RFVFRSF      aiid   Ri MANI);   Opinion   flIed October 4. 2012.




                                               in   The
                                 nurt nf App iah
                         3iffl! Hitrirt uf hxa at Ja11a
                                       No. 05-1 1-01185-CV


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



                       On Appeal from the 219th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 219-50824-2010


                                            OPINION
                           Before .Justices Morris, Francis, and Murphy
                                    Opinion By Justice Murphy

       This appeal involves the effect a foreign court’s findings in a child—abduction case brought

pursuant to the Hague Convention had on subject-matterjurisdiction in a Texas SAPCR suit. Barton

Jeanot Hermer appeals the trial court’s dismissal with prejudice ofhis child-custody suit, contending

among other things, that the trial court erroneously enforced a foreign judgment without an

evidentiary hearing regarding the child’s residence. We reverse and remand.

                                          BAC KGROUND

       Hermer and Simmone Jayne Cohen, a British citizen, are the parents of A.S.C.1l., who was

born in Texas in November 2008. In the first ten months of her life, A.S.C.H. traveled with her

parents to England on several occasions. On the last trip in September 2009, Cohen and A.S.C.H.

were permitted to enter the country. Hermer, an American citizen, was denied entry. Hermer
returned to the United States, and since that time. AS.C.H. has lived in England with Cohen.

          I hi mLI h   in pioui.dins an J imi u   ‘   2<) 1<) thwIL!h Ow LI   nu   (   Ofl\ ention on   thL ( l’vll

Aspects of International Child Abduction, alleging Texas            is   the place of A.S.C.H.’s habitual

residence and scekin A. SC. H. ‘s return to   lex as.   Just over a month later, in February 20 10, he also

filed an oriina1 SAPCR petition in Collin Count. Texas. alleging Cohen had taken A.S.C.H. in

violation of his right of possession or access. Heriner pleaded that “[n]o               CoUrt   has continuing

jurisdiction of this suit or of [AS.C.H.J” and that Cohen “has resided in Texas” with A.S.C.H. since

her birth until September 2009. He requested, among other things, that he be appointed A.S.C.H.’s

sole managing conservator.

          The High Court of Justice, Family Division in London handed down                 its judgment in     the

Hague Convention proceedings on December 3. 2010. denying Hermer’s application for A.S.C.1-l.’s

return to Texas The court determined that the parties were “habitually resident in England” by the

time of their September 2009 trip and by December 2009, A.S.C.1—l. “had had habitual               residence in


England for some considerable time.” As part of its reasoning, the Court found that A.S.C.H. had

lived in England since June 24, 2009 and the parties moved there as part of a planned move.

Although Hermer pursued an appeal of the High Court’s decision and sought to present further

evidence, the appellate court refused Hermer’s requests.

          Cohen then, on February 24, 2011, filed a motion to dismiss Hermer’s Texas state-court

SAPCR petition for lack of jurisdiction. Cohen asserted the High Court had determined that

A.S.C.H. ‘s habitual residence since June 24, 2009 was the United Kingdom and the trial court did

not have subject-matter jurisdiction pursuant to sections “152.201, 152.202, 1 52.203 or 1 53.204”

of the   Texas Family Code. She sought dismissal of the case without prejudice under family code

section 155102. See Tux. FAM. CODE ANN.               155.102 (West 2008) (dismissal without prejudice
where another court has continuing exclusive unsdietion). Although she attached a copy of the

I 1mb ( owl iudwn.. iii   to   hu motion sht   (lid not Lrtlt’ \ ntv or   othu v isc   olfu   thL judgment into

evidence at the dismissal hearing 1-lermer tiled       no   written response beftre the hearing.

        At the June 2. 21)1 1 hearing on Cohen’s motion, Cohen s counsel arued the trial court lacked

sub jcctmatter jurisdiction because the courts of the United Kingdom had taken jurisdiction over

AS.C.K. and denied I lermer’s application for her return to the United States. He asserted, “it’s not

an evidentiary hearing today; it’s simply that you must dismiss because this Court does not have

jurisdiction.” Hermer responded that the trial court had home state jurisdiction based on a reading

of family code section 152.201 in conjunction with section 36.005 of the Texas Civil Practice and

Remedies Code, which states that a foreign judgment cannot be recognized i1 it was obtained by

fraud. Hermer argued that although he was not contesting “the Hague decision,’ he wanted “his (lay

in court to present evidence and show that the High Court )udgment should not be recognized

because   it   was obtained by fraud.

        Two days later, on June 4, 2011, the trial court signed its order dismissing Hermer’s case

“with prejudice.” The trial court recited that the High Court had determined that A.S.CJ-1, ‘s habitual

residence was the United Kingdom and that she had resided there since June 24, 2009. Based on

those determinations, the trial court concluded it lacked subject-matterjurisdiction under family code

sections “152.201, 152.202, 152.203 or 153.204” because “on the day that [Hermer] filed his

[SAPCR petition], the child had habitually resided in the United Kingdom thr almost eight months.”

The trial court inserted a handwritten note in the order that the Fligh Court judgment “was not

obtained by fraud; but rather Father was afforded due process by the UK Court.”

       Hermer challenged the trial court’s order in three posttrial motions—-a motion for new trial,

motion to reconsider, and motion to reopen the evidence, in his motion for new trial, he asserted the
trial court erred in dismissing his case fir lack of jurisdiction because the evidence “proves

conclusively, as a matter of law, that the court does in fhct have subject matter urisdiction.” He also

asserted the trial courts dismissal “with prejudice was in error. In that motion, Hermer specifically

raised the question of whether the trial court’s order was erroneously based on the Fligh Court’s

judgment, which “was not a child custody determination.       And in both the motion br new trial and

the motion to reopen the evidence, he argued that “newly discovered evidence” regarding the

issuance of A.S.C.H.’s United States passport would have materially affected and altered the High

Court’s decision as to AS,C.H. ‘s habitual residence. He maintained that because the passport

evidence would have shown A.S.C.H. was a citizen of the United States, the trial court’s finding that

it lacked subject-matter jurisdiction was improper.

        The trial court heard argument on I leimer’s motions and denied each of them by separate

orders. I lermer appealed.

                                           1)1 SC U SS ION

        Hermer brings four issues on appeal in which he argues the trial court erroneously enforced

the foreign judgment under section 152.105 of’ the family code without regard to whether the

judgment was procured by fraud (issue one); the trial court erred by refusing him an evidentiary

hearing prior to dismissing the case for lack of subject-matter jurisdiction in violation of his due

process rights (issue two); the trial court erred in concluding England had sub ject-matterjurisdiction

and that Texas was not the child’s home state under section 152.201 (issue three); and the trial court

erred by dismissing the suit “with prejudice” (issue four).

                                        Standard of Review

       The question of whether a trial court has subject-matter jurisdiction is a question of law that

this Court reviews de novo. Tex. Dep ‘t of Parks & WildIi/ v. Miranda, 133 S.W.3d 217, 226 (Tex.




                                                 -4-
2004); In re B4,lf, 124 S.W.3d 417, 419 (Tex. App.- -Dallas 2004, no pet.). When jurisdiction is

challenged, we look to whether the plaintili has alleged facts that affirmatively demonstrate the

court’s jursdiction to hear the case. Miranda, 133 S.W.3d at 226 (citing 7v. Ass n of Bus. v. 1x.

Air Control lId., $52 S.W.2d 440, 446 (Tex. 1993)); Cliv olDall. v. Heard, 252 S.W.3d 98. 102

(Tex. App.-     Dallas 200$, pet. denied). We liberally construe the plaintiffs pleadings in favor of

jurisdiction, and we look to the plaintiff’s intent. Miranda, 133 S,W.3d at 226.

          Where, as here, jurisdictional facts are challenged, we must consider relevant evidence to

resolve the jurisdictional issues. Id. at 227. In such a case, we are not bound by the plaintiff’s

factual allegations. See id. at 224 n,4, This standard mirrors our summary-judgment standard under

Texas Rule of Civil Procedure 166a(c) and places the burden on Hermer, as the plaintiff, to allege

facts that affirmatively demonstrate the trial court’s jurisdiction. Id. at 227—28. Once he has (lone

SO,   the movant, Cohen. must meet the summary—judgment standard of proof to support her contention

the trial court lacks subject—matter jurisdiction. Id. at 22$. Hermer is then required to show only that

a disputed fact issue exists. Id.; Heard, 252 S.W.3d at 102. If the relevant evidence fails to raise a

fact question or is undisputed on the jurisdictional issue, we determine the plea as a matter of law.

Miranda, 133 S.W.3d at 228.

                                           Applicable Law

          A “suit affecting the parent-child relationship” or SAPCR is defined tinder the family code

as a suit “in which the appointment of a managing conservator or a possessory conservator, access

to or support ofa child, or establishment or termination of the parent-child relationship is requested.”

TEX. FAM. CODE ANN.        § 101.032(a) (West 2008). Jurisdiction for making a child custody
determination by a court of this state is governed by section 152.201(a) of the Uniform Child

Custody Jurisdiction and Enforcement Act (UCCJEA). See id.          § 152.20 1(b). Under that section,



                                                 —5—
a Fexas court has unsdiction to make an initial custody detcrmtnation only if( I ) Texas is the home

state of the child on the (late    of   the   commencement   ol the proceeding. (2) a court of another state

does not have home state” jurisdiction or the court having “home state” jurisdiction has declined

to exercise jurisdiction on the ground that Texas is the more appropriate forum and the child or his

parents have a significant connection with the state, or (3) all courts otherwise having jurisdiction

have declined jurisdiction on the ground that Texas is the more appropriate forum to determine the

matter. Id.      152.201(a).

         A child’s “home state” is the state in which she lived with a parent or person acting as a

parent   for at least six   consecutive   months, including temporary absences, beibre commencement of

a child custody proceeding. Id.         § 152.102(7), Based on the UCCJEA’s purpose of discouraging the
use of   the interstate system for continuing controversies over child custody, the Texas Supreme

Court has declined to use the parties’ subjective intent in making a child’s home state determination.

See Powell v. Stover, 165 S.W.3d 322. 326 (Tex. 2005). Rather, in determining the child’s home

state, we focus on the child’s “physical presence” in a state, not the legal residency of her parents.

Id. at 326—28 (stating legislature’s use of word “lived” in defining home state “strongly connotes

physical presence”). 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). A “child custody
determination” made in a foreign country must be recognized and enforced ifthat determination was

made “under factual circumstances in substantial conformity with the jurisdictional standards” of

the UCCJEA. id.       § 152.105(b).
         The Hague Convention is a multinational treaty, which was created by the Conference on

Private International Law in 1980 “to protect children internationally from the harmful effects of

their wrongful removal or retention and to establish procedures to ensure their prompt return to the




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State of their habitual residence, as well as to secure protection for rights of access.” Hague

Conference on Private InternationalLaw: FinalAct, Preamble, 19 Int’l Legal Materials 1501 (1980).

The United States ratified the Convention on April 29, 1988 and became a “Contracting State” on

July 1, 1988 through the federal implementing statute—the International Child Abduction Remedies

Act (ICARA), See 42 U.S.C.A.        § 11601—610 (West 2005),
          The Hague Convention “establishes legal rights and procedures for the prompt return of

children who have been wrongfully removed or retained.” Id.        § 1160 1(a)(4). Its primary aim is to
preserve the “factual” status quo that is unilaterally altered when a parent abducts a child. Velez v.

Mitsak,    89 S.W.3d 73, 79 (Tex. App.—El Paso 2002, no pet.) (citing Flores v. Confreras, 981

S.W.2d 246, 248 (Tex. App.—San Antonio 1998, no pet.)). The ICARA confers concurrent

jurisdiction in state and federal courts over actions arising under the Hague Convention. See 42

U.S.C.A.    § 11603(a). But jurisdiction under the statute is granted only as to the merits of the
abduction claim; the statute does not grantjurisdiction to decide the merits of any underlying custody

dispute. See id.   § I 160 l(b)(4); see also Hague ConJ&ence, ch. Ill, art. 19, 19 Int’l Legal Materials
at 1503 (“A decision under this Convention concerning the return of the child shall not be taken to

be a determination on the merits of any custody issue.”); England v. England, 234 F.3d 268,271(5th

Cir. 2000) (courts considering Convention petitions prohibited from adjudicating merits of

underlying custody dispute); In re S.J.O.B.G., 292 S.W.3d 764, 774 (Tex, App.—Beaumont 2009,

no pet.). The Hague Convention is based on the principle that the country of the child’s habitual

residence is best suited to determine questions of child custody and access. In rei.G., 301 S.W.3d

376, 379 (Tex. App.—Dallas 2009, no pet.).

                    issue One—En/àrcement Under Family Code Section 152.105

          Etermer claims in his first issue that the trial court erroneously enforced the High Court




                                                  —7—
judgment under section 152.105 of the family code without regard to whether that judgment was

procured by fraud, Cohen did notclaim section 152.105 as a basis fin’disniissal of 1-lermers SAPCR

petition. Yet she did seek. dismissal pursuant to section 155. 102 of the flimily code, Specifically,

Cohen attached a copy of the High Courtjudgment to her motion to dismiss based on lack ofsubject

matter jurisdiction. She asserted the High Court had determined the habitual residence of A.S.L.H.

pursuant to the attached copy of the order, that the High Court judgment determined that A.S.C.H.

had resided in the United Kingdom since June 24.2009, and that I lermer’s SAPCR petition was filed

February I 8, 2010. Cohen concluded her motion by stating that on the day Hermer filed his petition,

“the child had resided in the United Kingdom for eight months and the Court did not have subject

matter jurisdiction pursuant to 152.201, 152.202, 152.203 or 153.204 of the Texas Family Code.”

In her prayer for relief’, she sought dismissal pursuant to section 155.102 of the family code.

        Section 155.102 of the flimily code provides for dismissal ota SAPCR without prejudice if

the court in which the petition is tiled determines that another court has “continuing, exclusive

jurisdiction of the child.” TEX. FAM. CoDE ANN.         § 155.102. Notably, when the High Court issued
its judgment, it did not purport to have continuing, exclusive jurisdiction of A.S.C.FI. That court

determined only Hermer’s suit for return of the child to Texas under the Hague Convention, which

was a decision as to the merits of the abduction; the court did not make a child custody

determination. See 42 U.S.C.A.    § 11 601(b)(4); England, 234 F.3d at 271; see also TEX, FAM. CoDE
ANN.   § 152.302 (a Texas court “may” enforce an order for return of child made under Hague
Convention “as if it were a child custody determination”); id.          §   152.102(3) (“child custody

determination” is a “judgment, decree, or other order of a court providing for legal custody, physical

custody, or visitation with respect to a child.”).




                                                     —8—-
          The trial   court   stated in its order that it was granting Cohen’s motion “in all respects.”

Accorditmly. to the extent the order was a dismissal under section 155.102 of the flimily code

because the High Court was perceived to have continuing, exclusive jurisdiction of a child custody

dispute, we sustain issue one.

                  Issue iwo—- 1 riot Court ‘s Dismissal Ii ithout Evide,itiarv 11earin

          Hermer contends in his second issue that his constitutional rights were violated because the

trial court refused to allow an evidentiary hearing prior to dismissing his case fur lack of subjecC

matterjurisdiction, Specifically he claims he was prevented from presenting testimony and evidence

in in eidcntiarv heiring rc.g tiding his al[Lg itions of liaud    in   th. procurcrnent   of   the High ( ourt

judgment prior to the nding on Cohen’s motion to dismiss. 1-lis complaints at the time of the hearing

were that Texas is the “home state” of A.S.C. H. and the High Court judgment was obtained by fraud.

Hermer alleged and verified that A.S,C,H. and Cohen had lived with him in Texas until September

2009. Such verification, ii accepted as true, would establish that Texas was the child’s home state

pursuant to section 152.20l(a)( 1) of the family code. See TEx. Fj\M. CODE ANN.            § 152.201 (a)( 1);
id.   § 152.102(7). We construe Hermer’s argument of fraud as stated in issue two to embrace the
finding that the child had lived in the United Kingdom since June of 2009, contrary to Hermer’s

verification.

         The High Court judgment was not admitted as evidence, hut Henner stated he was not

contesting the fact ofthejudgment. We therefore assume without deciding the judgment was before

the court as some evidence of where the child had lived since June of 2009. The record shows, at

the least, a disputed fact issue existed as to the length of time A.S.C.H. lived in Texas, the

determination of which is critical to the question of her home state. See Heard, 252 S.W.3d at 102.

Accordingly, dismissal for lack of subject-matter jurisdiction was in error. Hermer was entitled to




                                                    —9—
have that issue decided by the fact finder and not as a matter of law. Miranda, 133 S.W.3d at 228;

f in IL Oaks 104 S W d 571 576(1 c. App         —   -   LI Ptso 2003   01   ig proLecding) (when no   uistody

orders issued by another court, court approaches jurisdictional issue in context of initial custody

determination; home state jurisdiction analysis must be conducted first). We sustain Fiermer’s

second issue to the extent he seeks to present evidence for the fact finder’s deterniination of

A,S,C,H,’s home state under family code section l52.201(a)(i).

       Based on our resolution of issues one and two, we do not reach issues three and four, TEx,

R. APP. P. 47.1.

                                         CONCLUSION

       We conclude the trial court erred when it dismissed Hermer’s SAPCR suit with prejudice

based on a finding it lacked sub jectmatter jurisdiction. Accordingly, we reverse the trial court’s

order of dismissal and remand this case to the trial court for further proceedings.

                                                                                    ‘fir
                                                                f               I   /   ’
                                                                                        7
                                                                                        J

                                                           MARY MURPHY
                                                           JUSTICE

111 185F,P05




                                               —10—
                                    nitrt   øf Appimhi
                       3Fiftt! Thqtrttt uf cxas at Oat1a

                                      JUDGMENT
IN THE INTEREST OF ASC,FL, A                       Appeal from the 219th Judicial District
CHILD,                                             Court of Collin County, Texas. (Tr,CtNo.
                                                   219-50824-2010).
No, 05-1 1-0! 185-CV                               Opinion delivered by Justice Murphy,
                                                   Justices Morris and Francis participating.


        In accordance with this Court’s opinion of this date, the trial court’s order dismissing
appellant Barton Jeanot Hermer’s suit is REVERSED and this cause is REMANDED to the trial
court for further proceedings. It is ORDERED that appellant I3arton Jeanot Hermer recover his
costs of this appeal from appellee Simmone Jayne Cohen.


Judgment entered October 4, 2012.




                                                   MARY M
                                                   JUSTICE
