




Affirmed in Part and Reversed and Remanded in Part and Opinion filed
August 26, 2008







Affirmed in Part and Reversed and Remanded in Part and Opinion filed August 26,
2008.
 
In The 
 
Fourteenth Court of
Appeals
_______________
 
NO. 14-06-00975-CV
_______________
 
IN THE INTEREST OF D.A.P. 
 
 
                                                                                                                                               

On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2005-77507
                                                                                                                                               

 
O P I N I O N
In this
suit affecting the parent-child relationship, the trial court issued an order
pertaining to child custody and support.  Appellant, Joni Lynn Bishop, appeals
the trial court=s decision regarding custody.  In three issues, Bishop
contends the trial court (1) lacked subject-matter jurisdiction to modify a
Washington state court custody order, (2) violated her due process rights by
modifying a child custody order without providing notice or a hearing, and (3)
lacked personal jurisdiction to modify parental rights previously determined by
a Washington state court.  The trial court=s unchallenged child support order is
affirmed.  We reverse and remand the trial court=s order pertaining to custody of
D.A.P.




I. Background
On July
10, 1998, the Superior Court of Yakima County, Washington entered a decree
dissolving the marriage of Joni Bishop and appellee, Antonio Piccardo, who are
the natural parents of D.A.P.  The Washington court found Piccardo
substantially refused to perform parenting functions or willfully abandoned
D.A.P.  The Washington court further found that Piccardo=s involvement or conduct adversely
affected D.A.P.=s best interests because of the absence or substantial
impairment of emotional ties.  Under the Washington decree, D.A.P. was to
reside with Bishop during the school year and all holidays.  Any visitation by
Piccardo would be at Bishop=s discretion, and Bishop was granted the sole right to make
major decisions regarding D.A.P.=s education, health care, and
religious activity.  However, the Washington state court did not order payment
of child support, ostensibly  because it did not have personal jurisdiction
over Piccardo. 
On
December 7, 2005, the Attorney General of Texas filed a petition in the District
Court of Harris County, Texas, seeking a child support order against Piccardo. 
The State alleged that Piccardo is the father of D.A.P.  Additionally, the
State alleged that D.A.P. resides in Washington state with Bishop.  Piccardo
filed an original answer and a counter-suit seeking a modification of the
Washington custody order.  In his counter-suit, Piccardo alleged that D.A.P.
resided in Harris County, Texas and stated that Texas courts had jurisdiction
over the parties.  He requested that the Texas trial court render a standard
possession order.
On June
6, 2007, the Texas trial court held an unrecorded hearing and rendered a
decision on the merits of the petition and counter-petition. The Texas court
found Piccardo was the father of D.A.P. and owed a duty of support and entered
an order requiring Piccardo to pay child support.  Additionally, the Texas
court appointed Bishop and Piccardo as joint managing conservators of D.A.P.
and entered a standard possession order.




Subsequently,
Bishop filed a motion for new trial.  The motion was overruled by operation of
law.  This appeal ensued.
II. Subject-Matter Jurisdiction
In her
first issue, Bishop contends this court should vacate the trial court=s custody order because the trial
court lacked subject-matter jurisdiction to modify the Washington court=s custody order.  As explained below,
on the record before us, we cannot grant this relief.
The
trial court has subject-matter jurisdiction to modify a custody order of a
foreign court if there are sufficient facts satisfying the requirements of
section 152.203 of the Family Code.  See Tex. Fam. Code Ann. ' 152.203 (Vernon 2002 & Supp.
2008).  Whether a trial court has subject-matter jurisdiction is a question of
law subject to de novo review.  Westbrook v. Penley, 231 S.W.3d 389, 394
(Tex. 2007).  Generally, absent a complete record of the proceedings, reviewing
courts must presume that the evidence before the trial judge was adequate to
support the decision.  Simon v. York Crane & Rigging Co., 739 S.W.2d 793,
795 (Tex. 1987); see, e.g., Middleton v. Nat=l Family Care Life Ins. Co., No 14-04-00428-CV, 2006 WL 89503,
at *2 (Tex. App.CHouston [14th Dist.] Jan. 17, 2006, pet. denied) (mem. op.)
(holding that, because appellate record did not contain a complete trial
record, appellate court would presume omitted portions are relevant to
disposition of appeal and support trial court=s judgment); Robertson v. Tex. Dep=t of Transp., No. 03-00-00167-CV, 2000 WL 1228025,
at *1-2 (Tex. App.CAustin Aug. 31, 2000, no pet.) (not designated for
publication) (holding that, in case in which parties agreed no record would be
made of the proceedings during one day of a bench trial, appellate court did
not have a complete record due to the absence of a record from that day and
that, absent an agreed record or compliance with Rule 34.6(c) of the Rules of
Appellate Procedure, appellate court will presume the omitted portions of the
record support the trial court=s judgment).




Texas
has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (AUniform Act@) which governs subject-matter
jurisdiction of courts that deal with child custody disputes.  See Tex.
Fam. Code Ann. '' 152.001B.371 (Vernon 2002 & Supp. 2008). Generally, under the
Uniform Act, the court that makes the initial child custody determination will
retain exclusive continuing jurisdiction over ongoing custody disputes.  Saavedra
v. Schmidt, 96 S.W.3d 533, 541B42 (Tex. App.CAustin 2002, no pet.).  Texas state
courts lack subject-matter jurisdiction to modify the child custody
determinations of a court in another state unless the requirements of section
152.203 of the Family Code are satisfied.  See Tex. Fam. Code Ann. ' 152.203.




Under
section 152.203, a Texas court must have jurisdiction under section 152.201
(a)(1) or (a)(2) of the Family Code.  Tex. Fam. Code Ann ' 152.203.[1] 
In addition, one of the following provisions must be satisfied: (1) the court
of the other state must determine it no longer has exclusive continuing
jurisdiction or that a Texas court would be a more convenient forum; or (2) a
Texas court or a court of the other state must determine 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; In re S.L.P., 123
S.W.3d 685, 688 (Tex. App.CFort Worth 2003, no pet.).
 Therefore,
there are potential fact patterns under which the trial court could have
jurisdiction under the Uniform Act. Although Bishop alleges in her brief that
she currently lives in Washington with D.A.P., arguments in briefs are not
evidence.  Castano v. San Felipe Agric., Mfg., & Irr. Co., 147
S.W.3d 444, 452B53 (Tex. App.CSan Antonio 2004, no pet.).  Neither Piccardo=s pleadings nor Bishop=s evidence affirmatively negate
jurisdiction of the Texas court under section 152.203 to modify the Washington
court=s custody order. As explained below,
Bishop was not served with process and did not appear in the trial court prior
to judgment; therefore, she was not able to object to the failure to make a
record of the proceedings in the trial court.  Nonetheless, in the absence of a
record of the trial proceedings, this court still presumes that evidence was
presented to the trial court supporting the existence of facts under which the
trial court would have subject-matter jurisdiction.  See Tex. Fam. Code
Ann. ' 152.203; Simon, 739 S.W.2d at
795.  Accordingly, we overrule Bishop=s first issue. 
III.   Service of Process
 Under
her second issue, Bishop complains that the trial court modified her child
custody rights even though she had not been served with process, had not waived
process, and had not voluntarily appeared. We review a trial court=s denial of a motion for new trial
for abuse of discretion. Dir., State Employees Workers= Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). 
Absent a showing of an abuse of discretion, we will not disturb a trial judge=s ruling.  Id.  A trial court
abuses its discretion if it clearly fails to correctly analyze or apply the
law.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).




In this
case, the Attorney General sued and served Piccardo seeking a child support
order as to Piccardo=s child, D.A.P.  To obtain this relief, it was necessary for
the Attorney General to obtain service of process or the appearance of
Piccardo.  See Kulko v. Super. Ct. of Cal., 436 U.S. 84, 91B92 (1978); In re S.A.V., 837
S.W.2d 80, 83 (Tex. 1992).  Accordingly, Piccardo was served with process.  The
Attorney General sought no relief against Bishop, D.A.P.=s mother.  Therefore, it was
unnecessary for the Attorney General to obtain service of process or the
appearance of Bishop, and the Attorney General=s Office stated that it was not
requesting issuance or service of process on Bishop.  See Kulko, 436
U.S. at 91; In re S.A.V., 837 S.W.2d at 83.




Piccardo
filed a counter-suit seeking a child-custody order, in which Piccardo would be
granted a standard possession order.  The Texas Supreme Court has held that a
party seeking such child custody relief against a former spouse need not show
that the former spouse has sufficient minimum contacts with Texas such that the
exercise of personal jurisdiction does not offend traditional notions of fair
play and substantial justice.  See In re S.A.V., 837 S.W.2d at 84; see
also Tex. Fam. Code Ann. ' 152.201(c) (APhysical presence of, or personal jurisdiction over, a party
or a child is not necessary or sufficient to make a child custody
determination.@).  Nonetheless, even though due process may not require the minimum
contacts analysis, Texas procedural law and constitutional due process require
that Bishop be served, waive service, or voluntarily appear before judgment
pertaining to custody of her minor child may be rendered.  See Tex. R.
Civ. P. 124 (stating A[i]n no case shall judgment be rendered against any defendant
unless upon service, or acceptance or waiver of process, or upon an appearance
by the defendant, as prescribed in these rules, except where otherwise
expressly provided by law or these rules@); Peralta v. Heights Med. Ctr.,
Inc., 485 U.S. 80, 84B86 (1988) (holding that rendition of judgment against
defendant without service of process violated the Due Process Clause of the
United States Constitution); Kao Holdings, L.P. v. Young, CS.W.3dC, No. 07-0197, 2008 WL 2404971, at *1
(Tex. June 13, 2008) (noting that, under Texas Rule of Civil Procedure 124 and
under constitutional concepts of due process, in no case shall judgment be
rendered against any defendant unless upon service, or waiver of service, or
upon an appearance by the defendant, except where otherwise expressly provided
by law).
In her
motion for new trial, Bishop asked the trial court to set aside its final order
because it was rendered without service or her appearance.  In support of her
supplemental motion for new trial, Bishop testified that she had not been
served with process.  Bishop requested that the clerk of the trial court
include in the appellate record all requests for service of process.  The only
process request included in our record is a request for issuance and service of
process on Piccardo.  The record also reflects that Bishop did not waive
service of process or voluntarily appear before the trial court rendered its
final order.  Furthermore, the trial court=s order indicates Bishop had not been
served and did not enter an appearance before the final order was signed.  In
the order, the trial court stated that Bishop is the mother of D.A.P., and the
court rendered a child-custody order regarding D.A.P.  The court stated that
Piccardo made an appearance, however, it did not state that Bishop made an
appearance.  Likewise, though the trial court stated that it had jurisdiction
over Piccardo, it did not state that it had jurisdiction over Bishop.  The
Attorney General, Piccardo, and Piccardo=s attorney signed the trial court=s order, but there is no signature or
space for a signature by Bishop or her attorney.
In sum,
the record in this case shows that Bishop had not been served with process, had
not waived service of process, and did not voluntarily appear before the trial
court conducted the trial and rendered its final order regarding custody.  Therefore,
the trial court   erred in modifying the Washington child custody order. 
Consequently, the trial court abused its discretion by denying Bishop=s motion for new trial in this
regard.  Because we reverse the trial court=s order as to Piccardo=s claims against Bishop, this appeal
does not prejudice Bishop=s ability, on remand, to argue, as she does in this appeal,
that the trial court does not have jurisdiction over the child custody issues
under the Uniform Act.




Accordingly,
we sustain Bishop=s second issue, reverse the portion of the order pertaining
to issues of child custody, and remand for further proceedings consistent with
this opinion.[2]  Because no
party has appealed the portion of the order pertaining to issues of child
support, we affirm the portion of the trial court=s order imposing a duty of child
support on Piccardo.[3]
 
 
 
/s/        Charles W. Seymore
Justice
 
 
Judgment rendered and Opinion filed
August 26, 2008.
Panel consists of Justices Fowler,
Frost, and Seymore.




[1]  Sections 152.201 (a)(1) and (a)(2) provide that
Texas is allowed to make an initial custody determination when: 
(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 . . . 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[.]
Tex. Fam. Code Ann. '  152.201.  The Family Code defines Ahome
state,@ in pertinent part, as Athe 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.@  Tex. Fam.
Code Ann. ' 152.102(7).


[2]  Having sustained Bishop=s second issue, her third issue is rendered moot.


[3]  As stated above, a court with personal jurisdiction
over a potential obligor may enter an enforceable child support order. See
In re S.A.V., 837 S.W.2d at 83 (citing Kulko, 436 U.S. at 91)
(holding claims for child support are like claims for debt in that they seek a
personal judgment establishing a direct obligation to pay money, a valid
judgment for child support may be rendered only by a court having jurisdiction
over the person of the defendant).  It is undisputed that the trial court had
personal jurisdiction over Piccardo.  Piccardo is a Texas resident, and he
submitted to the jurisdiction of the court by filing his original answer and
counter-petition.  Accordingly, the court had jurisdiction to enter an order
obligating Piccardo to pay child support for D.A.P. 


