IN RE: Patrick MULDOON (2023)

OPINION

The issue presented in this original proceeding is whether a trial court, when conducting a Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) court conference, must provide the parties with an opportunity to present facts and legal arguments before a decision on jurisdiction is made if the parties are unable to attend the conference. Relator Patrick Muldoon (“Muldoon”) argues a trial court must provide such an opportunity and complains the trial court's failure to provide him an opportunity in the underlying proceeding is a clear abuse of discretion. We agree. Therefore, we conditionally grant Muldoon's petition for writ of mandamus.

Background

I.M.C., a minor child, was born in 2018. Her parents, Muldoon and Real Party in Interest Karina Cano (“Cano”), lived together in Virginia. In early 2022, Cano and I.M.C. moved to Texas.²

On August 3, 2022, Muldoon filed a petition for custody of I.M.C. in Virginia. There is no prior custody determination for I.M.C. Muldoon's pleading alleged Virginia is in the best position to make an initial custody determination for I.M.C. because Virginia is I.M.C.’s home state. Muldoon requested the Virginia court to order Cano to return to Virginia and that the parties be given joint custody of I.M.C.

A week after Cano was served with the Virginia custody suit, she filed her own custody action in Bexar County, Texas. Cano requested the Bexar County trial court (the “trial court”) name the parties as joint managing conservators of I.M.C. with Cano as the parent with the right to designate the child's primary residence. Muldoon was served with the Bexar County action on September 9, 2022.

On September 23, 2022, the trial court and the Virginia court held a UCCJEA court conference. The parties were not present at the conference. Following the courts’ conference, the trial court announced on the record that Bexar County would accept jurisdiction of the underlying case, and the Virginia court announced it would dismiss the custody case. Muldoon subsequently moved for reconsideration of the trial court's order, which the trial court denied without holding a hearing.

On October 21, 2022, Muldoon filed a petition for writ of mandamus. We requested responses from the trial court and Cano. Cano filed a response to which Muldoon replied.

Standard of Review

For mandamus relief to be appropriate, a relator must show the trial court committed a clear abuse of discretion and that it has no adequate remedy by appeal. See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (per curiam). A writ of mandamus is an appropriate remedy to require the trial court to comply with the UCCJEA. See Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005) (orig. proceeding).

UCCJEA

This original proceeding revolves around which state—Texas or Virginia—is better suited to make an initial custody determination for I.M.C. The UCCJEA is intended to assist courts when faced with this situation and “helps ensure custody determinations are rendered in [the] State which can best decide the case in the interest of the child.” In re D.S., 602 S.W.3d 504, 513 (Tex. 2020) (citation omitted). The law is designed to promote the well-being of children by adhering to an “overarching objective of expediency and stability in an increasingly mobile world by helping prevent manipulation of the system and undue complication of child-custody disputes, which can occur when a child is moved from one state to another.” Id.

The UCCJEA establishes the applicable procedure for child custody proceedings in which a child has moved from one state to another. Under the UCCJEA, “a Texas court has jurisdiction to make initial child-custody determinations (1) if Texas is the child's home state; (2) in certain situations where a court of another state does not have jurisdiction or declines to exercise jurisdiction on the ground that this state is the more convenient forum; or (3) no court of any other state would have jurisdiction under the criteria set out in [section 152.201 of the Texas Family Code].” Id. (citing Tex. Fam. Code Ann. § 152.201(a)). When one of the foregoing situations applies, and the sister state court has an overlapping interest, the UCCJEA establishes criteria in which the state courts may communicate to resolve conflicting jurisdiction. See Tex. Fam. Code Ann. § 152.110 (establishing the interstate communication framework for UCCJEA proceedings).

Under the UCCJEA communication framework, a Texas court may hold a court conference in which the courts communicate concerning the UCCJEA proceeding. Id. § 152.110(b). A record must be made of any communication during the conference. Id. § 152.110(f); see also id. § 152.110(a) (defining “record” within the statute); cf. id. § 152.110(e) (“Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.”). The Texas court and sister state court “may allow the parties to participate in the communication.” Id. § 152.110(c). However, “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.” Id. Our decision in this case focuses on the plain language of Texas Family Code 152.110 subsections (c) and (e). See id. § 152.110(c), (e).

Muldoon argues the trial court clearly abused its discretion because it failed to notify him of the conference or provide him with an opportunity to present facts and legal arguments before making a decision on jurisdiction.³ Muldoon also asserts the trial court failed to make a record of the substantive portions of the conference—in violation of the statute's requirements. In response, Cano argues the trial court did not abuse its discretion because the language of the trial court's order indicates that all parties were given notice of the conference and that a record of the conference was made.⁴

Following the courts’ conference, the trial court entered an order which recited:

“[a]ll parties and counsel were given notice of the date, time, and place of the conference. A record of the proceeding was made by the Official Court Reporter․ After considering the pleadings on file, and after conferring with the Virginia Court, it was agreed by both courts that Texas was the home state of the child at the time [Cano] filed [her] Petition in Bexar County and that Texas was the most appropriate forum for this matter. It was decided and read into the record that jurisdiction of this matter lies with the State of Texas and the State of Virginia defers to the State of Texas as to jurisdiction.”

The mandamus record contains no evidence that notice of the conference was given to either the parties or their counsel. Furthermore, the trial court's order does not indicate whether the record of the courts’ conference contains the substantive discussion between the state courts regarding jurisdiction of the underlying case. Muldoon contends that the record of the courts’ conference only contains the trial court's ruling and not the substantive discussion on jurisdiction. The transcript of the conference in the mandamus record, in its entirety, states:

[Trial court]: We're on the record in [cause number], In the Interest of [I.M.C.] I am present here with staff attorney, [attorney name], and the [Virginia court]. Good morning, Judge.

[Virginia court]: Good morning.

[Trial court]: We discussed, based on the briefs that were filed and the facts of this case, and it's my understanding that — well, I have agreed on behalf of Bexar County to accept jurisdiction in this case, and I think we have an agreement; is that correct, Your Honor?

[Virginia court]: Yep, that's correct.

[Trial court]: All right. With that, I will have my staff attorneys prepare an order accepting jurisdiction here and we'll send you, your office, whatever paperwork we need to send so that we can alert the parties. All right?

[Virginia court]: Okay. And I'll enter an order as well just saying that you've accepted jurisdiction and that the cases here are dismissed.

[Trial court]: Super. All right. Thank you so much. It was nice meeting you.

[Virginia court]: Nice meeting you, too.

[Trial court]: Take care. Stay safe.

Cano does not argue or otherwise contend that the conference record is incomplete. The conference record shows that the trial court and the Virginia court discussed more than “schedules, calendars, court records, and similar matters” without a record being taken or the parties being present. See Tex. Fam. Code Ann. § 152.110(e). Rather, the conference record indicates the courts substantively discussed and decided the jurisdictional issue off the record. While the first sentence of subsection 152.110(c) does not require the courts to allow the parties to participate in the communication, the subsection's second sentence imposes a duty on the courts to allow the parties to present facts and legal arguments before a decision on jurisdiction is made if the parties are unable to participate in the communication. See id. § 152.110(c) (“The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.”); see also Tex. Gov't Code Ann. § 311.016(3) (“ ‘Must’ creates or recognizes a condition precedent.”). Under the plain language of the statute, the trial court was required to give the parties an opportunity to present facts and legal arguments before making a decision on jurisdiction. See id. Here, neither the mandamus record nor the record of the courts’ conference shows that such an opportunity was provided.

Conclusion

Because a trial court abuses its discretion by misapplying the law, we conclude that the trial court clearly abused its discretion in making a decision on jurisdiction before it gave the parties an opportunity to present facts and legal arguments. For that reason, we conditionally grant Muldoon's petition for writ of mandamus. See Powell, 165 S.W.3d at 324.

FOOTNOTES

2.   The parties dispute whether Cano moved to Texas on February 28, 2022 or in March 2022.

3.   Muldoon posed three additional arguments in his mandamus petition. Because we conclude the trial court abused its discretion by failing to abide by the UCCJEA statutory requirements, we conditionally grant Muldoon's petition and do not reach his remaining arguments. See Tex. R. App. P. 47.1. (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

4.   Cano raised three additional arguments in her response. Because these arguments are not necessary to the disposition of this original proceeding, we do not address them. See Tex. R. App. P. 47.1.

Opinion by: Irene Rios, Justice