Shelley Marie Hughes, Relator v. Honorable H.D. Black, Judge, 87th District Court, Limestone County, Texas, Respondent--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-93-235-CV

SHELLEY MARIE HUGHES,

Relator

v.

HONORABLE H.D. BLACK, JUDGE,

87TH DISTRICT COURT, LIMESTONE

COUNTY, TEXAS,

Respondent

Original Proceeding

OPINION ON MOTION FOR LEAVE TO FILE

PETITION FOR WRIT OF MANDAMUS

In the Petition for Writ of Mandamus, Relator asks us to order the Respondent to vacate an order dated September 7, 1993, by which the court found "that it has jurisdiction to decide child custody in this matter." The order does not distinguish between temporary and permanent determinations of custody. Personal jurisdiction over Relator is not at issue. Jurisdiction to issue temporary orders is not at issue because Relator does not attack the temporary orders that she apparently agreed to on April 27, 1993.

Jurisdiction to decide custody (subject-matter jurisdiction) is determined by reference to the Uniform Child Custody Jurisdiction Act (UCCJA). Tex. Fam. Code Ann. 11.51-11.75 (Vernon 1986 & Supp. 1992); Abderholden v. Morizot, 856 S.W.2d 829, 832 (Tex. App. Austin, 1993, n.w.h.); see also Little v. Daggett, 36 Tex. Sup. Ct. J. 1054, 1055 n.4 (June 23, 1993). The UCCJA provides, in section 11.53, that jurisdiction to determine custody is proper under four sets of circumstances. Id. 11.53(a)(1), (2), (3), (4). Three of the four are dependent on a determination of the "home state" of the child in question. Id. 11.52(5), 11.53(a)(1), (2), (4). Here, the limited record before us shows that Texas has never become the "home state" of the child; Indiana is the state in which the child last resided with a parent for at least six consecutive months. See id. 11.52(5).

Jurisdiction is not proper here under 11.53(a)(1) because Texas is not the home state of the child and had not been her home state within six months before the date the proceeding was commenced. See id. 11.53(a)(1). Jurisdiction is not proper under 11.53(a)(2) because another state, Indiana, has jurisdiction under 11.53(a)(1). See id. 11.53(a)(2). Jurisdiction is not proper under 11.53(a)(4) because Indiana would have jurisdiction and has not declined to exercise that jurisdiction. See id. 11.53(a)(4). Jurisdiction is possible under 11.53(a)(3) because that subsection allows a court to assume jurisdiction in the emergency situations specified, even though the child's home state is elsewhere. See id. 11.53(a)(3). Although the limited record does not disclose any emergency circumstances justifying the temporary orders now in place, those orders have not been attacked. Further, jurisdiction to enter temporary emergency orders does not confer jurisdiction to determine custody permanently. See Abderholden, 856 S.W.2d at 834.

Relator relies primarily on Little v. Daggett, a recent per curiam decision of the Supreme Court granting mandamus relief from a non-appealable temporary visitation order. Little, 36 Tex. Sup. Ct. J. at 1055. Here, as we have noted, Relator does not attack the temporary orders that were entered by agreement // before the court made the ruling that she does attack.

We conclude that Relator will have an adequate remedy by appeal for the overruling of her plea to the jurisdiction, should the court make an award of permanent custody. The Supreme Court has "consistently held that [mandamus should not issue] to supervise or correct incidental rulings of a trial judge when there is an adequate remedy by appeal." Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex. 1990); see also Little, 36 Tex. Sup. Ct. J. at 1055 (citing Bell Helicopter Textron). This rule was strongly emphasized in Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Until the Supreme Court announces a different rule for family-law cases, we are constrained to follow these precedents.

The motion for leave to file is denied.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

(Justice Cummings dissenting)

Motion for leave to file denied

Opinion delivered and filed October October 27, 1993

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