Opinion issued March = 29,=20 2007
For=20 The
JOSEPH =
DANIEL MONK,=20
Appellant LISA JO =
POMBERG=20
(f/k/a LISA JO MONK), Appellee
On =
Appeal from the=20
245th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2004-55179
Appellant, Joseph Daniel Monk, =
has filed=20
a motion for rehearing of our opinion issued February 8, 2007. =
After due=20
consideration, we deny his motion for rehearing, but withdraw our =
opinion=20
of February 8, 2007, and issue the following opinion in its stead. =
Our=20
judgment of the same day remains unchanged. Appellant, Joseph Daniel Monk, =
appeals a=20
declaratory judgment in favor of appellee Lisa Jo Pomberg, =
Joseph's=20
ex-wife, We conclude that the trial =
court had=20
jurisdiction to enter a declaratory judgment, that the evidence is =
factually sufficient to support the trial court's judgment and =
that Monk=20
did not preserve his attorney's fees complaint for appeal. We =
further=20
conclude that although there is a variance between the trial =
court's=20
findings and its order declining jurisdiction, we have sufficient=20
information to reform the judgment to accurately reflect the =
court's=20
findings. We modify the trial court's judgment and affirm it as =
modified.=20
See Tex. R. App. P. 43.2(b). Lisa Pomberg left her husband =
Joseph Monk=20
in Texas and moved to Iowa with their son in January 2002. The two =
divorced a few months later. Their child has attended first =
through fourth=20
grade in Iowa; he participates in Boy Scouts, sports, and =
religious=20
education in Iowa; and he receives psychological care in Iowa. In=20
addition, Lisa is employed in Iowa and her parents and a number of =
other=20
relatives live there. Joseph remains in Texas, and his son visits =
for=20
several weeks each summer. The 245th District Court presided over =
the 2002=20
divorce and custody order. In November 2003, Joseph filed =
a lawsuit=20
in the 245th District Court to modify terms of the conservatorship =
of the=20
child. The court's order "stayed" the motions that were filed by =
Joseph,=20
declined jurisdiction, and deferred jurisdiction to the State of =
Iowa.=20
Further, the trial court found that Texas was an inconvenient =
forum for=20
the litigation; that substantial evidence is no longer available =
in Texas=20
concerning the child's care, protection, training, and personal=20
relationships; and that Iowa is a more appropriate forum for the=20
litigation. The trial court also found that the child and the =
child's=20
mother have lived in Iowa since January 2002, Iowa is the child's =
home=20
state, and that neither the child nor his mother have a =
significant=20
connection with Texas. Lisa filed=20
a petition in May 2004 for termination of Joseph's parental rights =
in=20
district court in Iowa. She alleged that Joseph had failed to pay=20
court-ordered child support. Concerned that the petition in Iowa =
might=20
have been in violation of the stay, Lisa dismissed the petition =
pending in=20
the Iowa court. Lisa then=20
filed a motion with the bankruptcy court that requested that the =
automatic=20
stay be lifted so that she could pursue the petition to terminate =
Joseph's=20
parental rights. The bankruptcy court in July 2004 lifted its stay =
to=20
permit Lisa to commence an action in the court that entered the =
divorce=20
decree for that court to hear Lisa's petition to seek termination =
of the=20
parent-child relationship, or for that court to refer the matter =
to=20
another forum after it conducted a hearing. In=20
accordance with the bankruptcy court's order, Lisa filed suit in =
October=20
2004 in the court in which the decree of divorce was entered, the =
245th=20
District Court. Her original petition for declaratory relief =
requested=20
"that the Court enter a declaratory judgment providing that Iowa =
is the=20
Home State of the child, and that LISA JO POMBERG's petition to =
terminate=20
the parental rights of JOSEPH DANIEL MONK would not be properly =
commenced=20
in Harris County, Texas, and that Iowa is the proper jurisdiction =
and a=20
convenient forum to hear such termination proceeding[.]" The =
petition=20
asserted that circumstances have not changed since the trial court =
declined jurisdiction in its November 2003 order. The petition =
also=20
requested attorney's fees. The trial=20
court granted declaratory judgment in favor of Lisa. The trial =
court found=20
that (1) Iowa was the home state of Lisa and Joseph's child; (2) =
Iowa was=20
"the proper jurisdiction to address conservatorship of the child,=20
including, but not limited to the filing of a suit to terminate =
the=20
parent-child relationship"; (3) Texas was "an inconvenient forum =
to rule=20
on matters addressing conservatorship of the child, including but =
not=20
limited to a suit to terminate the parent-child relationship"; and =
(4)=20
circumstances had not changed since November 2003. The trial court =
declined jurisdiction "in the above-styled and numbered cause" and =
deferred jurisdiction to the State of Iowa. The trial court's =
order=20
awarded $5989.13 "as attorney's fees, expenses, and costs" plus =
attorney's=20
fees contingent on appeals to this Court and to the supreme court. =
Upon=20
Joseph's request, the trial court entered findings of fact and =
conclusions=20
of law supporting its ruling. In his=20
first two issues, Joseph contends that the trial court did not =
have=20
subject matter jurisdiction to order the declaratory judgment and =
that=20
Lisa did not have standing to pursue the action. Joseph asserts =
that=20
Lisa's petition for declaratory judgment does not constitute a =
motion to=20
raise the issue of inconvenient forum under the Family Code. =
Joseph also=20
contends that the trial court had continuing jurisdiction over =
suits=20
affecting the parent-child relationship, but that no such suit was =
pending, and therefore the court lacked jurisdiction over the =
declaratory=20
judgment action. A.=20
Subject Matter Jurisdiction Whether a=20
court has subject matter jurisdiction in a declaratory judgment =
action=20
depends on whether the underlying controversy is within the =
jurisdiction=20
of the court; the Declaratory Judgment Act does not confer =
additional=20
jurisdiction upon courts. Fort Bend County v. =
Martin-Simon, 177=20
S.W.3d 479, 483 (Tex. App--Houston [1st Dist] 2005, no pet.) =
(citing=20
Rush v. Barrios, 56 S.W.3d 88, 105 (Tex. App.--Houston =
[14th=20
Dist.] 2001, pet. denied)). Standing is a component of subject =
matter=20
jurisdiction. See Tex. Ass'n of Bus. v. Tex. Air Control =
Bd., 852=20
S.W.2d 440, 445-46 (Tex. 1993). "The general test for standing in =
Texas=20
requires that there '(a) shall be a real controversy between the =
parties,=20
which (b) will be actually determined by the judicial declaration=20
sought.'" Id. at 446 (citing Bd. of Water Eng'rs v. =
City of=20
San Antonio, 283 S.W.2d 722, 724 (Tex. 1955)). We consider =
standing=20
under the same standard by which we review subject matter =
jurisdiction=20
generally. See Tex. Ass'n of Bus., 852 S.W.2d at 446. =
"That=20
standard requires the pleader to allege facts that affirmatively=20
demonstrate the court's jurisdiction to hear the cause." =
Id.=20
B.=20
The Uniform Declaratory Judgment Act The purpose=20
of a declaratory judgment action is to establish existing "rights, =
status,=20
and other legal relations whether further relief is claimed or =
could be=20
claimed." Tex. Civ. Prac. & Rem. Code Ann. =A7 37.003(a) =
(Vernon 1997);=20
see also Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 =
(Tex.=20
1995); Martin-Simon, 177 S.W.3d at 482. The Uniform =
Declaratory=20
Judgments Act provides that it is to "be liberally construed and=20
administered" to fulfill its purpose "to settle and to afford =
relief from=20
uncertainty and insecurity with respect to rights, status, and =
other legal=20
relations." See Tex. Civ. Prac. & Rem. Code ANN. =A7 =
37.002(b)=20
(Vernon 1997). The court issuing the declaratory judgment must act =
"within=20
its jurisdiction" to "declare rights, status, and other legal =
relations=20
whether or not further relief is or could be claimed." See =
id. =A7=20
37.003(a) (Vernon 1997). The declaratory judgment may be "either=20
affirmative or negative in form and effect." See id. =A7 =
37.003(b).=20
The subject matter of a declaratory judgment action includes a=20
"declaration of rights, status, or other legal relations" of any =
question=20
of construction or validity arising under a statute when the =
person's=20
"rights, status, or other legal relations are affected by [the] =
statute."=20
See id. =A7 37.004(a) (Vernon 1997). C.=20
The Texas Family Code Lisa sought=20
a declaration of her rights under the Uniform Child Custody =
Jurisdiction=20
and Enforcement Act (UCCJEA), specifically section 152.207 of the =
Family=20
Code. See Tex. Fam. Code Ann. =A7 152.207. The UCCJEA =
provides that=20
a court in Texas that has jurisdiction to make a child custody=20
determination may, at any time, decline to exercise its =
jurisdiction if it=20
determines that it is an inconvenient forum under the =
circumstances and=20
that a court of another state is a more appropriate forum. =
Id., =A7=20
152.207(a). "The issue of inconvenient forum may be raised upon =
motion of=20
a party, the court's own motion, or request of another court."=20
Id. D.=20
No Motions Asserted the Issue of Inconvenient =
Forum Lisa=20
responds by asserting that because the trial court had continuing=20
jurisdiction over the issue of custody over the child, the trial =
court had=20
subject matter jurisdiction over the declaratory action. Lisa =
further=20
responds that the 245th District Court was required to follow the=20
bankruptcy court's directions to address the issue of inconvenient =
forum.=20
Lisa=20
contends that the trial court addressed the issue of inconvenient =
forum at=20
the request of the bankruptcy court. The bankruptcy court, =
however, did=20
not request that the trial court conduct a hearing on the issue of =
inconvenient forum. The bankruptcy court's order states, =
the stay is=20
lifted to permit Lisa Pomberg to commence an action to seek =
termination of=20
the parent-child relationship between Joseph D. Monk and his child =
in the=20
court in which the decree of divorce was entered, and she may =
proceed in=20
that court, or in some other forum to which the court which =
entered the=20
divorce decree may, after hearing, refer such action. =
Under the=20
terms of the order, the bankruptcy court lifted its stay and gave =
Lisa=20
permission to go to the court where the decree of divorce was =
entered to=20
(1) commence an action to seek termination of the parent-child=20
relationship, or (2) request that the trial court conduct a =
hearing to=20
decide whether to refer the matter to "some other forum[.]" The =
bankruptcy=20
court did not request or require Lisa or the trial court to seek =
another=20
forum, but rather left it up to Lisa whether to seek termination =
of=20
Joseph's parental rights in the 245th District Court or in another =
forum.=20
Because the matter was not brought to the trial court by motion or =
the=20
request of another court, Lisa has not complied with the =
procedural=20
requirements in section 152.207 of the Family Code. See =
id. =A7=20
152.207(a). Lisa,=20
however, did not file an action under section 152.207 of the =
Family Code,=20
but instead filed a petition for declaratory judgment that =
asserted her=20
rights under that section of the Family Code. Therefore, we must =
next=20
address Joseph's assertion that the petition for a declaratory =
judgment=20
does not constitute a motion under section 152.207 of the Family =
Code. In=20
other words, may a litigant pursue declaratory judgment to raise =
the issue=20
of inconvenient forum under section 152.207 of the Family Code or =
must a=20
litigant proceed in the manner described by the Family Code to =
raise that=20
issue? E.=20
Propriety of Declaratory Judgment to Declare Rights Under Family =
Code=20
We conclude=20
that a declaratory judgment may be used to declare rights under =
Section=20
152.207 of the Family Code. Under Section 37.004 of the =
Declaratory=20
Judgments Act, Construing=20
the Declaratory Judgments Act liberally to fulfill its purpose "to =
settle=20
and to afford relief from uncertainty and insecurity with respect =
to=20
rights, status, and other legal relations," as required by section =
37.002(b) of the act, we conclude that the Declaratory Judgments =
Act=20
allows Lisa to have the trial court declare her rights, status and =
other=20
legal relations under section 152.207 of the Family Code. See =
id.=20
=A7 37.002(b); Tex. Fam. Code Ann. =A7 152.207. We note=20
further that the trial court had jurisdiction over the declaratory =
judgment action asserted here. The trial court had continuing =
jurisdiction=20
over the custody of the child because it made the initial =
determination of=20
custody of the child and no Iowa court had assumed jurisdiction =
under the=20
trial court's prior inconvenient forum ruling. See Tex. =
Fam. Code=20
Ann. =A7 152.202 (continuing exclusive jurisdiction remains with =
court=20
making initial determination). The trial court was thus acting =
"within its=20
jurisdiction"to "declare rights, status, and other legal =
relations"=20
because it had continuing jurisdiction over the underlying subject =
matter,=20
the conservatorship of the child. See Tex. Civ. Prac. =
& Rem.=20
Code Ann. =A7 37.003(a); see also Bonham State Bank, 907 =
S.W.2d at=20
467; Martin-Simon, 177 S.W.3d at 482. We overrule=20
Joseph's second issue. F.=20
No Pending Petitions Asserting a Suit Affecting the Parent-Child=20
Relationship In his=20
first issue, Joseph asserts that the trial court had no =
jurisdiction to=20
order a declaratory judgment because there were no pending =
petitions=20
asserting a suit affecting the parent-child relationship. Joseph =
contends=20
that the trial court has continuing jurisdiction over suits =
affecting the=20
parent-child relationship, but it does not have continuing =
jurisdiction=20
over a declaratory judgment that concerns the forum for such a =
lawsuit.=20
"The=20
Declaratory Judgments Act does not permit a court to pass on =
hypothetical=20
or contingent situations, or to determine questions not then =
essential to=20
the resolution of an actual controversy, even though such =
questions may in=20
the future require adjudication." Peacock v. Schroeder, =
846=20
S.W.2d 905, 912 (Tex. App.--San Antonio 1993, no pet.); see =
also=20
Empire Life Ins. Co. of Am. v. Moody, 584 S.W.2d 855, 858 =
(Tex.=20
1979). A declaratory action need not concern a present lawsuit but =
may=20
include "threatened litigation in the immediate future that seems=20
unavoidable." See Peacock, 846 S.W.2d at 912. In other =
words, an=20
action for declaratory judgment is appropriate when the fact =
situation=20
manifests the present "ripening seeds" of a controversy. See =
Save Our=20
Springs Alliance v. City of Austin, 149 S.W.3d 674, 683 (Tex. =
App.--Austin 2004, no pet.); see also Gray v. Bush, 430 =
S.W.2d=20
258, 263 (Tex. Civ. App.--Fort Worth 1968, writ ref'd n.r.e.) =
("ripening=20
seeds" means "state of facts indicating imminent and inevitable=20
litigation"). Since=20
custody of the child was determined in 2002, three lawsuits have =
been=20
filed to attempt to change that custody arrangement. In November =
2003, the=20
245th District Court declined to hear the motion to modify the =
custody=20
arrangement that was filed by Joseph, and referred the matter to =
Iowa. In=20
May 2004, Lisa filed a petition to terminate Joseph's parental =
rights,=20
which she dismissed. Lisa filed this petition for declaratory =
judgment in=20
October 2004 after obtaining an order from the bankruptcy court =
that=20
lifted the stay for her to seek termination of Joseph's parental =
rights.=20
Lisa's petitions in Iowa, the bankruptcy court, and in the 245th =
District=20
Court evidence imminent and inevitable litigation by her to seek =
the=20
termination of Joseph's parental rights. These "ripening seeds of=20
. . . controversy" are sufficient to confer subject =
matter=20
jurisdiction on the trial court and standing on Lisa in this =
declaratory=20
judgment action. See Save Our Springs Alliance, 149 =
S.W.3d at=20
683. We overrule=20
Joseph's first issue. In his=20
third issue, Joseph contends that the order issued by the trial =
court=20
"serves no useful purpose" because the order states that the trial =
court=20
"declines jurisdiction in the above-styled and numbered cause." =
Joseph=20
accurately notes that the "above-styled and numbered cause" refers =
to this=20
declaratory judgment action, rather than to the suit to terminate =
the=20
parent-child relationship. Joseph is further correct that under =
this=20
portion of the order, the trial court is declining jurisdiction =
over the=20
declaratory judgment action. We conclude that there is a conflict =
between=20
this portion of the trial court's order and the remainder of the =
trial=20
court's order. When an=20
appellant raises an issue challenging a matter that may be =
resolved by the=20
modification of the trial court's judgment, a court of appeals may =
modify=20
the trial court's judgment. See Tex. R. App. P. 43.2(b); =
See=20
Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 926 (Tex. 1998)=20
(stating, "A court of appeals cannot modify a judgment without a =
point of=20
error asking it to do so."); Tex. Nat'l Bank v. Karnes, =
717=20
S.W.2d 901, 903 (Tex. 1986). A court=20
of appeals is empowered to modify the judgment in accord with the =
findings=20
of the trial court, when there is a conflict between the finding =
and the=20
judgment of the trial court. See In re Marriage of =
Edwards, 79=20
S.W.3d 88, 101 (Tex. App.--Texarkana 2002, no pet.). Excluding the language that =
Joseph=20
complains of in this appeal, the trial court's order finds that =
Iowa is=20
the proper jurisdiction to address the conservatorship of the =
child,=20
including but not limited to the filing of a suit to terminate the =
parent-child relationship; Texas remains an inconvenient forum to =
rule on=20
matters addressing conservatorship of the child, including but not =
limited=20
to a suit to terminate the parent-child relationship; and the =
Petition for=20
Declaratory Relief should be granted. The trial court also orders =
that=20
Iowa is the home state of the child, that Iowa is the proper =
jurisdiction=20
to address the conservatorship of the child, and that Texas is an=20
inconvenient forum to rule on matters addressing conservatorship =
of the=20
child, including but not limited to a suit to terminate the =
parent-child=20
relationship. The trial court further orders that it defers =
jurisdiction=20
to the State of Iowa. In his=20
fourth and fifth issues, Joseph challenges the trial court's =
findings that=20
Iowa is the home state of his and Lisa's child and that =
substantial=20
evidence no longer exists in Texas concerning the child's personal =
relationships. See Tex. Fam. Code Ann. =
=A7=A7 152.102(7)=20
(defining "home state"), 152.202(a)(1) (lack of substantial =
evidence=20
necessary element of finding lack of continuing exclusive =
jurisdiction).=20
Specifically, in his fourth issue he contends that the trial court =
erred=20
by failing to consider the child's "physical presence" in Texas to =
determine "home state," as is required by the supreme court. =
See=20
Powell v. Stover, 165 S.W.3d 322, 326, 328 (Tex. 2005) =
(physical=20
presence is "central factor" that trial court "must consider" in=20
determining home state). And in his fifth issue, he asserts that =
"there is=20
plenty of substantial evidence in Texas regarding his and [his =
son's]=20
relationship." Under the=20
UCCJEA, a child's home state is an element in determining which =
court has=20
initial jurisdiction in a child custody matter, and substantial =
evidence=20
is an element concerning a trial court's continuing exclusive=20
jurisdiction. See Tex. Fam. Code Ann. =A7=A7 152.201(a) =
("a court of=20
this state has jurisdiction to make an initial child custody =
determination=20
only if . . . this state is the home state of =
the child=20
on the date of the commencement of the proceeding, or was the =
home=20
state of the child within six months before the commencement =
of the=20
proceeding and the child is absent from this state but a parent or =
person=20
acting as a parent continues to live in this state"), 152.202(a) =
("a court=20
of this state . . . has exclusive continuing =
jurisdiction=20
. . . [until] a court of this state determines that=20
. . . substantial evidence is no longer =
available in=20
this state concerning the child's care, protection, training, and =
personal=20
relationships") (emphasis added). Neither initial jurisdiction nor =
continuing exclusive jurisdiction are at issue in this case. The =
trial=20
court found that Texas was an inconvenient forum, implicating the=20
multi-factor test described by section 152.207(b) of the family =
code. We are=20
directed to construe issues on appeal liberally in order to obtain =
a just,=20
fair, and equitable adjudication of the rights of the litigants. =
El=20
Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d =
309, 316=20
(Tex. 1999); see also Segal v. Emmes Capital, L.L.C., 155 =
S.W.3d=20
267, 274 n.8 (Tex. App.--Houston [1st Dist.] 2004, pet. dism'd). =
In her=20
brief to this court, Lisa treats Joseph's fifth issue as "one =
challenging=20
the sufficiency of the evidence to support the trial court's =
judgment." Findings of=20
fact in a case tried to the court have the same force and effect =
as a=20
jury's verdict on questions and are reviewable for legal and =
factual=20
sufficiency. Anderson v. City of Seven Points, 806 S.W.2d =
791,=20
794 (Tex. 1991); Min v. Avila, 991 S.W.2d 495, 500 (Tex.=20
App.--Houston [1st Dist.] 1999, no pet.). The trial court's =
conclusions of=20
law are reviewable de novo. McDermott v. Cronin, 31 =
S.W.3d 617,=20
623 (Tex. App.--Houston [1st Dist.] 2000, no pet.). When, as=20
here, the appellate record contains a complete reporter's record =
of the=20
trial, the trial court's findings of fact are not conclusive, but =
subject=20
to the same, well-settled standards that govern factual =
sufficiency=20
challenges to jury findings. Comm'n of Contracts v. Arriba, =
Ltd.,=20
882 S.W.2d 576, 582 (Tex. App.--Houston [1st Dist.] 1994, no =
writ); In=20
the Interest of M.J.Z., 874 S.W.2d 724, 728 (Tex. =
App.--Houston [1st=20
Dist.] 1994, no writ). In=20
determining factual sufficiency of the evidence to support the =
trial=20
court's finding that Texas is an inconvenient forum--an issue on =
which=20
Lisa had the burden of proof--and that the court should therefore =
decline=20
jurisdiction and defer to the state of Iowa, we must weigh all the =
evidence, both supporting and conflicting with the finding, and =
may set=20
the finding aside only if it is so contrary to the overwhelming =
weight of=20
the evidence as to be clearly wrong and manifestly unjust. See =
Cain v.=20
Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's =
Estate,=20
244 S.W.2d 660, 661 (Tex. 1951); Arriba, 882 S.W.2d at =
582. In=20
reviewing this challenge, we again examine the evidence to =
determine=20
whether some evidence supports the trial court's finding. See =
Croucher=20
v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). If some =
evidence=20
supports the finding, we determine, in light of the entire record, =
whether=20
the finding is so contrary to the great weight and preponderance =
of the=20
evidence that the finding is clearly wrong and manifestly unjust, =
or=20
whether the great weight and preponderance of the evidence =
supports=20
nonexistence of the finding. Cain, 709 S.W.2d at 176. =
In the=20
present case, the trial court issued findings of fact that=20
included 6. [Lisa]=20
and the child have lived in the State of Iowa since January of=20
2002. 7. At the=20
time of [Lisa's] filing this suit, [Lisa] and the child the =
subject of=20
this action were residents of the State of Iowa. 8. At the=20
time of [Lisa's] filing this suit, [Joseph] was a resident of =
Harris=20
County, Texas. . =
.=20
. 12. On=20
November 21, 2003 . . . this court signed an Order Declining =
Jurisdiction=20
and deferred jurisdiction to the State of Iowa. . =
.=20
. 16.=20
Substantial evidence is no longer available in Texas concerning =
the=20
child's care, protection, training, and personal =
relationships. 17.=20
Substantial evidence is available in Iowa concerning the child's =
care,=20
protection, training, and personal relationships. 18. Texas=20
is and remains an inconvenient forum to rule on matters addressing =
conservatorship of the child, including but not limited to a suit =
to=20
terminate the parent-child relationship. In=20
addition, the record of the hearing before the trial court shows =
that the=20
child has lived in Iowa since January 2002. See Tex. Fam. =
Code=20
Ann. =A7 152.207(b)(2) (time), (b)(3) (distance). In =
addition, Lisa=20
presented testimony and documentary evidence that the child has =
extensive=20
family connections, attends school, participates in =
extracurricular=20
activities, and undergoes psychiatric therapy in Iowa. See =
id.=20
=A7 152.207(b)(6) (nature and location of evidence, including =
testimony=20
of the child). The record also shows that the child visits Joseph =
for=20
several weeks every summer, and that Joseph calls his son on most =
Sundays.=20
See id. The record shows that Lisa is employed, but does =
not show=20
whether Joseph is employed, or what he does for a living. See =
id.=20
=A7 152.207(b)(4) (relative financial circumstances of the =
parties).=20
The record does not indicate that any domestic violence has =
occurred.=20
See id. =A7 152.207(b)(1). The present appeal shows =
that the=20
parties do not agree which state should assume jurisdiction. =
See=20
id. =A7 152.207(b)(5). Having=20
reviewed the entire record, we conclude that there is ample =
evidence in=20
support of the trial court's ruling, and reviewing all evidence =
for and=20
against the trial court's determination, we conclude that the =
issuance of=20
declaratory relief is neither clearly wrong nor manifestly unjust. =
We=20
overrule Joseph's fourth and fifth issues.Attorney's=20
Fees In his=20
final issue, Joseph contends that the trial court erred by =
including=20
"expenses" in its attorney's fee award. Joseph's=20
motion does not make the trial court aware of any possible error =
in the=20
inclusion of the word "expenses" in the attorney's fee award. He =
has=20
therefore failed to preserve for appeal this complaint of the =
language of=20
the judgment. We overrule Joseph's final issue.
We modify=20
the judgment of the trial court to reflect that the trial court =
declined=20
jurisdiction on matters addressing conservatorship of the child, =
including=20
but not limited to a suit to terminate the parent-child =
relationship. We=20
affirm the judgment as modified. Panel consists of Justices =
Taft, Alcala,=20
and Hanks.=20
1. The former Mrs. Monk married John Lloyd =
Pomberg in=20
December 2003.=20
1. neither the child, nor the =
child and=20
one parent, nor the child and a person acting as a parent, have a=20
significant connection with this state and that substantial =
evidence is no=20
longer available in this state concerning the child's care, =
protection,=20
training, and person[al] relationships; 2. the child and the child's =
mother have=20
lived in the State of Iowa since January of 2002 and the State of =
Iowa is=20
the child's home state; and 3. the relief requested by =
JOSEPH DANIEL=20
MONK in his Motion for Enforcement Orders for Medical Child =
Support and=20
Conservatorship and Application for Protective Order addresses the =
terms=20
and conditions of rights, powers, and duties of conservatorship of =
the=20
child and additionally finds that, pursuant to Section 152.207, =
Texas=20
Family Code, Texas is an inconvenient forum to rule on JOSEPH =
DANIEL=20
MONK'S Motion for Enforcement Orders under the circumstances in =
this case=20
as Respondent and the minor child and necessary witnesses reside =
in the=20
State of Iowa, and Iowa is a more appropriate forum for this=20
determination.=20
The Uniform=20
Declaratory Judgment Act provides, in pertinent =
part: =A7 37.002. Short =
Title,=20
Construction, Interpretation (b) This =
chapter is=20
remedial; its purpose is to settle and to afford relief from =
uncertainty=20
and insecurity with respect to rights, status, and other legal =
relations;=20
and it is to be liberally construed and =
administered. =A7 37.003. Power of =
Courts to=20
Render Judgment; Form and Effect (a) A court of =
record=20
within its jurisdiction has power to declare rights, status, and =
other=20
legal relations whether or not further relief is or could be =
claimed.=20
. . . (b) The declaration may be =
either=20
affirmative or negative in form and effect, and the declaration =
has the=20
force and effect of a final judgment or decree. =A7 37.004. Subject =
Matter of=20
Relief (a) A person =
interested=20
under a deed, will, written contract, or other writings =
constituting a=20
writing or whose rights, status, or other legal relations are =
affected by=20
a statute, municipal ordinance, contract, or franchise may have =
determined=20
any question of construction or validity arising under the =
instrument,=20
statute, ordinance, contract, or franchise and obtain a =
declaration of=20
rights, status, or other legal relations thereunder. =A7 37.006.=20
Parties (a) When declaratory relief is =
sought,=20
all persons who have or claim any interest that would be affected =
by the=20
declaration must be made parties. . . . 4. The Uniform=20
Child Custody Jurisdiction and Enforcement Act states, =
(a) A court of this state which =
has=20
jurisdiction under this chapter to make a child custody =
determination may=20
decline to exercise its jurisdiction at any time if it determines =
that it=20
is an inconvenient forum under the circumstances and that a court =
of=20
another state is a more appropriate forum. The issue of =
inconvenient forum=20
may be raised upon motion of a party, the court's own motion, or =
request=20
of another court. Tex. Fam.=20
Code Ann. =A7 152.207(a) (Vernon 2002).=20
5. The trial court's order =
states,
The Court, having considered =
the=20
pleadings, testimony of the parties, and argument of counsel, =
finds=20
that: . . . E. Iowa is still the proper =
jurisdiction=20
to address the conservatorship of the child, including but not =
limited to=20
the filing of a suit to terminate the parent-child relationship =
between=20
JOSEPH DANIEL MONK and the child . . . ; F. Texas remains an =
inconvenient forum to=20
rule on matters addressing conservatorship of the child, including =
but not=20
limited to a suit to terminate the parent-child =
relationship; G. The Petition for Declaratory =
Relief=20
should be granted; and . . . IT IS THEREFORE ORDERED, =
ADJUDGED AND=20
DECREED that Iowa is the Home State of the child, that Iowa is the =
proper=20
jurisdiction to address the conservatorship of the child and that =
Texas is=20
an inconvenient forum to rule on matters addressing =
conservatorship of the=20
child, including but not limited to a suit to terminate the =
parent-child=20
relationship. IT IS FURTHER ORDERED, ADJUDGED =
AND=20
DECREED that this Court declines jurisdiction in the above-styled =
and=20
numbered cause and defers jurisdiction to the State of =
Iowa. 6. =A7 152.207. Inconvenient=20
Forum
(b) Before=20
determining whether it is an inconvenient forum, a court of this =
state=20
shall consider whether it is appropriate for a court of another =
state to=20
exercise jurisdiction. For this purpose, the court shall allow the =
parties=20
to submit information and shall consider all relevant factors,=20
including: (1) whether=20
domestic violence has occurred and is likely to continue in the =
future and=20
which state could best protect the parties and the =
child; (2) the=20
length of time the child has resided outside this =
state; (3) the=20
distance between the court in this state and the court in the =
state that=20
would assume jurisdiction; (4) the=20
relative financial circumstances of the parties; (5) any=20
agreement of the parties as to which state should assume=20
jurisdiction; (6) the=20
nature and location of the evidence required to resolve the =
pending=20
litigation, including testimony of the child; (7) the=20
ability of the court of each state to decide the issue =
expeditiously and=20
the procedures necessary to present the evidence; and (8) the=20
familiarity of the court of each state with the facts and issues =
in the=20
pending litigation.
Tex. Fam.=20
Code Ann. =A7 152.207(b) (Vernon 2002).=20
7. Lisa also contends that because Joseph =
failed to=20
provide this Court with a complete reporter's record, Joseph has =
waived=20
this point of error. However, the appellate record has been =
supplemented=20
with the trial exhibits that were missing from the first =
reporter's record=20
supplied to this court.=20
8. Because this matter was determined by a =
bench=20
trial, Joseph was not required to preserve error to challenge =
legal or=20
factual sufficiency. See Bass v. Walker, 99 S.W.3d 877, =
883 (Tex.=20
App.--Houston [14th Dist.] 2003, pet. denied).=20
9. The provision of the Declaratory =
Judgments Act that=20
authorizes attorney's fees states =A7=20
37.009. Costs In any=20
proceeding under this chapter, the court may award costs and =
reasonable=20
and necessary attorney's fees as are equitable and =
just. Tex. Civ.=20
Prac. & Rem. Code Ann. =A7 37.009 (Vernon=20
1997).
O P=20
I N I O N