discretion by
admitting the testimony of Price’s retained expert witness.  See Tex. R.
App. P. 47.1 (providing that a court of appeals’s opinion must be as “brief as
practicable” and address “every issue raised and necessary to final disposition
of the appeal”).


