Archie D. Bell v. Tracey R. McCarty--Appeal from 300th District Court of Brazoria County

Affirmed and Memorandum Opinion filed October 20, 2005

Affirmedand Memorandum Opinion filed October 20, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00988-CV

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ARCHIE D. BELL, Appellant

V.

TRACEY R. MCCARTY, Appellee

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 29645

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

In this case under the Uniform Child Custody Jurisdiction and Enforcement Act (AUCCJEA@), appellant Archie D. Bell appeals from the trial court=s orders (1) dismissing, with prejudice, his petition for divorce and temporary restraining order and (2) denying his motion to set aside the order of dismissal and reinstate temporary orders. We affirm.

Factual and Procedural Background

According to Bell=s testimony, he lived with appellee Tracey R. McCarty in Brazoria County continuously from September 1997 until November 3, 2003. On July 5, 1998, McCarty gave birth to H.A.B. On November 3, 2003, McCarty moved to West Virginia with H.A.B. Bell stated McCarty told him she was going to West Virginia temporarily to visit her mother and see about going to school there. Bell subsequently learned McCarty had developed a relationship with a man in Ohio and was traveling back and forth between the two states. At that time Bell did not know the child=s location.

On July 13, 2004, Bell filed an Original Petition for Divorce, Temporary Restraining Order, and Order Setting Hearing for Temporary Orders for July 22, 2004. McCarty was served in West Virginia on July 20, 2004, but did not appear at the July 22 hearing and did not file any pleadings or serve Bell. Based on the evidence presented, the trial court concluded Bell proved a prima facie showing of a common law marriage, and the trial court recognized a common law marriage.

On July 23, McCarty filed a special appearance. She alleged lack of personal jurisdiction under Texas Family Code Section 102.011(b).[1] She also alleged lack of subject matter jurisdiction under Texas Family Code section 152.201 and requested the court to dismiss the case.[2] In the alternative, if the court concluded it had subject matter jurisdiction to determine child custody, McCarty requested the court to decline jurisdiction or stay proceedings on the ground of forum non conveniens. McCarty also requested attorney=s fees and expenses.

On July 23, 2004, the trial court concluded it had jurisdiction over the parties and the subject matter and signed temporary orders. The trial court ordered McCarty to return the child to Brazoria County immediately and/or arrange for Bell to retrieve the child from McCarty=s possession in West Virginia, Ohio, or wherever the child could be found.

According to Bell=s counsel, Bell immediately went to West Virginia to take possession of his child, but was denied access. He remained in West Virginia to hire counsel to enforce the trial court=s temporary orders and to attempt to locate and serve McCarty with pleadings for an enforcement hearing in West Virginia.

On July 30,2004, McCarty filed a AMotion to Dismiss for Lack of Jurisdiction and Motion to Set Aside Void Order and set it for hearing on August 16, 2004.[3] The trial court heard the motion on August 16, but neither Bell nor his counsel appeared. McCarty=s counsel appeared briefly to address the issue of attorney=s fees. The same day, the trial court entered a written order stating, in part:

The Court determined that the 300th District Court in Brazoria County, Texas did not have jurisdiction to make an initial child custody determination in this case. '152.201, Texas Family Code.

IT IS THEREFORE ORDERED that this case is dismissed with prejudice and the Temporary Orders of July 23, 2004, are declared to be void.

Bell then filed a Motion to Set Aside Order of Dismissal and to Reinstate Temporary Orders set for September 8, 2004. The trial court orally denied Bell=s motion that day, and Bell filed a notice of appeal on October 8, 2004.[4] On January 6, 2005, the trial court entered a written order stating, AThis entire case is dismissed pursuant to the August 16, 2004 Order of Dismissal previously entered in this case.@

Discussion

Issue Two: Conservatorship of the Child

In issue two, Bell contends Athe trial court abused its discretion by not recognizing that the trial court that has jurisdiction to grant a common law divorce shall acquire dominant jurisdiction over a parent child suit that may be or has been filed elsewhere.@ Subject matter jurisdiction is a question of law, to which we apply a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); see In re B.A.B., 124 S.W.3d 417, 419 (Tex. App.CDallas 2004, no pet.) (stating same in context of action under UCCJEA).

Bell argues because the trial court had jurisdiction over his divorce action, it therefore had jurisdiction to address conservatorship of the child. In support, Bell relies on Texas Family Code section 6.406(b), which provides for the mandatory joinder of a suit affecting the parent-child relationship with a suit for dissolution of a marriage. Tex. Fam. Code Ann. ' 6.406(b) (Vernon 1998). Bell also cites section 103.002(b), which provides for transfer of a suit affecting the parent-child relationship to a court where a suit for dissolution of the parents= marriage is pending. Tex. Fam. Code Ann. ' 103.002(b) (Vernon 2002). We assume, without deciding, the trial court could have exercised jurisdiction over the divorce proceeding and personal jurisdiction over McCarty in that proceeding. See Tex. Fam. Code '' 6.301, .305 (setting forth, respectively, general residency rule for divorce suits and grounds for acquiring jurisdiction over non-resident respondent).

Except for temporary emergency jurisdiction, however, a Texas court has jurisdiction to make an initial child custody determination only under the provisions of Texas Family Code section 152.201(a). See Tex. Fam. Code Ann. ' 152.201(a), (b). (Vernon 2002). If a provision of the UCCJEA conflicts with another provision of Title 5 (concerning the parent-child relationship and the suit affecting the parent child relationship) or another Texas statute or rule and the conflict cannot be resolved, the UCCJEA prevails. See id. ' 152.002.

Under section 152.201(a), a Texas court has jurisdiction to make the initial child custody determination only if:

(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:

(A) the child and the child=s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(B) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;

(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or

(4) no court of any other state would have jurisdiction under the criteria specified in Subdivision (1), (2), or (3).

Id. ' 152.201(a). As relevant to this case, Ahome state@ means 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.@ Id. ' 152.102(7). AA period of temporary absence of a parent or a person acting as a parent is part of the period.@ Id.

It is undisputed H.A.B. left Texas on November 3, 2003, over seven months before Bell commenced proceedings on July 13, 2004. Bell does not contend H.A.B. was elsewhere than in West Virginia during that time. Accordingly, the trial court correctly determined it did not have jurisdiction to make an initial child custody determination in relation to H.A.B. See Boots v. Lopez, 6 S.W.3d 292, 295 (Tex. App.CHouston [14th Dist.] 1999, pet. denied) (observing parties= minor child had been resident of Arizona for more than six months; therefore, pursuant to the UCCJA, child=s home state jurisdiction was Arizona; and, although Texas trial court had jurisdiction over parties, it did not have jurisdiction to address conservatorship of child).

We overrule Bell=s second issue.

Issue One: the Divorce

In issue one, Bell argues the trial court Aabused its discretion by denying him the ability to obtain a divorce by common law in the only trial court jurisdiction available to him for that purpose when it denied his motion to set aside the prior dismissal order and to reinstate temporary orders.@ The test for an abuse of discretion is whether the trial court acted without reference to guiding rules and principles, that is, acted in an arbitrary or unreasonable manner. Boots v. Lopez, 6 S.W.3d at 294. The fact the trial court may decide a matter within its discretion in a different manner than we would does not demonstrate an abuse of discretion has occurred. Id. Given the trial court=s determination it did not have jurisdiction over the conservatorship proceeding, the trial court was within its discretion also to dismiss the divorce proceeding. See id. at 294B95.[5]

Bell argues, however, that because the trial court denied him Aa divorce by common law,@ he is now unable to obtain a divorce and remains in a perpetually married state. He contends this is so because West Virginia does not recognize common-law, de facto, or informal marriages. In support he cites State v. Bragg, 163 S.E.2d 685, 687 (W. Va. 1968), and Meade v. State Compensation Comm=r, 125 S.E.2d 771, 777 (W. Va. 1962).

We conclude Bell has not established that he is unable to obtain a divorce in West Virginia or that he otherwise remains in a perpetually married state. As his own authorities state, West Virginia does recognize common-law marriages created or consummated in another state if common-law marriages are recognized as valid in that state. Bragg, 163 S.E.2d at 687B88; Meade, 125 S.E.2d at 777. Moreover, as McCarty observes, if before the second anniversary of the date she and Bell separated and ceased to live together, no one commences a proceeding seeking to prove McCarty and Bell=s informal marriage, there exists a rebuttable presumption McCarty and Bell did not agree to enter into an agreement to be married. See Tex. Fam. Code Ann. ' 2.401(b) (Vernon 1998).

The trial court did not abuse its discretion in dismissing the divorce proceeding with the conservatorship proceedings. We overrule Bell=s first issue.

Conclusion

Having overruled Bell=s first and second issues, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed October 20, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

[1] Tex. Fam. Code Ann. ' 102.011(b) (Vernon 2002).

[2] Tex. Fam. Code Ann. ' 152.201 (Vernon 2002).

[3] This document is not in the appellate record, but both parties refer to the filing.

[4] We treat the notice of appeal as a prematurely filed notice. See Tex. R. App. P. 27.1(a).

[5] In the present case, as in Boots, McCarty alleged lack of subject matter jurisdiction and also requested dismissal on the ground of forum non-conveniens. The trial court in the present case determined it did not have jurisdiction to make an initial child custody determination and dismissed the divorce action without stating any ground.