In the Interest of M.Y.C. and M.A.M., Children--Appeal from County Court At Law No 1 of Webb County

MEMORANDUM OPINION

No. 04-06-00895-CV

IN THE INTEREST OF M.Y.C. and M.A.M., Children

From the County Court at Law No. 1, Webb County, Texas

Trial Court No. 2006-CVO-002126-C1

Honorable Jesus Garza, // Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 10, 2007

AFFIRMED

Mario Madrigal appeals from an order staying his Suit Affecting the Parent-Child Relationship with his two minor children. In several issues he argues the trial court erred when it entered jurisdictional findings and dismissed his suit without adequate notice and without an evidentiary hearing. We affirm the order of the trial court.

Factual and Procedural Background

Mario Madrigal and Lucia Veronica Cortez Pedraza were never married. On December 13, 2006, Madrigal filed a Suit Affecting the Parent-Child Relationship ( SAPCR ) seeking custody and support of his two minor children, M.Y.C. and M.A.M. The suit further requested that Madrigal be adjudged the legal father of the children, and that he be granted an ex-parte temporary restraining order against Pedraza to prevent her from removing the children from Webb County. An affidavit filed by Madrigal in support of his request for substituted service against Pedraza affirmatively stated that Pedraza is a nonresident of Texas and resides in Mexico. The trial court granted the temporary restraining order on December 13, and set the matter for a full hearing on December 19, 2006 on both the temporary injunction and temporary orders in the SAPCR suit.

Prior to commencement of the hearing, Pedraza filed a special appearance asserting the court lacked both personal and subject matter jurisdiction. Subject to her special appearance, Pedraza also filed a general denial, a request to stay the action pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention ), and a brief in support of her motion. Pedraza asserted, among other things, that on December 12, 2006, with the assistance of the Mexican Central Authority at the Mexican Consulate, she had initiated an application under the Convention for the return of her daughter M.Y.C., who Pedraza maintained was being wrongfully detained by Madrigal. //

Both parties appeared in person at the December 19, 2006 hearing and were represented by counsel. At the conclusion of the hearing, the trial court stayed the SAPCR proceedings, vacated the ex-parte temporary restraining order and ordered M.Y.C. returned to Pedraza in order for the mother to return to Mexico and to a Mexican court of Jurisdiction to determine the custody rights of the parties. As to jurisdiction, the trial court found that jurisdiction is proper in Mexico and Texas is a forum non-conveniens to adjudicate this custody suit. Madrigal now appeals, arguing in six issues that the order must be set aside because the trial court erred when it dismissed the suit without adequate notice and without an evidentiary hearing.

Discussion

Madrigal first argues he was denied due process when the trial court dismissed // his suit without adequate notice and without an evidentiary hearing. Madrigal also complains that the trial court erred in finding that jurisdiction is proper in Mexico and that Texas is a forum non-conveniens. Madrigal, however, has failed to preserve these complaints for appeal. In order to preserve a complaint for appellate review, the record must demonstrate that the complaint was made to the trial court by timely request, objection, or motion with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A); see Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). [A] claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal. Dreyer, 871 S.W.2d at 698 (rejecting due process and equal protection complaints because the party failed to assert them at the trial level). Here, the record shows that Madrigal himself sought and obtained the December 19, 2006 hearing seeking an initial child custody determination. Both parties appeared at the hearing, and were represented by counsel. The trial court called the case and engaged in dialogue with the attorneys, which included argument that the trial court lacked subject matter jurisdiction. The record fails to show that Madrigal presented the complaints he now brings on appeal to the trial court either during the hearing or by a motion after the written order was entered. See Arthur s Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 816 (Tex. App. Dallas 1999, no pet.) (party must inform trial court of its objection by some method such as motion to amend or correct judgment in order to preserve a complaint of error in judgment). Accordingly, Madrigal has failed to preserve his complaints for appellate review.

Furthermore, we note that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as adopted in Chapter 152 of the Texas Family Code, requires the trial court to first determine if it possesses subject matter jurisdiction before making an initial child custody determination. See Tex. Fam. Code Ann. 152.201(Vernon 2002) (emphasis added). The burden to establish subject matter jurisdiction lies with the party initiating suit. Texas Ass n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). This burden may be satisfied through allegations contained in the plaintiff s pleadings or, if required, evidence necessary to resolve the jurisdictional issues raised. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); In re Oates, 104 S.W.3d 571, 576 (Tex. App. El Paso 2003, orig. proceeding). Subject matter jurisdiction will not be presumed but must be shown under one of the four sub-parts of section 152.201(a). Tex. Fam. Code Ann. 152.201(a); see In re Barnes, 127 S.W.3d 843, 846-47 (Tex. App. San Antonio 2003, orig. proceeding); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000) (subject matter jurisdiction is not presumed when action is grounded in statute). Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. Texas Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

Here, Madrigal s own pleadings and affidavit in support of substituted service established the following facts: Madrigal and Pedraza had lived together on and off for about four years; Madrigal claimed to be the biological father of the two minor children, ages four and two; both children were born in Texas; and Madrigal was now seeking an initial custody determination as to both minor children. Through the representations of trial counsel during the hearing, it was also established that Madrigal had not established paternity nor did his name appear on either child s birth certificate; the mother was a resident of Mexico and had lived with both children in Mexico during the 15 months proceeding Madrigal s suit. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (unsworn utterances of an attorney can be considered evidence if no one objects). Finally, although there was a factual dispute as to how M.Y.C. had come to be in Madrigal s possession, it was also established that for the last four months the oldest child had been living with Madrigal in Webb County.

Applying these facts to the UCCJEA, clearly Texas was not the children s home state for purpose of conferring subject matter jurisdiction under section 152.201(a)(1). Tex. Fam. Code Ann. 152.201(a)(1). A Texas court may make an initial child custody determination only if Texas is the home state of the child on the date of the commencement of the proceeding . . . . Id.; In re Barnes, 127 S.W.3d at 847. A child s home state is the 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. Tex. Fam. Code Ann. 152.102(7) (Vernon 2002). The facts in the instant case reveal that only one child, M.Y.C., had lived with Madrigal prior to his suit being filed, and then for only a four-month period. Further, [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. Tex. Fam. Code Ann. 152.207(a) (Vernon 2002). The statute permits the court to make this determination at any time and the issue may be raised upon motion of a party, the court s own motion, or request of another court. Id. In making its determination, the court shall allow the parties to submit information and shall consider all relevant factors, including [a list of eight enumerated factors]. Id. 152.207(b) (Vernon 2002). Certainly, the evidence presented at the December 19, 2006 hearing included some of the factors enumerated under section 152.207(b), including the length of time the children had resided outside this state and whether Mexico was now the children s home state. Id. 152.207(b)(2),(3); see Tex. Fam. Code Ann. 152.105(a) (Vernon 2002) (providing that a foreign country is treated as if it were a state of the United States for purposes of Subchapter C of the UCCJEA); see also In the Interest of Y.M.A., 111 S.W.3d 790, 793 (Tex. App. Fort Worth 2003, no pet.). Finally, Madrigal has not shown that he was not allowed to submit relevant information for the trial court s determination. See Dickerson v. Doyle, 170 S.W.3d 713, 720 (Tex. App. El Paso 2005, no pet.).

Accordingly, we affirm the order of the trial court.

Phylis J. Speedlin, Justice