The Difference Between UCCJEA & UIFSA: Opinions, April 17, 2018

The First District Court of Appeals released a published opinion this morning in In re Meekins, No. 01-17-00696-CV, addressing the difference between the UCCJEA and UIFSA when it comes to a Texas court determining another court is a more convenient forum. In a seemingly bizarre result, the child custody modification is to be transferred to Illinois, while the child support modification remains in Texas for the time being.

Mother lived primarily in Baytown, Texas but traveled a lot for work, particularly in the Midwest. She began a relationship with Father, who lived in Chicago. The parties had a daughter in 2011 and entered into an agreed SAPCR in 2013 which named Mother as primary and granted father a modified possession order. Because of her frequent travel to the Midwest, Mother leased an apartment in Chicago. She also allowed Father to have greater periods of possession than the order called for.

In March 2017, Father filed a petition to modify the parent-child relationship, alleging the trial court had exclusive continuing jurisdiction and that the child’s county of residence was now Cook County, Illinois. He further alleged Mother had relinquished the primary possession and care of the child to another person for at least six months. He asked to be named primary and to receive child support from Mother. He also filed a motion to transfer the modification to Cook County, Illinois, where he had allegedly filed a child custody proceeding.

Mother moved to strike the petition to modify and the motion to transfer because the petition to modify failed to disclose information required under the UCCJEA and the motion to transfer because he failed to “follow the procedures of the UCCJEA in order to invoke the jurisdiction of the Courts in Cook County, Illinois.” In response, Father filed a UCCJEA affidavit, alleging the child had resided with him from August 2015 to the present.

Father also filed an affidavit in support of his motion to transfer which alleged that: on at least one occasion, Mother had been heavily intoxicated in front of the child; that he had been responsible for taking the child to doctor’s appointments which Mother did not attend; that the child was enrolled in dance classes in Chicago; and that he helped the child with her homework. Mother filed an affidavit which countered Father’s allegations, stating she resides in Galveston County, Texas, the child’s principal residence was in Galveston, her home is in Friendswood, her driver’s license still has her Galveston address, and that she does travel often to Chicago for work.

On April 27, 2017, a visiting associate judge heard the motion to transfer and Mother’s motion to strike and denied both motions. Father then moved for a de novo hearing in front of the presiding judge, which was heard on July 7, 2017.

At this hearing, Father, now represented by new counsel, argued for the first time that the trial court did not have continuing exclusive jurisdiction over the case because Texas was not the child’s home state when the original order was entered in November 2013 because the child moved to Illinois a few weeks after she was born in 2011 and she had lived in Illinois for the six months preceding the filing of the original SAPCR.

Father offered into evidence calendars he had prepared showing the child had spent 85% of her time in the six months leading up to filing the petition to modify in Illinois and 15% in Texas. He further testified that the child attended pre-school and dance classes in Chicago during the 2016-17 school year.

Mother testified that she is a global account executive and that though she has an apartment in Chicago, she bought a house in Friendswood and contemplated having the child attend school in the Friendswood school district where the child would be close to cousins. Because the child was not of school age yet, she employed a live-in nanny in Friendswood who would sometimes watch the child and bring her with her when she traveled for work. She disagreed with Father’s calculations of how much time the child spent with both of them, estimating the breakdown of time spent between her and Father was closer to 55/45. She testified that she stopped leasing an apartment in Chicago in June 2017 in anticipation of the child starting school that fall and that she had not been traveling for work as much and that she anticipated travelling less because the child was about to begin school.

At the conclusion of the hearing, the judge stated on the record: ““[F]rom the evidence I’ve heard, the child has resided the vast majority of the time with both parents most of the time in Illinois.” The court orally granted the motion to transfer and stated it would stay the proceedings in Texas while it conferred with the judge in Illinois. The court further stated it would not dismiss the proceedings unless and until it had been transferred to the court in Illinois. After the hearing, the court signed an order granting the motion to transfer and denying Mother’s motion to strike. The case was transferred to Cook County, Illinois, but ordered the petition to modify be stayed pending a decision by the Court in Illinois to accept or reject jurisdiction of the case. Mother requested findings of fact and conclusions of law, but the trial court did not issue any.

On August 7, 2017, the trial court signed an order granting the motion to transfer and staying the modification. Although the modification was stayed, Mother filed  an enforcement on August 7, 2017, alleging Father had failed to comply with the original order by failing to surrender the child on two occasions that month. The matter was set for hearing on August 17, 2017, but the hearing did not happen because Father had not been served. On August 22, 2017, she filed a first amended motion for enforcement, alleging Father had violated the original order on four separate occasions bey refusing to return the child to her. On August 24, 2017, she filed a motion asking the court to set a hearing on her amended motion for enforcement which included an affidavit alleging Father had been hiding and secreting the child, that Father had admitted to local police in Illinois that he was keeping the child in violation of the court’s orders, that Mother had not seen the child in twenty days, and that the child had missed her first few days of school in Friendswood. The trial court did not rule on Mother’s first amended motion for enforcement. Mother then filed a mandamus.

The Court of Appeals addressed Mother’s third and fourth issues first, in which she alleged the trial court abused its discretion by transferring the modification to Illinois in violation of the UCCJEA.

Section 152.201(a) of the UCCJEA provides that a Texas court has jurisdiction to make an initial determination in four instances, the first of which is when Texas is the home state of the child (i.e. the child resided in Texas for six months before the proceeding was filed). Section 152.202 provides that Texas shall remain the court of continuing exclusive jurisdiction over its 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 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.

The UCCJEA also allows a Texas court to decline jurisdiction if it determines that it is an inconvenient forum under Section 152.207(a). Section 152.207(b) lists eight non-exclusive factors for the court to consider in determining whether it is appropriate for a court of another state to exercise jurisdiction.

The COA noted that Father’s then-new attorney’s argument that the trial court never obtained exclusive continuing jurisdiction because Texas was not the child’s home state in November 2013 dealt with the trial court’s subject matter jurisdiction and thus it must first determine if the trial court had jurisdiction when it entered its original order in 2013. While the original order was part of the record, the pleadings from that matter were not. The parties disagreed about which state the child lived in prior to the SAPCR being filed and even when the SAPCR was filed. The trial court had the discretion to resolve the conflicting accounts in Mother’s favor and though it did not state so explicitly, it impliedly determined as much when it ruled that it had jurisdiction over the modification under the UCCJEA.

Next the COA looked at whether the trial court retained continuing exclusive jurisdiction (“CEJ”). By virtue of the prior order, the trial court would retain CEJ unless and until the two instances detailed in Section 152.202, excerpted above. Mother contended that to the extent the trial court determined it did not have CEJ anymore, it erred because the mother and child still had a significant connection to Texas. Looking to the Mother’s home in Friendswood and condo in Galveston, her employment for a Houston-based company, Texas driver’s license, Texas voter registration, and extended family in Texas, the COA concluded she did have a significant connection with Texas. Thus under section 152.202, the trial court retained CEJ over the modification.

Though a trial court may have CEJ, it may decline to exercise that jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court of  another state is a more appropriate forum. The COA reviewed the conflicting evidence and determined that the trial court, in granting the motion to transfer and staying the modification, impliedly found Texas was an inconvenient forum and that Illinois was a more convenient forum. The COA found that based on the conflicting evidence, the trial court could not have reached only one possible conclusion and thus the trial court did not abuse its discretion in granting the motion to transfer and staying the proceedings pending an Illinois court’s acceptance of jurisdiction. Mother’s third and fourth issues were overruled.

In her first issue, Mother argued the trial court abused its discretion by failing to set her first amended motion for enforcement for hearing. But the COA noted that the trial court stayed the proceedings and that her enforcement motions were filed during the stay and thus were ineffective. The trial court did not abuse its discretion in failing to hold a hearing on the enforcement motions. The issue was overruled.

In her second issue, the Mother contended the trial court erred by transferring the child support portion of the modification proceeding, in violation of UIFSA. Once a Texas court has entered a support order, that court is the only court entitled to modify it as long as the court retains CEJ. Only if the issuing state no longer has a sufficient interest in the modification of its order may the responding state assume the power to modify it. Section 159.205 provides a Texas court that has previously issued a support order may lose CEJ to modify the order if:

(1) all of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
(2) the tribunal’s order is not the controlling order.

The COA notes that, unlike the UCCJEA, UIFSA provides no mechanism for the issuing state to decline to exercise its CEJ and transfer jurisdiction to modify a support order to a court in another state. Thus the trial court in this matter retained CEJ over the support portion of the order if that order was the controlling order and at the time of the filing of the modification, Texas was the residence of the obligor, the obligee, or the child. Though there was conflicting evidence concerning the Mother and the child’s residence, there was considerable evidence that Texas remained at least the Mother’s residence. As such, the trial court remained the court of CEJ over the child support proceeding until a Illinois court modified the original order and could not divest itself of jurisdiction and transfer the child support modification. The trial court erred when it transferred the child support portion of the modification to Cook County, Illinois.

Mother’s mandamus was denied in part and conditionally granted as to the trial court’s transfer of the child support portion of the modification.

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