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Click here for the full text of this decision FACTS:In February 2002, Mother filed for divorce in Texas. At that time, Mother, Father and their two children were all living in Germany because Father, an employee of the Department of Defense, was stationed there. Mother filed suit in Texas, however, because Father was legally “domiciled” in Texas for the six months preceding suit and was a “resident” of Dallas County. In her petition, Mother did not request the trial court to enter orders regarding custody or support of their children. Instead, she alleged the children were under the jurisdiction of a German court. Father answered and filed a counterpetition. His petition included a suit affecting parent-child relationship, requesting the Texas court to make orders for the conservatorship and support of the children. He alleged the children were not under the continuing jurisdiction of any court. Mother filed a motion to dismiss the SAPCR, asserting the Texas court did not have jurisdiction over custody issues under the Uniform Child Custody Jurisdiction Enforcement Act because Texas was not the “home state” of the children and because there was a “pending custody matter” before a German court. The trial court conducted a hearing on the motion to dismiss. At the hearing, Mother established a German court had entered orders regarding the children, but only with respect to Mother’s right to establish the children’s residence. After the hearing, the trial court denied the motion. Mother and Father subsequently entered into a settlement agreement regarding custody, visitation, child support and division of property. The parties agreed they would cooperate to have the decree registered in Germany with the intent that it be enforced as permitted by law. Pursuant to the settlement, the trial court entered an agreed final decree. In this appeal, Mother asserts that under the UCCJEA, the trial court did not have jurisdiction to include in its decree provisions regarding child custody because Texas is not the “home state” of the children. HOLDING:Reversed and remanded in part; rendered in part; dismissed in part. Although Mother agreed to the trial court’s jurisdiction, it is well settled that subject-matter jurisdiction cannot be conferred by consent, waiver or estoppel. Father nevertheless asserts Mother waived her complaint regarding the UCCJEA because it is not a subject matter jurisdiction statute, but rather a venue statute. Father acknowledges that the UCCJEA itself “references subject-matter jurisdiction.” Moreover, Texas courts have consistently and routinely treated the UCCJEA as a subject-matter jurisdiction statute, not a venue statute. Father’s pleadings on their face would not establish jurisdiction under the UCCJEA. Mother filex an affidavit establishing the children have never lived in Texas and have been in Germany since 1997. Germany, not Texas, was the “home state” of the children. The only other basis from which the trial court could acquire jurisdiction is if the German court declined jurisdiction on the ground that Texas is a more appropriate forum. Under the plain terms of the UCCJEA, the Texas court lacked subject matter jurisdiction over child custody issues. The court rejects Father’s argument that section 6.406(b) of the family code conferred jurisdiction over the trial court. Section 6.406(b) requires a party to a divorce to include in its suit for divorce a suit affecting the parent-child relationship unless the children of the marriage are under the continuing jurisdiction of another court. See Tex. Fam. Code Ann. � 6.406(b) (Vernon 1998). According to Father, Texas Family Code �6.406(b) vested the trial court with subject-matter jurisdiction irrespective of whether jurisdiction existed under the UCCJEA. The UCCJEA specifically provides that it is the “exclusive jurisdictional basis” for making a child custody determination. Tex. Fam. Code Ann. � 152.201(b) (Vernon 2002). The divorce proceeding did not vest the trial court with jurisdiction when jurisdiction was otherwise lacking under the UCCJEA. The judgment in this case was rendered on a mediated settlement agreement entered into after the trial court incorrectly concluded it had jurisdiction over the child custody determination. The effect the trial court’s lack of jurisdiction over child custody has on the underlying settlement agreement is an issue that has not been presented to the trial court. Though the court does not consider this issue for the first time on appeal, the court recognizes Father was not able to raise these issues in the trial court because of the trial court’s error in determining its own jurisdiction. The court reverses those provisions of the decree involving the division of property and child support and remands those issues to the trial court for further development in light of the court’s disposition of the jurisdictional issue. The court dismisses Father’s claims as to child custody for want of jurisdiction. OPINION:Michael J. O’Neill, J.; Morris, Whittington and O’Neill, JJ.

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