COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00054-CV
JEANNA NICOLE ARNOLD APPELLANT
V.
MATTHEW PRICE APPELLEE
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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
OPINION ----------
I. Introduction
Appellant Jeanna Nicole Arnold, the respondent below, appeals the trial
court‘s final decree of divorce appointing Appellee Matthew Price as sole
managing conservator of their young daughter. Arnold contends in her first issue
that the trial court did not have personal jurisdiction over her and that the trial
court did not have subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)1 to make an initial child custody
determination. We affirm in part and dismiss in part for lack of subject matter
jurisdiction.
II. Background
Arnold and Price were married in early September 2006 and ceased living
together in early December 2006, but they continued to have a marital
relationship through June 2007. Price filed an original petition for divorce on July
16, 2007. He alleged in his original petition that he was stationed in
Pennsylvania as a member of the United States Navy and that Arnold resided in
Yuba City, California; he asserted that jurisdiction over Arnold was proper in
Texas because their last marital residence was in Texas and he filed suit before
the second anniversary of the date on which the marital residence ended.2 Price
also alleged in the original petition that Arnold was pregnant. Price later
amended his petition and sought appointment as sole managing conservator of
his daughter.
Arnold filed an original answer to Price‘s petition in August 2007. In her
answer, Arnold objected to the trial court‘s jurisdiction over the unborn child,
alleging that ―[t]he child will not be born in Tarrant County, Texas[;] therefore,
jurisdiction and venue will be proper in another County and/or State.‖ Arnold did
1 See Tex. Fam. Code Ann. § 152.001–.104 (West 2008), .105 (West Supp. 2011), .106–.310 (West 2008), .311 (West Supp. 2011), .312–.317 (West 2008). 2 See Tex. Fam. Code Ann. § 6.305(a) (West 2006).
2 not, however, challenge personal jurisdiction in her original answer. Arnold also
filed an original counter-petition for divorce. In the counter-petition, Arnold did
not object to or otherwise challenge personal jurisdiction, and she requested that
the court divide the parties‘ community property, confirm her separate property,
enter temporary orders, award her attorney‘s fees, and grant a divorce. Arnold
did, however, state in the counter-petition that she and Price were expecting a
child and that she ―objects to a Court in Tarrant County, Texas taking jurisdiction
over an unborn child and/or a child who has never resided in the State of Texas.‖
The child was born in California on December 7, 2007. It is undisputed
that the child, other than during brief visitations with Price, lived in California with
Arnold from the time of her birth through the time of trial.
The appellate record does not contain the transcript of any hearing on
Arnold‘s objection to jurisdiction, but it does contain an order denying the
objection to jurisdiction. The record also contains a letter from the trial court
stating in part, ―The Court does accept jurisdiction of the parties and this child. I
am not sure that Texas is necessarily the proper state for jurisdiction; however,
neither of the parties filed any action in any other state that might have
jurisdiction so as to leave us with very little choice.‖
Following a jury trial on the sole issue of conservatorship, the jury returned
a verdict that Price should be appointed the child‘s sole managing conservator.
The parties submitted the issue of custody to the court, and the trial court
ordered that for the first three years, Price would have custody of the child in two-
3 month increments and that Arnold would have custody in one-month increments.
After the first three years, the trial court ordered that the parties would have
custody in accordance with the standard possession orders for parents residing
more than 100 miles apart. This appeal followed.
III. Personal Jurisdiction
Arnold argues in part of her first issue that the trial court did not have
personal jurisdiction over her because she is a resident of California.
A. Applicable Law
―Whether a court has personal jurisdiction over a nonresident defendant is
a question of law, which we review de novo.‖ Zinc Nacional, S.A. v. Bouche
Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010) (citing BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). Unlike subject matter
jurisdiction, the lack of personal jurisdiction may be waived. See Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14, 105 S. Ct. 2174, 2182 n.14 (1985)
(―[T]he personal jurisdiction requirement is a waivable right.‖). Strict compliance
with rule of civil procedure 120a is required, and a nonresident defendant will be
subject to personal jurisdiction in Texas courts if the defendant enters a general
appearance. Morris v. Morris, 894 S.W.2d 859, 862 (Tex. App.—Fort Worth
1995, no writ).
Under rule 120a, a properly entered special appearance enables a
nonresident defendant to challenge personal jurisdiction in a Texas court. Tex.
R. Civ. P. 120a. As applicable here, rule 120a provides that ―[e]very appearance,
4 prior to judgment, not in compliance with this rule is a general appearance.‖ Tex.
R. Civ. P. 120a(1); see also Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199,
201 (Tex. 1985). A party enters a general appearance and waives a special
appearance ―when it (1) invokes the judgment of the court on any question other
than the court‘s jurisdiction, (2) recognizes by its acts that an action is properly
pending, or (3) seeks affirmative action from the court.‖ Exito Elecs. Co. v. Trejo,
142 S.W.3d 302, 304 (Tex. 2004) (citing Dawson–Austin v. Austin, 968 S.W.2d
319, 322 (Tex. 1998), cert. denied, 525 U.S. 1067 (1999)). The test for a general
appearance is whether a party requests affirmative relief inconsistent with an
assertion that the trial court lacks jurisdiction. Dawson–Austin, 968 S.W.2d at
323.
In this case, Arnold filed an answer to Price‘s petition for divorce but did
not file a special appearance or any other pleading that could be construed as a
special appearance. Moreover, Arnold requested in her original counter-petition
for divorce that the trial court divide the parties‘ community property, confirm her
separate property, enter temporary orders, award her attorney‘s fees, and grant a
divorce. Because Arnold did not file a special appearance, she did not comply
with rule 120a(1)‘s procedure for objecting to personal jurisdiction. See Tex. R.
Civ. P. 120a(1). And the requests for affirmative relief in her counter-petition for
divorce are inconsistent with her contention that the trial court lacked personal
jurisdiction. See Dawson–Austin, 968 S.W.2d at 323; Office of the Attorney Gen.
of Tex. v. Phillips, No. 01-05-00973-CV, 2007 WL 1559804, at *4 (Tex. App.—
5 Houston [1st Dist.] May 31, 2007, no pet.) (mem. op.) (holding husband entered
general appearance by filing motions for a temporary restraining order,
sanctions, and attorney‘s fees). Arnold therefore entered a general appearance
and cannot complain that the trial court lacked personal jurisdiction over her for
either the divorce or the child custody determinations. See Morris, 894 S.W.2d at
862 (holding husband entered general appearance by filing answer instead of
special appearance); see also Tex. Fam. Code Ann. § 6.305(b) (providing that
court acquiring personal jurisdiction over nonresident respondent ―also acquires
jurisdiction over the respondent in a suit affecting the parent-child relationship‖).
We overrule the portion of Arnold‘s first issue that challenges personal
IV. Subject Matter Jurisdiction
Arnold contends in the remainder of her first issue that the trial court did
not have jurisdiction over the child custody determination pursuant to the
UCCJEA.3
Subject matter jurisdiction is a question of law that we review de novo.
Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005). ―A court must possess both
subject matter jurisdiction over a case and personal jurisdiction over a party to
issue a binding judgment.‖ CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996).
3 See Tex. Fam. Code Ann. § 152.001–.317.
6 Subject matter jurisdiction refers to the power of a court to hear a particular type
of suit. Id. When an action is grounded in statute, subject matter jurisdiction
must be shown under the applicable statute. Dubai Petroleum Co. v. Kazi, 12
S.W.3d 71, 75 (Tex. 2000); In re Barnes, 127 S.W.3d 843, 846–47 (Tex.
App.―San Antonio 2003, orig. proceeding). ―Subject matter jurisdiction is never
presumed and cannot be waived.‖ Barnes, 127 S.W.3d at 846. Rather, it ―‗exists
by operation of law only, and cannot be conferred upon any court by consent or
waiver.‘‖ In re A.D.D., 974 S.W.2d 299, 303 (Tex. App.—San Antonio 1998, no
pet.) (quoting Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 541, 174 S.W.2d
598, 600 (1943)).
Jurisdiction over child custody issues in Texas is exclusively governed by
the UCCJEA. See Tex. Fam. Code Ann. § 152.201(b) (stating section
152.201(a) ―is the exclusive jurisdictional basis for making a child custody
determination by a court of this state‖); In re Brown, 203 S.W.3d 888, 890 (Tex.
App.―Fort Worth 2006, orig proceeding). The UCCJEA was largely designed to
avoid having multiple states simultaneously claim jurisdiction by prioritizing
home-state jurisdiction. Powell, 165 S.W.3d at 325; In re S.J.A., 272 S.W.3d
678, 684 (Tex. App.―Dallas 2008, no pet.).
Family code section 152.201(a) provides that a Texas court has jurisdiction
to make an initial child custody determination only if:
(1) [Texas] 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,
7 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 [inconvenient forum] or 152.208 [jurisdiction declined by reason of conduct], 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 Ann. § 152.201(a).
A child‘s home state is determined as of the date of the commencement of
the child custody proceeding. Waltenburg v. Waltenburg, 270 S.W.3d 308, 314
(Tex. App.―Dallas 2008, no pet.); Brown, 203 S.W.3d at 891. ―Commencement‖
is defined as ―the filing of the first pleading in a proceeding.‖ Tex. Fam. Code
Ann. § 152.102(5). When a child is less than six months old, the home state is
―the state in which the child lived from birth with a parent.‖ Id. § 152.102(7);
Waltenburg, 270 S.W.3d at 315. The UCCJEA does not, however, ―authorize
jurisdiction over a child custody proceeding concerning an unborn child.
8 Waltenburg, 270 S.W.3d at 316 (interpreting the plain language of the UCCJEA‘s
definition of a child and considering holdings of other states).
B. Analysis
It is undisputed that Arnold and Price‘s child was born in California in
December 2007, several months after Price filed his original petition for divorce
and Arnold filed her counter-petition. It is also undisputed that, other than brief
visitations with Price, the child had lived only with Arnold in California since birth.
1. The UCCJEA and Unborn Children
Price argues that the trial court had subject matter jurisdiction over the
child custody issues because the UCCJEA does not apply to unborn children, the
child had not been born at the time Price filed for divorce, and jurisdiction is
determined based on the circumstances at the time the suit is commenced. But
this argument has been rejected by our sister court of appeals. In Waltenburg,
the mother and father had lived in Arizona, but the mother moved to Texas
shortly before she gave birth to their child. See 270 S.W.3d at 311. The father
filed for divorce and custody in Arizona before the child was born in Texas, and
the mother filed for divorce and custody in Texas four months after the child‘s
birth. Id. Father argued that the Arizona court had subject matter jurisdiction
because the UCCJEA does not apply to unborn children. Id. at 316. Rejecting
the father‘s argument, the court stated,
[R]eading the UCCJEA to authorize jurisdiction over a custody matter concerning an unborn child would defeat the clear purpose underlying the legislature‘s enactment of the UCCJEA—to prioritize
9 home-state jurisdiction. See Powell, 165 S.W.3d at 325. Under such a reading, a party could file suit pre-birth under the UCCJEA provision authorizing jurisdiction when ―no other court has jurisdiction,‖ and use the ―simultaneous proceeding‖ provision to control, post-birth, whether the child‘s home state can ever exercise that ―priority‖ jurisdiction. We reject this reading of the UCCJEA.
Id. at 318. Instead, the Waltenburg court held that Texas became the child‘s
home state immediately upon birth and that ―a court in a state that has adopted
the UCCJEA cannot exercise jurisdiction over a custody claim asserted regarding
an unborn child.‖ Id. Thus, we reject Price‘s contention that the trial court had
subject matter jurisdiction simply because the UCCJEA does not apply to unborn
children and jurisdiction was proper as to Arnold.
2. Texas Family Code Section 152.201(a)
As stated above, family code section 152.201(a) states that a Texas court
may make an initial child custody determination only if one of four circumstances
exist. See Tex. Fam. Code Ann. § 152.201(a). We address each circumstance
in turn.
As applicable here, section 152.201(a)(1) provides that a Texas court may
exercise subject matter jurisdiction if Texas was the child‘s home state at the
time Price filed his original petition. Tex. Fam. Code Ann. § 152.201(a)(1). But
the child had not yet been born when Price filed for divorce, and the child‘s home
state could not yet be determined. The Waltenburg court held that although
subject matter jurisdiction is typically determined based on the pleadings at the
time the proceeding is commenced, subject matter jurisdiction for a child that had
10 not been born at the time of commencement is determined ―on the pleadings of
the parties and the undisputed evidence as to the date and location of [the
child]‘s birth.‖ 270 S.W.3d at 315; see also Tex. Fam. Code Ann. § 152.102(2)
(defining a ―child‖ as ―an individual who has not attained 18 years of age‖); Tex.
Fam. Code Ann. § 152.102(7) (defining ―home state‖ for a child under six months
of age as ―the state in which the child lived from birth with a parent or a person
acting as a parent‖). Thus, California became the child‘s home state immediately
upon birth, and a Texas court therefore could not exercise jurisdiction over the
child custody proceeding pursuant to section 152.201(a)(1) as the child‘s home
state. See Waltenburg, 270 S.W.3d at 318 (holding that Texas became child‘s
home state immediately upon birth, ―thus precluding the Arizona court from
exercising jurisdiction‖ over custody claim); see also Tex. Fam. Code Ann. §
152.102(7).
Section 152.201(a)(2) states that a Texas court may make an initial child
custody decision if another state does not have home state jurisdiction or if
another state has declined to exercise jurisdiction pursuant to sections 152.207
(inconvenient forum) or 152.208 (unjustifiable conduct). See Tex. Fam. Code
Ann. § 152.201(a)(2). ―This ‗significant connection jurisdiction should only be
employed when Texas is not the home state and it appears that no other state
could assert home state jurisdiction.‘‖ Barnes, 127 S.W.3d at 847 (quoting In re
Oates, 104 S.W.3d 571, 578 (Tex. App.—El Paso 2003, orig. proceeding). Here,
California did have jurisdiction of the child custody proceeding because California
11 was the child‘s home state as of the date of her birth. See Tex. Fam. Code Ann.
§§ 152.102(7), .201(a)(1); see also Cal. Fam. Code §§ 3402(g), 3421(a) (West
2000) (California versions of Texas Family Code sections 152.102(7) and
152.201(a)). Furthermore, California had not declined to exercise jurisdiction.
See Tex. Fam. Code Ann. §§ 152.207, .208. Texas could not therefore exercise
subject matter jurisdiction pursuant to section 152.201(a)(2). See id. §
152.201(a)(2); Barnes, 127 S.W.3d at 848 (holding Texas could not exercise
jurisdiction over custody proceeding until other proper forums declined to
exercise jurisdiction).
Texas courts may also make an initial child custody determination if all
courts with jurisdiction under section 152.201(a)(1) and (2) have declined
jurisdiction on the ground that Texas is a more appropriate forum. See Tex.
Fam. Code Ann.. § 152.201(a)(3). But this provision cannot apply because
California had jurisdiction under section 152.201(a)(1) and had not declined to
exercise jurisdiction. Finally, Texas cannot exercise subject matter jurisdiction
over the child custody proceeding under section 152.201(a)(4)—which provides
that a Texas court may exercise subject matter jurisdiction if no other state would
have jurisdiction under section 152.201(a)(1), (2), or (3)—because California has
jurisdiction over the proceeding under section 152.201(a)(1). See id. §
152.201(a)(4). Therefore, none of the four exclusive circumstances listed in
family code section 152.201(a) exist in this case.
12 3. No Pending California Proceeding
Price argues that the trial court still could exercise subject matter
jurisdiction because Arnold never initiated a custody proceeding in California.
While it is true that Arnold did not commence a proceeding in California, this fact
is not dispositive because Texas is not the child‘s home state, and the UCCJEA
prioritizes home-state jurisdiction. See generally Powell, 165 S.W.3d at 325;
S.J.A., 272 S.W.3d at 684. Moreover, it is apparent from the UCCJEA as a
whole that the legislature contemplated that a Texas court could decline to
exercise jurisdiction, even if there was not a pending proceeding in another state.
For example, family code section 152.207 provides that a Texas court may
decline to exercise jurisdiction on inconvenient forum grounds. Tex. Fam. Code
Ann. § 152.207(a). But there is no requirement that there be a currently pending
proceeding in another state. See id. This is so because section 152.207(c)
provides that, after the trial court determines that another forum is more
appropriate, the trial court ―shall stay the proceedings upon condition that a child
custody proceeding be promptly commenced in another designated state.‖ Id. §
152.207(c) (emphasis added).4 Therefore, the legislature clearly contemplated
scenarios in which Texas courts decline to exercise jurisdiction over child
4 We also note that section 152.207(d) provides that a Texas trial court may decline jurisdiction of a child custody determination while retaining jurisdiction over other portions of the same proceeding, such as for divorce. Id. § 152.207(d).
13 custody determinations even though there is not a pending proceeding in the
more appropriate state.
4. Conclusion
Family code section 152.201(b) states that ―[s]ubsection (a) is the
exclusive jurisdictional basis for making a child custody determination by a court
of this state.‖ Id. § 152.201(b). Because a Texas court could not properly
exercise subject matter jurisdiction under section 152.201(a) at the time Price
commenced this proceeding or at the time of the child‘s birth, we hold that the
trial court did not have subject matter jurisdiction to make the initial child custody
determination. See id. § 152.201(a), (b); see also Waltenburg, 270 S.W.3d at
318 (holding Texas rather than Arizona courts had subject matter jurisdiction
over custody proceeding involving a child born in Texas after the initial petition
was filed in Arizona). We therefore sustain the remainder of Arnold‘s first issue.
IV. Conclusion
Having sustained Arnold‘s first issue in part and having not reached her
second issue,5 we reverse the portions of the trial court‘s judgment relating to
conservatorship and custody of the child and dismiss those portions for lack of
subject matter jurisdiction. Having overruled the portion of Arnold‘s first issue
5 We do not reach Arnold‘s second issue in which she argues that the trial court abused its discretion by admitting the testimony of Price‘s retained expert witness. See Tex. R. App. P. 47.1 (providing that a court of appeals‘s opinion must be as ―brief as practicable‖ and address ―every issue raised and necessary to final disposition of the appeal‖).
14 challenging personal jurisdiction, we affirm the remainder of the trial court‘s
judgment.
ANNE GARDNER JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DELIVERED: December 22, 2011