In the interest of E.A.F., a child--Appeal from 50th District Court of Baylor County

Opinion filed April 24, 2008

In The

Eleventh Court of Appeals

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 No. 11-05-00288-CV

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IN THE INTEREST OF E.A.F., A CHILD

On Appeal from the 50th District Court

Baylor County, Texas

Trial Court Cause No. 04-04-09964

M E M O R A N D U M O P I N I O N

This appeal arises from a child custody suit filed by the child=s alleged father. The trial court dismissed the suit based upon its determination that it did not have personal jurisdiction over the child=s mother. The trial court additionally found that Texas is an inconvenient forum. We affirm.

Background Facts

Appellant, Thomas Ferrier, filed a petition to establish a parent-child relationship with the child on April 14, 2004. He also requested to be named as the sole managing conservator of the child in the petition. Appellant served the petition on appellee, Vera Ann Hambrook, on October 28, 2004, in Oklahoma. Appellee responded to the petition by filing a special appearance on November 18, 2004, wherein she alleged that she is not amenable to personal jurisdiction in Texas. See Tex. R. Civ. P. 120a. She additionally asserted in her response that Texas is an inconvenient forum for the custody proceeding.

The trial court conducted a brief hearing on appellee=s contentions on March 22, 2005. The trial court ordered appellee to prepare an affidavit in compliance with Tex. Fam. Code Ann. ' 152.209 (Vernon Supp. 2007). The trial court deferred ruling on the jurisdictional matters until appellee submitted the affidavit. In her affidavit, appellee stated that she and the child had resided in Texas from the child=s birth in 2002 until April 10, 2004. The trial court subsequently entered an order on May 10, 2005, that granted appellee=s special appearance by dismissing the case. The trial court later entered a modified order on July 7, 2005, wherein it additionally determined that Texas is an inconvenient forum.

Issues

Appellant brings three issues on appeal. In his first issue, appellant contends that the trial court erred in finding that it did not have personal jurisdiction over appellee. Appellant asserts in his second issue that the trial court erred in failing to find that Texas has Ahome state@ jurisdiction in the case. Appellant attacks the trial court=s determination that Texas is an inconvenient forum in his third issue.

Analysis

Jurisdiction over custody issues in Texas is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Tex. Fam. Code. Ann. ch. 152 (Vernon 2002 & Supp. 2007). ATo acquire jurisdiction over custody issues, no connection between the nonresident parent and the state is required.@ In the Interest of S.A.V., 837 S.W.2d 80, 84 (Tex. 1992). Rather, we focus on whether Texas has become the child=s Ahome state.@ Section 152.201(a)(1); see S.A.V., 837 S.W.2d at 84. Under the UCCJEA, a custody determination may be made by a state that has no jurisdiction to render a personal judgment against the nonresident parent. S.A.V., 837 S.W.2d at 84; In re Barnes, 127 S.W.3d 843, 846-47 (Tex. App.CSan Antonio 2003, orig. proceeding). Accordingly, the trial court=s determination that it did not have personal jurisdiction over appellee is of no consequence in this child custody proceeding. We do not reach appellant=s first issue because the question of personal jurisdiction is not necessary to the final disposition of this appeal. Tex. R. App. P. 47.1.

A child=s home state is Athe state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.@ Section 152.102(7). Because Texas law prioritizes home state jurisdiction, a Texas court may make an initial custody determination A>only if= Texas is the child=s home state at the time the proceeding is filed or Texas was the child=s home state within six months of the commencement of the proceeding and the child is absent but a parent or person acting as parent continues to reside in the state.@ Barnes, 127 S.W.3d at 847; see Section 152.201(a)(1).

Appellee acknowledged in her affidavit that Texas constituted the child=s home state from the date of birth until four days prior to the filing of the underlying custody proceeding. The El Paso Court of Appeals addressed an analogous situation in In re Calderon-Garza, 81 S.W.3d 899, 902-04 (Tex. App.CEl Paso 2002, orig. proceeding). The child in Calderon-Garza moved from Texas one day prior to the filing of the custody proceeding. The court concluded that, even though the child did not reside in Texas on the date suit was filed, Texas constituted the child=s home state under the UCCJEA because the child had resided in Texas for his entire life (less one day) immediately prior to suit being filed.

The holding in Calderon-Garza is applicable to the facts in this case. With the exception of a four-day period immediately preceding the filing of the suit, the child resided in Texas her entire life. Her brief absence from the state does not alter the fact that Texas was the child=s home state within six months prior to the filing of the suit. See Sections 152.102(7), 152.201(a)(1). Furthermore, appellant continued to reside in the state after the child moved to Oklahoma. Accordingly, the trial court had jurisdiction under the UCCJEA to adjudicate appellant=s custody suit. Appellant=s second issue is sustained.

Our determination that Texas has home state jurisdiction under the UCCJEA is not dispositive of this appeal in light of the trial court=s additional determination that Texas is an inconvenient forum. The Act provides that A[a] court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.@ Section 152.207(a). A determination under Section 152.207 is subject to the trial court=s discretion because of the statute=s use of the phrase Amay decline to exercise its jurisdiction.@[1] A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or when it acts without reference to any guiding principle. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 42 (Tex. 1985).

Unlike the Ahome state@ jurisdictional provisions, Section 152.207 does not restrict the trial court to the date that the custody case was filed in determining if Texas is an inconvenient forum. This omission is significant in this case because approximately fifteen months transpired between the date the suit commenced and the date the trial court entered its order determining that Texas is an inconvenient forum in deference to Oklahoma. The child and appellee resided in Oklahoma during this fifteen-month period. Section 152.207(b) lists several factors for the court in determining if Texas is an inconvenient forum. The length of time the child has resided outside of Texas is one of these factors. In the absence of any evidence indicating that Oklahoma would not be an appropriate forum for resolving the custody issues, we conclude that the trial court did not abuse its discretion in deferring the exercise of its jurisdiction to the child=s new home state for the preceding fifteen-month period. Appellant=s third issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

April 24, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Generally speaking, in the arena of forum non conveniens, Texas courts have consistently applied an abuse of discretion standard in evaluating a trial court=s decision to decline jurisdiction. See, e.g., Couch v. Chevron Int'l Oil Co., 672 S.W.2d 16 (Tex. App.CHouston [14th Dist.] 1984, writ ref=d n.r.e.).