      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-15-00559-CV



                                 James Ernest Magera, Appellant

                                                   v.

                                 Melanie Dawn Buckley, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
       NO. D-l-FM-13-000930, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant James Ernest Magera appeals from the district court’s order, signed

August 4, 2015, denying his “Motion for Paternity, Jurisdiction, and Modification of Temporary

Orders” and declining to exercise jurisdiction over the underlying custody dispute. We affirm the

district court’s order.


                               Factual and Procedural Background

                Magera and Buckley were in a relationship for a number of years and had a son,

R.J.M., born in 2006. They lived together in Austin until August 2012, when Buckley moved to

Utah with R.J.M. and S.R.V., her son from a previous marriage. Magera followed in September

2012 in hopes of reuniting the family, but the couple did not reconcile. In February 2013, while he

still lived in Utah, Magera filed a suit affecting the parent-child relationship (SAPCR) petition in the

Travis County District Courts, seeking custody of R.J.M. and asking the Texas courts to exercise
jurisdiction over the matter, explaining that he wished to return to Texas with R.J.M. so that he could

find work and re-establish Texas residency. In mid-March 2013, Buckley filed for custody in Utah.

               In mid-April 2013, a Utah Court Commissioner1 held a hearing in Buckley’s custody

proceeding. Following the hearing, the commissioner signed a “Minute Entry” stating that he had

conferred with a Travis County Associate Judge regarding the dueling proceedings and that he and

the associate judge agreed that “neither Utah nor Texas has presumptive jurisdiction as the home

state, and either Court could exercise jurisdiction going forward.” They concluded that “it would

be appropriate to allow the parties an opportunity for a hearing in the Texas action prior to a final

determination as to which Court would exercise jurisdiction but that, pending such Order and future

conference between [the associate judge] and the Commissioner, it would be appropriate . . . that

Utah continue to exercise jurisdiction.” The commissioner and the associate judge agreed that

“dismissal of either action at this point would be premature,” and the commissioner decided that

Utah could exercise jurisdiction over Buckley’s custody suit.

               Magera moved back to Texas in May 2013. In mid-June 2013, the Utah commissioner

held a hearing on temporary orders in Buckley’s suit and gave her primary custody of R.J.M.,

granting Magera visitation rights.2 In August 2013, while R.J.M. was in Texas for visitation



       1
         In Utah, some district courts appoint commissioners to handle domestic issues, giving the
commissioners the authority to make recommendations to the district court, issue temporary orders,
conduct settlement and pretrial conferences, and certify to the district court matters that require a
hearing before a district court judge. Utah R. Jud. Admin. 6-401(2), (3). Commissioners do not
make final adjudications. Id. R. 6-401(4)(A).
       2
           The clerk’s record does not include any June 2013 temporary orders from Utah, so we take
this fact, which Buckley does not dispute, from Magera’s pleadings and from Magera’s testimony
that a Utah trial on temporary orders was held sometime between April and August 2013.

                                                  2
with Magera, Buckley filed a Registry of Foreign Judgment in Travis County, attaching an

“Order on Ex Parte Motion for Writ of Assistance,” in which a Utah district court judge ordered

law enforcement to remove R.J.M. from Magera’s custody and give custody back to Buckley.

Magera filed a motion in Travis County contesting the Utah order, asserting that the facts were

insufficient to show that R.J.M. was in danger and that he did not get proper notice of the Utah

proceedings. See Tex. Fam. Code § 152.305 (setting out procedure for registering another state’s

custody determination and for contesting validity of registered order). The SAPCR and Registry

proceedings were consolidated into this single proceeding in January 2014.3

               On February 6, 2014, the Travis County Associate Judge held a hearing to consider

the “hierarchy of jurisdiction” set out in the Uniform Child Custody Jurisdiction and Enforcement

Act. See id. § 152.201 (“Initial Child Custody Jurisdiction”); see generally id. §§ 152.001-.317.

The associate judge first found that “neither Texas nor Utah can assert home state jurisdiction,”

noting that Texas was not R.J.M.’s home state when the SAPCR was commenced and that at the

time the suit was filed, Magera also lived in Utah and not Texas. The associate judge then looked

to the parties’ substantial connections to Utah and Texas, see id. § 152.201(a)(2)(A), and determined

that R.J.M. had significant connections to both states. He concluded that Utah was “the more

appropriate forum” because (1) R.J.M. had lived there since August 2012, (2) current information

about his well-being “exists in Utah” while “[p]ast evidence exists in Texas,” and (3) the Utah court

had “conducted hearings already and is familiar with the facts of the case and can hear the case


       3
          Magera’s SAPCR was assigned district court cause number D-1-FM-13-000930.
Buckley’s Registry of Foreign Judgment was assigned cause number D-1-FM-13-004374. The two
proceedings were consolidated into D-1-FM-13-000930.

                                                 3
within an expeditious fashion.” The associate judge found that the issues should be resolved in

Utah and that the Texas courts should decline jurisdiction and defer to Utah. On March 27, 2014,

the district court held a hearing on Magera’s request for a de novo hearing and signed an order

affirming the associate judge’s order. Magera did not appeal from that order.

                In June 2014, Buckley and the children came back to Texas, and in July 2014, the

Utah commissioner ordered Buckley and Magera to mediation in Texas, resulting in an agreement

addressing R.J.M.’s conservatorship, which was filed in the Utah courts. In the agreement, Buckley

agreed to stay in Texas for at least one year from August 7, 2014, but in late February 2015, she

informed Magera that she and the children were moving back to Utah. Magera sought a restraining

order in Utah, and the Utah commissioner ruled in March 2015 that the mediation agreement was

binding and that R.J.M. should live in Austin with Magera if Buckley did not return to Texas

with him. However, about a week later, a Utah district judge overturned the commissioner’s ruling,

ordering that R.J.M. should remain in Utah with Buckley until a bench trial could be held to address

all of the parties’ issues, including the enforceability of the mediation agreement.

                In July 2015, Magera filed in Travis County a “Motion for Paternity, Jurisdiction, and

Modification of Temporary Orders” and a motion to vacate the Utah district judge’s order. The

district court held a hearing on Magera’s motions and signed an order denying the motions and

finding (1) that “the case is set for final trial on the merits in Utah in August, 2015” and (2) that the

Travis County District Courts did not have jurisdiction over the matter. It is from that order that

Magera appeals.




                                                   4
                                              Discussion

                In March 2014, the district court in Travis County weighed the question of whether

Utah or Texas would be the better forum for deciding issues related to R.J.M.’s conservatorship and

decided that Texas courts should not exercise jurisdiction over this case under section 152.201 of

the family code.4 Magera did not appeal from that determination and instead continued to litigate

the case in Utah for more than a year, when he filed here his “Motion for Paternity, Jurisdiction,

and Modification of Temporary Orders.”


       4
           A Texas court has jurisdiction to make an initial child custody decision 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 § 152.201(a).

                                                   5
               We review whether a trial court has subject matter jurisdiction de novo. Powell v.

Stover, 165 S.W.3d 322, 324 (Tex. 2005). A Texas court may not modify another state’s child

custody determination unless the Texas court has jurisdiction under section 152.201(a) and (1) the

other state has determined that it no longer has exclusive jurisdiction under section 152.202, (2) the

other state has determined that Texas would be a more convenient forum under section 152.207, or

(3) a court in Texas or the other state determines that the child, the parents, and any other person

acting as a parent are not currently living in the other state. Tex. Fam. Code § 152.203; Saavedra

v. Schmidt, 96 S.W.3d 533, 541 (Tex. App.—Austin 2002, no pet.) (“Absent the California court’s

relinquishment of [its] exclusive continuing jurisdiction, the Texas court was without jurisdiction

to modify the California orders. A court of this state may not modify a custody determination

made by the California court unless (1) the California court determines it no longer has exclusive

continuing jurisdiction or that a court of this state would be a more appropriate forum; or (2) a court

of this state or the California court determines that the children and their parents no longer reside

in California.”); see also Tex. Fam. Code §§ 152.201(a) (jurisdiction to make initial custody

determination), .202 (exclusive continuing jurisdiction), .207 (inconvenient forum).

               The commissioner and associate judge discussed the issue of which state should

make initial child custody determinations and decided that Utah was the better forum. The district

court revisited the issue of jurisdiction in March 2014 and declined to exercise jurisdiction, and

Magera did not appeal from that decision. Utah’s courts issued initial orders related to custody and

continue to exercise jurisdiction. Indeed, the record shows that in the spring of 2015, the Utah

district judge was contemplating that a trial on the merits would occur in the near future. Thus, none



                                                  6
of the requirements of section 152.203 are satisfied: Utah has not determined that it no longer

has jurisdiction; Utah has not determined that Texas would be a more convenient forum; and

neither Utah nor Texas has determined that R.J.M., Buckley, and Magera have all stopped residing

in Utah. See Tex. Fam. Code § 152.203. Therefore, the district court properly determined that it

lacked jurisdiction to modify Utah’s orders and denied Magera’s motion for it to exercise jurisdiction

over the proceeding.


                                             Conclusion

                Texas may not exercise jurisdiction over this matter while Utah has continuing

exclusive jurisdiction, Utah has not decided that Texas would be a more convenient forum, and the

child or either parent lives in Utah. See id. We affirm the district court’s order declining to exercise

jurisdiction over the cause.5



                                                __________________________________________

                                                David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: July 22, 2016




       5
        Magera titled his appellate filing as “Appellant’s Brief, Request for Writ of Mandamus,
and Request for New Trial.” Most of the document reads as if it were a brief in a direct appeal, but
Magera occasionally refers to standards and procedures applied in a mandamus proceeding.
However, even if we were to view this cause as an original proceeding seeking mandamus relief,
we would still reach the same result and would deny Magera’s requested relief.

                                                   7
