                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-19-00162-CV

                                      IN RE Christina Marie DIXON

                                      Original Mandamus Proceeding 1

Opinion by:       Beth Watkins, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice

Delivered and Filed: May 8, 2019

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           Relator, Christina Dixon, asserts the trial court abused its discretion by denying her plea to

the jurisdiction and motion to dismiss for forum non conveniens in the underlying suit affecting

the parent-child relationship. We conditionally grant the petition for writ of mandamus.

                                              BACKGROUND

           In 2015, Christina and real party in interest, David Richardson, obtained a divorce in Texas.

They have one child, I.R. At the time of the divorce, Christina was granted the right to determine

I.R.’s primary residence without geographic restrictions. In August 2017, Christina moved with

I.R. to Virginia where they presently live with Christina’s current husband. In November 2018,

David filed a “Petition to Modify the Parent-Child Relationship” in which he asked to be appointed


1
 This proceeding arises out of Cause No. 18-1670-CV-C, styled In the Interest of I.R., a Child, pending in the 25th
Judicial District Court, Guadalupe County, Texas, the Honorable William Old presiding.
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the person with the right to determine I.R.’s primary residence or, alternatively, that the terms of

possession and access be modified. Christina then filed a “Plea to the Jurisdiction Or, In the

Alternative, Motion to Dismiss Forum Non Conveniens.” Following a February 15, 2019 hearing,

the trial court signed an order denying Christina’s plea and motion. Christina filed her petition for

writ of mandamus asserting the trial court erred by denying her plea to the jurisdiction and her

motion to dismiss. David filed a response.

                        EXCLUSIVE CONTINUING JURISDICTION

       No party disputes that the Texas court has continuing jurisdiction in this case. However,

Texas Family Code section 152.202 addresses a Texas court’s continuing jurisdiction over child-

custody matters after the initial determination:

       Except as otherwise provided in Section 152.204, a court of this state which has
       made a child custody determination consistent with Section 152.201 or 152.203 has
       exclusive continuing jurisdiction over the determination until:

               (1) a court of this state determines that neither the child, nor the child
               and one parent, nor the child and a person acting as a parent, have a
               significant connection with this state and that substantial evidence
               is no longer available in this state concerning the child’s care,
               protection, training, and personal relationships; . . . .

TEX. FAM. CODE § 152.202(a)(1).

       Section 152.202(a)(1) “specifically provides that a court retains exclusive continuing

jurisdiction until it determines that the significant-connection and substantial-evidence

requirements are no longer met.” In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004) (orig.

proceeding) (emphasis in original).

A.     Significant Connection

       Visitation within the state is evidence of a significant connection. See id. at 376-77 (“To

accommodate the children’s schedule over the years, Ann repeatedly flew to Washington, Ohio,

and Virginia to see them. Robert admit[ed] that Ann made at least fifteen such trips in the four-


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year period under review.”); In re Meekins, 550 S.W.3d 729, 741 (Tex. App.—Houston [1st Dist.]

2018, orig. proceeding) (child spent at least a couple of days per month with Meekins in Texas and

more time during holidays, and child usually spent time with Meekins each weekend, sometimes

traveling to Texas, sometimes traveling to areas in the Midwest, and sometimes staying in Chicago

where the father lived).

       Here, Christina and I.R. have lived continuously in Virginia since August 2017, almost

fifteen months, and there is no dispute the child did not visit her father or anyone else in Texas

after the move to Virginia. See In re Isquierdo, 426 S.W.3d 128, 133 (Tex. App.—Houston [1st

Dist.] 2012, orig. proceeding) (no evidence of any visitation within Texas during the last two and

one-half years to support a finding of a “significant connection”; only evidence was that father had

not made any requests to visit his children during the two-year period preceding his petition).

       Other factors a court may consider are the child’s relationship with the Texas-based parent

and/or other friends and family who live in Texas. See Forlenza, 140 S.W.3d at 377 (numerous

relatives of both parents lived in Texas and maintained a relationship with the children); In re

A.C.S., 157 S.W.3d 9, 17 (Tex. App.—Waco 2004, no pet.) (father testified his daughters enjoy

playing with their cousins in Houston (his sister’s children), who are close in age).

       David testified he last visited with I.R. in early to mid-August 2017, just before she and

her mother moved to Virginia. Since that time, he has only spoken to his daughter via FaceTime.

David said he has attempted to FaceTime his daughter “at least 200 times” or at least once a week

since she moved to Virginia, but, with few exceptions, Christina blocked his calls. At some point,

Christina’s husband contacted David to ask why he was not talking to I.R. and David told him he

could not get a response from Christina. Shortly thereafter, according to David, Christina allowed

him to FaceTime with I.R.




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       David said he has not visited his daughter in Virginia because he cannot afford to travel.

When asked about other people in Texas with whom I.R. may have a relationship, David said his

daughter refers to his current father-in-law and mother-in-law as “grandfather and grandmother,”

but he did not state when either they or his own mother had last seen I.R. David also said a friend

who lives across the street asks when I.R. is coming back to Texas. David believed Christina and

I.R. might not remain in Virginia because Christina still owned a house in New Jersey and her

husband was in the military.

       Christina testified her husband contacted David because I.R. became upset when her father

did not come for a visit in the summer of 2018. She said I.R. has had no visits to Texas since

August 2017. Christina stated her husband is now retired, she sold her New Jersey house, and the

family has no plans to leave Virginia. She denied blocking David’s calls. She did not agree that

David has a quality relationship with his daughter because their entire communication in 2018

totaled three hours and thirty-four minutes on the telephone.

       Although whether Christina blocked David’s calls was in dispute, we conclude the

remaining uncontroverted evidence establishes that neither Christina nor I.R. have had any

“significant relationship” with Texas since August 2017. We next consider whether substantial

evidence is no longer available in Texas concerning I.R.’s care, protection, training, and personal

relationships.

B.     Substantial Evidence

       Christina testified I.R. attends school in Virginia, her doctors and a play-therapy counselor

are in Virginia, and I.R. takes karate and horseback riding lessons and participates in a swim team

and Girl Scouts in Virginia. Christina said I.R. did not have any doctors in Texas.

       When asked if I.R. had a doctor in Texas, David said she had the same pediatrician as his

son and stepdaughter, but he did not know when I.R. last saw this doctor and he had the doctor


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available “just in case.” Other than a relationship with David, and David’s testimony that I.R.

refers to his in-laws as “grandfather and grandmother” and that a neighbor asked about I.R., there

is no evidence in the record about the extent or quality of any personal relationships in Texas that

I.R. may have.

         On this record, we conclude the substantial-evidence requirement is no longer met.

                                                CONCLUSION

         The record establishes that neither Christina nor I.R. have any significant connection to

Texas and substantial evidence is no longer available in Texas concerning I.R’s care, protection,

training, and personal relationships. Therefore, the trial court erred by denying Christina’s plea to

the jurisdiction. 2

         “A writ of mandamus is an appropriate means to require a trial court to comply with the

[the Texas Family Code’s] jurisdictional requirements.” Powell v. Stover, 165 S.W.3d 322, 324

(Tex. 2005) (orig. proceeding). Accordingly, we conditionally grant the petition for writ of

mandamus and direct the trial court to vacate its February 20, 2019 Order denying Christina’s Plea

to the Jurisdiction and Motion to Dismiss Forum Non Conveniens and enter an order granting

Christina’s plea to the jurisdiction within fifteen days of this opinion.

                                                          Beth Watkins, Justice




2
  Because this issue is dispositive, we do not address whether the trial court erred by denying the motion to dismiss
for forum non conveniens. See TEX. R. APP. P. 47.1.


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