In re Butterfield

IN RE DAVID TIMOTHY BUTTERFIELD, Relator

NO. 01-18-00903-CV

Court of Appeals For The First District of Texas

May 16, 2019

Original Proceeding on Petition for Writ of MandamusMEMORANDUM OPINION

Relator, David Timothy Butterfield, has filed a petition for a writ of mandamus challenging the trial court's order denying his plea to the jurisdiction and request for the court to decline jurisdiction in a suit affecting the parent-child relationship.¹ In two issues, Butterfield contends that the trial court lacks jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).²

We conditionally grant the petition.

Background

Butterfield and real party in interest, Jacqueline Torres, are the parents of a daughter, E.B., who was born in Colorado in March 2017. In January 2018, Torres and E.B. moved to Texas. On June 8, 2018, Butterfield, who continues to reside in Colorado, filed a Petition for Allocation of Parental Responsibilities in Pueblo County, Colorado, seeking "allocation of parental responsibilities, the establishment of child support, and any other orders necessary to effectuate the best interests of [E.B.]." On June 15, 2018, Torres filed a Petition to Adjudicate Parentage in district court in Brazoria County, Texas, seeking "to establish the parent-child relationship between [Butterfield]" and E.B. and orders for conservatorship, visitation, and support.

Butterfield responded in the Texas proceeding by filing his Special Appearance, Plea to the Jurisdiction, Request for Court to Decline Jurisdiction, and Original Answer. In part, he asked the court to dismiss Torres's petition because the court lacked subject-matter jurisdiction or, if the court concluded that it hadjurisdiction, decline jurisdiction or stay the proceedings. Butterfield argued that the Texas court lacked jurisdiction because, under the UCCJEA, Texas was not E.B.'s home state and Colorado was her home state.³ He attached to his pleading an Affidavit for UCCJEA Information in which he testified that E.B. had lived in Colorado with Torres and Butterfield from "March 9, 2017 - January 19, 2018" and had lived in Texas with Torres from "January 19, 2018 - Present."⁴ He further testified that he had "filed a Petition for Allocation of Parental Responsibilities in Pueblo County, Colorado, on June 8th, 2018" and Torres "was personally served with a Summons for Allocation of Parental Responsibilities on June 26, 2018." (Emphasis omitted.) Butterfield also filed a separate Affidavit in Support of Special Appearance and Plea to Jurisdiction. In that affidavit, he testified:

I presently live in Pueblo County, Colorado, and have lived in Colorado since 1986. [Torres] resided with me in Colorado until January 19, 2018.

[E.B.] was born in Colorado on March 9, 2017. [She] lived in Colorado with [Torres] and me from her birth until January 19, 2018, when [Torres] unexpectedly moved out of Colorado, to Texas, with [E.B.], without notifying me that she was moving and without any consent or agreement by me to move to Texas. . . .

I filed a Petition for Allocation of Parental Responsibilities in Pueblo County, Colorado, on June 8th, 2018. [Torres] was personally served with a Summons for Allocation of Parental Responsibilities on June 26th, 2018.

[Torres] filed a Petition to Adjudicate Parentage in Brazoria County (this case) on June 15, 2018, and I was served on June 28, 2018.

Texas is not [E.B.'s] home state. [She] resided in Colorado for the first 10 months of her life. It has only been 5 months since [Torres] unexpectedly moved out of Colorado, to Texas, with [E.B.]. Therefore, Texas is not the home state of [E.B.] and does not have jurisdiction to make orders regarding [E.B.] Colorado is [E.B.'s] home state.

Torres filed, in the Texas proceeding, her Affidavit for UCCJEA Information. She testified that her and E.B.'s present address was in Texas; E.B. had lived in Colorado with Torres and Butterfield between "03/09/2017 - 01/08/2018," and with Torres between "01/08/2018 - 1/20/2018"; and she and E.B. had lived in Texas at one address between "01/21/2018 - 04/06/2018" and at a second address between 04/06/2018 - present." Torres further testified the she had "recently been served on a parentage action in Colorado to which [she was] challenging jurisdiction."

The Texas court scheduled a hearing on temporary orders and Butterfield's plea to the jurisdiction for July 2, 2018. A docket sheet entry reflects that the hearing was "reset pending [the] outcome of [a] jurisdictional matter." A second docket sheet entry reflects that a "phone call with [the] Colorado court on [the] issue of jurisdiction" was "scheduled by [the] Colorado Court" for 2:00 p.m. on August 8, 2018. A record was not made "as conference did not take place. [The] Colorado court declined to participate in the call to resolve jurisdiction" and the Texas court "assumed subject[-]matter jurisdiction to proceed with [the] matter." On August 10, 2018, the Texas court signed an order denying Butterfield's Special Appearance,Plea to the Jurisdiction, and Request for Court to Decline Jurisdiction, stating that the Colorado court "declined to participate in the scheduled telephone conference" and, "[a]s such and [i]n accordance with the Texas Family Code," finding that "Texas has jurisdiction."

On August 29, 2018, the Colorado court signed an order denying Torres's motion to dismiss the proceeding in that court and setting out that court's findings. In part, the Colorado court found that Torres "conced[ed] in her Motion to Dismiss that she [had] filed an action for allocation of parental responsibilities or the Texas statutory equivalent before July 21, 2018, which would have been the date on which [E.B] would have resided in the State of Texas for 182 days"; Colorado "was the home state of [E.B.]" on June 8, 2018, the date of the commencement of the Colorado proceeding; and Texas "was not the home state of [E.B.] at the commencement of the proceeding in [Texas] as [she] had not resided in the State of Texas for at least 182 days before commencement of that proceeding." The court found, therefore, that "jurisdiction for the determination of allocation of parental responsibilities/custody of [E.B.] is properly determined" in the action pending in Colorado, Texas "does not have jurisdiction," and the Colorado court "[had] not declined to exercise jurisdiction." The order also included findings regarding the Colorado court's "attempt[s] to confer with the Texas Court":

1. "This Court's first call to the State of Texas was placed directly to [the Texas court] . . . on July 2, 2018. This call was in responseto a call from [the Texas court] placed to the Family Court Facilitator in [the Colorado court] on July 2, 2018. A voice mail was left on the Family Court Facilitator's telephone asking that [the Colorado court] call [the Texas court] to confer."

2. "On July 2, 2018, [the Colorado court] returned the call directly to [the Texas court]. The call was not answered and a voice mail message was left for a return call. No return call was ever received from [the Texas court]."

3. "At [a] setting held on July 31, 2018, [the Colorado court] noted that a conference call with the Texas Court would be scheduled."

4. "The Division Clerk [arranged] for the telephone conference to take place on August 8, 2018, between [the Texas court] and [the Colorado court]. . . . On August 3, 2018, the Division Clerk received a call directly from [the Texas court] and scheduled the conference call to take place on August 8, 2018, at 1:00 p.m. Colorado time. It was confirmed that [the Colorado court] would call the Texas [c]ourt at [its telephone number]."

5. "On August 8, 2018, [the Colorado court] attempted two phone calls to the [telephone] number and received voice mail on both occasions. The practice of [the Colorado court] is that these calls are conducted on the record. Therefore, this Court placed the phone calls from [the Colorado court's] Courtroom."

6. "It was later learned from a call log history . . . that [the Texas court] was attempting to place a call to the Division Clerk at her desk phone at 1:03 p.m. and 1:14 p.m. The Division Clerk was unavailable as she and this judicial officer were in the Courtroom attempting to call [the Texas court] per the prior arrangements."

7. "[The Texas court] later that day called the Family Court Facilitator in [the Colorado court]. By the time that call was placed, [the Colorado court] was in another hearing and not available to take the call. Based on the Family Court's Facilitator's conversation with [the Texas court], the Family Court Facilitator informed the Division Clerk that we had in fact attempted to call the correct telephone number and that [the Texas court] would be out of the office the following week so it would be a couple of weeks before [the Texas court] could reschedule anything."

8. "Upon subsequent attempt by the Division Clerk to reschedule the telephone conference beginning August 20, 2018, the week [the Texas court] was again to be available, [the Colorado court] was informed that the Texas [c]ourt had decided that he was keeping jurisdiction. [The Colorado court] . . . subsequently learned that on the very day of the attempted conference call, [the Texas court] entered an Order in the Texas action stating that [the Colorado court] 'declined to participate in the scheduled telephone conference.'"

9. "This finding by the Texas [c]ourt is directly contrary to the facts . . . ."

10. "Upon learning of the entry of the Texas Order by counsel for [Butterfield] filing a copy of that Order in this case, [the Colorado court] has on two occasions attempted to contact [the Texas court] directly and received only voice mail. Further [the Colorado court] has engaged in e-mail correspondence with the [the Texas court's] Clerk who stated to [the Colorado court] that she would forward [the Colorado court's] message onto [the Texas court]. No return calls or e-mails

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