Monk v. Pomberg

The trial court properly declined jurisdiction over the child custody matter and deferred jurisdiction to the state of Iowa.

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Click here for the full text of this decision FACTS:Lisa Pomberg left her husband Joseph Monk in Texas and moved to Iowa with their son in January 2002. The two divorced a few months later. Their child attended first through fourth grade in Iowa; participates in Boy Scouts, sports and religious education in Iowa; and receives psychological care in Iowa. In addition, Pomberg is employed in Iowa and her parents and a number of other relatives live there. Monk remains in Texas, and his son visits for several weeks each summer. The 245th District Court presided over the 2002 divorce and custody order. In November 2003, Monk filed suit in the 245th District Court to modify terms of the conservatorship of the child. The court’s order stayed the motions that Monk filed, declined jurisdiction and deferred jurisdiction to the state of Iowa. Further, the trial court found that Texas was an inconvenient forum for the litigation; that substantial evidence is no longer available in Texas concerning the child’s care, protection, training and personal relationships; and that Iowa is a more appropriate forum for the litigation. The trial court also found that the child and the child’s mother have lived in Iowa since January 2002, Iowa is the child’s home state and neither the child nor his mother have a significant connection with Texas. About two months later, in January 2004, Monk filed a bankruptcy petition in the Houston Division of the U.S. Bankruptcy Court for the Southern District of Texas. The bankruptcy court concluded that the filing for bankruptcy by Monk automatically stayed legal proceedings against him, including any suit affecting the parent-child relationship. Unaware of the bankruptcy stay, Pomberg filed a petition in May 2004 for termination of Monk’s parental rights in district court in Iowa. Pomberg alleged that Monk had failed to pay court-ordered child support. After Monk informed her of the bankruptcy stay, and concerned that the petition in Iowa might have been in violation of the stay, Pomberg dismissed the petition pending in the Iowa court. Pomberg then filed a motion with the bankruptcy court that requested that the automatic stay be lifted so that she could pursue the petition to terminate Monk’s parental rights. The bankruptcy court in July 2004 lifted its stay to permit Pomberg to commence an action in the court that entered the divorce decree for that court to hear Pomberg’s petition to seek termination of the parent-child relationship, or for that court to refer the matter to another forum after it conducted a hearing. In accordance with the bankruptcy court’s order, Pomberg filed suit in October 2004 in the court in which the decree of divorce was entered, the 245th District Court. Her original petition for declaratory relief requested that the court enter a declaratory judgment providing that Iowa is the Home State of the child and that Iowa is the proper jurisdiction and a convenient forum to hear such termination proceeding. The trial court granted declaratory judgment in favor of Pomberg. The trial court’s order awarded $5989.13 as attorneys’ fees, expenses, and costs plus attorneys’ fees contingent on future appeals. Upon Monk’s request, the trial court entered findings of fact and conclusions of law supporting its ruling. HOLDING:Affirmed as modified. First, the court concluded that a trial court may issue a declaratory judgment to declare rights under Texas Family Code �152.207. Monk, the court stated, also asserted that the trial court had no jurisdiction to order a declaratory judgment, because there were no pending petitions asserting a suit affecting the parent-child relationship. Monk contended that the trial court has continuing jurisdiction over suits affecting the parent-child relationship, but it lacks continuing jurisdiction over a declaratory judgment that concerns the proper forum for such a suit. The court disagreed. Noting the litigation in Iowa, the bankruptcy court and in the 245th District Court, the court stated that the litigation amounted to “ripening seeds of . . . controversy” that were sufficient to confer subject matter jurisdiction on the trial court and standing on Pomberg in the declaratory judgment action. In Monk’s third issue, he contended that the order issued by the trial court “serves no useful purpose,” because the order states that the trial court “declines jurisdiction in the above-styled and numbered cause.” The court then concluded that the trial court erroneously stated that it “decline[d] jurisdiction in the above-styled and numbered cause,” because the remainder of the order and the findings by the trial court plainly refer to the trial court’s decision to decline jurisdiction on matters addressing conservatorship of the child. The court therefore modified the order to reflect that the trial court declined jurisdiction “in matters addressing conservatorship of the child, including but not limited to a suit to terminate the parent-child relationship.” In Monk’s fourth and fifth issues, he challenged the trial court’s findings that Iowa is the home state of his and Pomberg’s child and that substantial evidence no longer exists in Texas concerning the child’s personal relationships. Having reviewed the entire record, the court concluded that there is ample evidence in support of the trial court’s ruling, and reviewing all evidence for and against the trial court’s determination, the court concluded that the issuance of declaratory relief is neither clearly wrong nor manifestly unjust. OPINION:Alcala, J.; Taft, Alcala and Hanks, J.J.

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