
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-05-118 CV

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IN RE REGINA PRESLEY




Original Proceedings



O P I N I O N
	Relator, Regina Presley, requests this Court to issue a writ of mandamus directing The
Honorable Suzanne Stovall, Judge of the 221st District Court of Montgomery County, Texas,
to dismiss Cause No. 04-09-07870-CV, titled In the Matter of The Marriage of Aaron H.
Presley and Regina Presley, because a proceeding concerning the same matters is currently
pending in a court in Florida.  Relator argues that the Montgomery County court is without
jurisdiction to entertain this matter.  Along with her petition for mandamus relief, relator
moved the Court to stay all proceedings in the trial court pending our ruling on the
mandamus action.  We granted her motion, and on April 20, 2005, this Court stayed the
proceedings and ordered the real party in interest, Aaron H. Presley, to file a response to
relator's petition.  We now conditionally grant the writ.
	In 2004, Aaron and Regina Presley moved from South Carolina to Florida.  Regina
claims the relocation occurred on February 25 and the record contains an application for
public housing in Jacksonville, Florida, dated March 9.  Aaron does not provide a specific
date for the move but states a house was rented in Florida on March 21.  On May 14, Aaron
took the children to Magnolia, Texas.  According to Regina, she did not learn her children's
whereabouts until September 1.  Regina then filed suit in Duval County, Florida, on
September 17.  Aaron filed suit in Montgomery County, Texas, on September 28.  The Texas
court entered protective orders on October 7.  
	Regina filed a Plea in Abatement, which the Texas court denied.  Regina then filed
a Plea to the Jurisdiction, which was also denied.  In her petition to this court, Regina asks
we order the Texas court to vacate its order denying her plea to the jurisdiction, order the
Texas court to grant her plea and dismiss the case for want of jurisdiction.  Alternatively,
Regina prays we direct the Texas court to refuse to exercise jurisdiction pursuant to Tex.
Fam. Code Ann. § 152.208 (Vernon 2002), or contact the Florida court, as required by Tex.
Fam. Code Ann. § 152.206 (Vernon 2002).
	We first note that mandamus is appropriate when a Texas court has asserted
jurisdiction over a child custody matter contrary to the Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA).  Tex. Fam. Code Ann. §§ 152.101-.317 (Vernon 2002 &
Supp. 2005).  See In re McCoy, 52 S.W.3d 297, 301 (Tex. App.--Corpus Christi 2001, orig.
proceeding) (and authorities cited therein).  Under the UCCJEA, the Texas trial court is
proscribed from exercising its jurisdiction (1) if "at the time of the commencement of the
proceeding, a proceeding concerning the custody of the child has been commenced in a court
of another state having jurisdiction substantially in conformity with this chapter . . . ."  Tex.
Fam. Code Ann. § 152.206(a).  The record reflects that when Aaron filed suit in Texas, a
proceeding concerning custody had been commenced in Florida and the Florida court has
jurisdiction consistent with the UCCJEA.  It provides:
§ 152.201.  Initial Child Custody Jurisdiction
	    (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).

Tex. Fam. Code Ann. § 152.201(a) (Vernon 2002).  When suit was filed, there was no
"home state."   See Tex. Fam. Code Ann. § 152.102(7) (Vernon 2002).  The children were
only in Florida three months before Aaron took them to Texas.  When Aaron filed suit in
Texas, he and the children had lived in the state, at most, only four months.  Therefore,
neither Florida nor Texas was the home state.  See also In re Oates, 104 S.W.3d 571, 577
(Tex. App.--El Paso 2003, orig. proceeding).  While both states may have significant
connection jurisdiction under section 152.201(a)(2), suit was filed first in Florida. 
Accordingly, section 152.206(a) controls and the Texas court could not exercise jurisdiction
unless the Florida proceeding had been terminated or stayed by the Florida court because
Texas is a more convenient forum.  See Tex. Fam. Code Ann. § 152.206(a).  The Texas
court was  required to stay its proceeding and communicate with the Florida court, and unless
the Florida court determines the Texas court is a more appropriate forum, the Texas court is
required to dismiss the proceeding.  See Tex. Fam. Code Ann. § 152.206(b).
	Citing In re Brilliant, 86 S.W.3d 680 (Tex. App.--El Paso 2002, orig. proceeding),
Aaron contends the Texas court should decide whether it is appropriate for Texas to exercise
jurisdiction on the basis of significant connections.  Brilliant is inapposite to the case at bar. 
As the court recognized, the Texas proceeding was filed first, when all parties resided in
Texas, and therefore section 152.206 did not apply.  Id. at 690.  Here, the Florida proceeding
was filed first, and "in a court . . . having jurisdiction substantially in accordance with this
chapter . . . ."  Tex. Fam. Code Ann. §152.206(a), (b).  Accordingly, the Texas court "may
not exercise its jurisdiction" unless the Florida court determines Texas is a more convenient
forum and stays its proceeding.  Tex. Fam. Code Ann. § 152.206(a).  
	Regina argued to the Texas court in both the plea in abatement and plea to the
jurisdiction that it should decline jurisdiction because Aaron had engaged in unjustifiable
conduct.  The UCCJEA mandates that the trial court shall decline jurisdiction when the party
seeking to invoke jurisdiction has engaged in unjustifiable conduct.  See In re S.L.P., 123
S.W.3d 685, 689 (Tex. App.--Fort Worth 2003, orig. proceeding) (citing Tex. Fam. Code
Ann. § 152.208).  The purpose of section 152.208 "is to ensure that when parents 'act in a
reprehensible manner, such as removing, secreting, retaining, or restraining the child,' they
will not receive an advantage for their unjustifiable conduct."  Id. (quoting Tex. Fam. Code
Ann. § 152.208).  As the court noted in Lewin, "[t]o allow a parent to deliberately secrete a
child to Texas for the purpose of obtaining a child custody determination in the state would
make a mockery of the statute."  In re Lewin, 149 S.W.3d 727, 740 (Tex. App.--Austin 2004,
orig. proceeding) (citations omitted).  
	Regina identified two acts by Aaron: (1) his pleadings in the Texas court failed to
apprise the court a proceeding had been commenced in Florida, and (2) he took the children
without her knowledge or consent.  The record reflects Regina's first assertion is correct.  As
to the second, Aaron claims Regina knew the children were in Texas.  Further, Aaron made
allegations about Regina's conduct in an apparent attempt to justify his conduct.  The record
before this court does not conclusively establish Regina's version of events.  We are
therefore unable to say the Texas court abused its discretion in denying Regina's pleas on
that ground.  Should further evidence be adduced that establishes Aaron's conduct was
unjustifiable, we presume the Texas court would act in accordance with the UCCJEA.
	For the reasons set forth above, we conditionally grant relief.  The writ of mandamus
will issue only if the trial court does not stay its proceedings and communicate with the
Florida court. (2)  All other relief requested by relator is denied.
	WRIT CONDITIONALLY GRANTED.

                                                                             _________________________________
                                                                                                CHARLES KREGER
                                                                                                            Justice

Submitted on April 20, 2005
Opinion Delivered June 16, 2005


Before Gaultney, Kreger, and Horton, JJ.
1. Except as otherwise provided by section 152.204, which affords a court of this state
temporary emergency jurisdiction in certain circumstances.  See Tex. Fam. Code Ann. §
152.204 (Vernon 2002).
2. This does not operate to prohibit the exercise of the trial court's temporary emergency
jurisdiction pursuant to Tex. Fam. Code Ann. §152.204 (Vernon 2002).  See In the Interest
of M.G.M., No. 09-03-528 CV, slip op. at 7-15, 2005 WL 729186, * 3-6 (Tex. App.--Beaumont Mar. 31, 2005, no pet. h.). 
