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Dickerson v. Doyle

Court of Appeals of Texas, Eighth District, El Paso

June 30, 2005

BOBBY DICKERSON, Appellant
v.
ROELMINA [1] DOYLE and ROBERT FRANCIS DOYLE, Appellees.

          Appeal from 383rd District Court of El Paso County, Texas (TC# 2002CM7120)

          Before Barajas, C.J., McClure, and Chew, JJ.

          OPINION

          ANN CRAWFORD MCCLURE, JUSTICE

         This is a paternity case arising out of an unconventional and non-traditional household. Bob Dickerson appeals the trial court's order sustaining a special appearance and declining jurisdiction on the basis of forum non conveniens. We affirm.

         FACTUAL SUMMARY

         Frank and Roelmina Doyle, married for ten years, have a thirteen-year-old adopted daughter, Michelle, [2] and a now five-year-old son, Robert. It is Robert's paternity which is at issue. The Doyles lived in Seoul, Korea where Frank worked for the Corps of Engineers until his retirement in September 2001. Some time during 1997 or 1998, the Doyles met Bob Dickerson, who was serving in the United States Army. Dickerson moved in with the Doyles in March 1998 when his service ended and he, too, became employed by the Corps of Engineers. Robert was born in Seoul on February 13, 2000.

         When Frank retired, the family moved to Saratoga Springs, New York and built a house. Frank intended to make this the family's final home since he had grown up in the area. Initially, Dickerson moved with the Doyles but briefly returned to Korea. In December 2001, Dickerson returned to New York and announced he had obtained a position with the Corps of Engineers in White Sands, New Mexico. When he left for White Sands, he took Roelmina and Robert with him. Frank admitted that Roelmina accompanied Dickerson to White Sands willingly. They arrived in El Paso on December 14, 2001 and stayed first at the Fort Bliss Inn. In January 2002, Roelmina, Dickerson, and Robert moved into an apartment.

         Frank soon listed the New York house for sale. He and Michelle followed the others to El Paso and moved into the apartment in April. Frank then purchased a home in west El Paso and the Doyles and Dickerson moved into the residence. Frank admitted that Dickerson would sometimes sleep in the master bedroom with Roelmina. Roelmina admitted that Robert called Dickerson "papi" and Frank "daddy."

         Frank did not intend for the home to be a permanent residence [3] and had plans to move the family to the southeastern United States. He purchased the home as an investment since he did not believe in paying rent. He grew bored with retirement and again applied with the Corps of Engineers. He was offered a one-year tour in Korea which was to be "unaccompanied," meaning his family would stay behind. However, he hoped to have the tour extended so that Roelmina and the children could join him. Frank put the El Paso house on the market and planned for Roelmina to live there until it sold. Roelmina would then move to southeastern Alabama. Frank left for Korea in August 2002. By this time, Dickerson had obtained employment in Hawaii, although he had not yet left Texas.

         While in Korea, Frank learned from Roelmina that she and Dickerson were not getting along. She complained that Dickerson had become both physically and verbally abusive and she did not intend to accompany him to Hawaii. Dickerson arranged an appointment for paternity testing on November 5, 2002 but Roelmina talked him out it. Nevertheless, Dickerson threatened to take Robert to Hawaii. Fearing he would abscond with the child, Roelmina left El Paso with her son on November 6. When Dickerson returned to El Paso from a business trip to Phoenix, he found Roelmina and Robert gone. He called Frank in Korea asking where they were. On November 7, 2002, Dickerson filed his petition to establish the parent-child relationship. He alleged that the court had subject matter jurisdiction since all the parties had resided in El Paso County for six months prior to his filing suit. Roelmina and Robert ended up in Birmingham, Alabama; Michelle stayed temporarily with family friends in Louisiana. Roelmina was served at her apartment in Birmingham in December 2002. Frank returned to the States right after Christmas and was served at the airport in Birmingham.

         Dickerson moved to Hawaii in January 2003 to begin his job. Claiming that he was merely on temporary assignment to Hawaii and would return to El Paso at the end of his project, Dickerson considered his residence to be El Paso, Texas where he was registered to vote and maintained a Texas driver's license.

         APPLICABLE STATUTORY FRAMEWORK

         There is no dispute that Texas was the child's home state at the time this parentage action was filed. Frank admitted that Robert had lived in El Paso for approximately eleven months. Consequently, we are not presented with an issue of subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. [4] Rather, we must address jurisdiction under the Uniform Parentage Act. The Texas Family Code mandates that an individual may not be adjudicated to be a parent unless the court has personal jurisdiction over him. Tex.Fam.Code Ann. § 160.604(a) (Vernon 2002 & Vernon Supp. 2004-05). Dickerson submitted himself to the jurisdiction of the court by filing his parentage suit. Subsection (b) provides that a court having jurisdiction to adjudicate parentage may exercise personal jurisdiction over a non-resident if the conditions in Section 159.201 are satisfied. Section 159.201, a long-arm statute, allows the court to determine parentage and exercise personal jurisdiction over non-residents if they have resided with the child in this state. In any event, even if a Texas court has both subject matter jurisdiction and personal jurisdiction, it may decline to exercise its jurisdiction if it determines that it is an inconvenient forum and that a court of another state is a more appropriate forum. Tex.Fam.Code Ann. § 152.207(a). Finally, we note that Frank is presumed to be Robert's father. Tex.Fam.Code Ann. § 160.204(a)(1) (a man is presumed to be the father of a child if he is married to the mother and the child is born during the marriage). Because Robert is a child with a presumed father, a statute of limitations applies. Tex.Fam.Code Ann. § 160.607 (a suit to adjudicate parentage of a child having a presumed father shall be brought before the child's fourth birthday; [5] however a proceeding to disprove the presumed father/child relationship may be brought at any time if the court determines that the presumed father and the mother did not live together or engage in sexual intercourse with one another during the probable time of conception and the presumed father never represented to others that the child was his own).

         PROCEDURAL POSTURE

         The Doyles filed a special appearance and asked that Dickerson's petition be dismissed. In his response, Dickerson argued that the court had long-arm jurisdiction over the non-residents since the parties had resided in El Paso with the child. Subject to their special appearance, the Doyles filed a motion to dismiss, asking the court to decline jurisdiction on the basis of forum non conveniens. The special appearance hearing was conducted on April 1, 2003. At that time, there was pending in Alabama a motion for a temporary restraining order seeking to enjoin Dickerson from harassment. [6] Following the hearing, the trial court granted the special appearance, finding that the Doyles were residents of Alabama, that Dickerson was a resident of Hawaii, that Texas was not a convenient forum, and that Alabama was a more appropriate forum. Orally, the court pronounced:

I'm going to abate the proceedings until such time as the proper motion is filed in Alabama and the Alabama court accepts jurisdiction. If the Alabama court does not accept jurisdiction, then I'll retain jurisdiction. I'm going to give the parties 45 days to ...

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