


 
 
 


NUMBER 13-09-080-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 
 
MARIO GILBERTO CANALES,  					          Appellant,
 
v. 

LIZBETH RIQUELME,					  		  Appellee.
 

On appeal from the County Court at Law No. 4 
of Hidalgo County, Texas.

 

MEMORANDUM OPINION


Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela


	This is an appeal from a final decree of divorce and trial court's order denying Mario
Gilberto Canales's plea to the jurisdiction with respect to an initial custody dispute. 
Canales raises three issues on appeal, including a jurisdictional argument pertaining to the
initial custody dispute, the division of community property, and the award of retroactive
child support.  We lift the abatement order, reinstate the cause and affirm in part, and
dismiss for lack of jurisdiction, in part.
I.  Factual Background
A.  The Texas Proceeding
	Appellee, Lizbeth Riquelme, filed a petition for divorce against Canales in Hidalgo
County on November 19, 2007.  She sought custody of the couple's three children, M.G.,
M.J., and T.L.  She also sought a just and right division of the marital property.  Canales,
who was not served until March 10, 2008, responded by filing a special appearance and
a motion to dismiss the action pursuant to the Uniform Child Custody Jurisdiction and
Enforcement Act ("UCCJEA"), requesting the trial court to dismiss for lack of subject-matter
jurisdiction over the initial child custody issues.  See Tex. Fam. Code Ann. §§ 152.001-.317
(Vernon 2008).  The trial court denied Canales's special appearance and ruled that it had
subject-matter jurisdiction with respect to the initial custody matters.  Thereafter, the trial
court conducted a final hearing and entered a decree of divorce on December 29, 2008.
B. The Washington Proceeding
	Canales filed a petition for divorce on March 6, 2008, in the state of Washington. 
On April 2, 2008, the Washington court entered temporary orders stating that the children
were to be returned to Washington.  The Washington court's order stated that it would
determine custody once the children were returned to Washington and that the order 
would be subject to modification at "the UCCJEA conference."  On May 29, 2008,
Riquelme's Washington counsel filed a motion to dismiss the Washington proceeding.  The
Washington court signed an order delaying a ruling on the motion to dismiss pending the
outcome of "the appeal of the jurisdictional claim."  The record reflects that the Washington
court unsuccessfully attempted to communicate with the Texas court.
C.  Abatement
	In a March 2010 abatement order, this Court determined that Washington was the
proper state to determine the initial custody issues for reasons that we reiterate in our
analysis of appellant's first issue.  We ordered the Hidalgo County trial court to confer with
the Washington court.  On June 7, 2010, the trial court informed this Court that the
Washington court had determined that Washington is the home state of the children and
that it is the exclusive tribunal to determine all issues related to the custody of the children. 
	Thereafter, this Court asked the parties for a status update.  Counsel for Canales
suggests to this Court that his second and third issues are ripe for this Court's review.  In
the second issue, Canales urges that the trial court abused its discretion in dividing the
community property.  His third issue is that the trial court abused its discretion in ordering
retroactive child support.  Counsel for Riquelme informed this Court that he agrees with
appellant's analysis and conclusion of the "factual situation and legal issues at bar."  Both
parties urge that we lift our previous abatement order and rule on the remaining two issues,
which we do in this memorandum opinion. 			II.  Standard of Review-Jurisdiction
	First, we will reiterate our holding with respect to appellant's jurisdictional issue.  As
we previously stated in our abatement order, construction of the UCCJEA's home state
provision, as codified in the family code, is a question of law that we review de novo. 
Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005).  Subject-matter jurisdiction may not
be waived or conferred by estoppel.  See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 445 (Tex. 1993); Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585 (Tex.
App.-Dallas 2006, no pet.).  The UCCJEA was intended to make the determination of
jurisdiction straightforward and to deter abductions of children.  Powell, 165 S.W.3d at 326.
III. The UCCJEA
	The Texas Family Code prioritizes home-state jurisdiction and provides as follows:
	(a)	Except as otherwise provided in section 152.204, a court of this state
has jurisdiction to make an initial child custody determination only if:

		(1)	this state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of
the child within six months before the commencement of the
proceeding and the child is absent from this state but a parent
or person acting as a parent continues to live in this state; 
 
				(2)	a court of another state does not have jurisdiction under
Subdivision (1), or a court of the home state of the child has
declined to exercise jurisdiction on the ground that this state is
the more appropriate forum under Section 152.207 or 152.208,
and:
 
			(A)	the child and the child's parents, or the child and at
least one parent or a person acting as a parent, have a
significant connection with this state other than mere
physical presence; and 
 
			(B)	substantial evidence is available in this state concerning
the child's care, protection, training, and personal
relationships; 
 
		(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). 
 
	(b) 	Subsection (a) is the exclusive jurisdictional basis for making a child
custody determination by a court of this state.

	(c)	Physical presence of, or personal jurisdiction over, a party or a child
is not necessary or sufficient to make a child custody determination.

Tex. Fam. Code Ann. § 152.201.
 
	The family code defines "home state" as "the state in which a child lived with a
parent . . . for at least six consecutive months immediately before the commencement of
a child custody proceeding . . . ."  Id. § 152.102(7).  The word "lived" connotes physical
presence.  Powell, 165 S.W.3d at 326.  In Powell, the supreme court explained that the
Legislature used the word "lived" to avoid "complicating the determination of a child's home
state with inquiries into the state of mind of the child or the child's adult caretakers."  Id.
(citing Escobar v. Reisinger, 133 N.M. 487, 64 P.3d 514, 517 (2003)).  The UCCJEA
suggests that the child's physical location is the central factor to be considered when
determining the child's home state.  Id.  Further, section 152.201(a) is the exclusive
jurisdictional basis for making a child custody determination by a court of this state. 
Seligman-Hargis v. Hargis, 186 S.W.3d at 585. We determine jurisdiction based upon the
circumstances as they existed on the date that suit was filed.  See In re Burk, 252 S.W.3d
736, 740 (Tex. App.-Houston [14th Dist.] 2008, orig. proceeding); In re McCoy, 52 S.W.3d
297, 304 (Tex. App.-Corpus Christi 2001, orig. proceeding). 
IV.  Application 
A.  Home State Jurisdiction With Respect to M.G. and M.J.
	This case commenced when Riquelme filed her original petition in a Texas court on
November 19, 2007.  The evidence was undisputed that M.G. and M.J., the two older
children, lived in Washington from August 2004 through October 3, 2007.  The record is
unclear where the children resided from October 3, 2007, until Riquelme filed for divorce
in November 2007.  At the hearing, Riquelme testified that in May 2007, she moved to
Texas with T.L., her youngest child, and stayed at the home of her sister and brother-in-law.  At that time, the two older children remained in Washington.  Riquelme claimed her
intent was to establish residency in Texas.  She further testified that she returned to
Washington on June 15, 2007, and remained there until October 3, 2007.  Thus, Riquelme
was actually physically present in Texas with her youngest child only from sometime in May
through June 15, 2007--a six-week period.  When she returned to Washington, Canales,
the children, and Riquelme stayed at the home the couple owned in Washington. 
Riquelme, in fact, did not dispute that the children had not been in Texas for six months
prior to her filing the divorce action.  At the hearing to determine jurisdiction, Canales
introduced the affidavit of Brian Anderson, principal of Our Lady of Lourdes school in
Vancouver, Washington.  He averred that the oldest child had been enrolled in the pre-school program from September 5, 2006, through June 15, 2007.  Both of the older
children were also enrolled for the 2007/2008 school year.  He also swore that both
children attended school in Washington until October 2, 2007.  Riquelme agreed that the
children had not lived continuously in Texas for more than six months prior to filing the
divorce and custody action.    
	 In response, however, Riquelme points to:  evidence of Canales's contacts in
Texas; an incident that occurred in November 2007 where Riquelme testified that Canales
forced her and the children out of the car in Monterrey, Mexico; the fact that the older
children's passports were processed in Houston; the fact that the children had received
dental care from Riquelme's brother in McAllen, Texas; and the fact that Riquelme left
Washington in May 2007 for purposes of permanently residing in Texas.  She does not
dispute, however, that the children had resided in Washington since 2004 or, in the case
of T.L., the youngest child, since birth. 
	 Riquelme urges that the above-cited evidence supports the Texas trial court's
jurisdiction either under the "home state" or "significant connection" provisions of the
UCCJEA.  We disagree.  The relevant time period is the six-month time period preceding
November 19, 2007.  While Riquelme testified that she left Washington in May 2007 to
establish residency in Texas, it is undisputed that her two oldest children remained in
Washington with their father.  There is absolutely no evidence that Texas was the home
state of any of the children at the operative time based on the standard set forth in Powell. 
See 165 S.W.3d at 328.  Further, the evidence established that Washington was the home
state of M.G. and M.J., the two older Canales children.  	
	Riquelme argues primarily that she was a resident of Texas during the required six
month period.  However, she spent only about six weeks in Texas prior to filing the divorce
action in November 2007, in addition to the time she was in Texas before filing the divorce
petition.  Nevertheless, her residency is of no import in determining the trial court's
jurisdiction over the initial custody matter; rather it is the physical presence of the children
that is determinative.  Tex. Fam. Code Ann. § 152.102(7); Powell, 165 S.W.3d at 328
(stating that the child's physical location is the central factor to be considered when
determining a child's home state).  Further, Riquelme's "significant connection" argument
should not be applied to jurisdiction because it should be employed only when Texas is not
the home state and it appears that no other state could assert home state jurisdiction.  In
re Oates, 104 S.W.3d 571, 578 (Tex. App.-El Paso 2003, orig. proceeding).  The UCCJEA
provides that if a child has a home state, that home state has subject matter jurisdiction. 
See Tex. Fam. Code Ann. § 152.201(a).  Here, Washington was the home state of M.G. and
M.S., the two older children.
B.  Home State Jurisdiction With Respect To T.L.
 With respect to the youngest child, T.L., we conclude that under the strict definition
of "home state," neither Texas nor Washington was her home state.  Pursuant to section
152.201(a)(2)(A) and (B), we look to whether the child and at least one parent had a
significant connection with this state other than mere physical presence and substantial
evidence is available concerning the child's care, protection, training and personal
relationships.  Id. § 152.201(a)(2)(A) and (B). 
	At the hearing, there was no evidence that T.L. had significant connections with the
State of Texas.  The evidence before the trial court was that Riquelme had a significant
connection and a family support group in Texas.  However, the only evidence introduced
pertaining to T.L. was that she was born in Washington state and had lived there from birth,
with the exception of family vacations, the time period that her mother was absent from
Texas in an attempt to establish residency in Texas, and some time during October and
November 2007 before her mother filed for divorce.  We find that the Washington state was
in the proper position to assert jurisdiction over the initial custody dispute regarding T.L. 
Canales's first issue is sustained.      

 
V.  Division of Community Property
	By appellant's second issue, he argues that the trial court abused its discretion in
dividing the couple's community property as it did.  First, he argues that the trial court
awarded two pieces of real property to Riquelme without explanation.  The final judgment
valued the community property at $580,000.  The trial court awarded Riquelme the couple's
residence in the State of Washington as well as a home the couple owned in Mexico.  The
court also awarded to Riquelme all of Canales's retirement account that was valued at
$55,000, and required Canales to make the mortgage payment on the Washington home. 	Trial courts have wide discretion in making a just and right division of marital
property; we review a trial court's division for an abuse of discretion.  Tex. Fam. Code Ann.
§ 7.001 (Vernon 2006); Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Zorilla v. Wahid,
83 S.W.3d 247, 252 (Tex. App.-Corpus Christi 2002, no pet.).  The test for abuse of
discretion is whether the trial court acted arbitrarily or unreasonably, or whether it acted
without reference to any guiding rules or principles.  See Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990); see also Lozano v. Lozano, No. 13-08-00536-CV, 2009 WL 4882816,
at *3 (Tex. App.-Corpus Christi Dec.17, 2009, no pet.) (mem. op.).  A trial court does not
abuse its discretion if there is some evidence of a substantive and probative character to
support its decision.  Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.-San Antonio 2006,
no pet.); see also Lozano, 2009 WL 4882816, at *4.  A "just and right" division does not
require a trial court to divide the marital estate into equal shares.  Murff, 615 S.W.2d at 698-99 & n. 1 (recognizing that community property need not be equally divided); Schuster v.
Schuster, 690 S.W.2d 644, 645 (Tex. App.-Austin 1985, no writ).  When dividing the marital
estate, a trial court has broad discretion to consider various factors including, but not limited
to, disparities of incomes, earning capacities of the parties, financial obligations, fault in the
breakup of the marriage, benefits which the party not at fault would have derived from a
continuation of the marriage, education of each spouse, and the nature of the property to
be divided.  Murff, 615 S.W.2d at 698-99.  As a reviewing court, we presume the trial court
exercised its discretion properly.  Id. at 699 (citing Bell v. Bell, 513 S.W.2d 20, 22 (Tex.
1974)).
	First, we note that Canales was not present at the final hearing.  His attorney
informed the trial court that he was not there because circumstances beyond his control
prevented him from being present.  It does not appear that Canales attempted to continue
the hearing until a time when he could be present. The evidence at the final hearing
consisted solely of the examination and cross-examination of Riquelme.	
	At the hearing, Riquelme testified with respect to clothing, jewelry, and personal
items that were still in the Washington house.  She further indicated the couple's community
property included furniture, television sets, toys, a home in Mexico, and a home in
Washington.  She valued the non-real property at roughly $20,000.  She also valued some
of the children's items at $4,500 and property located at the house in Mexico at $6,500.
According to Riquelme, the couple's' vehicles were worth $47,600.  She valued the
Washington home at $400,000 and the one in Mexico at $100,000.  They owned the house
in Mexico outright and had received $23,600 in rentals.  She indicated that they still owed
$228,000 on the Washington home. She opined that the equity in the Washington property
is $47,000.  Riquelme also said that Canales had approximately $55,000 in his retirement
account.  There was evidence that Riquelme was not employed and had not been employed
outside the home during the marriage.  Disparity in earning capacity is a factor weighing in
favor of awarding a disproportionate share of the community property to the lower income
earner.  See O'Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.-Austin 2002, no pet.).
	Ultimately, Riquelme asked the court to award her the Washington home, the home
in Mexico and the retirement account.  She asked the court to consider the fact that
Canales owned portions of two ranches in Mexico as well as some offices, a shed and an
apartment as his separate property in determining her award.  On cross examination,
counsel for Canales was unable to authenticate several exhibits regarding the various
properties.  Riquelme summed up her testimony by requesting "half of everything."  She
also explained that Canales owed her money for child and spousal support that had been
ordered, but not paid.   
	In this instance, the burden was upon Canales to show that the division was so
disproportionate that it was manifestly unjust or unfair.  Hedtke v. Hedtke, 248 S.W. 21, 23
(Tex. 1923); see also Trial v. Trial, No. 04-05-00 448 CV, 2006 WL 1993772, at *1 (Tex.
App.-San Antonio July 19, 2006, no pet.) (mem. op.).  There was evidence before the court
to support Riquelme's property valuation.  Here, Canales did not avail himself of the
opportunity to provide values on any of the property at the final hearing.  See Vannerson
v. Vannerson, 857 S.W.2d 659, 670 (Tex. App.-Houston [1st Dist.] 1993, writ denied)
(noting that because appellant did not appear at trial, he presented no evidence concerning
characterization of property); LeBlanc v. LeBlanc, 761 S.W.2d 450, 453 (Tex. App.-Corpus
Christi 1988), aff'd, 778 S.W.2d 865, 865 (Tex. 1989) (stating that appellant did not avail
himself of the opportunity to provide values on property); see also Dean-Groff v. Groff, No.
13-06-00085-CV, 2007 WL 3293540, at *4 (Tex. App.-Corpus Christi Nov. 8, 2007, no pet.)
(mem. op.) (stating that where a party does not provide any value with respect to property,
he may not complain on appeal of a trial court's lack of complete information).  Thus,
Canales is not in a position at this point to complain of the lack of information.  Because the
trial court was not required to make an equal disposition of the community property and
there is nothing in the record showing that the trial court's ruling was manifestly unjust, we
overrule appellant's second issue.
VI. Retroactive Child Support
	By Canales's third issue, he urges the trial court abused its discretion by requiring
him to pay Riquelme retroactive child support for a period in which Canales had possession
of the children.  The parties agree that the standard of review is abuse of discretion. 
Because the abuse of discretion standard is well known and we have iterated it earlier in
this opinion, we will not reiterate it here.
	The trial court signed temporary orders awarding child support in the amount of
$2,250 per month from May 2007 through August 2008, for a total of $36,000.  The record
showed that the two older children were residing in Washington until October 2007, when
Riquelme left Washington with all three of the children.  Canales argues that he was
required to pay Riquelme retroactive child support for five months in which the two older
children had been with him.  The record was very clear that T.L., the youngest child, resided
with Riquelme at all times, both in Washington, and during the six-week period she was in
Texas, and the time period after they left Washington in October.  For part of the time in
question, Riquelme was living at the Washington house with the children, although she
states that she was separated from Canales at that time.  The child support was originally
ordered at the hearing to be temporary, but was later incorporated into the final decree
because Canales had not paid it.  At the final hearing, counsel for Canales argued that he
was entitled to a reduction for the time period that Riquelme and the children were living at
the Washington residence.  At the hearing, his counsel suggested he was owed child
support for three months and, on appeal, he suggests five months.  
	Riquelme testified that, during the period when she returned to Washington, Canales
paid all of the house bills and she received money from her mother so she could support
herself.  Riquelme testified that during this time appellant was providing for the "needs of
the home."  There was no specific evidence with respect to who supported the children
during this period.  Riquelme testified that she had received no support and was entitled to
retroactive support in the amount of $36,000.  The amount awarded was in accordance with
the amounts dictated by section 154.009 of the Texas Family Code.  See Tex. Fam. Code
Ann. § 154.009 (Vernon 2008).  We will not reverse the trial court in this discretionary
matter based on the record that is before us.  We overrule issue three.VII.  Conclusion
	The previous abatement ordered by this Court is lifted and the case is reinstated. 
Because Washington state was the home state of the three children, the Texas court does
not have jurisdiction to make the initial custody determination.  Thus, we do not have
jurisdiction over the initial custody matters in this case, and we dismiss that portion of the
case for lack of subject matter jurisdiction.  We affirm the judgment with respect to the
division of community property and the award of retroactive child support. 



 
 								ROSE VELA
								Justice


Delivered and filed the 18th
day of November, 2010.
 
