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in Re Dewayne Keith Spriggs ( 2002 )


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    In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO. 09-02-155 CV

    ____________________



    IN RE DEWAYNE KEITH SPRIGGS



    Original Proceeding


    OPINION  

    Dewayne Keith Spriggs filed this petition for writ of mandamus, which seeks to compel the Honorable Joe Bob Golden, judge of the 1st District Court of Jasper County, Texas, to vacate his order denying Spriggs's plea in abatement and to abate the petition to modify an order affecting parent-child relationship until the court of continuing jurisdiction decides whether to retain the case on its docket or to relinquish jurisdiction to the 1st District Court. The pertinent facts are not in dispute.

    A 1999 joint custody consent decree of the 16th Judicial District Court of St. Martin Parish, Louisiana, appointed the real party in interest, Regina Roger, as the primary domiciliary parent. The decree prohibited either parent from removing the child from the jurisdiction of the Louisiana Court without prior court approval. Ms. Roger and the child, P.M.S., moved to Jasper County in April 2000. Alleging the father violated the Louisiana possession order, Roger filed separate habeas corpus and modification petitions in the 1st District Court on February 22, 2002. That same day, Mr. Spriggs obtained an order from the 16th District Court setting a show cause hearing for May 29, 2002.

    On March 15, 2002, Judge Golden entered a temporary order that appointed the mother as temporary sole managing conservator of the child. The order of the Texas district court prohibited Spriggs from removing the child from the jurisdiction of the court. Spriggs is a resident of Lafayette, Louisiana. Spriggs filed a plea in abatement, which alleged the Louisiana district court maintained dominant jurisdiction. Judge Golden denied the plea in abatement.

    In this case, there are no allegations or findings to support temporary emergency jurisdiction. See Tex. Fam. Code Ann. § 152.204 (Vernon Supp. 2002). Any exercise of the Texas court's jurisdiction to modify the custody order is governed by Section 152.203. See Tex. Fam. Code Ann. § 152.203 (Vernon Supp. 2002). Because the child resides in Texas, the first prong of Section 152.203, referencing Tex. Fam. Code Ann. § 152.201 (Vernon Supp. 2002), is satisfied. Spriggs is still a Louisiana resident, so the other prong of Section 152.203 can only be met if the Louisiana court determines it no longer has exclusive continuing jurisdiction or that the Texas court would be a more convenient forum. Because there is a pending child custody proceeding in the court of continuing jurisdiction, which has not yet determined whether to relinquish jurisdiction to the Texas court, the Texas court must stay the proceedings in its court. See Tex. Fam. Code Ann. § 152.206 (Vernon Supp. 2002).

    Mandamus is appropriate when a Texas court has asserted jurisdiction over a child custody matter in contravention of the Uniform Child Custody Jurisdiction and Enforcement Act. See Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994). The petition for writ of mandamus is therefore conditionally granted. The writ will issue only if the trial court fails to take appropriate action in accordance with this opinion.

    WRIT CONDITIONALLY GRANTED.

    _______________________________

    RONALD L. WALKER

    Chief Justice



    Submitted on May 13, 2002

    Opinion Delivered May 24, 2002

    Do Not Publish



    Before Walker, C.J., Burgess and Gaultney, JJ.





    DISSENTING OPINION

    I respectfully dissent. We are to review the trial court's decision NOT to abate under an abuse of discretion standard. Although the majority describes some of the procedural steps taken by the parties, they neglect to mention several. Sometime before March 15, 2002, Mr. Spriggs was served with the Jasper County litigation (1) and filed a "Defendant's Answer and Motion to Continue". (2) On March 15, a temporary hearing was held and temporary orders entered setting the final hearing for April 5, 2002. (3) It was not until April 1, 2002, that Spriggs filed his "First Amended Special Appearance, Plea in Abatement and Answer."

    A party who urges a plea in abatement has the burden of proving by a preponderance of the evidence at the hearing on such plea the facts that are alleged in the plea as grounds for abating and dismissing the plaintiff's case. The one exception to this rule is where the allegations of plaintiff's petition establish the grounds urged in the plea in abatement. In this instance, the offer of evidence by the one urging the plea is unnecessary. Except where this exception applies, if the person urging the plea in abatement presents it without proving up the grounds urged in the plea by evidence, he waives the plea in abatement. These rules are applicable even though the plea in abatement is verified. The verification of the plea does not do away with the requirement that the one urging the plea prove the grounds by a preponderance of the evidence at the time the plea is presented to the court. Brazos Elec. Power Coop., Inc. v. Weatherford Indep. Sch. Dist., 453 S.W.2d 185, 188-89 (Tex. Civ. App.--Fort Worth 1970, writ ref'd n.r.e.), and cases cited therein.

    Ms. Roger's petition does not establish that the Louisiana court is the court of exclusive continuing jurisdiction, See Tex. Fam. Code Ann. § 152.202 (Vernon Supp. 2002). It merely states: "The order to be modified is entitled 'Consent Judgment' and was rendered on March 23, 1999." (4) It further states: "This court has jurisdiction by virtue of Petitioner and her child having been residents of Jasper County for 22 months." Consequently, the majority cannot rely on the exception; this court must have a record of the hearing before we can decide if there was an abuse of discretion by the trial court. Mr. Spriggs has not filed such a record, therefore this court should have no choice but to deny the mandamus. See Upchurch v. Albear, 5 S.W.3d 274, 277 (Tex. App.--Amarillo 1999, pet. denied); Henry S. Miller Co. v. Bynum, 797 S.W.2d 51, 57 (Tex. App.--Houston [1st Dist.] 1990), aff'd, 836 S.W.2d 160 (Tex. 1992); 4M Linen & Uniform Supply Co., Inc. v. W.P. Ballard & Co., Inc., 793 S.W.2d 320, 322-23 (Tex. App.--Houston [1st Dist.] 1990, writ denied).

    There is another and more compelling reason why the mandamus should be denied. In In re Daley, 29 S.W.3d 915, 921 (Tex. App.--Beaumont 2000, no pet.), Chief Justice Walker stated in a dissent: "Thus, I stand on the time-tested maxim, 'lex non praecipit inutilia, quia inutilis labor stultus,' which translates as 'the law commands not useless things, because useless labor is foolish.' BLACK'S LAW DICTIONARY 912 (6th ed. 1990)." Other cases have noted the axiom, "The law does not require a useless thing." See Allen v. State, 552 S.W.2d 843, 846 (Tex. Crim. App. 1977); Mackey v. Lucey Prods. Corp., 150 Tex. 188, 239 S.W.2d 607, 608 (1951); B.J.M. v. State, 997 S.W.2d 626, 627 (Tex. App.--Dallas 1998, no pet.); Sims v. State, 980 S.W.2d 538, 541 (Tex. App.--Beaumont 1998, no pet.).

    The initial issue in determining jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act is the concept of a home state. That term is defined in Tex. Fam. Code Ann. § 152.102 (7) (Vernon Supp. 2002) as meaning the state in which the child has lived with at least one parent for at least six months. Tex. Fam. Code Ann. § 152.201-.204 (Vernon Supp. 2002) defines and limits the jurisdiction of courts to make initial or modified child custody determinations. Whenever a state is not the home state of the child, a court of that state may not make or modify a child custody determination unless one of the enumerated exceptions is met. In the Interest of Poole, 975 S.W.2d 342, 345 (Tex. App.--Amarillo 1998, no pet.). Under this record it is clear that the Jasper County Court is the court of dominant jurisdiction and ultimately should determine the modification issues. (5) Since "the law does not require one to do a vain and useless thing," B.J.M., 997 S.W.2d at 627, I would deny the petition for mandamus and allow the Jasper County court to proceed.



    DON BURGESS

    Justice



    Dissent Delivered

    May 24, 2002

    Do not publish

    1.

    Mr. Springs avers, in his answer, that this was March 7, 2002.

    2.

    Ms. Roger, in her reply to the mandamus, avers this was filed March 14, 2002, but there is no file mark on the instrument attached to the reply.

    3.

    We can only assume this hearing was not held since the petition for mandamus was filed on April 15, 2002.

    4.

    This pleading may be deficient under Tex. Fam. Code Ann. §102.008 (b) (Vernon Supp. 2002), but that is a separate issue.

    5.

    There is a hearing scheduled in the Louisiana Court for May 29, 2002. Whether that court will maintain jurisdiction or transfer jurisdiction to the Jasper Court is unknown.