Opinion issued April 5, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00331-CV
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Eileen Acosta Graebener, Appellant
V.
Peter Gerard Graebener, Appellee
On Appeal from the 247th Judicial District
Harris County, Texas
Trial Court Case No. 1027727
MEMORANDUM OPINION
Eileen Graebener appeals from a decree of divorce appointing Peter Graebener primary joint managing conservator of their minor children. Eileen contends that the trial court erred in entering the decree because it lacked jurisdiction to make an initial child custody determination, pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). See Tex. Fam. Code Ann. § 152.101-.317 (West 2008 & Supp. 2011). We conclude that Eileen entered a general appearance before the trial court, subject to her UCCJEA complaint. She therefore consented to the court’s jurisdiction over her person. The trial court nonetheless lacked subject-matter jurisdiction to make a custody determination under the UCCJEA. Accordingly, we affirm in part and dismiss in part for lack of subject‑matter jurisdiction.
Background
Peter and Eileen Graebener were married in 1988. They moved to Texas, along with their five children, in 1999. In June 2009, Eileen and the children went on vacation to visit family in Puerto Rico. Peter expected them to return in August, but they did not. Eileen later advised Peter that she did not plan to return to Texas and intended to keep the children in Puerto Rico.
Texas Proceedings
In April 2010, Peter sued for dissolution of their marriage in Harris County. Peter alleged in his petition that he met the jurisdictional requirements for a divorce in Texas, although his spouse resided in Puerto Rico. Peter also requested that the court adjudicate custody of the couple’s minor children.
Eileen’s Puerto Rican counsel moved to dismiss the suit for lack of jurisdiction. On the day of trial, Eileen appeared via telephone. She requested a continuance, asking the court to delay the trial to permit her to retain local counsel. The trial court denied Eileen’s motion, noting that she had received notice of the setting and, therefore, had time to retain counsel. The court then advised Eileen that the trial would proceed as planned; she could either stay on the phone and participate in the proceedings or hang up. Eileen remained on the phone, but she contested the court’s jurisdiction during the proceedings. When the trial court proceeded, Eileen also lodged objections to Peter’s testimony. She objected to his testimony as inaccurate, “undetermined,” or irrelevant. Eileen obtained rulings from the court on each of her objections, but never obtained a ruling on her objection to the court’s personal jurisdiction over her.
The trial court entered a final decree of divorce in January 2011. Under a section entitled, “Jurisdiction and Domicile,” the decree recites that Eileen “agreed that the court could hear the matter of divorce but not custody.” The court assumed jurisdiction over custody of the minor children, finding: “the basis of the conditional jurisdiction over the subject matter of custody is due to the exigent circumstances of the children; relevant testimony regarding allegations between the parties. This Court fully accepts jurisdiction . . . pursuant to both UCCJA and UCCJEA. . . . The Court finds that there are pending matters in Puerto Rico whereby [Eileen] . . . is requesting those courts to decline jurisdiction over custody.”
Post-trial, Eileen retained local counsel and moved for a new trial, contending that the trial court lacked jurisdiction over her and the subject matter of the suit. The trial court denied the motion.
Puerto Rican Proceedings
Eileen petitioned for divorce in Puerto Rico in June 2010 and requested custody of her minor children. Peter specially appeared before a Puerto Rican tribunal and objected to Puerto Rico’s jurisdiction. He contended that Eileen did not meet the residency requirements to obtain a divorce there. After considering evidence submitted by the parties, the Puerto Rican tribunal found that Eileen had lived in Puerto Rico since June 2009. The tribunal concluded that, because Eileen had lived there for more than a year, the court had jurisdiction to grant a divorce and adjudicate custody of the children. In its final order—issued the same month as the Texas divorce decree—the tribunal concluded that Texas lacked jurisdiction over the custody dispute, and had implicitly recognized as much in an August 2010 support order.
Discussion
Eileen contends that the trial court (1) lacked personal jurisdiction, (2) lacked subject-matter jurisdiction to enter a custody order, (3) erred in not dismissing the Texas proceeding after learning of the proceedings in Puerto Rico, and (4) erred in ordering Eileen to return the couple’s minor children to Texas.
Personal Jurisdiction
“Whether a court has personal jurisdiction over a nonresident defendant is a question of law, which we review de novo.” Zinc Nacional, S.A. v. Bouché Trucking, Inc., 308 S.W.3d 395, 397 (Tex. 2010) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). Unlike subject-matter jurisdiction, the lack of personal jurisdiction may be waived. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14, 105 S. Ct. 2174, 2182 n.14 (1985) (“[T]he personal jurisdiction requirement is a waivable right.”).
Generally, by appearing before the court, a defendant indicates that she submits to the court’s jurisdiction. See Tex. R. Civ. P. 120; Mays v. Perkins, 927 S.W.2d 222, 225 (Tex. App.—Houston [1st Dist.] 1996, no writ). To determine if a defendant appeared, we consider the nature and quality of the defendant’s activities before the trial court. See Smith v. Amarillo Hosp. Dist., 672 S.W.2d 615, 617 (Tex. App.—Amarillo 1984, no writ). The Texas Supreme Court has held that any one of three categories of activities constitutes a general appearance: (1) the defendant invokes the judgment of the court on any question other than the court’s jurisdiction; (2) the defendant recognizes by its acts that an action is properly pending; or (3) the defendant seeks affirmative action from the court. See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004).
While Texas courts have held that a party who merely observes a proceeding without participating does not make a general appearance, Eileen participated in the proceedings and sought rulings from the court on non-jurisdictional issues. See, e.g., Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 296–97 (Tex. App.—Fort Worth 2004, pet. dism’d) (mere presence in courtroom not a general appearance, but examining witnesses or offering testimony constitutes a general appearance); Bradford v. Bradford, 971 S.W.2d 595, 598 (Tex. App.—Dallas 1998, no pet.) (same); Serna v. Webster, 908 S.W.2d 487, 492 (Tex. App.—San Antonio 1995, no writ) (same). Eileen orally requested that the trial court continue the proceedings to permit her to retain local counsel. During trial, she objected to Peter’s testimony as inaccurate, “undetermined,” or irrelevant. But she made these objections subject to her special appearance. Eileen obtained rulings on her objections. Eileen also agreed to allow the court to hear the matter of the divorce, but not custody. In so doing, Eileen waived her complaint about the trial court’s lack of personal jurisdiction over her. Compare Beistel v. Allen, Nos. 01‑06‑00246‑CV and 01-06-00276-CV, 2007 WL 1559840, at *3 (Tex. App.—Houston [1st Dist.] May 1, 2007, no pet.) (objection to admission of spreadsheet at termination hearing constituted a general appearance) and Seals, 145 S.W.3d at 298–299 (holding that appellee entered general appearance at hearing where it stated that it had no objection to unsworn testimony, reserved right to place appellant under oath, and asked trial court to determine scope of pleadings in case) with Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998) (special appearance not waived where defendant obtained rulings related to special appearance) and First Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767, 778 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (same). Eileen’s participation at trial is inconsistent with the assertion that the trial court lacked jurisdiction over her. See Dawson-Austin, 968 S.W.2d at 323 (observing that test for a general appearance is whether motion requested affirmative relief inconsistent with assertion that district court lacked jurisdiction).
Puerto Rican counsel’s attempt to contest the court’s jurisdiction and local counsel’s later protestations that the trial court lacked personal jurisdiction do not eliminate or cure the effect of Eileen’s objections during the trial, made before she obtained a ruling on her special appearance. See Beistel, 2007 WL 1559840, at *3. We focus on Eileen’s affirmative action seeking evidentiary rulings during the hearing and her failure to obtain a ruling on her complaint. Moreover, the divorce decree recites that Eileen consented to the court’s jurisdiction over the divorce proceeding, but challenged its subject-matter jurisdiction over the custody proceeding. These actions implicitly recognized the court’s jurisdiction. See Beistel, 2007 WL 1559840, at *3; see also Seals, 145 S.W.3d at 296.
We hold that Eileen has waived her complaint that the trial court lacked personal jurisdiction over her. The trial court therefore did not err in entering a divorce and dividing the marital estate. See Tex. Fam. Code Ann. § 6.308 (West 2006).
Subject-Matter Jurisdiction
Eileen maintains that the trial court lacked subject-matter jurisdiction to make an initial custody determination. A court must have subject-matter jurisdiction to decide a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Subject-matter jurisdiction is conferred by the Texas Constitution and legislative enactments, combined with the existence of the facts necessary for a court to exercise jurisdiction. French v. Moore, 169 S.W.3d 1, 6 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Lee v. El Paso Cnty., 965 S.W.2d 668, 671 (Tex. App.—El Paso 1998, pet. denied). The determination as to whether jurisdiction exists is a question of law that we review de novo. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). We presume that a trial court has jurisdiction unless the absence of jurisdiction appears on the face of the petition. French, 169 S.W.3d at 6–7.
Subject-matter jurisdiction in child custody disputes is determined by the UCCJEA. See Tex. Fam. Code Ann. § 152.101-.317 (West 2008). The UCCJEA provides that a court of this state has jurisdiction to make an initial child custody determination only if Texas is the home state of the child on the date the proceeding commences or if this state was the home state of the child within six months before the proceeding commences and a parent continues to live in this state. Tex. Fam. Code Ann. § 152.201(a)(1). Texas does not qualify as the Graebener children’s “home state,” because the children did not live in Texas during the six-month period immediately preceding the date Peter filed the Texas petition. See id; Koester v. Montgomery, 886 S.W.2d 432, 435 (Tex. App.—Houston [1st Dist.] 1994, no writ). Rather, Puerto Rico is their home state under the UCCJEA.[1] See Tex. Fam. Code Ann. § 152.201(a)(1). The trial court found, however, that it had jurisdiction to make an initial custody determination because it concluded that Eileen had petitioned a Puerto Rican court to decline jurisdiction and “the exigent circumstances of the children” merited assuming jurisdiction.
1. Eileen’s conduct and the Puerto Rican proceedings
The trial court concluded that it held jurisdiction to make a custody determination, because it found that Eileen had petitioned a Puerto Rican tribunal to defer to Texas’s jurisdiction. However, subject-matter jurisdiction cannot be conferred by consent. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (explaining that subject matter jurisdiction “‘exists by operation of law only, and cannot be conferred upon any court by consent or waiver’”) (quoting Fed. Underwriters Exch. v. Pugh, 174 S.W.2d 598, 600 (Tex. 1943)). The trial court erred in concluding that Eileen’s alleged request for Puerto Rico to decline jurisdiction provided a basis for the trial court to make an initial custody determination. A Texas court may make an initial custody determination if a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is a more appropriate forum and the children or parent have a significant connection with Texas, but the trial court in this case did not conclude that a Puerto Rican court had declined jurisdiction. See Tex. Fam. Code Ann. § 152.201(a)(2). Nor does the record support such a finding. Rather, the record reveals that a Puerto Rican tribunal concluded that Puerto Rico properly held jurisdiction over custody matters as the children have lived in Puerto Rico since June 2009.
2. Jurisdiction under section 152.204
Alternatively, the trial court assumed jurisdiction over the custody dispute based on “exigent circumstances.” Section 152.204 is an exception to section 152.201(a)(1), and permits a Texas court to obtain temporary emergency jurisdiction over custody matters if “the child is present in [Texas] and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” Tex. Fam. Code Ann. § 152.204(a). The exercise of jurisdiction under section 152.204 is reserved for extraordinary circumstances. In re Marriage of Lai, 333 S.W.3d 645, 649–50 (Tex. App.—Dallas 2009, no pet.) (citing Saavedra v. Schmidt, 96 S.W.3d 533, 545 (Tex. App.—Austin 2002, no pet.)
The trial court concluded that “the exigent circumstances of the children” merited assuming jurisdiction. But section 152.204 does not apply to the facts of this case. The minor children are not present in Texas; they have been in Puerto Rico since June 2009. As the children are not present in this state, the trial court could not exercise jurisdiction to make a custody determination based on the UCCJEA’s emergency jurisdiction provision. See Saavedra v. Schmidt, 96 S.W.3d 533, 544 (Tex. App.—Austin 2002, no pet.) (“Under section 152.204, a court of this state may assume temporary jurisdiction over a custody dispute if the child is present in this state and it is necessary to protect a child subjected to or threatened with mistreatment or abuse”).
The trial court lacked jurisdiction to make an initial custody determination regarding Eileen and Peter’s minor children: Texas is not their home state under the UCCJEA, Eileen’s conduct cannot confer subject-matter jurisdiction, and section 152.204 does not apply to this case to warrant exercising temporary jurisdiction. Accordingly, we conclude that the trial court erred in entering those parts of the divorce decree that address the custody and care of the minor children. Because we hold that the trial court lacked jurisdiction to make an initial custody determination, we need not address Eileen’s remaining issues on appeal.
Conclusion
We conclude that Eileen generally appeared before the trial court. The court, therefore, properly held personal jurisdiction over her to enter a divorce decree and divide the marital estate. See Tex. Fam. Code Ann. § 6.308. However, the trial court lacked subject-matter jurisdiction to make an initial custody determination with respect to the minor children. Accordingly, we affirm that part of the trial court’s judgment dissolving the marriage of Peter and Eileen Graebener and dividing the marital estate. We reverse all parts of the trial court’s judgment affecting custody matters and dismiss those claims for want of subject-matter jurisdiction.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
[1] “A court of this state shall treat a foreign country as it if were a state of the United States for the purpose of applying this subchapter and Subchapter C [relating to jurisdiction].” Tex. Fam. Code Ann. § 152.105(a).