MARC W. BROWN, Justice.
In this appeal arising from an original suit affecting the parent-child relationship (SAPCR),
The child at issue, S.A.H., was born on September 23, 2001, in Monterrey, Nuevo Leon, Mexico. The child's mother, appellant Mirna Leticia Alcantar, filed an original
On September 28, 2007, the trial court signed an agreed order adjudicating parentage (the "2007 order"). In addition to adjudicating that Perez is the father of S.A.H., the court in the 2007 order also adjudicated conservatorship, possession and access, child support, and health care expenses.
On July 16, 2012, Alcantar filed a petition to modify parent-child relationship
On November 17, 2012, Perez filed a petition to declare the 2007 order void. Perez argued that the trial court lacked subject-matter jurisdiction to make orders regarding conservatorship and child support because neither S.A.H. nor Alcantar has ever lived in Harris County or Texas. Alcantar responded, arguing that Perez's petition was an impermissible collateral attack. The trial court held an evidentiary hearing; no record was requested or made. On November 13, 2013, the trial court signed an order granting Perez's petition to declare order void and declaring the 2007 order to be void (the "2013 order"). Alcantar timely appealed.
Alcantar presents two issues for this court's review. First, whether the 2007 order is void on its face, and second, whether Perez has overcome the presumption that judgments are supported by jurisdictional facts established at the time the cause was tried. Both of these issues implicate whether the trial court erred in declaring the 2007 order void; therefore, we consider them together.
Subject-matter jurisdiction is essential to a court's power to decide a case. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex.2013) (per curiam). Subject-matter jurisdiction cannot be conferred by consent, estoppel or waiver. Waite v. Waite, 150 S.W.3d 797, 800 (Tex.App.-Houston [14th Dist.] 2004, pet. denied); see Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). Subject-matter jurisdiction can be raised at any time. Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex.2008) (per curiam). Whether a trial court has subject-matter jurisdiction is a question of law we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); In re K.Y., 273 S.W.3d 703, 706 (Tex.App.-Houston [14th Dist.] 2008, no pet.); see Powell v. Stover, 165 S.W.3d 322, 324-25 (Tex.2005) (orig. proceeding) (UCCJEA's "home state" jurisdictional requirement is question of law).
A trial court's prior judgment is void and subject to collateral attack if the record affirmatively demonstrates that the court lacked subject-matter jurisdiction over the suit. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex.2012). Although a judgment attacked collaterally, i.e., after the time to bring a direct attack has expired, is presumed valid, this presumption disappears when the record establishes a jurisdictional defect.
A trial court's subject-matter jurisdiction over an initial child custody suit is governed by section 152.201 of the Texas Family Code. Tex. Fam.Code Ann. § 152.201(a) (West 2014). Under the UCCJEA, a Texas state court has subject-matter jurisdiction to make an initial child
Id. Section 152.201(a) is the exclusive jurisdictional basis for a Texas court to make a child custody determination. Id. § 152.201(b). The UCCJEA prioritizes "home state" jurisdiction. See id. § 152.201(a)(1); In re Dean, 393 S.W.3d 741, 746 (Tex.2012) (orig. proceeding); Powell, 165 S.W.3d at 325; Parker v. Dennis, No. 14-12-00085-CV, 2013 WL 5346417, at *2 (Tex.App.-Houston [14th Dist.] Aug. 27, 2013, no pet.) (mem. op.). "Commencement" means the filing of the first pleading in a proceeding. Tex. Fam. Code Ann. § 152.102(5) (West 2014). The term "home state" means:
Id. § 152.102(7).
In determining where a child lived for purposes of establishing home state jurisdiction, courts focus on the child's "physical presence" in a state, not the legal residency of the child's parents. Powell, 165 S.W.3d at 326-28. For purposes of applying the UCCJEA, a foreign country is to be treated as if it were a state of the United States. Tex. Fam.Code Ann. § 152.105(a) (West 2014). "[T]he operative date for determining whether Texas has jurisdiction is the date the suit was filed in Texas." In re Walker, 428 S.W.3d 212, 219 (Tex.App.-Houston [1st Dist.] 2014, orig. proceeding) (internal quotation marks omitted). Because this case involves an initial child custody determination, and home-state jurisdiction has priority, the question presented is whether, on the date the proceeding was commenced, Texas was S.A.H.'s home state. See Tex. Fam.Code Ann. § 152.102(8); Powell, 165 S.W.3d at 325.
The SAPCR petitioner has the burden to allege facts establishing the trial court's subject-matter jurisdiction under the UCCJEA.
Alcantar is correct the 2007 order recites that the trial court has jurisdiction of this case and of all the parties. Alcantar is also correct that the 2007 order does not state anything about where S.A.H. lived at the time of the commencement of the proceeding, only that S.A.H. resided in Mexico as of the signing of the 2007 order. However, Alcantar's original petition, including her affidavit attached thereto, affirmatively demonstrates that S.A.H.'s only home state from birth through the filing date of Alcantar's original petition was Mexico. This petition showed that Texas was neither S.A.H.'s home state on the date of the commencement of the proceeding, nor S.A.H.'s home state within six months before the commencement of the proceeding. In addition, in her affidavit, Alcantar testified that: (1) she had not participated, as a party or as a witness or in any other capacity, in any other proceeding concerning the custody of or visitation with S.A.H. in Texas or any other state; and (2) she did not know of any proceeding that could affect this proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions. Under Alcantar's petition, there was no case in which a Mexican court declined to exercise jurisdiction on the ground that a Texas court is the more appropriate forum to determine the custody of S.A.H. under Texas Family Code section 152.207 or 152.208. Therefore, the trial court did not have subject-matter jurisdiction under any of the four subsections of Texas Family Code section 152.201(a). See Tex. Fam. Code Ann. § 152.201(a); Parker, 2013 WL 5346417, at *2.
The 2007 order is an agreed order signed by counsel for both Alcantar and Perez, and the order reflects that both parties requested rendition of the order. The 2007 order indicates that Mexico was S.A.H.'s home state when the trial court rendered that order. Alcantar's original petition affirmatively demonstrates that the trial court lacked subject-matter jurisdiction when the trial court rendered the 2007 order. Though the 2007 order reflects that the trial court considered unspecified evidence and that the parties waived the making of a record of this evidence, under these circumstances, it would not be reasonable to presume the evidence considered by the trial court showed that the trial court had subject-matter jurisdiction to enter the custody provisions in the 2007 order. See Alfonso, 251 S.W.3d at 53-55.
Even indulging every reasonable presumption in favor of the trial court's having had subject-matter jurisdiction over Alcantar's petition, the record affirmatively demonstrates that the trial court lacked subject-matter jurisdiction to make an initial child custody determination. See Parker, 2013 WL 5346417, at *2-3 (affirming order setting aside and declaring void ab initio child custody default judgment where record before trial court at time of judgment affirmatively showed that trial court lacked subject-matter jurisdiction to make initial child custody determination).
We affirm the 2013 order.