                         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
                                     ----------

                                 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

       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).


                                         2
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-


                                            3
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,


                                         4
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.—


                                         5
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).


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


                                         6
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,


                                          7
      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.


                                        8
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


                                           9
       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



                                        10
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


                                        11
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.




                                        12
      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



      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).


                                        13
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


      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‖).


                                         14
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




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