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In re Marriage of Flowers

Court of Appeals of Texas, Sixth District, Texarkana

August 22, 2019


          Date Submitted: August 5, 2019

          On Appeal from the 459th District Court Travis County, Texas Trial Court No. D-1-FM-18-004168

          Before Morriss, C.J., Burgess and Stevens, JJ.



         Just after Emma Mary Flowers moved with her one-year-old son, E.M.F., to Michigan, Matthew Thomas Flowers filed a suit affecting the parent-child relationship seeking temporary child custody orders. After a Travis County district court[1] (Texas Court) entered temporary orders, and Matthew amended his original petition adding a petition for divorce, Emma filed a complaint in the 33rd Circuit Court in Charlevoix County, Michigan (Michigan Court), seeking an emergency ex parte temporary order under the temporary emergency jurisdiction provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See Tex. Fam. Code Ann. § 152.204; Mich. Comp. Laws Ann. § 722.1204. Following the Texas Court's determination that it had jurisdiction under the UCCJEA, the Michigan Court rescinded its emergency temporary order and dismissed Emma's complaint for lack of jurisdiction. Upon a final hearing, the Texas Court entered a final judgment granting Matthew's petition for divorce and entering child custody orders.

         On appeal, [2] Emma only challenges the Texas Court's subject-matter jurisdiction to enter child custody orders under the UCCJEA. Because we find that the Texas Court had subject-matter jurisdiction under the UCCJEA, we affirm its judgment.

         I. Background

         E.M.F. was born on June 14, 2017, in South Carolina, where Matthew, Emma, D.F., [3] and E.M.F. resided until around February 28. On either February 28 or March 1, they moved to Austin, Texas, where Matthew had a job at Indeed. In June, Matthew, Emma, and E.M.F. took a one-week trip to Michigan, where Emma's extended family lived, to celebrate E.M.F.'s birthday. Even though Matthew described that trip as a brief vacation, Emma maintained that it was her intent to move to Michigan at that time. Nonetheless, they all returned to Texas, where they remained until July 5 or 6, when Emma and E.M.F. moved to Michigan.

         On July 9, [4] Matthew filed his Original Petition in Suit Affecting the Parent-Child Relationship[5] (Original SAPCR Petition) in the Texas Court. In his Original SAPCR Petition, Matthew alleged, "No court has continuing jurisdiction of this suit or of the child the subject of this suit" and asked (1) that he and Emma be named joint managing conservators of E.M.F., (2) that he have the exclusive right to designate the primary residence of E.M.F., (3) that Emma be ordered to pay child support, and (4) that the trial court enter temporary orders after notice and a hearing. A hearing on Matthew's request for temporary orders was set for July 27, and Emma was ordered to appear. Despite having been served with the Original SAPCR Petition and the order to appear, Emma failed to appear at the hearing. After a short hearing, the Texas Court entered temporary orders.[6]

         On August 30, Matthew filed his First Amended Petition in SAPCR and Original Petition for Divorce. In the SAPCR portion of the amended petition, Matthew noted that the trial court had entered temporary orders and that there were no other "court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships affecting" E.M.F. On September 6, Emma filed her Counter Petition in SAPCR and Counter Petition for Divorce (Counter Petition) in the Texas Court, in which she also asked for child custody orders. Emma attached an Out-of-State Party Declaration (Declaration) as Exhibit C to the Counter Petition. In the Declaration, Emma declared under penalty of perjury that she had not taken part in any other court case about E.M.F. in Texas, or in any other state or country, and that she did not know of any other court case that could affect this case, including custody, visitation, or child support, among other things.

         On September 10, the Texas Court signed an order requiring Emma to appear on September 26 and respond to Matthew's motion to enforce the trial court's temporary orders. On September 20, Emma filed a complaint in the Michigan Court and obtained an emergency ex parte child custody order under the temporary emergency provisions of the UCCJEA. See Tex. Fam. Code Ann. § 152.204; Mich. Comp. Laws Ann. § 722.1204. In support of her emergency motion, Emma attached an affidavit in which she alleged that Matthew had committed domestic violence against her and had physically abused his seven-year-old son, D.F. After consulting with the Michigan Court, [7] on September 26, the Texas Court held a hearing to determine whether it had jurisdiction under the UCCJEA.

         At the hearing, Emma testified that the family moved to Texas on March 1 and that she and E.M.F. left Texas on July 5 or 6. While she and E.M.F. were living in Texas, they had no family nearby and no close friends, E.M.F. was not in daycare or school, and they did not attend church. She also testified that after they moved to Michigan, she had family support from her mother, aunts, uncles, grandparents, and stepfather. She explained that she had gone to work as a school bus driver and that her mother babysat E.M.F. while she was working. She also explained that E.M.F. had a friend that he saw at least once a week, a pediatrician, and a church. Emma stated that Matthew's son, D.F., acted like he did not like E.M.F. and that he had hit and kicked E.M.F. several times.

         Matthew testified that he, Emma, and E.M.F. moved to Texas on February 28 and that they had taken a brief one-week vacation in Michigan. He denied that E.M.F. had any connection to Michigan before July 9, other than the brief vacation. He denied that he ever committed domestic violence against Emma and stated that he had cooperated with a Child Protective Services (CPS) investigation concerning the allegations of physical abuse. He also testified that he had received a closure letter from CPS saying that there was nothing to the claim.[8]

         After the hearing, the Texas Court determined that it had jurisdiction to hear the case because E.M.F. and Matthew had a significant connection with Texas and substantial evidence was available in Texas about the child's care, protection, training, and personal relationships. See Tex. Fam. Code Ann. § 152.201(a)(2). The Michigan Court then dismissed Emma's complaint and rescinded its emergency ex parte temporary orders.

         II. ...

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