In re A. H. S. & A. Y. S.

676 S.W.3d 355

In the INTEREST OF A. H. S. and A. Y. S., Children

NO. 12-23-00042-CV

Court of Appeals of Texas, Tyler.

Opinion delivered October 6, 2023

Timothy McCarthy, Dallas, Jose Rubio III, William Davis, for Appellant.

Paul M. Leopold, Southlake, Tammy Cummings, for Appellee.

Panel consisted of Hoyle, J., Neeley, J., and Bass, Retired J. Twelfth Court of Appeals sitting by assignment.

OPINION

Greg Neeley, Justice C.M.S. (Father) appeals the trial court's order granting M.Y.C.S.’s (Mother) motion for enforcement seeking the "re-return" of minor children, A.H.S. and A.Y.S., from Israel to Texas. In eight issues, he argues that the trial court lacked subject matter jurisdiction and authority to issue such an order, should have deferred to Israeli court decisions, deviated impermissibly from the relevant appellate mandate, and failed to afford him due process. We modify the trial court's order and affirm as modified.

BACKGROUND

Father is an Israeli citizen and former Israeli diplomat; Mother is a United States citizen and traveling nurse whose permanent residence is in Wood County, Texas. Father and Mother were married in the United States in 2015. Shortly thereafter, Mother became pregnant with twin daughters, A.H.S. and A.Y.S., conceived via in vitro fertilization with the use of a donor's eggs and Father's sperm. Father returned to Israel in February 2016, while Mother was pregnant with the twins. After returning to Israel, Father contacted Mother and told her they were no longer married under Jewish law because Father conducted a background check and believed Mother was not Jewish. Mother, thirty-two weeks pregnant, nonetheless traveled to Israel on a three-month tourist visa. Upon arrival in Israel, Father would not allow Mother into his home, so she stayed in a Rabbi's basement. Because Mother had no place to live, she attempted to return to the United States, but the airlines would not let her fly due to her advanced pregnancy. While Mother was visiting a doctor to be cleared to fly, she went into labor and the twins were born on June 20, 2016 (approximately two weeks after Mother arrived in Israel). Father was not present for the birth of the children and did not see them for approximately sixteen months following their birth.¹

On April 29, 2018, the Israeli government ordered Mother to leave Israel within fourteen days due to her expired visa. Mother obtained passports for the children through the American Embassy, and all three left Israel and returned to the United States in April 2018, where they stayed with Mother's parents in Wood County, Texas. In August of 2020 (more than two years after Mother and the twins returned to the United States), Father filed a petition for return of the children pursuant to the Hague Convention and the International Child Abduction Remedies Act (ICARA). On January 25, 2021, following a trial on the merits, the trial court entered an order granting Father's petition and ordered the return of the children to Israel. At an unspecified time shortly thereafter, Father returned to Israel with the twins. Mother moved for a stay of the trial court's order pending the outcome of an appeal, but the trial court did not rule on the motion because Father had already returned to Israel with the children.

Mother timely appealed the trial court's order, and in March 2022, this Court issued its opinion concluding that the children's habitual residence was the United States, reversing the judgment of the trial court, and rendering judgment denying Father's petition for return of the children. The Texas Supreme Court denied Father's subsequent petition for review, and this Court issued its mandate on December 2, 2022, which read in relevant part:

"It is therefore ORDERED, ADJUDGED and DECREED by this Court that the judgment of the trial court in favor of Appellee, C.M.S., be, and the same is, hereby reversed and judgment rendered that the Appellee, C.M.S.’s, petition for return of the children be denied."

On December 12, Mother filed a "Motion for Enforcement, Clarification, and Re-Return," (the Motion) in the same cause of action, requesting that the trial court enforce the judgment denying Father's petition for return by ordering the twins be "re-returned" from Israel. The trial court set a hearing on the Motion for January 6, 2023. Father was personally served with a citation and notice of hearing on December 20. Father moved for a continuance of the hearing because the scheduled hearing date fell on the Jewish Sabbath in Israel, but otherwise did not respond before the hearing date. Counsel for both parents appeared at the hearing on January 6. The trial court first heard argument from counsel and denied the motion for continuance, stating that the presence of the parties was not necessary where the hearing was not evidentiary in nature. The trial court then heard argument on and subsequently granted Mother's Motion and stated that the parties would appear again by Zoom for entry of the written order. On January 17, Father filed a response to the Motion containing several new arguments, as well as a declaration from one of his attorneys with several documents from Israeli courts attached.² On the morning of January 23, Father filed an amended response and declaration. Counsel for the parties appeared via Zoom later that day, wherein the trial court entered its written order requiring Father to surrender the twins to Mother in Israel so that she could return with them to the United States. This appeal followed.

SUBJECT MATTER JURISDICTION AND TRIAL COURT'S AUTHORITY TO ORDER RE-RETURN

Father contends in his second and third issues that the trial court lacked subject matter jurisdiction, statutory authority, and common-law authority to order the re-return of the children from Israel to the United States.³ Father asserts in his fifth issue that the trial court's order deviated impermissibly from the mandate of this Court.

Standard of Review and Applicable Law

A challenge to the trial court's jurisdiction is reviewed de novo. Tex. Dep't of Parks and Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004). Although a Texas court's jurisdiction over the subject matter of and the parties to a suit is generally exhausted after a judgment becomes final, that trial court has an affirmative duty to enforce its judgment, and the court retains statutory and inherent authority to do so. See TEX. R. CIV. P. 308 ; In re Crow–Billingsley Air Park, Ltd. , 98 S.W.3d 178, 179 (Tex. 2003) ; BancorpSouth Bank v. Prevot , 256 S.W.3d 719, 724 (Tex. App.—Houston [14th Dist.] 2008, no pet.). "When an appellate court ... renders a judgment the trial court should have rendered, that judgment becomes the judgment of both courts as to those issues." Bramlett v. Phillips , 359 S.W.3d 304, 310 (Tex. App.—Amarillo 2012), aff'd , 407 S.W.3d 229 (Tex. 2013) ; Cook v. Cameron , 733 S.W.2d 137, 139 (Tex. 1987). And when an appellate court renders the judgment the trial court "should have rendered," that judgment may be enforced as in any other case. TEX. R. APP. P. 51.1(b). However, a trial court may not issue an order that is inconsistent with its original judgment or that otherwise constitutes a material change in the "substantive adjudicative portions of the judgment" after its plenary power has expired. In re Fluid Power Equip., Inc. , 612 S.W.3d 130, 134-35 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) ; see also Reynolds v. Harrison , 635 S.W.2d 845, 846 (Tex. App.—Tyler 1982, writ ref'd).

The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 (the Hague Convention), establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained. 22 U.S.C.A. § 9001. ICARA, the federal statute setting forth procedures for implementing the Hague Convention in the United States, grants concurrent original subject matter jurisdiction over claims thereunder to state courts and federal district courts. Id. § 9003(a).

Analysis

Father argues both the trial court and this court did not have authority to order return of the children after we delivered our opinion reversing the trial court's grant of Father's petition. Though Father acknowledges that he subjected himself to the personal jurisdiction of the trial court by the filing of his petition, he claims issuance of a re-return order was impermissible because (1) neither the Hague Convention nor ICARA addresses or provides a procedural mechanism for re-return of the children after an appellate court reverses an improperly granted petition and (2) a re-return order is an impermissible de facto custody determination. We disagree.

Though Father is correct that the Hague Convention and ICARA do not specifically address the re-return of children, that is not the same as the statute prohibiting re-return of the children and fails to acknowledge the inherent authority of trial courts and appellate courts to enforce their judgments. Further, nothing in the Texas Family Code prohibits issuance of re-return orders.

When this Court rendered its judgment on appeal denying Father's petition for return, our judgment became the judgment of the trial court as well (relating back to the date of the original return order). See Bramlett , 359 S.W.3d at 310 ; In re S.S.G. , 208 S.W.3d 1, 3-4 (Tex. App.—Amarillo 2006, pet. denied). Thereafter, the trial court had not only the inherent authority, but the affirmative duty to "cause its judgment ... to be carried into execution." See TEX. R. CIV. P. 308 ; BancorpSouth Bank , 256 S.W.3d at 724. Moreover, the trial court retained jurisdiction to enforce its judgment. In re Crow–Billingsley Air Park, Ltd. , 98 S.W.3d at 179. The judgment concluded that the twins’ habitual residence was the United States, and therefore reversed the trial court's finding that Father was permitted to remove them to Israel (although he had already done so in the...