In the Interest of Carpenter

835 S.W.2d 760, 1992 Tex. App. LEXIS 1988, 1992 WL 175564
CourtCourt of Appeals of Texas
DecidedJuly 27, 1992
Docket07-91-0176-CV
StatusPublished
Cited by8 cases

This text of 835 S.W.2d 760 (In the Interest of Carpenter) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of Carpenter, 835 S.W.2d 760, 1992 Tex. App. LEXIS 1988, 1992 WL 175564 (Tex. Ct. App. 1992).

Opinion

POFF, Justice.

In ten points of error, appellant Ronald Lee Carpenter (Ronald) appeals from an order of the trial court declining to exercise jurisdiction in his suit to modify a parent-child relationship. We will overrule the points of error and affirm the order of the court.

Ronald and Patricia Ann Murray Carpenter Scheib (Patricia), appellee, were married in Pennsylvania. The only child of the marriage, James Ronald Carpenter (Jimmy), was born in Pennsylvania on July 30, 1985. When Jimmy was approximately sixteen months old, Ronald and Patricia divorced. A Pennsylvania court awarded Ronald legal custody of Jimmy but Patricia was given generous visitation rights. Subsequently, Patricia filed suit in Pennsylvania to modify the custody arrangement. The Pennsylvania court issued a temporary joint custody order whereby each spouse would have custody of Jimmy for four days one week and then three days the next week. This arrangement had been in place for four to six weeks when on December 13, 1986, Patricia went to get Jimmy following a visit with his father. She found that both Jimmy and Ronald had disappeared. On December 17, 1986, Patricia obtained an ex parte order of the Pennsylvania court granting her full physical custody of Jimmy and specifically denying Ronald any contact with his son. The court’s order did not serve to immediately reunite Patricia with Jimmy because Jimmy and his father could not be found.

In December of 1990, Ronald and Jimmy were found living in Crowell, Texas. On December 11, 1990, the Texas Department of Human Resources, acting pursuant to the Pennsylvania court order of December 17, 1986, removed Jimmy from Ronald’s custody and returned Jimmy to his mother. Patricia was remarried and residing in Phoenix, Arizona. On January 7, 1991, Ronald filed suit in Foard County, Texas to modify the Pennsylvania order of December 17, 1986. By means of a special appearance, Patricia challenged the jurisdiction of the Texas court to hear the modification suit. A hearing on the special appearance was held on April 15, 1991. Following that hearing, the trial court, by its order of May 9, 1991, declined to exercise jurisdiction over the cause. It is from that order that Ronald has perfected this appeal.

In his first and sixth points of error, Ronald contends that the trial court erred in declining to exercise jurisdiction because no other state was shown to be able to exercise jurisdiction.

At the time Ronald filed suit, Texas was Jimmy’s “home state.” A child’s “home state” is “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months.” Tex.Fam.Code Ann. § 11.-52(5) (Vernon 1986). A Texas court that is competent to decide child custody matters has jurisdiction to modify a child custody determination if Texas is the home state of the child on the date of the commencement of the proceeding. Tex.Fam.Code Ann. § 11.53(a)(1)(A) (Vernon 1986).

However, “[ujnless required in the interest of the child, the court may not exercise jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit.” Tex.Fam.Code Ann. § 11.58(b) (Vernon 1986). Since Ronald improperly removed Jimmy from Patricia’s physical custody, the trial court acted in accordance with the statute in declining to exercise jurisdiction over Ronald’s suit. Points of error one and six are overruled.

In his fourth point of error, Ronald contends that the trial court erred in declining to exercise jurisdiction because the great weight and preponderance of the evidence shows that it is in Jimmy’s best *762 interest that the trial court exercise its jurisdiction. Ronald cites to Tex.Fam.Code Ann. § 11.51(a)(3) (Vernon 1986), for the proposition that one of the purposes of the Uniform Child Custody Jurisdiction' Act (UCCJA) 1 is to

assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state, (emphasis added).

This, however, is no ordinary situation. Here, one parent has kidnapped the child in question and brought him to Texas.

The UCCJA was particularly designed to deter parents from abducting children for the purpose of obtaining custody awards. Cunningham v. Cunningham, 719 S.W.2d 224, 227 (Tex.App. — Dallas 1986, writ dism’d); see Tex.Fam.Code Ann. § 11.51(a)(5) (Vernon 1986) (one purpose of UCCJA is to “deter abductions and other unilateral removal of children undertaken to obtain custody awards”). Ronald should not be allowed to use his deliberate secretion of himself and Jimmy as a claim of right. Cunningham v. Cunningham, 719 S.W.2d at 228. To do so would make a mockery of the purposes of the UCCJA. Id; see Siler v. Storey, 677 S.W.2d 504, 507 (Tex.1984). Even assuming, arguendo, that Texas is the state with which Jimmy and his family have the closest connection, it is not in Jimmy’s best interest for a Texas court to exercise jurisdiction where Jimmy’s connection to Texas is solely a result of his father’s improper acts. 2 Point of error four is overruled.

In his second point of error, Ronald contends that the trial court erred “by dismissing this case without first finding that the State of Texas had jurisdiction over this case under Subdivision 11.53(a) of the [UCCJA], then determining that Pennsylvania no longer had jurisdiction or had declined to exercise its jurisdiction over this case, and finally, finding that the State of Texas was not prohibited by the PKPA [Parental Kidnapping Prevention Act] from exercising jurisdiction over this case.” Ronald does not explain why the court was required to make these or any other findings nor does he cite any authority for his position. Point of error two is overruled.

In his third point of error, Ronald argues that the trial court erred by “presumably deferring this case to Arizona without finding that Arizona was both a competent and more appropriate forum that [sic] the State of Texas to make a child custody determination in this case.” As part of its order, the trial court stated:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re C.J.S., a Child v. the State of Texas
Court of Appeals of Texas, 2024
In Re Lewin
149 S.W.3d 727 (Court of Appeals of Texas, 2004)
in Re Brenda Lee Lewin
Court of Appeals of Texas, 2004
in the Interest of S.L.P., a Minor Child
123 S.W.3d 685 (Court of Appeals of Texas, 2003)
In Re SLP
123 S.W.3d 685 (Court of Appeals of Texas, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
835 S.W.2d 760, 1992 Tex. App. LEXIS 1988, 1992 WL 175564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-carpenter-texapp-1992.