Baggs v. Becker (Tex.App.- Austin, No. 03-07-00731-CV, ___ SW3d ___, 02-06-09, pet denied
under no. 09-0322)(forum non conveniens, SAPCR suit Florida)
Because we hold that the trial court did not abuse its discretion in declining to
exercise jurisdiction over the motion to modify the final divorce decree in favor of
Florida as a more convenient forum, we affirm the decision of the trial court.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00731-CV

Judy S. Baggs and Michael J. Baggs, Appellants

v.

Dennis Becker, Appellee

FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT
NO. 22,699, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING

M E M O R A N D U M   O P I N I O N

This appeal arises from a child custody suit filed by the child's grandmother, Judy Baggs, and her husband,
Michael Baggs. The trial court found that the State of Texas was an inconvenient forum and declined
jurisdiction in favor of Florida. See Tex. Fam. Code Ann. § 152.207 (West 2002). The Baggses appeal and
contend that the trial court's decision to decline jurisdiction was an abuse of discretion because it was not
supported by the evidence. Because we hold that the trial court did not abuse its discretion, we affirm the
decision of the trial court.

BACKGROUND

Judy and Michael Baggs seek to become the managing conservators of Judy's granddaughter, K.B., who
has lived with them in Gulfport, Florida, since January 2003. (1) K.B. is the daughter of Shannan Bray, Judy
Baggs' daughter, and Appellee Dennis Becker. K.B. has a brother who lives with Becker in Deltona, Florida.
(2) Bray and Becker were living in Texas when they divorced in November 1999, and their final divorce
decree was entered in Bastrop County. The decree named Bray and Becker as joint managing
conservators and gave Becker the right to determine the residency of both children. Judy and Michael
Baggs were given periods of possession of both children.

Approximately a year after the divorce, Becker moved with the children to Florida. Sometime during the
summer or fall of 2002, K.B.'s brother moved to Texas to live with his paternal grandmother and her
husband in Nacogdoches. In January 2003, K.B. moved in with Judy and Michael Baggs. Shortly thereafter,
Becker, a member of the military reserves, was deployed to Iraq. When Becker returned to Florida, he
regained custody of K.B.'s brother, but K.B. continued to live with the Baggses. For the next few years,
Becker executed a power of attorney, with a one-year duration, each January that allowed the Baggses to
enroll K.B. in school and extracurricular activities and to provide for her medical care. In December 2006,
Becker notified the Baggses that he would not be executing another power of attorney and would be
bringing K.B. back to live with him in Deltona, Florida. Since notifying the Baggses of this intention,
however, Becker has neither brought K.B. to live with him nor executed another power of attorney. This left
the Baggses unable to enroll K.B. in school and extracurricular activities, provide her with health insurance,
or seek medical care.

On August 1, 2007, the Baggses filed a petition in Bastrop County to modify the final divorce decree in a
suit affecting the parent-child relationship, seeking to be named managing conservators of K.B. with the
sole right to designate her primary residence. In response, Becker filed a motion asking the trial court to
decline to exercise jurisdiction on the grounds that Texas was an inconvenient forum because he, the
children, and Judy and Michael Baggs all live in Florida. After a hearing on November 8, 2007, the trial
court--citing the length of time that K.B. had been out of state, the distance between the court in Texas and
the court in Florida, the relative financial circumstances of the parties, and the nature and location of the
evidence--granted Becker's motion and declined to exercise jurisdiction over the Baggses' motion to be
named K.B.'s managing conservators. The court found that Texas was an inconvenient forum and that
Florida was a more appropriate forum. However, the trial court also entered orders temporarily granting
Judy and Michael Baggs the right to designate K.B.'s primary residence until a court of competent
jurisdiction in the State of Florida assumes jurisdiction and decides the case on the merits. These
temporary orders also gave the Baggses the authority to enroll K.B. in school and extracurricular activities
and to provide health insurance and medical care for her. The court gave Becker standard visitation for a
non-custodial parent. See Tex. Fam. Code Ann. § 153.313 (West 2006) (standard possession schedule for
parents who reside over 100 miles apart). Judy and Michael Baggs now appeal, arguing that the trial court
erred in declining to exercise jurisdiction.

STANDARD OF REVIEW

We review a trial court's decision to decline to exercise jurisdiction as an inconvenient forum for abuse of
discretion. See Hart v. Kozik, 242 S.W.3d 102, 106 (Tex. App.--Eastland 2007, no pet.); Dickerson v. Doyle,
170 S.W.3d 713, 718 (Tex. App.--El Paso 2005, no pet.). A trial court abuses its discretion when its
decision is arbitrary, unreasonable, and without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We may not reverse simply because we
disagree with the trial court's decision. Id.; Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). In reviewing a
trial court's order for an abuse of discretion, we view the evidence in the light most favorable to the trial
court's order, indulging every reasonable inference in its favor. Universal Health Servs., Inc. v. Thompson,
24 S.W.3d 570, 576 (Tex. App.--Austin 2000, no pet.).

Under an abuse-of-discretion standard, the factual sufficiency of the evidence is not independent grounds
for error; it is simply a factor in assessing whether the trial court abused its discretion. London v. London,
192 S.W.3d 6, 14-15 (Tex. App.--Houston [14th Dist.] 2005, pet. denied). Thus, we engage in a
two-pronged inquiry, asking: (1) whether the trial court had sufficient information upon which to exercise its
discretion; and (2) whether the trial court erred in its application of discretion. Id.; Gonzalez v. Tippit, 167
S.W.3d 536, 544 (Tex. App.--Austin 2005, no pet.). The trial court's findings will be upheld under the first
prong as long as they are supported by sufficient competent and probative evidence and are not so against
the great weight and preponderance of the evidence as to be manifestly unjust. See Hart, 242 S.W.3d at
109; Gonzalez, 167 S.W.3d at 544.

DISCUSSION

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which Texas adopted in 1999,
governs jurisdiction in child custody issues. Tex. Fam. Code Ann. §§ 152.001-.317 (West 2002 & Supp.
2008). The UCCJEA seeks to prevent conflicting jurisdiction and relitigation of child custody determinations
by limiting the authority to make custody determinations to one court, even when multiple states have
personal jurisdiction over the parties and a legitimate interest in the issues involved. See Hart, 242 S.W.3d
at 106-07. When, as here, a Texas court makes a custody determination, it retains exclusive continuing
jurisdiction until it or another Texas court determines that Texas no longer has sufficient contacts or is an
inconvenient forum. See Tex. Fam. Code Ann. §§ 152.202, .207 (West 2002). When determining whether
Texas is an inconvenient forum, the UCCJEA directs trial courts to consider "all relevant factors," including:

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best
protect the parties and the child;

(2) the length of time the child has resided outside this state;

(3) the distance between the court in this state and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including any
testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to
present the evidence; and

(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

Id. § 152.207(b).

Because the original divorce decree, which included the child custody determination, was entered in
Bastrop County, the trial court was the court of continuing exclusive jurisdiction. See id. § 152.202.
However, the court declined to exercise this jurisdiction, finding:

that the State of Texas is an inconvenient forum, and the State of Florida is a more appropriate forum and
therefore, the Court declines to exercise jurisdiction in this case. Specifically, the Court bases its findings on
the following factors: (1) the length of time the Child has resided outside the State of Texas; (2) the
distance between this Court and the court in the state that would assume jurisdiction, that being the state of
Florida; (3) the relative financial circumstances of the parties; and (4) the nature and location of the
evidence required to resolve the pending litigation, including the testimony of the child.

The Baggses argue that the trial court's finding that Texas was an inconvenient forum is not supported by
the evidence. The Baggses contend that three of the four factors cited by the court--the distance between
the courts, the relative financial circumstances of the parties, and the nature and location of the
evidence--actually weigh against the court's ruling and in favor of Texas as the more appropriate forum. (3)
The Baggses also contend that they do not have standing to bring suit under Florida law and thus a fifth
statutory factor--the ability of the court of each state to decide the issue expeditiously--weighs against the
court's ruling. We will examine each of these factors in turn.

Distance Between the Courts

Judy Baggs testified that the Texas court is a three to four hour plane ride from Florida, while she and her
husband live only a two-and-a-half to three hour drive from Becker in Florida. See Tex. Fam. Code Ann. §
152.207(b)(3) (in determining appropriate forum, courts should consider distance between court in this
state and court in state that would assume jurisdiction). Yet the Baggses argue that because they wish to
travel to Texas and submit to the trial court's jurisdiction and because Bray, the child's mother, lives in
Elgin, the only person who is inconvenienced by the distance between Florida and Texas is Becker. While
Judy and Michael Baggs may be willing and able to travel to Texas, the trial court could have reasonably
concluded that Becker, who appeared before the trial court only by attorney, and sought permission to
testify from Florida via telephone, was not. Furthermore, there is nothing in the record to indicate that the
Baggses are unable to make the shorter trip to the Florida court. Therefore, the trial court was not
unreasonable in determining that the distance between Texas and Florida--where the majority of the parties
and the subject child reside--weighs toward a finding that Texas is an inconvenient forum.

Relative Financial Circumstances of the Parties

The Baggses contend that the relative financial circumstances of the parties must weigh in favor of the
Texas court exercising its jurisdiction, citing Bray's testimony that she could not afford to travel to Florida to
participate in the proceedings there. (4) See Tex. Fam. Code Ann. § 152.207(b)(4) (relative financial
circumstances of parties is factor in determining appropriate forum). However, Bray testified that she was
not contesting her mother and stepfather's suit and sought only to maintain her current periods of
possession. From this, the trial court could have reasonably concluded that it was more essential to ensure
that Becker--who would be forced to travel from Florida to Texas if the trial court exercised jurisdiction--be
able to participate in the proceedings. Thus, the court was not unreasonable in determining that the relative
financial circumstances of the parties weighed in favor of Florida as the more appropriate forum.

Nature and Location of the Evidence

The Baggses argue that, because there is a significant amount of evidence located in Texas, this factor
should weigh in favor of exercising jurisdiction in Texas. Specifically, Judy and Michael Baggs assert that
two witnesses, Becker's uncle and a family friend, are located in Texas, as is evidence of K.B.'s brother's
psychological history, specifically his records from an evaluation conducted by a facility in Nacogdoches. (5)
Judy and Michael Baggs also testified that they are willing to find and produce evidence located in
Florida--specifically the school records for both children--for a Texas court.

The Baggses further contend that Becker did not present evidence of any important witnesses or
documentary evidence that was located in Florida. However, on examination by Becker's attorney, Michael
Baggs acknowledged that the psychological reports located in Nacogdoches were obtained several years
ago and that more recent evidence is located in Florida. In addition, Judy and Michael Baggs testified that
the Texas witnesses had observed the children in both the Baggses' home and Becker's home because
they frequently traveled to Florida, from which the court could have reasonably determined that these two
witnesses could travel to Florida to testify. The trial court also heard evidence that both children had lived in
Florida for several years and attended school and participated in extracurricular activities there. See Monk,
263 S.W.3d at 211 (child's school attendance and participation in extracurricular activities indicative of
evidence located out-of-state). The trial court could reasonably expect both children to be witnesses at a
trial on the merits. See Tex. Fam. Code Ann. § 152.207(b)(6) (in determining appropriate forum, courts
should consider nature and location of evidence, including testimony of the child). Further, because two of
the three parties--and the only two parties seeking custody of K.B.-- had lived in Florida for several years,
the court could have concluded that there would be character witnesses located in Florida as well. Based
on the record before it, the trial court could have reasonably found that a significant amount of evidence
existed in Florida and that this weighed in favor of declining jurisdiction as an inconvenient forum.

Ability of Court in Each State to Decide the Issue Expeditiously

The Baggses next contend that they do not have standing to bring suit under Florida law, that the trial court
was informed of this problem, and that this factor weighs against declining jurisdiction because the Florida
court does not have the ability to decide the issue. However, there is nothing in the record to indicate that
this issue was raised before the trial court. Therefore, it was not an abuse of discretion for the trial court to
fail to consider a factor for which it had no evidence. See Hart, 242 S.W.3d at 112 ("If no evidence of a
particular factor is offered, we cannot say that the trial court abused its discretion by failing to make a fact
finding"); Dickerson, 170 S.W.3d at 719-20 n.8 ("No litigant tendered evidence of Alabama law . . . . In the
absence of such evidence, we must presume that the law of Alabama is identical to Texas law.").
Furthermore, the trial court's order includes a provision requiring the case to return to Texas "in the event
that an appropriate court in the State of Florida refuses to exercise jurisdiction or otherwise refuses to hear
this dispute between the parties in this suit." Therefore, if the Baggses are correct in their interpretation of
Florida law and are unable to litigate in Florida, they will be able to return to the Texas trial court. (6)

There was no evidence before the trial court on any of the remaining factors listed in section 152.207(b) of
the family code. Given the evidence before the trial court regarding the four factors on which it based its
determination, it did not abuse its discretion in declining to exercise jurisdiction based on its findings that
Texas was an inconvenient forum and that Florida was a more convenient forum. We therefore affirm the
decision of the trial court.

CONCLUSION

Because we hold that the trial court did not abuse its discretion in declining to exercise jurisdiction over the
motion to modify the final divorce decree in favor of Florida as a more convenient forum, we affirm the
decision of the trial court.

___________________________________________

Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: February 6, 2009

1. The facts come from the affidavits of Judy and Michael Baggs, filed with their petition, and from their
testimony at the hearing before the trial court. Appellee Dennis Becker did not testify or dispute the facts
asserted by the Baggses.

2. Because K.B.'s brother shares her initials, we will refer to him, when necessary, as K.B.'s brother.

3. As to the first factor cited by the court, it is undisputed that, at the time of the hearing, K.B. had lived out
of state for approximately seven years. See Tex. Fam. Code Ann. § 152.207(b)(2) (West 2002) (length of
time child has resided out of state is factor in determining appropriate forum). The trial court was not
unreasonable in determining that this factor weighed in favor of declining jurisdiction as an inconvenient
forum. Cf. Monk v. Pomberg, 263 S.W.3d 199, 211 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (no abuse
of discretion in declining jurisdiction where, among other factors, child had been living out of state for two
years prior to suit); Dickerson v. Doyle, 170 S.W.3d 713, 719 (Tex. App.--El Paso 2005, no pet.) (no abuse
of discretion in declining jurisdiction where, among other factors, child had been living out of state for five
months prior to suit).

4. Becker did not present evidence of his income.

5. The Baggses intend to present evidence of K.B.'s brother's psychological history because, in their
petition to become K.B.'s joint managing conservators, they allege that her brother is a danger to K.B.

6. In their brief to this court, the Baggses cite to Florida law governing the temporary custody of minor
children by extended family. See Fla. Stat. §§ 751.01-.05. We note that section 751.02 allows a family
member "who is caring full time for the child in the role of a substitute parent and with whom the child is
presently living" to bring suit for temporary custody. Id. § 751.02. While the Baggses correctly note that
under Florida law, "[i]f one of the minor child's parents objects to the granting of temporary custody to the
petitioner, the court shall grant the petition only upon a finding, by clear and convincing evidence, that the
child's parent or parents are unfit to provide the care and control of the child," id. § 751.05, a higher burden
once in court is not the same as an inability to bring suit. Texas courts are not required to ascertain that
every aspect of the more convenient forum's law is identical before declining jurisdiction. See Hart v. Kozik,
242 S.W.3d 102, 108 (Tex. App.--Eastland 2007, no pet.) (holding that legislature instructed trial courts to
determine if other state's court can expeditiously decide issues, "but did not instruct trial courts to retain
jurisdiction if there are differences between the two states' rules of evidence or procedure").