                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00329-CV


IN THE INTEREST OF A.J.,
A MINOR CHILD




                                      ----------

           FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 360-583535-15

                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

      In unnumbered issues, Appellant N.E.H., A.J.’s alleged father (Father),

contends that the trial court abused its discretion by granting the plea to the

jurisdiction of Appellee K.A.J., A.J.’s mother (Mother), and by awarding her

attorney’s fees and costs. Because we hold that the trial court did not have

home state jurisdiction, did not abuse its discretion by awarding Mother’s trial


      1
          See Tex. R. App. P. 47.4.
counsel $2,000 in attorney’s fees, and did not award Mother costs, we affirm the

trial court’s order.

I. Facts and Procedural History

       Mother and Father met online in June 2013. She told him that she was

pregnant in September 2013, a day after he broke up with her. Mother and

Father discussed her pregnancy further in January 2014, and she told him that

she could “almost guarantee” that he was the father. He told her that he “had

nothing else to offer her,” to let him know when the baby was due, and that he

would meet her at the hospital after the baby was born to take a DNA test.

Father testified that he made several attempts to contact Mother in March and

April 2014 with no success. A.J. was born May 8, 2014.

       Mother testified that she did not know who the father was when A.J. was

born; she did not notify Father at that time. Mother and A.J. moved to New York

two months after A.J.’s birth; Mother did not let Father know that she was

moving.

       Mother and Father did not speak again until March 2015, when A.J. was

ten months old. Mother called Father to discuss A.J. and told him that he was

the biological father. A DNA test dated March 18, 2015 confirmed that he was

the father. He testified that he knew that he was the father when he took the test.

       Father visited the baby in New York at Mother’s invitation on two separate

occasions, and Mother visited Texas twice with A.J., allowing Father to keep the

baby for days at a time. Father told Mother that he could not both pay child

                                        2
support and visit the child, but he did give Mother small amounts of money on her

two visits to Texas, and he sent diapers and a car seat to New York when asked.

      On September 23, 2015, while Mother and A.J. were visiting Texas for a

few days, Father filed a petition to adjudicate parentage in a Tarrant County,

Texas family district court. Father’s original petition identifies New York as A.J.’s

“State of Residence.”     In addition to the establishment of his parent-child

relationship with A.J., Father sought temporary orders appointing him as joint

managing conservator with the exclusive right to designate her primary residence

and other temporary relief.      He further sought and obtained an ex parte

temporary restraining order (TRO) restraining Mother from (i) disturbing the

peace of A.J. or of another party; (ii) hiding or secreting A.J. from Father;

(iii) making disparaging remarks regarding Father or his family in A.J.’s presence

or within her hearing; and (iv) making changes to A.J.’s insurance coverage. The

trial court issued the TRO on September 23, 2015, and set a hearing for

October 5, 2015.

      Father had Mother served at his place of employment when she arrived to

pick up A.J., who was then in Father’s possession. Father refused to return A.J.

to Mother. Mother then hired counsel and filed a petition for writ of habeas

corpus to recover possession of A.J. In her petition, Mother alleged that she had

a superior right of possession to A.J., that the TRO did not govern possession of

A.J., and that the trial court lacked subject matter jurisdiction to make a child



                                         3
custody determination because A.J.’s home state is New York.          Mother also

requested attorney’s fees.

      Father filed a response as well as a motion for drug screening and

amended his petition to include requests for expanded temporary orders and

another TRO that would attach the body of the child and prevent either parent

from removing her from Tarrant County or contiguous counties.             Father’s

supporting affidavit to his amended petition alleged that Mother abused

marijuana, alcohol, and prescription drugs. The trial court ordered the clerk to

issue the writ on September 30, 2015, directing “the person in possession of the

child” to have her in court on October 5, 2015, at 9:30 a.m. “and to appear and

show cause” why A.J. should not be returned to Mother.

      On October 1, 2015, Mother filed a plea to the jurisdiction and an answer

subject to her plea. She alleged in her plea that the trial court lacked subject

matter jurisdiction because A.J. had lived in New York for six months prior to the

commencement of the lawsuit. Attached to her plea was a petition for custody

that was filed in New York on her behalf after Father initiated proceedings here.

      On October 5, 2015, after the hearing and after conferencing with the New

York judge, the trial court signed a preliminary order declining jurisdiction “save

and except interim orders until such time that New York Family Courts issue

orders” and ordering

     Father to have possession four hours that day;



                                        4
        Mother to be accompanied by family on the return flight to New York while
         A.J. was in her possession, to not consume illegal drugs, and to follow
         doctor’s orders regarding prescription drugs and alcohol consumption; and

        Father to pay $2,000 of Mother’s attorney’s fees, “reduced to judgment.”

The trial court later signed a formal, typewritten order finding that it did not have

jurisdiction of “this case and all the parties” but repeating the above listed interim

orders regarding the parents, awarding Mother’s lawyer a judgment of $2,000 for

attorney’s fees against Father, and ordering each party to bear his or her own

costs.

II. No Subject Matter Jurisdiction Under Section 152.201

         Father contends in unnumbered issues that the trial court abused its

discretion by granting Mother’s plea to the jurisdiction. Whether a trial court has

subject matter jurisdiction is a question of law that we review de novo.2 In child

custody cases involving competing jurisdiction, the Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA), found in Chapter 152 of the family

code, governs.3 Section 152.201(a) of the family code provides the “exclusive

jurisdiction basis” for a Texas court to exercise jurisdiction over a child custody

dispute.4 Section 152.201 states,



         2
             Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004).
         3
      See Tex. Fam. Code Ann. §§ 152.001–.317 (West 2014); In re Dean,
393 S.W.3d 741, 743 (Tex. 2012) (orig. proceeding).
         4
             Tex. Fam. Code Ann. § 152.201(b); Dean, 393 S.W.3d at 746.

                                           5
            (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.5
      There is no dispute that New York is and has been A.J.’s home state.

Subsections (1) and (4) therefore do not apply. In many of Father’s unnumbered

      5
          Tex. Fam. Code Ann. § 152.201.

                                           6
issues challenging the trial court’s granting of Mother’s plea to the jurisdiction, he

attempts to fit this case within the confines of subsection (2). He contends that

under section 152.208 of the family code, New York must decline home state

jurisdiction in favor of the trial court because Mother committed “unjustifiable

conduct.”6 But subsection (2) (and subsection (3)) of section 152.201 operate to

give the trial court jurisdiction only if the home state declines jurisdiction “on the

ground that a court of this state is the more appropriate forum” under Section

152.207 or 152.208.7 New York has not declined to exercise jurisdiction on any

ground.8

      Further, Father misreads section 152.208. Section 152.208 applies when

“a person seeking to invoke [the] jurisdiction” of a Texas court “has engaged in

unjustifiable conduct” to ensure that the court has jurisdiction under the

UCCJEA.9 The section focuses on the conduct of the party “seeking to invoke”


      6
          See id. § 152.208(a).
      7
          Id. § 152.201(a)(2)–(3).
      8
        See In re Walker, 428 S.W.3d 212, 220 (Tex. App.—Houston [1st Dist.]
2014, no pet.) (“Because Georgia did not decline to exercise jurisdiction on the
ground that Texas is the more appropriate forum under Family Code section
152.207 or 152.208, the Texas trial court is without jurisdiction.”); Arnold v. Price,
365 S.W.3d 455, 462 (Tex. App.—Fort Worth 2011, no pet.) (holding because
home state had not declined to exercise jurisdiction, Texas could not exercise
subject matter jurisdiction under subsection (2)); see also Dean, 393 S.W.3d at
750 (noting that New Mexico court had not declined jurisdiction under either
section 152.207 or 152.208 but solely because Texas had decided to exercise
jurisdiction, a reason the supreme court held the UCCJEA does not allow).
      9
          Tex. Fam. Code Ann. § 152.208(a).

                                          7
the Texas court’s jurisdiction.10 Mother did not seek to invoke the jurisdiction of

the Texas court; Father did.11 Additionally, section 152.208 discusses what a

Texas court must or may do, not what another state’s court must do.12 We

overrule all of Father’s issues regarding jurisdiction that are grounded in section

152.208.

      Because New York did not decline jurisdiction, subsections (2) and (3) of

section 152.201 do not operate to give the trial court jurisdiction, leaving the

section 152.204 exception as the only avenue for the trial court to have obtained

jurisdiction.13 Section 152.204 provides,


      10
           Id.
      11
         See In re Busaleh, No. 06-14-00073-CV, 2014 WL 4978642, at *2 (Tex.
App.—Texarkana Oct. 7, 2014, no pet.) (mem. op.) (holding statute inapplicable
because mother who had moved to Kentucky with children did not seek to invoke
jurisdiction of Texas court); Dickerson v. Doyle, 170 S.W.3d 713, 720–21 (Tex.
App.—El Paso 2005, no pet.) (holding statute inapplicable because mother who
had moved to Alabama with child did not seek to invoke jurisdiction of Texas
court; alleged father did).
      12
        Tex. Fam. Code Ann. § 152.208; see In re Marriage of Roman &
Gonzalez, No. 10-06-00023-CV, 2007 WL 1378493, at *4 (Tex. App.—Waco May
9, 2007, no pet.) (mem. op.) (holding section 152.208 does not allow a Texas
court to assert jurisdiction until home state has declined it and that whether party
committed unjustifiable conduct to give home state jurisdiction is a question for
the home state court, not the Texas court).
      13
         See Tex. Fam. Code Ann. § 152.201; In re C.L.B., No. 10-13-00203-CV,
2014 WL 702798, at *5 (Tex. App.—Waco Feb. 20, 2014, no pet.) (mem. op.)
(“‘In short, if the child has a home state, if it is one other than Texas, and if the
courts of that state have not declined to exercise their jurisdiction, then the courts
of Texas lack jurisdiction over the child.’” (quoting In re J.C.B., 209 S.W.3d 821,
823 (Tex. App.—Amarillo 2006, no pet.))).

                                          8
        (a) A court of this state has temporary emergency jurisdiction
if the child is present in this state and the child has been abandoned
or it is necessary in an emergency to protect the child because the
child, or a sibling or parent of the child, is subjected to or threatened
with mistreatment or abuse.
       (b) If there is no previous child custody determination that is
entitled to be enforced under this chapter and a child custody
proceeding has not been commenced in a court of a state having
jurisdiction under Sections 152.201 through 152.203, a child custody
determination made under this section remains in effect until an
order is obtained from a court of a state having jurisdiction under
Sections 152.201 through 152.203. If a child custody proceeding has
not been or is not commenced in a court of a state having jurisdiction
under Sections 152.201 through 152.203, a child custody
determination made under this section becomes a final
determination, if it so provides and this state becomes the home
state of the child.
       (c) If there is a previous child custody determination that is
entitled to be enforced under this chapter, or a child custody
proceeding has been commenced in a court of a state having
jurisdiction under Sections 152.201 through 152.203, any order
issued by a court of this state under this section must specify in the
order a period that the court considers adequate to allow the person
seeking an order to obtain an order from the state having jurisdiction
under Sections 152.201 through 152.203. The order issued in this
state remains in effect until an order is obtained from the other state
within the period specified or the period expires.
       (d) A court of this state which has been asked to make a child
custody determination under this section, upon being informed that a
child custody proceeding has been commenced in or a child custody
determination has been made by a court of a state having
jurisdiction under Sections 152.201 through 152.203, shall
immediately communicate with the other court. A court of this state
which is exercising jurisdiction pursuant to Sections 152.201 through
152.203, upon being informed that a child custody proceeding has
been commenced in or a child custody determination has been
made by a court of another state under a statute similar to this
section shall immediately communicate with the court of that state to
resolve the emergency, protect the safety of the parties and the



                                   9
      child, and determine a period for the duration of the temporary
      order.14
      “The exercise of temporary emergency jurisdiction under section 152.204

is reserved for extraordinary circumstances.”15

      Father contends that the “trial court abused its discretion by failing to order

that if no action was brought in New York, or if New York declines jurisdiction,

then temporary emergency jurisdiction of Texas would develop into Texas

exercising continuing jurisdiction.” Before the trial court rendered a temporary

order, Mother filed a petition in New York, and the New York court did not decline

jurisdiction; thus, the trial court did not abuse its discretion by failing to state in its

temporary order that if no action was brought in New York, or if New York

declined jurisdiction, then temporary emergency jurisdiction of Texas would

transform into continuing jurisdiction over A.J.16 Texas is not A.J.’s home state;

the trial court did not have subject matter jurisdiction. Instead, the trial court

properly conferred with the New York court in which a custody petition was filed

after the petition in this case and, exercising its temporary emergency

jurisdiction, fashioned a suitably narrow order designed to protect the child

without interfering with the jurisdiction of the home state court until the home



      14
           Tex. Fam. Code Ann. § 152.204.
      15
         In re Salminen, 492 S.W.3d 31, 40 (Tex. App.—Houston [1st Dist.] 2016,
orig. proceeding).
      16
           See Tex. Fam. Code Ann. § 152.204(b).

                                            10
state court could act.17      We overrule all of Father’s remaining jurisdictional

arguments.

III. Attorney’s Fees

      In his remaining issues, Father complains that the trial court abused its

discretion by awarding Mother attorney’s fees and costs. The trial court ordered

that each party bear his or her own costs. We overrule Father’s complaints

concerning costs.

      As to attorney’s fees, Father contends that the trial court abused its

discretion by awarding Mother attorney’s fees because he met his burden of

establishing the necessity of the trial court’s temporary emergency jurisdiction,

based on her alleged “unjustifiable conduct” in obtaining out-of-state jurisdiction

as well as her “other harmful behavior that was not in the best interest of the

child.” Mother responds that the trial court could have declined to award fees

against Father only if it had found that such an award was “clearly inappropriate,”

that Father’s argument is circular and rests on a theory rejected by the trial court,

and that there is no evidence that the award was not warranted. Both parties rely

on section 152.208 to support their arguments, but we have already held that the

trial court did not have jurisdiction beyond the narrow, temporary emergency

jurisdiction that it exercised under section 152.204 to render the limited interim

order it issued to tide the parties over until the home state court rendered an


      17
           See id. § 152.204(a), (c)–(d).

                                            11
order. Consequently, the trial court did not have jurisdiction to decline under

section 152.208.18 We therefore review the order for an abuse of discretion.19

      A trial court abuses its discretion if the court acts without reference to any

guiding rules or principles, that is, if the act is arbitrary or unreasonable.20 An

appellate court cannot conclude that a trial court abused its discretion merely

because the appellate court would have ruled differently in the same

circumstances.21      A trial court also abuses its discretion by ruling without

supporting evidence.22 But an abuse of discretion does not occur when the trial

court bases its decision on conflicting evidence and some evidence of

substantive and probative character supports its decision.23

      Father did not challenge the reasonableness or necessity of the attorney’s

fees. The evidence shows that Mother had incurred $6,577 in attorney’s fees

and about $665 in legal expenses before the final hearing and that her trial


      18
           See id. § 152.208.
      19
       See id. §§ 106.002, 152.002 (West 2014); In re B.A.B., 124 S.W.3d 417,
422 (Tex. App.—Dallas 2004, no pet.).
      20
       Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings,
134 S.W.3d 835, 838–39 (Tex. 2004).
      21
        E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
1995); see also Low, 221 S.W.3d at 620.
      22
           Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).
      23
        Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru
v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g).

                                         12
counsel believed that the total amount earned through his testimony about

attorney’s fees was $7,500. Mother had paid her lawyer a $5,000 retainer.

      Father’s theory for at least “part of the emergency” was Mother’s marijuana

use. He testified that he smelled the “raw odor of marijuana” when he transferred

the car seat from his truck to her car on September 21, 2015, after A.J. had been

with him for a couple of days. He testified that he was worried that Mother would

get pulled over and arrested with A.J. in the car and that the State would take the

baby because his paternity had not been legally established.         While Mother

admitted that she smoked marijuana not only after her arrival in Texas but after

Father filed his initial petition, the trial court heard no evidence of abandonment,

no evidence of a direct threat of abuse or mistreatment, and no evidence that

Mother smoked marijuana or was under its influence when caring for A.J.

      But there was evidence that Mother’s marijuana use since A.J.’s birth was

not new information for Father. He testified about observing signs of Mother’s

marijuana use when he visited A.J. in the home state in both May and August

2015 and when Mother and A.J. visited Texas in June 2015. But he later testified

that he did not suspect Mother in May 2015 of abusing marijuana. He admitted

that he had never seen Mother smoke marijuana in front of the baby and had no

knowledge of Mother abusing marijuana in front of A.J.

      Father admitted that he had also smoked marijuana but testified that he

last did so in April 2015, when A.J. was almost a year old and before he met her.

He also admitted to withholding A.J. from Mother after he obtained the TRO and

                                        13
had her served even though he admitted that he did not believe the order gave

him the right to keep Mother from A.J.

      Mother admitted that she moved to New York without telling Father

because she did not want to be trapped in Texas without her family, whose

support she needed to help her raise a newborn baby. But the trial court also

heard evidence that Father was aware of Mother’s pregnancy and the general

due date but did not file legal proceedings to establish paternity before she left

the state or afterward until he filed this petition, even though a DNA test had

confirmed his paternity more than six months before the filing and he had visited

A.J. twice in her home state of New York.

      Mother testified that she had known that he was the father since the DNA

test was completed in March or April 2015. Mother admitted that she knew “that

the father was no one else by that time” but also testified that she did not know

who the father was when the child was born in May 2014.

      Finally, even though it had been more than six months since a DNA test

confirmed his paternity, Father had paid no child support, by agreement at first

because he told Mother he could afford to visit the child or support her but not

both. He admitted that Mother had requested child support in September 2015

and that the maternal grandmother had “asked for assistance in [A.J.’s] care;

things that they needed to help raise the child.” He had “sent stuff that [he] was

requested to send. And on numerous occasions, [he] had asked what she had

needed, and they said they had everything handled.”          Specifically, Father

                                         14
testified that he gave Mother $100 during her September 2015 trip and $60

during her June 2015 trip and had sent diapers and a car seat to New York when

requested.

      The trial court could have properly found that Mother’s marijuana use here

in Texas necessitated an emergency order for A.J.’s safety while at the same

time concluding that Father should have filed in a New York court much earlier,

should not have kept A.J. from Mother without a court order allowing him to do

so, and should have been supporting his child. Accordingly, we hold that Father

has not shown that the trial court abused its discretion by ordering him to pay

$2,000 in attorney’s fees to Mother’s trial counsel.       We overrule Father’s

remaining issues.

IV. Conclusion

      Having overruled Father’s issues, we affirm the trial court’s order granting

Mother’s plea to the jurisdiction.



                                                  /s/ Lee Ann Dauphinot
                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: December 1, 2016




                                       15
