Martha H. Steed v. Gary Gardner, Gardner Homes, L.L.P., and Mike Upshaw--Appeal from 342nd District Court of Tarrant County

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Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2007 » Martha H. Steed v. Gary Gardner, Gardner Homes, L.L.P., and Mike Upshaw--Appeal from 342nd District Court of Tarrant County

State: Texas

Court: Criminal Court of Appeals

Docket No: 02-06-00359-CV

Case Date: 11/08/2007

Plaintiff: REGINALD EUGENE MORRIS

Defendant: THE STATE OF TEXAS (Concurring

Preview:In the Interest of S.R.T., A Child--Appeal from 150th Judicial District Court of Bexar County
/**/ MEMORANDUM OPINION

No. 04-05-00237-CV

IN THE INTEREST OF S.R.T.

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2004-CI-14152 Honorable Barbara Nellermoe, Judge Presiding Opinion by: Sandee Bryan Marion, Justice Sitting: Catherine Stone, Justice Karen Angelini, Justice Sandee Bryan Marion, Justice Delivered and Filed: February 22, 2006

AFFIRMED

Appellant, Kelby Trant, appeals the trial court s order granting appellees , Danielle Montgomery and Rita and Michael Farmer, plea to the jurisdiction. BACKGROUND On April 19, 2002, S.R.T. was born in San Antonio, Texas, to Danielle Montgomery and Kelby Trant. S.R.T. lived in San Antonio until late October 2003, at which time Danielle and S.R.T. moved to Thomaston, Georgia. For the next eight months, S.R.T. lived with her mother in Georgia. On July 11, 2004, S.R.T. returned to San Antonio in the care of her maternal grandmother, Rita Farmer, and paternal grandmother, Casey Trant. Ms. Farmer and Ms. Trant signed and notarized a paper stating that S.R.T. would go with them to San Antonio until September 18, 2004, when they would bring her back to Georgia. Ms. Farmer and Ms. Trant did not take S.R.T. back to Georgia by the specified time and, instead, on September 16, 2004, Ms. Trant filed an Original Petition in Suit Affecting the Parent-Child Relationship in San Antonio seeking custody of S.R.T. Danielle filed an answer on January 21, 2005. S.R.T. returned to Georgia with her mother on February 12, 2005. On February 25, 2005, Kelby filed an answer and counter-petition. On March 23,

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2005, Ms. Trant nonsuited her original suit and Danielle filed a plea to the jurisdiction. The trial court granted the plea and dismissed the case on the grounds that Texas does not have subject-matter jurisdiction over either the case, the child, or any child custody proceeding. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT Subject-matter jurisdiction is a question of law which we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); In re Barnes, 127 S.W.3d 843, 846 (Tex. App. San Antonio 2003, orig. proceeding). Subjectmatter jurisdiction over custody issues in Texas is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Tex. Fam. Code Ann. 152.001-.317 (Vernon 2002 & Supp. 2004-2005). To acquire jurisdiction over custody issues, no connection between the nonresident parent and the state is required. In the Interest of S.A.V., 837 S.W.2d 80, 84 (Tex. 1992). Rather, we focus on whether Texas has become the child s home state. See id. The Texas Family Code prioritizes home-state jurisdiction and provides that 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. Tex. Fam. Code Ann. 152.201 (Vernon 2002) COMMENCEMENT OF CHILD CUSTODY PROCEEDING In his second issue, Kelby contends the trial court erred in not making a child custody determination because Texas was S.R.T. s home state at the time he filed his counter-petition. Kelby acknowledges that a Texas court did not have jurisdiction on September 16, 2004, when Ms. Trant filed her original petition. However, Kelby contends a Texas court acquired jurisdiction by the time he filed his counter-petition on February 25, 2005. Therefore, according to Kelby, Ms. Trant s nonsuit on March 23, 2005 shifted the commencement of the suit to February 25, 2005. We disagree. The Texas Family Code provides that Texas may exercise jurisdiction if Texas is the home state of the child on the date of the commencement of the proceeding. See Tex. Fam. Code Ann. 152.201(a)(1). A child s home state is the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Id. 152.102(7). Commencement is defined as the filing of the first pleading in a proceeding. Id. 152.102(5). When interpreting statutes we try to give effect to legislative intent. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000). In doing so, we look first to the plain meaning of the statute s words. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). Here, Kelby argues his counter-petition should be considered the first pleading because of Ms. Trant s nonsuit. Kelby relies on Alvarado v. Hyundai Motor Co., which states, Upon timely motion, the nonsuit is effective at the moment it is filed and effects an immediate dismissal of the entire lawsuit...[and] is not an adjudication of the rights of the parties but merely places them in the position...as if suit had never been filed. 885 S.W.2d 167, 174 (Tex. App. San Antonio 1994), rev d on other grounds, 892 S.W.2d 853 (Tex. 1995). Accordingly, Kelby contends Ms. Trant s nonsuit dismissed her lawsuit, thereby making Kelby s counterpetition the first filed pleading. However, Kelby s argument ignores the statutory definition of the word commencement, which is unambiguously defined as the filing of the first pleading in a proceeding. Tex. Fam. Code Ann. 152.102(5). Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly. Tex. Gov t Code Ann. 311.011(b) (Vernon 2005). Therefore, based on the plain meaning of the statute, the filing of the first pleading occurred on September 16, 2004. Because S.R.T. had only been in Texas for approximately two months prior to September 16, 2004, Texas could not be S.R.T. s home state. SIGNIFICANT CONNECTIONS

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In his third issue, Kelby contends that the trial court erred in not making a child custody determination because S.R.T. had significant connections to Texas. However, [s]ignificant connection jurisdiction should be employed only when Texas is not the home state and it appears that no other state could assert home state jurisdiction. In re Oates, 104 S.W.3d 571, 578 (Tex. App. El Paso 2003, orig. proceeding). Here, the trial court determined in its findings of fact and conclusions of law that Georgia was and is currently the home state of S.R.T. Because Georgia can assert jurisdiction as S.R.T. s home state, we need not address whether significant connections exist. JURISDICTION BASED ON CONDUCT In his last issue, Kelby asserts the trial court erred in not making an initial child custody determination because Danielle did not prove that jurisdiction should be declined by reason of conduct. The trial court did not decline jurisdiction on the grounds of any alleged misconduct, but rather on the grounds that Texas was not S.R.T. s home state. Accordingly, we need not address this issue. FINDINGS OF FACT AND CONCLUSIONS OF LAW In his first issue, Kelby asserts the trial court erred in making four findings of fact and four conclusions of law and failing to make additional findings of fact and conclusions of law. If a trial court makes findings of fact and conclusions of law, we may review the fact findings for legal and factual sufficiency. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If there is more than a scintilla of evidence to support the finding, the noevidence challenge fails. Id. at 795. We reverse the ruling for factual insufficiency of the evidence only if the ruling is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 794 (Tex. App. Houston [1st Dist.] 2000, no pet.). We review de novo the trial court s legal conclusions based on the findings of fact to determine their correctness. BMC Software, 83 S.W.3d at 794. If we determine a conclusion of law is erroneous but the trial court nevertheless rendered a proper judgment, the erroneous conclusion does not require reversal. Id. 1. Court s Findings and Conclusions Kelby complains that findings one, two, three, and four are not supported by the law as applied to the facts and the record. Findings one and two state that the first filed pleading in this suit was filed on September 16, 2004 and this was the date of commencement of the suit. Finding three states that Danielle never voluntarily relinquished the care, custody, and control of S.R.T. for any purpose other than visitation. We believe the evidence is sufficient to support findings one, two, and three. Finding four states that Danielle did not voluntarily consent to the jurisdiction of Texas. Because Texas does not have subject-matter jurisdiction over this case, we need not address whether the evidence is sufficient to support finding four. Kelby also complains that conclusions one, two, three, and four are not supported by the law as applied to the facts and the record. The court found in conclusions one and two that Texas did not have subject-matter jurisdiction over the child or the case at the commencement of the suit and does not have subject-matter jurisdiction over the child or case. Conclusions three and four state that Georgia was the home state of S.R.T. at the commencement of the suit and Georgia is the home state and has subject-matter jurisdiction over S.R.T. A review of the record reveals that there is sufficient evidence to support the trial court s conclusions of law. 2. Additional Findings of Fact Kelby also contends that the trial court erred in failing to make five additional requested findings of fact. To obtain a reversal, the appellant must show from the record that the trial court s refusal to file additional findings of fact and conclusions of law as requested was reasonably calculated to cause and did cause rendition of an improper judgment. Doncaster v. Hernaiz, 161 S.W.3d 594, 608 (Tex. App. San Antonio 2005, no pet.). If the trial court s refusal to make additional findings does not prevent an adequate presentation on appeal, there is no reversible error. Id. The issue is whether the circumstances are such that the appellant is forced to guess at the reasons for the trial court s decision. Id. We believe Kelby has not been forced to guess at the reasons for the trial court s decision, nor has the trial court s
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refusal to make additional findings prevented an adequate presentation on appeal. CONCLUSION We affirm the trial court s judgment. Sandee Bryan Marion, Justice

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