Grimes, Wilbur Keith v. McFarland, Lois Ann--Appeal from 311th District Court of Harris County

Affirmed and Memorandum Opinion filed August 5, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00875-CV

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WILBUR KEITH GRIMES, Appellant

V.

LOIS ANN McFARLAND, Appellee

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On Appeal from the 311th District Court

Harris County, Texas

Trial Court Cause No. 01-19454

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

Appellant, Wilbur Grimes, appeals the dismissal of his motion to modify child support and the special appearance granted to appellee, Lois McFarland. In a single issue, appellant contends the trial court erred in dismissing his motion to modify child support for lack of jurisdiction. We affirm.

Facts

McFarland and Grimes divorced after Grimes was indicted for sexually assaulting their minor, female child. On May 5, 2001, they signed an Agreed Final Decree of Divorce. On the same day, McFarland and the child moved to Kansas. The trial court then signed and entered the divorce decree on June 18, 2001. McFarland traveled from Kansas to appear for the uncontested June divorce hearing. Grimes traveled to Tennessee, although there were several outstanding warrants for his arrest in Texas. While in Tennessee, on November 26, 2001, Grimes filed a Motion to Modify the Parent-Child Relationship in Harris County, contesting child support and custody. He never served McFarland with a copy of his motion. Thereafter, while confined within a Texas jail, Grimes amended his motion and served McFarland in Kansas on January 28, 2002.

On February 26, 2002, McFarland filed a special appearance and her answer, alleging that she lived in Kansas, had no contact with Texas, and Grimes was now a resident of Tennessee. An evidentiary hearing before an associate judge was held on April 5, 2002. At the hearing, McFarland agreed to abate Grimes s obligation to pay child support during the pendency of the criminal case. The judge sustained her special appearance as to child support only. However, Grimes appealed the associate judge s ruling and requested a hearing de novo on all special appearance issues. On May 2, 2002, following a hearing before the presiding judge of the 311th District Court, McFarland s special appearance was sustained. The court, inter alia, rendered the following Finding of Fact: neither the child (CKG) nor either of (her) parents presently reside in the State of Texas or have a significant connection with the State of Texas. The court also rendered the following Conclusion of Law: this court has no personal or subject matter jurisdiction. The court issued an order ruling that it did not have jurisdiction or, in the alternative, declining to exercise jurisdiction under section 152.28 of the Family Code.

In four sub-issues appellant argues that (1) appellee waived her special appearance; (2) under the Family Code, Texas retained exclusive jurisdiction; (3) he was a resident and domiciliary of Texas; and (4) appellee was barred from going behind the divorce decree.

Waiver

During the April 5, 2002 special appearance hearing before an associate judge, McFarland asked the court to enter temporary orders abating Grimes s child support obligations. In one of his sub-issues, Grimes contends that McFarland waived her special appearance when she agreed that he was not obligated to pay child support during the pendency of his aggravated sexual assault case. Generally, a party waives a special appearance if it seeks affirmative relief or invokes the trial court s jurisdiction on any question other than the court s jurisdiction before the trial court rules on the special appearance. Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998). In this case, however, the court had already ruled on the special appearance. The associate judge ruled that Kansas had jurisdiction over the custody issue and that Texas would retain jurisdiction over all support issues. Based on the court s ruling, and still subject to her special appearance, McFarland then asked to abate Grimes s child support obligations pending final disposition of his criminal case. Because the court ruled on the special appearance before McFarland offered or agreed to abate child support payments, we find she did not waive her special appearance. Id.

Special Appearance

In Grimes s remaining sub-issues, he challenges the trial court s decision to grant McFarland s special appearance.[1] When the trial court enters findings of fact and conclusions of law following the grant of a special appearance, we review findings of fact for sufficiency of the evidence and conclusions of law de novo. See Linton v. Airbus Industrie, 934 S.W.2d 754, 757 (Tex. App. Houston [14th Dist.] 1996, writ denied). In conducting our review, we consider all of the evidence that was before the trial court, including the pleadings, any stipulations, affidavits and exhibits, the results of discovery, and any oral testimony. BHP de Venezuela, C.A. v. Casteig, 994 S.W.2d 321, 326 (Tex. App. Corpus Christi 1999, pet. denied) (op. on reh g).

A. Residency of McFarland and the Child

The Uniform Interstate Family Support Act ( UIFSA ) addresses jurisdiction between competing states involving matters of child support. See Tex. Fam. Code Ann. 152.001 - 159.902 (Vernon Supp. 2001). UIFSA provides:

(a) A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order:

(1) as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued

Tex. Fam. Code Ann. 159.205(a)(1) (Vernon Supp. 2001).

Under UIFSA, the trial court retains jurisdiction if either the child, McFarland, or Grimes remained a resident of Texas. During the special appearance hearing, McFarland testified she and the child moved to Kansas in May 2001, after she signed the Agreed Divorce Decree. She returned to Texas only once, in June 2001, to prove up the uncontested divorce. There was also testimony that the child had firmly established relationships with physicians, counselors, and her school. According to McFarland s testimony, she and the child did not have any contact with Texas after June 2001. This evidence was undisputed, and Grimes has not challenged any of the trial court s findings of fact regarding their residency.[2] Unchallenged findings of fact are binding on the appellate court unless the contrary is established as a matter of law or there is no evidence to support the trial court s findings. See London v. London, 94 S.W.3d 139, 149 (Tex. App. Houston [14th Dist.] 2002, no pet.). Because Grimes made no challenge to the trial court s findings regarding McFarland s and the child s residency, we are bound by those findings. Id. Therefore, we need only review the challenged findings as to Grimes s residency.

B. Residency of Grimes

Grimes is currently serving a twenty-two year prison sentence in Texas. He filed his amended Motion to Modify while incarcerated in Harris County. Section 159 of the Family Code does not define residency; however, residency has been defined in other family law contexts. For example, a requirement to file for divorce under Chapter 6 of the Family Code, is residency in the county in which suit is filed for the preceding 90-day period. Tex. Fam. Code Ann. 6.301 (Vernon Supp. 2003). In that context, residency has been defined as physical presence in a county, accompanied by good faith intent to remain permanently and definitely make that county one s home. Randle v. Randle, 178 S.W.2d 570, 572 (Tex. Civ. App. Galveston 1944, no writ); see also Vickery v. Comm n for Lawyer Discipline, 5 S.W.3d 241, 262 (Tex. App. Houston [14th Dist.] 1999, pet. denied). Further, there is no reason an inmate cannot file for divorce in the county where he is imprisoned; but he must intend to reside in that county permanently after his release from prison. In re Marriage of Earin, 519 S.W.2d 892, 893 (Tex. Civ. App. Houston [1st Dist.] 1975, no writ). By analogy, for Texas to be a state of residence, a party should have actual, physical presence in the state coupled with a good faith intent to make Texas home. For an inmate to establish residency in Texas, he or she must intend in good faith to reside here permanently after release from prison.

In this case, the trial court entered findings of fact that Grimes was a resident of Texas only while involuntarily incarcerated and that when he had the freedom to choose where to reside, it was not Texas. The evidence shows that Grimes physically lived in Memphis, Tennessee with his sister after leaving Texas in September 2001. He left Tennessee in December 2001 and turned himself in at the Harris County jail. Upon posting bond, he immediately returned to Tennessee. Grimes filed his Motion to Modify from Tennessee. Finally, he advised the Harris County Criminal Court that he no longer resided in Texas. We will reverse the trial court s findings for factual insufficiency only where they are so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Cartlidge v. Hernandez, 9 S.W.3d 341, 346 (Tex. App. Houston [14th Dist.] 1999, no pet.) (citing In re King s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951)). We have reviewed the record, and we find there was sufficient evidence to support the trial court s finding that Grimes was not a resident of Texas.

Conclusion

Because Grimes did not challenge the findings as to the residence of the child and McFarland; and because there is sufficient evidence supporting the trial court s finding that Texas was not Grimes s place of residence, we hold that the trial court did not err in granting the special appearance. Accordingly, we overrule Grimes s single issue and affirm the trial court s order.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed August 5, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

[1] Grimes has limited his appeal to the special appearance granted on the child support issue.

[2] Grimes contends McFarland is collaterally estopped from denying her Texas residency because of averments in the divorce decree. To the extent such an argument is a challenge to the trial court s findings, it is only a challenge up to the date of divorce. It does not cover findings of residency after the date of divorce. Further, collateral estoppel is an affirmative defense that must be pleaded or it is waived. Tex. R. Civ. P. 94. Because Grimes failed to plead collateral estoppel, he waived the issue on appeal.