Affirmed and Opinion filed July 2, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00454-CV
JUMANA M. BARABARAWI, Appellant
V.
MAHAER ABU RAYYAN, Appellee
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 2009-74023
OPINION
The question in this case is whether the trial court properly exercised
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”). See Tex. Fam. Code §§ 152.001–.317. We conclude that it did and
affirm the trial court’s judgment.
BACKGROUND
The parents in this child custody dispute are Jumana M. Barabarawi
(“Mother”) and Mahaer Abu Rayyan (“Father”).1 Both are United States citizens
and practicing Muslims. In 2003, the couple traveled to the West Bank to be
married in accordance with their religious customs. After the ceremony, they
returned to Houston and conceived a son, who was born here in 2004.
The family returned to the West Bank in June 2007, shortly before the child
turned three. Once overseas, Father divorced Mother in a Sharia court. Mother
retained custody of the child, and Father returned to Houston by himself.
According to Mother, Father obtained an order forbidding her from leaving the
region without his permission. Mother testified that because of this order, she was
turned away when she attempted her exit from the West Bank. With some help,
Mother was eventually able to leave the region and fly back to the United States
with her son. They resettled in Orlando, Florida in July 2009.
Father learned that Mother and child had been living in Florida less than four
months after their return. In November 2009, Father filed suit in Texas state court,
seeking primary custody of his son. Mother disputed whether the trial court had
jurisdiction. In the alternative, she also argued that the trial court should decline
jurisdiction because Texas is an inconvenient forum and because Father engaged in
unjustifiable conduct. The trial court rejected Mother’s challenges and determined
that it had jurisdiction under a default provision in the UCCJEA. After a trial on
the merits, the trial court named both parents as joint managing conservators.
Father received primary custody of the child and Mother was ordered to pay child
support. This appeal ensued.
1
We adopt the spelling used in the Notice of Appeal. We note, however, that Mother’s
name is more frequently spelled in the record as either “Barbarwi” or “Barbarawi.”
2
PARTIAL REPORTER’S RECORD
Before proceeding to the merits of this case, we first address Father’s
objection that Mother failed to comply with the Texas Rules of Appellate
Procedure. The objection pertains to Mother’s designation of a partial reporter’s
record. Under Rule 34.6, when the appellant requests a partial record, she “must
include in the request a statement of the points or issues to be presented on
appeal.” See Tex. R. App. P. 34.6(c)(1). The rule states further that we, as the
reviewing court, must presume that the partial record designated by the appellant
“constitutes the entire record for purposes of reviewing the stated points or issues.”
See Tex. R. App. P. 34.6(c)(4). In this case, Mother requested the transcripts from
two pretrial hearings, but not the trial itself. Father contends that the presumption
of completeness should not apply because Mother entirely neglected to file a
statement of points or issues. Father argues next that we should uphold the trial
court’s exercise of jurisdiction, citing the common law presumption that all
omitted portions from the record support the trial court’s judgment. See W&F
Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 38 (Tex. App.—Houston [14th Dist.]
2006, no pet.); Mason v. Our Lady Star of Sea Catholic Church, 154 S.W.3d 816,
819 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Father misstates the record when he asserts that Mother “did not produce a
statement of issues.” After filing her Notice of Appeal, Mother sent a letter to
Father and this court “to clarify [her] position regarding [her] request for the court
reporter’s transcript.” In her letter, Mother stated that she had not requested the
transcript from the trial on the merits because she was “only appealing
jurisdictional issues which were considered prior to trial.” This letter completely
apprised Father of the points or issues Mother was raising on appeal.
3
To comply with the rest of Rule 34.6, Mother was also required to file her
statement of issues “[a]t or before the time for perfecting the appeal.” See Tex. R.
App. P. 34.6(b)(1). Mother submitted her letter approximately one month after
filing her Notice of Appeal. Although the statement was untimely, Mother’s
tardiness does not necessarily foreclose appellate review. In Bennett v. Cochran,
the supreme court held that when a statement of issues is filed late, courts should
not apply Rule 34.6 to deny review on the merits unless the appellee has
established that he was harmed by the untimely statement. See Bennett v. Cochran,
96 S.W.3d 227, 229–30 (Tex. 2002) (per curiam) (reiterating the “commitment to
ensuring that courts do not unfairly apply the rules of appellate procedure to avoid
addressing a party’s meritorious claim”). The supreme court “relaxed” the rules in
that case because the appellee did not allege that he was deprived of an opportunity
to designate additional portions of the record, nor did he assert that he was
otherwise prejudiced in the preparation and presentation of his case. Id.
Citing Bennett, Father alleges that he was harmed by Mother’s untimely
statement. Without referencing any particulars, Father generally complains that he
was deprived of an opportunity to supplement the record and to adequately prepare
his case. The record does not support either allegation. Mother submitted her letter
in July 2012, nearly three months before the partial reporter’s record was filed in
this court. Father objected to the incomplete record in September 2012, and he
filed a letter stating his intent to order a partial trial transcript. See Tex. R. App. P.
34.6(d) (permitting any party to supplement the record with omitted items). Father
never supplemented the record as he had stated. Instead, he requested two
extensions to file his brief, which was not filed in this court until March 2013.
Father never complained about the partial record in either of his motions to extend
time. There is nothing to suggest that he was actually prejudiced by any delay
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caused in ordering a partial record. Cf. Bennett, 96 S.W.3d at 229 (concluding that
appellate review was not precluded where statement of issues was filed two
months late and where appellee had more than two months after receiving notice of
the statement to file his appellate brief). We overrule Father’s objection.
JURISDICTION UNDER THE UCCJEA
In her first issue, Mother challenges the trial court’s exercise of subject
matter jurisdiction. Because jurisdiction is a question of law, our review is de
novo. See Powell v. Stover, 165 S.W.3d 322, 325 (Tex. 2005).
The trial court’s jurisdiction is governed by the UCCJEA, a uniform act that
has been adopted in both Texas and Florida. Under the UCCJEA, the trial court has
jurisdiction to make an initial child custody determination only if one of these four
exclusive bases of jurisdiction applies:
(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
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(4) no court of any other state would have jurisdiction under the
criteria specified in Subdivision (1), (2), or (3).
Tex. Fam. Code § 152.201; see also id. § 152.204 (providing an exception, not
applicable here, for temporary emergency jurisdiction).
The priority basis is known as home state jurisdiction. See id.
§ 152.201(a)(1). As to a child six months of age or older, a state qualifies as a
home state if the 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. See id. § 152.102(7). Generally, if a child has a home state, the
custody action must be filed there. If no home state exists, the forum state may
exercise this priority jurisdiction only if, in the preceding six months, the forum
state was the child’s home state and a parent or a person acting as a parent
continues to reside there. See id. § 152.201(a)(1).
Courts refer to the second jurisdictional basis as “significant connection
jurisdiction.” See, e.g., In re Brown, 203 S.W.3d 888, 894 (Tex. App.—Fort Worth
2006, no pet.); In re Brilliant, 86 S.W.3d 680, 686 (Tex. App.—El Paso 2002, no
pet.). This basis applies only if no other state can exercise home state jurisdiction,
or if the state that can exercise home state jurisdiction has declined jurisdiction for
other specified reasons. See Tex. Fam. Code § 152.201(a)(2). For the forum state
to exercise jurisdiction under this basis, the child and at least one parent or a
person acting as a parent must have a significant connection with the forum state
beyond mere physical presence, and substantial evidence must be available in the
forum state regarding the child’s care, protection, training, and personal
relationships. Id.
The third basis permits the forum state to exercise jurisdiction if all states
having home state or significant connection jurisdiction decline their jurisdiction
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because such state is an inconvenient forum and the forum state is the more
appropriate forum, or because a person seeking to invoke that state court’s
jurisdiction has engaged in unjustifiable conduct. See id. § 152.201(a)(3).
The fourth basis is jurisdiction by default, and applies when no court of any
other state would have jurisdiction under the three previously described bases. See
id. § 152.201(a)(4). Personal jurisdiction over a party or child is not necessary to
make a child custody determination under this or any of the four described bases.
See id. § 152.201(c).
In this case, after considering the evidence presented at a pretrial hearing,
the trial court determined that it should exercise default jurisdiction under Section
152.201(a)(4). On appeal, it is unclear whether Mother urges that the trial court
erred in its implicit determination that Section 152.201(a)(3) does not apply
because Florida is not the child’s home state under a subdivision (1) analysis, or
because Florida does not have a significant connection under a subdivision (2)
analysis. We address both.
Mother argues in her brief that Father “failed to allege or plead any facts that
Florida or some other state lacked home-state jurisdiction.” However, during their
first pretrial hearing, the parties seemed to agree that the child had no home state
when Father first filed his suit. The child had roots only in Texas, Florida, and the
West Bank, and none was capable of exercising home state jurisdiction. See id.
§ 152.105 (providing that foreign countries must be treated as states for purposes
of applying the UCCJEA).2 At the time of suit, the child had not been to Texas for
more than two years, and he had only been living in Florida for less than four
months. See In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004) (orig. proceeding)
2
The status of the West Bank is disputed. We presume for the purposes of our analysis
that the West Bank is located in a foreign country and is treated as a state under the UCCJEA.
7
(providing that jurisdiction is determined at the time suit is filed). Based solely
upon these time periods, neither Texas nor Florida could qualify as a home state.
See Tex. Fam. Code § 152.102(7). Furthermore, although the child had a home
state in the West Bank six months before the time of commencement, the West
Bank could not assume priority jurisdiction because no member of the immediate
family continued to live there. See id. § 152.201(a)(1). Therefore, the trial court
correctly determined that no state could exercise home state jurisdiction.
In the absence of a home state, Father argued that Texas qualified as a state
with significant connections. Father cited evidence showing that the parties lived in
Texas as husband and wife. They also conceived their child in Texas, who was
born and raised here until nearly three years of age. The trial court rejected
Father’s argument and determined that the child no longer had a significant
connection with Texas, presumably because of his extended absence from the state.
Mother urges next that Father failed to produce evidence regarding the
child’s connections with Florida. She contends that before the trial court could
exercise default jurisdiction, Father needed to demonstrate that Florida was not a
state with significant connection jurisdiction. However, the trial court did have
evidence of the child’s connection with Florida. The trial court heard from Mother
that the child had been living there continuously since their return from the West
Bank; at the time of the hearing, the child had been in Florida for just short of six
months. The trial court also heard that Mother had sought Medicaid in Florida, and
that the Florida Attorney General had filed a lawsuit against Father for the
provision of child support.
The trial court did not, however, hear more pertinent evidence regarding the
nature and quality of the child’s contacts in Florida. There was no evidence, for
instance, that the child had enrolled in preschool in Florida, or that Mother had
8
planned for the child’s future education in Florida. See In re S.J.A., 272 S.W.3d
678, 685 (Tex. App.—Dallas 2008, no pet.) (concluding that forum state had
significant connections with the child where such evidence was available). The
trial court also did not hear that the child was subject to any protection orders in
Florida, or that he had any other family or friends in Florida besides Mother. See
Brown, 203 S.W.3d at 894 (concluding that foreign state had significant
connections because, among other things, the child’s mother, grandmother, and
pediatrician lived there). Mother invites us to reasonably presume that “much
more evidence” was available in Florida regarding the child’s care and personal
relationships and that Father’s failure to refute such unadduced evidence is a
failure of proof. Mother bases this position on “the undisputed fact that the child
had been absent from Texas for such a long period of time, and had been a resident
in the state of Florida nearly long enough to establish Florida as his home state.”
We decline to indulge this “close enough to six months” presumption. The
evidence adduced at the pretrial hearing showed little more than that the child was
physically present in Florida, and presence alone is not sufficient under the statute.
See Tex. Fam. Code § 152.201(a)(2)(A).
There is no question that Father had the burden to establish the trial court’s
jurisdiction. See In re Oates, 104 S.W.3d 571, 575 (Tex. App.—El Paso 2003, no
pet.). Thus, if the record before us contained no evidence of the child’s connection
to Florida, we would face a more challenging question. Here, however, the trial
court heard evidence about the child’s Florida connection. From that evidence, the
trial judge expressly found that the proof did not meet the criteria specified for a
state to exercise significant connection jurisdiction. See Tex. Fam. Code
§ 152.201(a)(4) (providing that a court may exercise default jurisdiction if “no
court of any other state would have jurisdiction under the criteria specified in
9
Subdivision (1), (2), or (3)”). Based on the evidence before the trial court, we
conclude that the trial court did not err in concluding that neither Texas nor Florida
would have significant connection jurisdiction.
Because no state would have home state or significant connection
jurisdiction at the time of suit, the third jurisdictional basis would not apply.
Jurisdiction cannot be declined if it does not exist.3 Where the first three bases for
jurisdiction are not present, jurisdiction by default remains. See id. The UCCJEA
requires that some forum must be available to make a child custody determination.
We conclude that the trial court did not err by exercising this default jurisdiction.
Accordingly, we overrule Mother’s first issue.
INCONVENIENT FORUM
In her second issue, Mother argues that the trial court should have declined
jurisdiction under section 152.207 of the Texas Family Code. This provision states
that the trial court “may decline to exercise its jurisdiction at any time if it
determines that it is an inconvenient forum under the circumstances and that a
court of another state is a more appropriate forum.” See id. § 152.207(a). As stated
by the Texas Supreme Court, Section 152.207 provides “flexibility” during the
adjudicative process, and is intended to “avert potential injustice” once the trial
court has determined that it has jurisdiction over the case. See Powell, 165 S.W.3d
at 327. We review the trial court’s decision on this issue for an abuse of discretion.
3
We note that jurisdiction was declined in Florida during the course of the proceedings,
but not at a time that is pertinent to our analysis. The record reflects that Mother filed a custody
action in Florida sometime during the summer of 2010, after the child had been living there long
enough to establish Florida as his home state. By that time, the Texas court had already taken
jurisdiction over the case and entered temporary orders granting Father’s visitation with the
child. The Florida court consulted with the Texas court about the exercise of jurisdiction, as
required by the UCCJEA. See Tex. Fam. Code §§ 152.110, 152.206. In October 2010, nearly
eleven months after Father commenced suit in Texas, the Florida court ordered the dismissal of
Mother’s petition because it determined that Texas was the more appropriate forum.
10
See In re Alanis, 350 S.W.3d 322, 326 (Tex. App.—San Antonio 2011, orig.
proceeding).
The trial court may consider any relevant factor when deciding whether to
decline jurisdiction for inconvenient forum. Among the factors that should be
weighed, the UCCJEA specifically enumerates the following:
(1) whether domestic violence has occurred and is likely to continue
in the future and which state could best protect the parties and the
child;
(2) the length of time the child has resided outside this state;
(3) the distance between the court in this state and the court in the
state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume
jurisdiction;
(6) the nature and location of the evidence required to resolve the
pending litigation, including testimony of the child;
(7) the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the evidence;
and
(8) the familiarity of the court of each state with the facts and issues in
the pending litigation.
See Tex. Fam. Code § 152.207(b).
Mother did not cite any specific reason in her motion explaining why the
trial court should decline jurisdiction for inconvenient forum. Her main argument
during the hearing seems to be that Florida was a more appropriate forum because
both Mother and child had been living there for several months. Mother also
suggested that traveling to Texas is unduly burdensome because she, as a drugstore
clerk, has less financial resources than Father, who is a public school teacher. The
11
trial court was not convinced by this argument, and even noted that traveling is “an
expensive trip for either of them to make.”
Mother also argues in her brief that “[e]vidence pertaining to the child’s
environment, schooling, medical treatment, and personal relationships was all
available and accessible in Florida, while none was available in Texas.” This
argument lacks record support. No testimony was heard during the pretrial
hearings regarding the child’s environment, schooling, or medical treatments.
Furthermore, the trial court heard limited testimony regarding the child’s extended
relations, the scope of which was merely that Mother had family in Chicago, and
that Father’s family lived in the West Bank. There was no evidence that the child
had a personal relationship in Florida with any person other than Mother.
Mother contends that this case is similar to In re Alanis, a modification case
holding that a Texas court should have declined jurisdiction where both the child
and the custodial parent lived in California. See Alanis, 350 S.W.3d at 328–29. We
disagree that Alanis is controlling because it was decided on a very different set of
facts. In that case, nobody lived in the forum state: the mother resided in
Oklahoma; and at the time of suit, the father and child had very recently left Texas.
Id. at 327. Although Texas could have exercised default jurisdiction over the case,
there were many probative factors showing that Texas was not a convenient forum.
The record showed that the mother was a very high earner who could easily bear
the costs of traveling. It was also undisputed that if the child were forced to attend
hearings in Texas, he would miss high school and be unable to participate in
extracurricular activities. This was considered undesirable because the mother had
already revealed that she traveled weekly to California on business. The father also
indicated that he had family and other witnesses who could testify on his behalf in
California. The mother, by contrast, did not intend to rely on any witnesses who
12
lived in Texas. Her only argument in favor of a Texas forum was that her home in
Oklahoma was closer to Texas than to California. Id.
The record in this case does not disclose any compelling reason why Texas
is a more appropriate forum than Florida, or vice versa. The child’s association
with both states appears to have been slight, but unlike in Alanis, the child at least
had one parent who continuously lived in the forum state. Mother was clearly in
the better position to show why Florida should decide the case; having raised the
child since birth, she had greater and more meaningful access to the evidence
relevant to the custody determination. However, Mother did not present any such
evidence to the trial court, at least on the partial record before us. Based on the
evidence and arguments that were made to the trial court, we conclude that there
was no abuse of discretion in the trial court’s failing to decline jurisdiction for
inconvenient forum. We overrule Mother’s second issue.
UNJUSTIFIABLE CONDUCT
In her third issue, Mother argues that the trial court should have declined
jurisdiction because Father had engaged in unjustifiable conduct. Mother contends
that Father acted in a reprehensible manner when he divorced her overseas then
prohibited her from leaving the West Bank without his permission. She claims this
conduct “literally imprisoned [her] and the child in a third-world, impoverished
territory subject to constant violence,” and that she was “only able to escape this
imprisonment after several unsuccessful attempts, and then only with the aid of the
Israeli government.”
Mother’s argument invokes Section 152.208, which states that a court must
decline jurisdiction if it determines that it has jurisdiction under the UCCJEA
“because a person seeking to invoke its jurisdiction has engaged in unjustifiable
conduct.” See Tex. Fam. Code § 152.208. The drafters of this statute were
13
concerned with parents who behaved reprehensibly for the purpose of establishing
jurisdiction in a desired state. See Commissioners’ Office Comment to UCCJEA
Section 208 (targeting parents who abduct, secrete, retain, or restrain their children
for legal advantage), reprinted in Sampson and Tindall’s Texas Family Code
Annotated § 152.208 (2011 ed.). Subject to certain exceptions, Section 152.208
prevents these parents from receiving any sort of benefit under the UCCJEA. See,
e.g., In re Lewin, 149 S.W.3d 727, 740 (Tex. App.—Austin 2004, orig.
proceeding) (“To allow a parent to deliberately secrete a child to Texas for the
purpose of obtaining a child custody determination in the state would make a
mockery of the statute.”).
During the pretrial hearings, Father denied any role in restricting Mother’s
movements inside the West Bank. Even if we accepted Mother’s allegations as
true, there is no evidence suggesting that Father engaged in such conduct for the
purpose of invoking jurisdiction in Texas. Indeed, we do not perceive how Father
could have obtained any legal advantage by divorcing Mother overseas and leaving
his son behind. The conduct alleged does not fall within the scope of the statute.
We overrule Mother’s third issue.
SANCTIONS
We finally address Father’s request for appellate sanctions. Father contends
that Mother’s appeal is meritless and improper because her arguments depend on
knowing misrepresentations of fact. Father focuses primarily on alleged
misrepresentations in Mother’s brief describing the hardship she endured while in
the West Bank. Disputing the veracity of such statements, Father contends that “a
multiple of evidence was presented at trial which directly contradicts [Mother’s]
assertion.” Of course, without findings of fact and a record from the trial, we have
no way of determining whether Mother’s representations are accurate.
14
Father objects to other statements in the brief where Mother criticizes the
trial court’s exercise of jurisdiction. The statements targeted by Father follow basic
models of advocacy: e.g., “There was absolutely no evidence introduced, admitted,
or considered by the trial court which would have allowed it to come to that
conclusion.” Other statements of which Father complains, such as whether a child
support action had been initiated against him in Florida, are plainly supported by
Mother’s testimony during the pretrial hearing. We reject Father’s argument that
Mother is deserving of sanctions.
CONCLUSION
The judgment of the trial court is affirmed.
/s/ Sharon McCally
Justice
Panel consists of Justices Frost, McCally, and Donovan.
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