In re Burk (Tex.App.- Houston [14th Dist.] Apr. 10, 2008)

In re Amy Elizabeth Burk (Tex.App.- Houston [14th Dist.] Apr. 10, 2008)(Seymore) (UCCJEA, child custody
jurisdiction, Texas found to be home state of child removed by mother, SAPCR suit as part of divorce in Texas
proper)
MOTION OR WRIT DENIED: Opinion by
Justice Charles Seymore  
Before Justices Fowler, Frost and Seymore
14-08-00065-CV        In Re: Amy Elizabeth Burk
Appeal from 311th District Court of Harris County
Trial Court
Judge: Hon. Douglas C. Warne

The Harris County trial court correctly concluded that it has jurisdiction because Texas was the child's "home state"
within six months before Father filed the Texas proceeding.  Accordingly, the trial court did not abuse its discretion
in denying Mother's plea to the jurisdiction. Mandamus petition of mother, who had moved to another state with the
child, had initiated a proceeding there and challenged the jurisdiction of the Houston, Texas court, is denied.

ORIGINAL PROCEEDING WRIT OF MANDAMUS

O P I N I O N

On January 31, 2008, relator Amy Burk filed a petition for writ of mandamus.  See Tex. Gov't Code Ann. ' 22.221
(Vernon 2004); see also Tex. R. App. P. 52.  Relator asks this court to compel the Honorable Douglas C. Warne to
set aside his order overruling her plea to the jurisdiction and to dismiss the suit filed by Austin Burk.  We deny
relator's petition.

                                                          
BACKGROUND

Austin and Amy married and resided in Denver, Colorado from July 2004 to May 2006, when Austin moved to
Waco, Texas.  Amy moved to Waco the following month.  On April 30, 2007, a daughter, C.B. was born in Waco.  
From her birth, C.B. resided with her parents in Waco.  Amy and C.B. visited her parents in Colorado from June 30
to July 15, 2007.  After returning to Waco, Amy and Austin began packing on July 22 to move to Houston, Texas.  
Austin went to Houston on July 27.  On July 27 or 28, Amy moved with C.B. to live with her parents in Colorado.

On September 29, 2007, Amy filed a "Petition for Allocation of Parental Responsibilities" in Colorado.  On October
12, 2007, Austin filed an "Original Petition for Divorce" which included a "Suit Affecting the Parent-Child
Relationship" (SAPCR) in Texas.  On November 26, 2007, Amy filed a plea to the jurisdiction in the Texas suit.

The Texas trial court found there was no basis upon which the Colorado court could exercise jurisdiction under
Section 152.206 of the Family Code.  See Tex. Fam. Code. Ann. ' 152.206.  Further, the Texas trial court found
that the case is controlled by section 152.102(7) and that on the date the parties were separated, Texas was the
"home state."  See Tex. Fam. Code. Ann. ' 152.102(7).  Amy's plea to the jurisdiction was denied by the trial court.

In her petition, Amy argues that C.B. has no "home state," and that, under a "significant connections" analysis,
Colorado should exercise jurisdiction.  Austin contends Colorado cannot exercise jurisdiction substantially in
conformity with chapter 152 and the Texas court is free to exercise its jurisdiction because Texas was C.B.'s "home
state" within six months before suit was filed.  See Tex. Fam. Code Ann. '' 152.101-.317.

STANDARD OF REVIEW

When a Texas court has asserted jurisdiction over a child custody matter contrary to the Uniform Child Custody
Jurisdiction and Enforcement Act ( the "UCCJEA"),  mandamus is appropriate.  See Tex. Fam. Code Ann. '' 152.101-
.317.  See also Geary v. Peavy, 878 S.W.2d 602, 604-05 (Tex.1994).[1]  Whether a trial court has subject matter
jurisdiction is a question of law reviewed de novo.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.
1998); see also Powell v. Stover, 165 S.W.3d 322, 325 (Tex. 2005) (orig. proceeding).  A trial court abuses its
discretion if it fails to analyze or apply the law correctly.  Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.
proceeding).

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

The UCCJEA replaced the previously adopted Uniform Child Custody Jurisdiction Act (the "UCCJA").  See Powell v.
Stover, 165 S.W.3d 322, 325 (Tex. 2005) (orig. proceeding).  Before the UCCJEA was effective, there was no
priority within the four bases for jurisdiction over a custody dispute, leading to simultaneous exercise of jurisdiction
in child-custody cases in different states.  Id.  The UCCJEA is designed to make determination of jurisdiction more
straightforward by prioritizing home-state jurisdiction.  Id. at 326.  Under the UCCJEA, the legislature sought to
avoid  jurisdictional competition and conflict that results when courts in different states determine jurisdiction based
on subjective factors.  Id.  The UCCJEA was intended to give prominence to objective factors and should be
construed in such a way as to strengthen rather than undermine the certainty that prioritizing home‑state
jurisdiction was intended to promote.  Id.  The purposes behind the UCCJEA suggest that a child's physical location
is the central factor to be considered when determining a child's "home state."  Id.  The Texas Family Code
prioritizes home‑state jurisdiction by providing, in pertinent part, 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;

(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 or 152.208, 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).

See Tex. Fam. Code Ann. ' 152.201(a).   "In the case of a child less than six months of age, the term ["home state"]
means the state in which the child lived from birth with a parent or a person acting as a parent."  Id. ' 152.102(7).
Because this case involves an initial child-custody determination, and home‑state jurisdiction has priority, the issue
is whether Texas or Colorado was C.B.'s home state on the date of, or within six months before, commencement of
the proceeding.

ANALYSIS

Because the suit in Colorado was filed first, the Texas court is precluded from exercising its jurisdiction if the
Colorado court has jurisdiction substantially in conformity with chapter 152.  See Tex. Fam. Code Ann. ' 152.206
(a); see also Geary v. Peavy, 878 S.W.2d 602, 604 (Tex. 1994).  Both parties agree that Colorado was not C.B.=s
home state on the date of, or within six months before, the commencement of the Colorado proceeding.  See Tex.
Fam. Code Ann. ' 152.201(a)(1).  Therefore, Colorado may exercise jurisdiction only if Texas does not have
jurisdiction under subdivision (a)(1).[2]  See Tex. Fam. Code Ann. ' 152.201(a)(2).

As reflected in section 152.207(a)(1), Texas would have jurisdiction to make an initial child custody determination if
Texas were the child's home state on the date suit was filed in Texas, or was the child's home state within six
months of the date suit was filed in Texas, provided the child is absent from Texas but one parent is living in
Texas.  Austin does not contend that Texas was C.B.=s home state on the date of the commencement of the
proceeding, October 12, 2007.  See In re McCoy, 52 S.W.3d 303, 304 (Tex. App. - Corpus Christi 2001, orig.
proceeding) (holding that the operative date for determining whether Texas has jurisdiction is the date suit was filed
in Texas); see also In re Calderon-Garza, 81 S.W.3d 899 (Tex. App. - El Paso 2002, orig. proceeding) (holding
Texas was the home state on the date of the commencement of the proceeding where the child lived in El Paso for
the entirety of his life immediately before the date the proceeding commenced).  The record reflects on October 12,
2007, C.B. was absent from Texas but Austin continued to live in the state.    On October 12, 2007, C.B. was in
Colorado.  However, Austin continued to live in Texas on October 12, 2007.  Pursuant to section 152.201(a)(1),
then, the question is whether Texas was C.B.=s home state within six months before commencement of the
proceeding.

Amy contends Texas is not the "home state" because "home state" is defined as "the" state in which the child lived
from birth. See Tex. Fam. Code Ann. ' 152.102(7).  Amy contends this means the child must have lived in only one
state from birth.  Amy argues C.B. has not lived in Texas, i.e., "the state," from birth because C.B. lived in more
than one state before commencement of the proceeding.  Austin disagrees with Amy's interpretation of this
language.  He claims the language requires only that Texas must have been the child=s home state at some time
within six months before commencement of the proceeding.  Austin points out that C.B. lived in Texas from birth
until July 27, when Amy moved her to Colorado.  As a result, Texas was C.B.'s home state at least until July 27.  
Since July 27 is within six months of October 12, when Austin brought suit in Texas, section 152.201(a)(1) gives
Texas jurisdiction to make an initial child custody determination.

There is no Texas authority directly on point.  However, in In re Estes, 153 S.W.3d 591, 598 (Tex. App. - Amarillo
2004, orig. proceeding),[3] the court considered the "within six months" provision of subdivision (a)(1) and noted
"that as of the filing of the Texas proceeding on February 11, 2004, the children had not lived in Texas for at least
six consecutive months immediately preceding the filing, nor was there any date during the six months preceding
February 11, 2004, at which the children lived in Texas for at least six consecutive months immediately preceding
such date."  Id. (emphasis added).

In re Estes did not involve a child less than six months of age but subdivision (a)(1) does not distinguish between a
child more than six months and one less than six months of age.  The statutory language refers to "home state," a
term with two definitions.  See Tex. Fam. Code Ann. ' 152.102(7).  When interpreting statutes, our objective is to
give effect to legislative intent and so we look first to the plain and common meaning of the statute's words.  See
Powell, 165 S.W.3d at 326.  There is no indication the legislature intended "the home state . . .within six months," to
apply only to children six months of age or older.

We agree with Austin's interpretation.  The statute provides that Texas has jurisdiction to make an initial child
custody determination if it was the home state within six months before commencement of the proceeding, and the
child is absent from Texas but a parent continues to live in Texas.  The Texas proceeding was filed on October 12,
2007.  On that date, C.B. had lived in Texas from birth to July 27 or 28, 2007, when Amy moved with her to
Colorado.  July 27 or 28, 2007, is a date during the six months preceding October 12, 2007.  Accordingly, Texas
was the home state within six months before the Texas proceeding commenced and Texas has jurisdiction under
section 152.201(a)(1).

Because there is a court of another state that has jurisdiction under section 152.201(a)(1), the Colorado court
does not have jurisdiction in substantial conformity with chapter 152 to make an initial child custody determination.  
Consequently, section 152.206 does not preclude the Texas court from exercising jurisdiction.

As the Powell court recognized, this does not mean the Texas court is required to exercise its jurisdiction.  See
Powell, 165 S.W.3d at 327.  The Family Code provides flexibility to avert potential injustice once the home state has
been determined.  See Tex. Fam. Code '' 152.207 and 152.208.  For example, the home-state court can defer
jurisdiction if the court is an inconvenient forum under the circumstances and a court in another state would provide
a more appropriate forum.  See Tex. Fam. Code ' 152.207.  "Applying a physical-presence test to determine home-
state jurisdiction, then allowing that court to consider the forum's relative convenience, creates jurisdictional
certainty without diluting the significance of the underlying facts and circumstances presented in an individual case"
Powell, 165 S.W.3d at 327.  The question of whether Colorado is a more appropriate forum is a determination that
must be made by the trial court in the home state, which in this case is Texas.

CONCLUSION

The trial court correctly concluded that it has jurisdiction because Texas was C.B.'s "home state" within six months
before Austin filed the Texas proceeding.  Accordingly, the trial court did not abuse its discretion in denying Amy's
plea to the jurisdiction.  Id. Relator's petition for writ of mandamus is denied.

/s/        Charles W. Seymore

Justice

Petition Denied and Opinion filed April 10, 2008

Panel consists of Justices Fowler, Frost and Seymore.

Footnotes:

      [1]  Generally, an appellate court should deny mandamus relief if another adequate remedy is available.  See Street v. Second
Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986) (orig. proceeding).  Mandamus is intended to be an extraordinary remedy,
available only in limited circumstances.  However, in jurisdictional disputes arising from child custody proceedings, the relator need
not demonstrate the inadequacy of an appellate remedy.  In re Lambert, 993 S.W.2d 123, 127 (Tex. App. - San Antonio 1999, orig.
proceeding); In re Jeffries, 979 S.W.2d 429, 433 (Tex.App.- Waco 1998, orig. proceeding).

      [2] Texas has not declined to exercise jurisdiction.  Therefore, the Colorado court cannot exercise jurisdiction under section
152.201(a)(3).

      [3] We are aware the court in Powell disapproved of Estes to the extent it conflicted with the court's application of a "physical-
presence" test to determine home-state jurisdiction.  See Powell, 165 S.W.3d at 328.  The Estes court considered subjective intent in
determining the children had "lived" in Nebraska for over seven months before suit was filed.  That analysis does not distinguish
Estes from the case at bar in any significant manner.