ACCEPTED 12-15-00193-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 9/21/2015 4:30:36 PM Pam Estes CLERK
Cause Number 12-15-00193-CV
---------------------------------------------------- FILED IN 12th COURT OF APPEALS TYLER, TEXAS In Court of Appeals 9/21/2015 4:30:36 PM Twelfth Court of Appeals District PAM ESTES Clerk Tyler, Texas
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In Re Jamie Majors, Relator
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REAL PARTY IN INTEREST SECOND AMENDED RESPONSE BRIEF TO THE PETITION FOR WRIT OF MANDAMUS
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Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 Email: cmcfall@mcfall-law-office.com Counsel for Real Party in Interest IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 52.3 and Rule 52.4, Texas Rules of Appellate Procedure,
Real Party in Interest supplements Relator’s Identity of Parties and Counsel as
follows:
Relator: Jamie Majors 596 Shenwood Avenue Woodstock, Virginia 22664-1930
Real Party in Interest The Attorney General of Texas John B. Worley Assistant Attorney General Appellate Litigation Section Child Support Division Mail Code 038-1 Post Office Box 12017 Austin, Texas 78711-2017
Real Party in Interest: Heather Majors 1005 Anderson County Road 427 Palestine, Texas 75803-2869
Page 2 of 24 TABLE OF CONTENTS
Identity of Parties and Counsel...................................................................................2
Table of Contents..................................................................................................….3
Index of Authorities....................................................................................................4
Statement of the Case.................................................................................................6
Statement of Jurisdiction…………...……….………...…….…......................……..7
Issues presented
I. The Trial Court properly applied Section 152.202(a)(1), Texas Family Code, to the facts, finding the Trial Court retained exclusive continuing jurisdiction over the modification proceedings, as a result of the children’s significant connections with the state of Texas…………………………………………..…..………..….…..….8
Statement of Facts......................................................................................................9
Argument……………..…...…………………………...…….……...……………..10
Prayer...…….............................................................................................................20
Certification………………………………………...…………...….......………….21
Certificate of Compliance…………...………………………………...………..….22
Certificate of Service………………………...…………………………………….23
Appendix………………………………………...…………….…………………..24
Page 3 of 24 INDEX OF AUTHORITIES
CASES PAGE
TEXAS
In re Bellamy, 67 S.W.3d 482 (Tex.App.-Texarkana 2002) …………………………………………...…………………..12, 17, 18
In re Forlenza, 140 S.W.3d 373 (2004)………………...…....11, 14, 16
Mills v. Canoy, No. 03-04-00681-CV (Tex.App.-Austin 2005).........18
RULES AND STATUTES PAGE
TEXAS FAMILY CODE
Chapter 152, Texas Family Code……………………..…...…..……. 16
Section 152.201, Texas Family Code…………………….………….10
Section 152.202, Texas Family Code……………….....…….11, 16, 17
Section 152.202(a), Texas Family Code……….………...….……….10
Section 152.202(a) (1), Texas Family Code …………………………………………...3, 8, 10, 11, 18, 19, 20
Section 152.202(a) (2), Texas Family Code……………………..….10
Section 152.203, Texas Family Code…………………....….……….10
Section 152.204, Texas Family Code……….……………………….10
Section 152.207, Texas Family Code…………….………..…….16, 17
Page 4 of 24 TEXAS RULES OF APPELLATE PROCEDURE
Rule 9.4(i) (3), Texas Rules of Appellate Procedure………....…...…22
Rule 52.3, Texas Rules of Appellate Procedure..………..…..2, 6, 7, 24
Rule 52.3(j), Texas Rules of Appellate Procedure…………………..21
Rule 52.4, Texas Rules of Appellate Procedure……..…..…..…...…. .2
Rule 52.4 (b), Texas Rules of Appellate Procedure………........……..6
Rule 52.4 (c), Texas Rules of Appellate Procedure……..…..….……..7
Rule 52.4 (e), Texas Rules of Appellate Procedure……………...…..24
Page 5 of 24 STATEMENT OF THE CASE
Pursuant to Rule 52.3 and 52.4(b), Texas Rules of Appellate Procedure,
Relator has adequately asserted the Statement of the Case, and thus the Real Party
in Interest omits a Statement of the Case.
Page 6 of 24 STATEMENT OF JURISDICTION
Pursuant to Rule 52.3 and 52.4(c), Texas Rules of Appellate Procedure,
Relator has adequately asserted valid grounds for jurisdiction, and thus Real Party
in Interest omits a statement of jurisdiction.
Page 7 of 24 ISSUE PRESENTED
The Trial Court properly applied Section 152.202(a)(1), Texas Family Code,
to the facts, finding the Trial Court retained exclusive continuing jurisdiction over
the modification proceedings, as a result of the children’s significant connections
with the State of Texas.
Page 8 of 24 STATEMENT OF FACTS
The Real Party in Interest waives a Statement of Facts. The Real Party in
Interest may reassert the right to file a Third Amended Brief with a Statement of
Facts.
Page 9 of 24 ARGUMENT
The Trial Court properly applied Section 152.202(a)(1), Texas Family Code,
to the facts, finding the Trial Court retained exclusive continuing jurisdiction over
the modification proceedings, as a result of the children’s significant connections
The Relator does not challenge the prior child custody Order’s compliance
with Section 152.201, Texas Family Code. (R.R., Pg. 103, L. 14). Section
152.202(a)(2), Texas Family Code, does not apply because the Real Party in
Interest continues to reside in Texas. (R.R., Pg. 89, L. 19) (R.R., Pg. 97, L. 25).
Therefore, the Appellate Court must decide whether the Trial Court properly
applied Section 152.202(a)(1), Texas Family Code, to the facts, finding the Trial
Court retained exclusive continuing jurisdiction over the modification proceedings,
as a result of the children’s significant connections with the State of Texas.
Section 152.202(a), Texas Family Code, provides as follows:
(a) Except as otherwise provided in Section 152.204, Texas Family Code, a Court of this State which has made a child custody determination consistent with Section 152.201 or Section 152.203, Texas Family Code, 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 Page 10 of 24 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; or
(2) A Court of this State or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this State.
Relator appears to argue that Section 152.202(a)(1), Texas Family Code,
requires the Trial Court to find both a significant connection with Texas and that
substantial evidence exists before it can exercise exclusive continuing jurisdiction.
However, exclusive jurisdiction continues in the decree granting State as long as a
significant connection exists or substantial evidence is present. In re Forlenza, 140
S.W.3d 373, 379 (2004). Clearly, both significant connection and substantial
evidence is not required. Because we conclude the Trial Court did not error in
concluding the children had a substantial connection with Texas, we need not
address whether substantial evidence existed. In re Forlenza, 140 S.W.3d 373, 379
(2004).
Under Section 152.202, Texas Family Code, Jurisdiction terminates if the
relationship between the child and the parent remaining in the State with exclusive,
continuing jurisdiction becomes so attenuated that the Court can no longer find
Page 11 of 24 significant connections and substantial evidence. In re Bellamy, 67 S.W.3d 482
(Tex.App.-Texarkana 2002),
Relator points to numerous examples of substantial evidence located outside
of the State of Texas. However, just because the Relator introduced evidence from
another States, does not mean substantial evidence in Texas is lacking. In re
Bellamy, 67 S.W.3d 482 (Tex.App.-Texarkana 2002).
Relator also points to the lack of the children’s travel to Texas. However, the
Real Party in Interest clearly explained why the children had not traveled to Texas.
The Relator restricted the children’s travel. In fact, Relator’s mistrust of the Real
Party in Interest was so significant, that even when the Real Party in Interest
traveled to Virginia to see her children, the Relator required the Real Party in
Interest’s visitation be supervised by Relator’s girlfriend (R.R., Pg. 39, L. 17),
(R.R., Pg. 57, L. 5), (R.R., Pg. 57, L. 7), or Relator. (R.R., Pg. 57, L. 7). In
addition, supervision was restricted to Relator’s home. (R.R., Pg. 57, L. 9). Relator
(R.R., Pg. 39, L. 20) forbade the children from traveling to Texas. (R.R., Pg. 39, L.
22). In fact, Relator required the Real Party in Interest take Relator’s, girlfriend’s
daughter, as a chaperone, on the Real Party in Interest’s visitation with her children.
(R.R., Pg. 31, L. 5) (R.R., Pg. 56, L. 25). Relator knew the Real Party in Interest
Page 12 of 24 would not leave the state of Virginia, with a child not her own. (R.R., Pg. 31, L. 14)
(R.R., Pg. 39, L. 20), nor her own child, without a proper Order. (R.R., Pg. 30, L.
6), (R.R., Pg. 30, L. 10), (R.R., Pg. 30, L. 13).
The Relator also required the Real Party in Interest sign a Rule 11 Order, just
to visit her children. (R.R., Pg. 30, L. 22). Relator testified the purpose of the Rule
11 Order was to prevent the Real Party in Interest from kidnapping her children.
(R.R., Pg. 89, L. 9). Relator testified it was a very good possibility that the Real
Party in Interest would have returned with her children to Texas. (R.R., Pg. 89, L.
22).
In addition, the Real Party in Interest testified the Relator failed to return the
children to the Real Party in Interest at the termination of the one (1) year
agreement (R.R., Pg. 27, L. 11). Thus, the Relator defied the current Court Order
and withheld the children from the Real Party in Interest for one (1) addition year.
The Relator’s withholding of the children from the Real Party in Interest, in
violation of the Trial Court’s Final Decree of Divorce, continues to this date. The
Relator argues the children have not visited Texas in two (2) years, yet ignores the
fact that Relator is the sole reason the children have not visited Texas in the last
year.
Page 13 of 24 Clearly, the Relator forbade the children’s travel to Texas. As a result, the
Appellate Court may presume the Trial Court accepted as true the Real Party in
Interest’s testimony that more visitation would have occurred in Texas but for the
Relator’s actions and the fact that the Relator did not allow the children to travel to
Texas to visit the Real Party in Interest. In re Forlenza, 140 S.W.3d 373 (2004).
The Party in Real Interest testified about significant connections with family
in Texas (R.R., Pg. 15, L. 10). Specifically, the Real Party in Interest testified the
children’s Texas family consisted of their mother, the Real Party in Interest (R.R.,
Pg. 15, L. 13), a grandmother (R.R., Pg. 15, L. 13), grandfather (R.R., Pg. 34, L.
25), Aunt June (R.R., Pg. 36, L. 10) or Aunt Leslie (R.R., Pg. 37, L. 17), her
husband (R.R., Pg. 35, L. 20) Uncle Poke (R.R., Pg. 37, L. 17) and their child
(R.R., Pg. 36, L. 11), Uncle Matt (R.R., Pg. 36, L. 23) (R.R., Pg. 37, L. 9), Aunt
Teresa (R.R., Pg. 36, L. 23) (R.R., Pg. 37, L. 9), and three of their children (R.R.,
Pg. 36, L. 23), Billy Sugar (R.R., Pg. 37, L. 22), cousin Kristin (R.R., Pg. 38, L. 1),
a second cousin Jackson (R.R., Pg. 38, L. 2), Real Party in Interest’s father (R.R.,
Pg. 38, L. 5), and two family members on the Real Party in Interest’s father’s side
of the family. Even the Relator had to admitted the children have close connections
(R.R., Pg. 99, L. 4), relationships (R.R., Pg. 99, L. 11), and bond (R.R., Pg. 93, L.
Page 14 of 24 8) with the family in Texas. Relator has witnessed the close relationship the
children have with the Real Party in Interest’s family in Texas. (R.R., Pg. 99, L.
13). Furthermore, Relator testified he believed it was important for the children to
maintain their relationship with the Real Party in Interest’s family in Texas. (R.R.,
Pg. 99, L. 17). Relator testified the significant connections with the Real Party in
Interest’s family continued while the children were in Virginia (R.R., Pg. 93, L.
It is undisputed the Real Party in Interest has a close relationship with her
children (R.R., Pg. 103, L. 5) (R.R., Pg. 103, L. 11) (R.R., Pg. 126, L. 9).
In addition to the numerous, personal visits the children had with individual
family members (R.R., Pg. 35, L. 12) (R.R., Pg. 35, L. 20) (R.R., Pg. 36, L. 14)
(R.R., Pg. 37, L. 3) (R.R., Pg. 37, L. 14) (R.R., Pg. 38, L. 1), the relationships have
grown out of numerous family gatherings such as birthdays (R.R., Pg. 38, L. 14),
Thanksgiving (R.R., Pg. 38, L. 16), Christmas (R.R., Pg. 38, L. 17) (R.R., Pg. 38,
L. 19), Easter (R.R., Pg. 38, L. 20), and a June gathering (R.R., Pg. 38, L. 20).
The testimony of both the Real Party in Interest and the Relator clearly shows the
children maintain a significant connection with family in Texas.
The Relator would also have this Court conduct some kind of balancing test.
Page 15 of 24 However, the UCCJEA (Chapter 152, Texas Family Code) does not premise the
exclusive continuing jurisdiction determination on which State has the most
significant connection with the child. In re Forlenza, 140 S.W.3d 373 (2004). This
relative type of inquire is appropriate under Section 152.207, Texas Family Code,
which allows a Court with exclusive continuing jurisdiction to decline in favor of a
more convenient forum, but it does not affect the initial Section 152.202, Texas
Family Code, jurisdictional analysis. In re Forlenza, 140 S.W.3d 373 (2004).
Relator would further have the Appellate Court forget the Real Party in
Interest testified the children lived with the Real Party in Interest since the Real
Party in Interest and the Relator separated in November of 2012 (R.R., Pg. 22, L.
24), until the Real Party in Interest and the Relator reached an agreement that the
children reside with the Relator for a one (1) year period in Virginia around August
2013 (R.R., Pg. 7, L. 8). The Relator argues the children have only seen a Virginia
physician (First Amended Petition for Writ of Mandamus, Page 6). The Relator’s
assertion is clearly misleading. The Relator testified the children also have doctors
in Anderson County. (R.R., Pg. 87, L. 2). Of course, the Relator has withheld the
children from the Real Party in Interest for the past year, so the children, while
living in Virginia for the past two (2) years, have only seen Virginia physicians.
Page 16 of 24 (R.R., Pg. 15, L. 4) (R.R., Pg. 86, L. 18).
The Relator also argues that hardship upon the Real Party in Interest is not a
statutory provision of a Section 152.202, Texas Family Code, jurisdictional
analysis. The Relator is correct in that assertion. However, in addition to a Section
152.202, Texas Family Code, jurisdictional argument, the Relator also moved the
Court to consider a Section 152.207, Texas Family Code, inconvenient forum
argument. Pursuant to Section 152.207, Texas Family Code, the Trial Court shall
consider the distance between the Court in Texas and the Court in Virginia, as well
as the relative financial circumstances of the parties, in determining an inconvenient
forum.
The Relator argues In re Bellamy, 67 S.W.3d 482 (Tex.App.-Texarkana
2002) is not analogous to the facts of the instant case simply because the quantum
of physical contact is lacking. However, nowhere does the Court suggest this
quantum of physical contact was necessary to meet the statutory standard. Rather,
the Court emphasized the nature and the quality of the child’s relationship with the
parent and family members who resided in Texas. In re Bellamy, 67 S.W.3d 482
(Tex.App.-Texarkana 2002). Clearly, the nature and the quality of the instant
children’s relationship with the Real Party in Interest and family members who
Page 17 of 24 reside in Texas are significant.
Relator also argues that Mills v. Canoy, No. 03-04-00681-CV (Tex.App.-
Austin 2005), presents facts entirely in line with the instant case. However, the
case again affirms the proposition that Texas Courts look at the nature and quality
of the child’s contacts with the parents residing in Texas Mills v. Canoy, No. 03-04-
00681-CV (Tex.App.-Austin 2005), as opposed to the quantum of physical contact.
In re Bellamy, 67 S.W.3d 482 (Tex.App.-Texarkana 2002). Mills v. Canoy, No. 03-
04-00681-CV (Tex.App.-Austin 2005) also confirms the importance of maintaining
close relations with Texas family members. Finally, Mills v. Canoy, No. 03-04-
00681-CV (Tex.App.-Austin 2005) goes as far as to specifically state that a high
level of physical presence in Texas is not necessary to satisfy the significant
connection standard. Nor does the statute base the jurisdiction determination on
which State has the most significant connection with the child. Mills v. Canoy, No.
03-04-00681-CV (Tex.App.-Austin 2005).
The question before the Appellate Court is whether the Trial Court properly
applied Section 152.202(a)(1), Texas Family Code, to the facts, finding the Trial
Court retained exclusive continuing jurisdiction over the modification proceedings,
as a result of the children’s significant connections with the State of Texas.
Page 18 of 24 A review of the Reporters Record clearly indicates the Trial Court considered
and applied the facts of the instant case to Section 152.202(a) (1), Texas Family
Code. Thus, there is no abuse of discretion. The Appellate Court may differ in the
decision the Trial Court ultimately made in its discretion, but a differing opinion as
to outcome is not the test. The test is, as the Relator argues, whether the Trial Court
failed to analyze or apply the law correctly, in reviewing the provisions under the
UCCJEA. To argue the Real Party in Interest presented no evidence, during the
evidentiary hearing, substantiating the Court’s denial of the Relator’s plea to the
jurisdiction is unsupportable.
Page 19 of 24 PRAYER
WHEREFORE, PREMISES CONSIDERED, the Real Party in Interest prays
the Appellate Court find the Trial Court properly applied Section 152.202(a)(1),
Texas Family Code, to the facts, finding the Trial Court retained exclusive
continuing jurisdiction over the modification proceedings, as a result of the
children’s significant connections with the State of Texas.
Page 20 of 24 CERTIFICATION
I, Colin D. McFall, Attorney of Record for the above styled Real Party in
Interest, pursuant to Rule 52.3(j), Texas Rules of Appellate Procedure, hereby
certify I have reviewed the Real Party in Interest’s Brief and concluded that the
Real Part In Interest has supported every factual statement in the Real Party in
Interest’s Brief with competent evidence included in the appendix or record.
RESPECTFULLY SUBMITTED,
513 North Church Street __________________________ Palestine, Texas 75801-2965 COLIN D. MCFALL Telephone: 903-723-1923 Attorney at Law Facsimile: 903-723-0269 Texas Bar Number: 24027498 Email: cmcfall@mcfall-law-office.com
Page 21 of 24 CERTIFICATE OF COMPLIANCE
I, Colin D. McFall, Attorney of Record for the Real Party in Interest,
pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, hereby certify the
number of words within the Real Party in Interest’s Response Brief is three
thousand, thirty four (3,034).
513 North Church Street __________________________ Palestine, Texas 75801-2962 COLIN D. MCFALL Telephone: 903-723-1923 Attorney at Law Facsimile: 903-723-0269 Texas Bar Number: 24027498 Email: cmcfall@mcfall-law-office.com
Page 22 of 24 CERTIFICATE OF SERVICE
I, Colin D. McFall, Attorney of Record for the above styled Real Party in
Interest, hereby certify service of a true and correct copy of the above and foregoing
document upon Jeffrey L. Coe, Attorney for Relator, at jeff@coelawfirm.com, by
email transmission, on the 21st day of September 2015.
513 North Church Street __________________________ Palestine, Texas 75801-2962 COLIN D. MCFALL Telephone: 903-723-1923 Attorney at Law Facsimile: 903-723-0269 Texas Bar Number: 24027498 Email: cmcfall@mcfall-law-office.com
Page 23 of 24 APPENDIX
Pursuant to Rule 52.3 and 52.4(e), Texas Rules of Appellate Procedure,
Relator has adequately provided an Appendix, and thus, the Real Party in Interest
omits an Appendix.
Page 24 of 24