TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00020-CV
Mark Seiler, Appellant
v.
Stacey Seiler, Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-18-005170, THE HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
MEMORANDUM OPINION
Mark Seiler filed pro se in Travis County district court a petition for divorce that
included a suit affecting the parent-child-relationship (SAPCR) for two children of the marriage,
then ages four and two, and a request for temporary orders. In response, Stacey Seiler filed a
combined answer, plea in abatement, and motion asking the trial court to dismiss the divorce suit
on equitable forum non conveniens grounds and to decline to exercise its home-state child-
custody jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), as codified in the Texas Family Code. See Tex. Fam. Code §§ 152.201 (“Initial
Child Custody Jurisdiction”), .207 (“Inconvenient Forum”). Nearly concurrently with the Texas
proceedings, Stacey1 had filed in Superior Court of California, County of Riverside, an
Emergency Protective Order and a Temporary Restraining Order, and in Superior Court of
California, County of Placer, a Petition for Legal Separation of Marriage shortly after Mark
1
Because the parties share the same surname, we will refer to them by their first names.
filed his divorce petition. After an evidentiary hearing, the Court granted Stacey’s motion and
dismissed Mark’s case. Mark contends that the trial court abused its discretion in granting the
motion because there is legally and factually insufficient evidence to support its findings of fact,
conclusions of law, and ultimate determination that Texas is an inconvenient forum to make a
custody determination and that Riverside County, California is a more appropriate forum. For
the following reasons, we will affirm the trial court’s order.
BACKGROUND
The parties were married in 2013 and have two minor children from the marriage.
The trial court found that the parties resided in California from before they were married until
November 2014 and in Austin, Texas from November 2014 to August 2018. Mark filed for
divorce in Texas on August 27, 2018. After unsuccessful attempts at service of process on
Stacey, the trial court granted Mark’s motion for alternative service. After service on Stacey was
effectuated in California, she filed a “Request for Court to Decline Jurisdiction and Motion to
Dismiss the Divorce Action in Texas, Plea in Abatement, and Original Answer.” In her motion,
Stacey argued that Texas is an inconvenient forum to make a custody determination and that
Riverside County, California is a more appropriate forum to adjudicate custody and the divorce.
Stacey attached several exhibits (comprising seventy-five pages) to her motion,
including: copies of an emergency protective order, a temporary restraining order, and a criminal
protective order–domestic violence issued against Mark by California state courts; a copy of
her declaration outlining acts of domestic violence allegedly committed by Mark against her;
photographs of injuries; and a copy of the petition for legal separation and child custody that she
filed in Placer County, California, on September 14, 2018.
2
Mark was the only witness to testify at the hearing on Stacey’s motion to dismiss.
He did not testify about any alleged domestic violence, and the record reflects that his counsel
“advised [him] to invoke the fifth amendment when necessary.” The trial court admitted as
exhibits copies of two short emails from Stacey to Mark. In one of the emails, dated September
20, 2018, Stacey informed Mark that she had obtained a temporary restraining order in California
against him because she “is fearful of” him. The transcript from the hearing indicates that the
trial court communicated with two California judges about the proceedings in their respective
courts, but the substance of those communications is not in the record.
The trial court’s order granting Stacey’s motion recites,
The Court . . . finds, after conferring with the [two California judges] that
(1) Texas is an inconvenient forum pursuant to Texas Family Code Section 152.207
to make a custody determination under the circumstances in this case, and
Riverside County, California is a more appropriate forum for determination [of]
possession and access; and (2) Riverside County, California currently has a
Temporary Restraining Order pending in FLIN1800265 involving the parties in
this cause and Placer County, California has Cause number SDR005520 Petition
for Separation suit pending.
Texas policy is that children have frequent and continuous contact with both
parents, and this Court requests that the Riverside County Court in California
expedite a hearing regarding possession and access for Mark Seiler as deemed
appropriate by that Court.
Mark filed a request for findings of fact and conclusions of law and a notice of
past-due findings and conclusions, after which the trial court issued findings of fact and
conclusions of law. Mark raises numerous issues on appeal, most of which challenge the
sufficiency of the evidence supporting many of the trial court’s findings of fact. He also
challenges several of the trial court’s conclusions of law and contends that the trial court abused
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its discretion by declining to exercise jurisdiction over this cause on the basis of its determination
that Texas is an inconvenient forum to determine custody issues. See Tex. Fam. Code § 152.207.
STANDARD OF REVIEW
We review a trial court’s decision to decline to exercise jurisdiction as an
inconvenient forum for abuse of discretion. Baggs v. Becker, No. 03-07-00731-CV, 2009 WL
280664, at *2 (Tex. App.—Austin Feb. 6, 2009, pet. denied) (mem. op.). A trial court abuses its
discretion when it acts arbitrarily, unreasonably, without regard for guiding rules or principles, or
without supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex.
2016) (orig. proceeding). However, we may not reverse simply because we disagree with the
trial court’s decision. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985). In reviewing a trial court’s order for an abuse of discretion, we view the evidence in the
light most favorable to the trial court’s order, indulging every reasonable inference in its favor.
Baggs, 2009 WL 280664, at *2; Adams v. Baxter Healthcare Corp., 998 S.W.2d 349, 356 (Tex.
App.—Austin 1999, no pet.).
Under an abuse-of-discretion standard, the legal and factual sufficiency of the
evidence are not independent grounds of error but are relevant factors in determining whether the
trial court abused its discretion. Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—Austin
2014, no pet.). In this analysis, “we ask first whether the trial court had sufficient information on
which to exercise its discretion . . . and if so, whether it acted reasonably in the application of its
discretion.” Reagins v. Walker, 524 S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2017,
no pet.). We apply traditional sufficiency standards of review to answer the first question. Id.;
Blackwell v. Humble, 241 S.W.3d 707, 715 (Tex. App.—Austin 2007, no pet.).
4
In a legal-sufficiency review, we examine the evidence in the light most favorable
to the verdict, credit favorable evidence if a reasonable factfinder could, and disregard contrary
evidence unless a reasonable factfinder could not. Del Lago Partners, Inc. v. Smith, 307 S.W.3d
762, 770 (Tex. 2010). In a factual-sufficiency review, by contrast, we consider all the evidence
in the record and may set aside the judgment only if it is so contrary to the overwhelming weight
of the evidence that it is clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986) (per curiam); Gonzales v. Maggio, 500 S.W.3d 656, 662 (Tex. App.—Austin 2016,
no pet.). We review the trial court’s findings of fact for legal and factual sufficiency under the
same standards. See Chevron Pipeline Co. v. Strayhorn, 212 S.W.3d 779, 783–83 (Tex. App.—
Austin 2006, pet. denied). If we determine that the evidence is legally and factually sufficient
for the trial court to exercise its discretion, we then determine whether, based on the elicited
evidence, the trial court made a reasonable decision. Neyland v. Raymond, 324 S.W.3d 646, 649
(Tex. App.—Fort Worth 2010, no pet.).
DISCUSSION
In several issues, Mark contends that the evidence was legally and factually
insufficient to support many of the trial court’s findings of fact and conclusions of law.2
2
Mark challenges the court’s findings that: he has committed domestic violence against
Stacey and engaged in several specific assaultive behaviors against her on two occasions; a
California court has issued a three-year criminal protective order against him; the witnesses and
evidence required to resolve the “pending litigation” are predominately in California and not
susceptible to compulsory attendance as witnesses; neither party has “any family members who
live in Texas”; and “the burden of costs of litigation and expenses and inconvenience of the
witnesses would be more of a strain if Texas were to hold jurisdiction.” He challenges the trial
court’s legal conclusions that: Texas is an inconvenient forum to make a custody determination
under the circumstances in this case; Riverside County, California has a temporary restraining
order pending involving the parties; and Riverside County, California is a more appropriate
forum for the determination of possession of and access to the children.
5
One main argument underlies all of his issues: the trial court did not have sufficient evidence
before it to make a determination that Texas is an inconvenient forum to adjudicate custody
issues.3 Mark specifically contends that the “unsubstantiated” information attached to Stacey’s
pleadings, on which the trial court impliedly relied in making its findings and conclusions, does
not constitute “evidence” that may support an inconvenient-forum determination, citing City of
Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979) (noting, in summary-
judgment context, that pleadings are not evidence unless admitted as evidence by trial court), and
Ceramic Tile International, Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex. App.—San Antonio
2004, no pet.) (noting, in jury-trial context, that documents attached to pleadings are not
evidence). We disagree.
Although at the hearing on Stacey’s motion the only evidence admitted was
Mark’s limited testimony and the two emails from Stacey to Mark, the trial court is not limited
to the evidence duly admitted at the hearing in making its section 152.207 forum determination
but may also rely on affidavits and exhibits attached to the motions and pleadings. See Lesem v.
Mouradian, 445 S.W.3d 366, 375 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Belmonte v.
Belmonte, No. 09-07-225-CV, 2008 WL 2057903, at *3 (Tex. App.—Beaumont May 15, 2008,
no pet.) (mem. op.). Likewise, a trial court is not required to conduct an evidentiary hearing on a
3
The Family Code requires a divorce suit to include a SAPCR if there are children of the
marriage. See Tex. Fam. Code § 6.406(b). While a divorce and a SAPCR are “two separate and
distinct suits,” see In re Marriage of Morales, 968 S.W.2d 508, 511 (Tex. App.—Corpus Christi-
Edinburg 1998, no pet.), and a trial court may exercise partial jurisdiction over only some portions
of a divorce suit, see Tex. Fam. Code § 6.308, the trial court apparently treated the divorce and
SAPCR as one interrelated lawsuit, and Mark does not raise any issues on appeal challenging
such treatment or the trial court’s dismissal of the divorce portion of his lawsuit. Rather, his
appellate issues pertain only to the trial court’s findings on and weighing of the UCCJEA
statutory factors applicable to SAPCRs, see id. § 152.207, and its conclusion that California is “a
more appropriate forum for the determination of possession of and access to the children.”
Therefore, we will not address the dismissal of Mark’s divorce. See Tex. R. App. P. 38.1(f).
6
section 152.207 motion. See In re T.B., 497 S.W.3d 640, 646 (Tex. App.—Fort Worth 2016,
pet. denied); Lesem, 445 S.W.3d at 375; Dickerson v. Doyle, 170 S.W.3d 713, 719-20 (Tex.
App.—El Paso 2005, no pet.). This comports with other contexts in which courts routinely
make procedural determinations on the basis of exhibits attached to motions. See, e.g., Michiana
Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782–83 (Tex. 2005) (noting, in special-
appearance context, that trial courts may consider deposition excerpts, discovery responses, and
affidavits attached to motions and filed with clerk); Crum & Forster Specialty Ins. v. Creekstone
Builders, Inc., 489 S.W.3d 473, 481 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (noting that,
in making forum non conveniens determination in non-family-law context, trial court is not
limited to evidence admitted at evidentiary hearing on motion but “may consider any evidence
properly before it, including evidence attached to the defendant’s forum non conveniens motion”).
Additionally, the inconvenient-forum statute permits the trial court to rely on
“information” of the type that Stacey attached to her motion:
Before determining whether it is an inconvenient forum, a court of this state
shall consider whether it is appropriate for a court of another state to exercise
jurisdiction. For this purpose, the court shall allow the parties to submit
information and shall consider all relevant factors, including:
(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
(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.
Tex. Fam. Code § 152.207(b) (emphasis added).
Because of the relevant caselaw permitting trial courts to consider exhibits
attached to motions, and in light of the statute’s reference to “information” submitted by the
parties, we reject Mark’s contention that the evidence supporting a trial court’s ruling on a
section 152.207 motion must be duly admitted to constitute legally and factually sufficient
evidence and that the court could not consider Stacey’s “unsubstantiated” information because
it did not constitute “evidence.” We therefore consider all of the evidence in the record that is
relevant to the above factors to determine whether the trial court had sufficient information on
which to exercise its discretion and, if so, whether it acted reasonably in the exercise of its
discretion. See Reagins, 524 S.W.3d at 761. The factors listed in section 152.207 are non-
exclusive, and the court need not have before it information bearing on all of the factors. See
In re Meekins, 550 S.W.3d 729, 741–42 & n.6 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
The record includes significant evidence bearing on the first factor in the form of
Stacey’s declaration and California court documents attached to her motion. In her declaration,
Stacey averred that Mark “has a long history of domestic violence,” with the most recent assaults
occurring in April 2018 and August 2018. Stacey averred that in April 2018, Mark, who was
drunk, “attacked” her; threatened to kill her, the children, and the dog; and said that after he
killed the family he would be “free to go on a killing rampage.” She further averred that
in August 2018, while the family was in California, Mark “snapped over a discussion about
sunscreen,” punched the dog, and pushed open the door to a bedroom in which Stacey had taken
8
the children and dog for protection. She averred that the next day, after Mark again “snapped”
over a discussion about buying a house in Texas, he “verbally abus[ed]” her, threw his cell phone
at her, chipping her tooth and “busting [her] chin open,” and ran after her and the children as
they tried to escape. She submitted photographs of her injuries. Stacey also averred that Mark
had been terminated from jobs twice in the previous four years, in part due to his “los[ing]
his temper on various occasions” and “difficulty getting along with co-workers.” Mark did not
controvert the evidence of domestic violence in his testimony or otherwise.4 The trial court
appears to have attributed significant weight to this factor, as reflected in its statement at the
hearing: “[T]he domestic violence case is going to permeate not only whether it [the SAPCR]
stays there or it stays here. It’s going to permeate the entire proceeding, be it on the criminal side,
the civil protective order or the divorce. That’s a factor and it will impact conservatorship, it will
impact the possession and access of the children.”5 This factor weighs in favor of the action
being dismissed on the basis that the Riverside County, California forum is more appropriate.
4
Mark asks that we take judicial notice, pursuant to Rule 201 of the Texas Rules of
Evidence, of two records from the Superior Court of Riverside County, California—one
purportedly reflecting a jury’s acquittal of the assault-with-a-deadly-weapon charge against him
and one purportedly terminating the criminal protective order that had been entered against him.
We decline to take judicial notice of these documents. See FinServ Cas. Corp. v. Transamerica
Life Ins., 523 S.W.3d 129, 147–48 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting
that although appellate courts may take judicial notice in certain circumstances, they generally do
not take judicial notice of documents that were not before trial court when it made its challenged
finding). Further, appellate courts are reluctant to take judicial notice of matters that go to
the merits of a dispute. SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex.
App.—Dallas 1991, no writ) (“As a general rule, appellate courts take judicial notice of facts
outside the record only to determine jurisdiction over an appeal or to resolve matters ancillary to
decisions which are mandated by law . . . .”).
5
The comments of the National Conference of Commissioners on Uniform State Laws
lend support to the trial court’s weighing of this factor. See Uniform Child Custody Jurisdiction
and Enforcement Act § 152.207, cmt. (Nat’l Conference of Comm’rs on Unif. State Laws)
(“[This factor] is concerned specifically with domestic violence and other matters affecting the
9
Regarding the second factor, Mark testified that the older child had resided in
California until he was about six months old and that the younger child had lived in Texas his
entire life of about thirty-six months, except for the latest period when the family was on
vacation in California, during which the most recent alleged domestic violence occurred, and
that Stacey and the children have remained in California since that incident. This factor weighs
in favor of the action remaining in Texas. Regarding the third factor, there was no evidence
about the distance between California and Texas, and although the trial court could have taken
judicial notice of the distance between the states, which is significant, this factor does not weigh
in either direction.
The trial court had limited evidence about the fourth factor—the parties’ relative
financial circumstances—other than that Mark was unemployed and receiving Texas
unemployment compensation, that the parties had a joint account with $575,000 in it, that Stacey
had since withdrawn $180,000 from the joint account, and that Mark had the financial means to
fly witnesses in from out of state if need be. The evidence on this factor does not weigh in either
direction. The trial court had no evidence of any agreements between the parties as to which
state would exercise jurisdiction (the fifth factor).
As for the nature and location of the evidence—the sixth factor—the alleged most
recent domestic violence occurred in California, which is where the children and Stacey were
residing at the time of the hearing, while Mark had primarily been in Texas since the incident.
However, there is nothing in the record about the nature or location of other witnesses or
health and safety of the parties. . . . [T]he court should determine whether the parties are located
in different states because one party is a victim of domestic violence or child abuse. If domestic
violence or child abuse has occurred, this factor authorizes the court to consider which state can
best protect the victim from further violence or abuse.”).
10
evidence pertaining to custody and possession, about whether any witnesses are susceptible to
compulsory attendance at a hearing, or about the expenses or amount of inconvenience that
any witnesses would incur depending on the forum. We therefore conclude that the trial court’s
findings of fact number fifteen—that “the witnesses and evidence required to resolve the pending
litigation are predominately in California and are not susceptible to compulsory attendance as a
witness”—and sixteen—that “the burden of costs of litigation and expenses and inconvenience
of the witnesses would be more of a strain if Texas were to hold jurisdiction”—are not supported
by legally or factually sufficient evidence. We similarly conclude that there was insufficient
evidence to support the portion of the trial court’s finding number five that “neither [party]
currently ha[s] any family members who live in Texas” because the only evidence on the issue—
Mark’s testimony—conclusively establishes that Stacey has a step-sister who lives in El Paso.
See Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989) (noting exception to general
rule that testimony of interested witness may not conclusively establish disputed fact for when
“the testimony could be readily contradicted if untrue, and is clear, direct and positive, and there
are no circumstances tending to discredit or impeach it”). However, we are unable to conclude
that these unsupported findings probably resulted in an improper section 152.207 determination
by the trial court, considering the balance of all of the factors, the significance of the domestic-
violence findings, and the discretion we afford to the trial court’s determination.6 See Tex. R.
App. P. 44.1; see also McCraw v. Maris, 828 S.W.2d 756, 759 (Tex. 1992) (noting that
6
Furthermore, as to finding of fact five, there was no evidence about how close the step-
sister was to Mark, Stacey, or the children and whether she would be a relevant witness in the
SAPCR proceedings.
11
determination of whether error probably caused rendition of improper judgment “necessarily is a
judgment call entrusted to the sound discretion and good senses of the reviewing court”).
As for factors seven and eight, the hearing transcript, finding of fact seventeen,7
and the trial court’s order8 dismissing Mark’s petition indicate that the trial court communicated
with the judges of two of the California courts in which proceedings were pending—Placer
County, in which Stacey’s petition for legal separation was pending, and Riverside County,
which issued the temporary restraining order. No record was made of those communications and
we therefore cannot determine how their substance may have affected the balance of relevant
factors. Cf. Tex. Fam. Code § 152.110(f) (requiring record to be made of communications
between court of this State and court in another state concerning chapter 152 proceedings).
However, the record does not reflect that either party objected to the lack of a record of those
communications, see In re D.J.M., 114 S.W.3d 637, 639 (Tex. App.—Fort Worth 2003, pet.
denied) (party who does not object to failure of trial court to make record of proceedings waives
any complaint about issue on appeal), and in the absence of a record of them, we must presume
that the evidence adduced supports the trial court’s express and implied findings on the relevant
factors, see Barry v. Jackson, No. 03-11-00549-CV, 2013 WL 6464966, at *2 (Tex. App.—
Austin Nov. 26, 2013, no pet.) (mem. op.); Fiesta Mart, Inc. v. Hall, 886 S.W.2d 440, 442–43
(Tex. App.—Houston [1st Dist.] 1994, no writ); see also Belmonte, 2008 WL 2057903, at *4
7
Finding of fact seventeen recites, “During the hearing on October 17, 2018, Judge
Naranjo conferred with Judge Dale Wells and Judge John Paulson in Riverside County and
Placer County, California.”
8
The order reads, “The Court . . . finds, after conferring with the [sic] Judge Dale Wells
and Judge John Paulson in Riverside County and Placer County, California, that . . . Texas is an
inconvenient forum . . . to make a custody determination under the circumstances of this case
. . . .”
12
(presuming that trial court’s conversation with court in another state supported judgment when
findings of fact and conclusions of law were not requested or filed, no record was made of
conversation, and neither party objected to failure to record conversation).
On this record, we are unable to conclude that the trial court abused its discretion
in determining that Riverside County, California is a more appropriate forum for adjudicating
possession of and access to the children, considering the absence of or minimal evidence on
some factors, the neutral evidence on other factors, the significant evidence on the factor relating
to family violence, and the implied findings that we must presume in favor of the trial court’s
determination due to the lack of a complete record of the hearing. We conclude that the trial
court had sufficient evidence in the record on which it could exercise its discretion, and that the
court acted reasonably in the application of its discretion. See Reagins, 524 S.W.3d at 761.
CONCLUSION
We affirm the trial court’s order granting Stacey’s Family Code section 152.207
motion to decline jurisdiction and dismiss the case.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Triana
Affirmed
Filed: January 8, 2021
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