In the Interest of S_ A_ V

798 S.W.2d 293, 1990 WL 115768
CourtCourt of Appeals of Texas
DecidedOctober 19, 1990
Docket07-89-0307-CV
StatusPublished
Cited by11 cases

This text of 798 S.W.2d 293 (In the Interest of S_ A_ V) 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 S_ A_ V, 798 S.W.2d 293, 1990 WL 115768 (Tex. Ct. App. 1990).

Opinions

BOYD, Justice.

This is an interstate child custody case. Appellant T_R_V_brings this appeal from an order of the trial court modifying an existing custody determination by a Minnesota court. The Texas order modified previous child support provisions, terminated the existing joint managing con-servatorship of the children, and appointed appellee N_D_R_as sole managing conservator of the minor children S_ A_V_ and K_ E_V_It also altered appellant’s access times with those children. We reverse the trial court judgment and dismiss this cause for lack of jurisdiction.

Because it is dispositive of the case, we will discuss only appellant’s third point in which he contends the Minnesota court has determinative jurisdiction over the issues determined by the Texas court.

Appellant and appellee were married and divorced in Minnesota. The original divorce decree, signed in 1986, contained detailed provisions for joint custody of the children with appellee having physical custody of the children, for child support, and for visitation. For employment purposes, after an interim stay in Kansas City, Missouri, appellee moved to Amarillo in the spring of 1987 and the children moved there also in August of 1987. Appellant has continued to reside in Minnesota at all times from the date of the divorce to the present.

On October 22, 1987, the Minnesota court modified its divorce decree, making some increase in the amount of the child support and allowing appellant to offset visitation expenses to Amarillo against his child support obligations. Appellee then initiated the instant action in Texas on January 19, 1989, seeking modification of the prior Minnesota orders. On January 20, 1989, appellant filed an action in the Minnesota court.

Though various other motions were filed by both parties in both courts, the Minnesota decree was modified by the Minnesota court on July 3, 1989, and by the Texas court on July 28,1989. Since it is from the Texas order that this appeal arises, we will direct our attention to it and will discuss portions of the evidence only as necessary to a proper discussion of the determinative jurisdiction question before us.

Parenthetically, both parties have filed unopposed motions to supplement the transcript with various documents. Those motions are granted and the items included will be referred to only as necessary.

The thrust of appellant’s argument is that under the Parental Kidnapping Pre[296]*296vention Act of 1980 (PKPA), 28 U.S.C.A. § 1738A (West Supp.1990), the Minnesota court has continuing jurisdiction over the matters involved in this cause and its decrees are entitled to full faith and credit from the Texas court. Appellee argues the Texas court was entitled to modify the Minnesota decree by virtue of the Uniform Child Custody Jurisdiction Act (UCCJA),1 Tex.Fam.Code Ann. §§ 11.51, et seq. (Vernon 1986).

The PKPA and the UCCJA were both designed to prevent jurisdictional conflict and competition over child custody and, in particular, 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); Lundell v. Clawson, 697 S.W.2d 836, 838 (Tex.App.—Austin 1985, no writ). The federal act became effective on July 1, 1981, which, of course, was before the orders here in question. Hence, it applies to this case, and, in any conflicting areas, takes preference over the Texas version of the UCCJA. See Ray v. Ray, 494 So.2d 634, 636 (Ala.Civ.App.1986); Mitchell v. Mitchell, 437 So.2d 122, 125 (Ala.Civ.App.1982).

Since the children lived in Texas for a period in excess of six months prior to the proceedings in question, Texas undis-putedly is now their “home state” under both the PKPA and the Texas UCCJA and has acquired subject-matter jurisdiction of the children’s status. 28 U.S.C.A. § 1738A(b)(4) and (f); Tex.Fam.Code Ann. §§ 11.52(5), 11.53. Additionally, Minnesota undisputedly had jurisdiction over the original custody determination made in the 1986 divorce decree and continues to have jurisdiction concerning the children. Minn.Stat. Ann. § 518A.03; 28 U.S.C.A. § 1738A(c) and (d). Under the PKPA, the state which rendered the initial custody order would have continuing jurisdiction if the order was rendered in compliance with the act, and the child or one of the contestants continues to reside in the state. Ray v. Ray, 494 So.2d at 636. The Minnesota decree was rendered in compliance with the PKPA and appellant continues to reside in Minnesota.

Thus, it is possible under both statutes for a Texas court and a court of a sister state to have concurrent jurisdiction of the same child custody question. Lundell v. Clawson, 697 S.W.2d at 838, citing Rush v. Stansbury, 668 S.W.2d 690, 691 (Tex.1984). A strong policy argument can be made that since Minnesota is no longer the “home state” of the children, its connection to the children and the evidence relating to their needs is more tenuous than that of Texas, and the latter should be the one to make decisions about custody. However, there are other considerations, and, because of the resolution of competing considerations by the United States Congress expressed in the PKPA, the fact that the Texas court has such “home state” concurrent jurisdiction does not necessarily mean that it may exercise that jurisdiction.

The PKPA requires every state to give full faith and credit to child custody determinations of other states. 28 U.S.C.A. § 1738A(a). Paragraph (f) of the Act provides:

A court of a State may modify a determination of the custody of the same child made by a court of another State, if
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

Sections 11.63 and 11.64(a) of the Texas Family Code require enforcement of an existing child-custody decree, and even if a Texas court had jurisdiction of the parties and the subject matter, it may not exercise that jurisdiction to modify, the existing custody decree unless “it appears ... that the court that rendered the decree does not have jurisdiction under jurisdictional prerequisites substantially in accordance with [297]*297this subchapter or has declined to assume jurisdiction to modify the decree_”

Appellee argues that Minnesota does not meet the jurisdictional prerequisites of Texas law because, she says, this state emphasizes “home state” jurisdiction while Minnesota’s claim to jurisdiction comes from “significant connections” and the residence of appellant in that state. Minn.Stat.Ann. § 518A.03. We do not agree that any such suggested difference in emphasis is sufficient to show Minnesota’s failure to meet Texas’ jurisdictional prerequisites since, under the PKPA, its jurisdiction is measured by its own laws. Moreover, Minnesota and Texas have substantially the same jurisdictional prerequisites under the uniform act adopted by both parties. Lundell v. Clawson, 697 S.W.2d at 839; Tex.Fam.Code Ann.

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In the Interest of S_ A_ V
798 S.W.2d 293 (Court of Appeals of Texas, 1990)

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798 S.W.2d 293, 1990 WL 115768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-s_-a_-v-texapp-1990.