Douglas Russum v. Carol Wipperman

cv5-025.russum TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00025-CV Douglas Russum, Appellant v. Carol Wipperman, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. 94-03358, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING PER CURIAM Douglas Russum appeals by writ of error from a default judgment rendered against him and in favor of Carol Wipperman in her suit to modify a child custody and support order. We will affirm in part and reverse and remand in part. BACKGROUND Russum and Wipperman had a child while married in California. They divorced in California in 1984. While both parents remained in California, they shared joint legal and physical custody, though the child's primary residence was with Wipperman. Wipperman remarried. When she and her new husband moved to Texas in 1988, the parties stipulated to modifications of the custody and visitation order. Russum remained in California, but expressly consented in the stipulation to the child's move. Wipperman filed this motion to modify in Travis County in 1994. She sought to change the terms of possession and support of the child. Russum was served with citation of the suit in California. The court heard the motion after Russum did not file an answer or take any action during the allotted time. The court noted his default in its order. The court wrote that, having examined the pleadings and having heard the evidence and arguments of counsel, [the court] finds that all necessary pre-requisites of law under the Uniform Child Custody Jurisdiction Act (UCCJA), and in particular Section 11.53 of the Texas Family Code, have been satisfied to confer status jurisdiction on this Court of this case, the child, and the subject matter of this cause. The Court finds that Texas is the child's home state and was the child's home state at the commencement of the proceeding. The court then modified the possession provisions. It also ruled that "[a]s additional child support, DOUGLAS RUSSUM is ORDERED AND DECREED to pay 50 percent of all health care expenses not paid by insurance that are incurred by or on behalf of the parties' child . . . ." (Emphasis added.) DISCUSSION By one point of error, Russum contends that the court erred in granting a default judgment against him because it did not acquire jurisdiction over a nonresident in accordance with Texas Family Code section 11.051. Wipperman denies that claim, and asserts by counterpoints that Russum's point is unduly vague and that his case should be dismissed for failure to bring forth a statement of facts. We reject her assertion of undue vagueness. The success of the litigants' remaining positions differs according to the portion of the court's order at issue. The requirements for a direct attack on a judgment by writ of error are clear. General Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991). A party to the suit who did not participate in the trial must bring the writ within six months of the date on which the judgment was signed. Tex. R. App. P. 45. The error complained of must be apparent from the face of the record. Falcon Ridge, 811 S.W.2d at 943. The only disputed element is whether the error is apparent. The usual presumption of validity of judgments does not apply when we review jurisdictional findings in a default judgment by writ of error. Id.; McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Lakeside Leasing Corp. v. Kirkwood Atrium Office Park Phase 3, 750 S.W.2d 847, 849 (Tex. App.--Houston [14th Dist.] 1988, no writ). Contrary to Wipperman's counterpoint, Russum's failure to bring forward a statement of facts does not resolve this appeal. Russum had the burden to present an adequate record on appeal. Tex. R. App. P. 50(d). He could have relieved that burden in part by proving that no statement of facts existed. See Jaramillo v. Liberty Mut. Fire Ins. Co., 694 S.W.2d 585, 587 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.). The court's modification order states, however, that the proceedings were recorded. Absent a statement of facts when one is potentially available, we may conclude that every fact necessary to support the judgment, within the limits of the pleadings, was proved at trial. Id. The deficiency of the pleadings rescues part of Russum's case. Russum's appeal fails regarding the modification of the visitation order. The UCCJA provides that Texas courts can exercise jurisdiction over child custody matters if Texas is the child's home state. Tex. Fam. Code Ann. § 11.53(a)(1)(A) (West 1986). (1) Custody determinations are court decisions, orders, and instructions providing for the custody of the child, including visitation. Tex. Fam. Code Ann. § 11.52(2) (West 1986). This definition renders Russum's residence irrelevant to the jurisdiction determination; the court need not have personal jurisdiction over him to make decisions concerning custody and visitation. See In re S.A.V., 837 S.W.2d 80, 84 (Tex. 1992). Wipperman pleaded and the court found that Texas is the child's home state. We presume the record supported this finding. This finding satisfies the jurisdictional requirement for the child custody matters. We overrule the point as it pertains to the child custody modifications. He succeeds, however, as to the modification of the allocation of the child's health care costs, however. Consistent with Wipperman's pleadings, the court specifically asserted jurisdiction over the entire matter under the UCCJA. The UCCJA, however, expressly excepts from its definition of custody determination "any decision relating to child support or any other monetary obligation of any person." Tex. Fam. Code Ann. § 11.52(2). The assessment of health care costs clearly affects a monetary obligation; the order expressly states that the health care costs are "additional child support." The court's finding of jurisdiction under the UCCJA does not empower it to make this modification. Unlike suits to modify child custody orders, suits to modify child support obligations require personal jurisdiction. S.A.V., 837 S.W.2d at 83. The Family Code defines the means by which a Texas court can acquire jurisdiction over a nonresident in such cases. Tex. Fam. Code Ann. § 11.051 (West Supp. 1995). (2) The trial court did not exercise personal jurisdiction over Russum. It expressly exercised only jurisdiction over the child and the subject matter. Wipperman did not plead, and the court did not find, facts supporting any exercise of personal jurisdiction over Russum. Because we can only presume facts within the limits of the pleadings, the absence of such pleadings prevents us from presuming that the evidence adduced at the hearing supported the exercise of personal jurisdiction and the judgment. See Jaramillo, 694 S.W.2d at 587. This error is apparent from the record. We sustain point one as it pertains to the child support modification. CONCLUSION We reverse the part of the order that modifies the child support obligations and remand that portion of the cause to the trial court for further proceedings. We affirm the remainder of the order. Before Chief Justice Carroll, Justices Aboussie and Jones Affirmed in Part; Reversed and Remanded in Part Filed: June 7, 1995 Do Not Publish 1. The Family Code has been restructured by the passage of H.B. 655. Act of Apr. 6, 1995. Because the revisions do not affect the substance of this case, we will cite the code provisions with the citations in effect during the trial. 2. The court may exercise personal jurisdiction if: (1) the person is personally served with citation in this state; (2) the person submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; (3) the child resides in this state as a result of the acts or directives of the person; (4) the person resided with the child in this state; (5) the person resided in this state and provided prenatal expenses or support for the child; (6) the person engaged in sexual intercourse in this state and the child may have been conceived by that at of intercourse; or (7) there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction. Tex. Fam. Code Ann. § 11.051.