Opinion, May 19, 2016: International Divorce & Texas Domiciliary Requirements

On May 19, 2016, both the First and Fourteenth Courts of Appeals issued memorandum decisions.

In Willig v. Diaz, No. 01-15-00073-CV, Cornelis Willig challenged the trial court’s granting of Marcela Gutierrez Diaz’s special appearance which the First affirmed.

Willig and Diaz were married in 2009 and, in 2010, they moved to the Netherlands and resided in a home owned by Willig. In January 2010, Willig came to Houston without Diaz on business and evidently traveled back and forth between Texas, the Netherlands, and various other international locales. On February 4, 2014, Diaz filed a petition for “accompanying arrangements” in the Netherlands which sought temporary initial maintenance. She then filed for divorce on March 28, 2014. After receiving the maintenance suit, Willig retained counsel and made in an appearance in the Netherlands. The Netherlands court issued temporary orders that Diaz had exclusive use of Willig’s home, but that he did not have to pay maintenance to Diaz.

Willig then retained counsel and filed suit in the 309th district court of Harris County on March 24, 2014 (i.e. four days before the Diaz filed for divorce in the Netherlands). Diaz responded with a special appearance, contending the Harris County court lacked jurisdiction because she lives in the Netherlands, had insufficient contacts with Texas, and that assumption of jurisdiction over her would offend–you guessed it–traditional notions of fair play and substantial justice. She also filed a plea in abatement arguing Willig himself didn’t meet the domiciliary requirements and the suit should be abated until the Netherlands suit was determined.

Willig amended to seek an in rem divorce and requested the court divide the estate located in Texas and to confirm his separate property. Willig testified at the special appearance hearing but the trial court granted Diaz’s special appearance. Willig filed a request for findings of fact and conclusions of law and a motion for new trial which was denied.

The Court of Appeals dealt with Willig’s second issue first, in which he argued he was entitled to an in rem divorce because, according to him, he met the section 6.301 domiciliary and residency requirements. The trial court’s FOF/COL founds specifically that he had no intention of remaining in Texas and that he was here strictly for business purposes; as such, the court concluded, he did not meet 6.301’s requirements.

Willig testified that he came to the U.S. as an investor in 2010 to incorporate his business, but he admitted that he only slept in Texas 30 to 40 nights per year (50 nights in Texas 2011 and 120-140 in 2012; but six continuous months in 2013). From 2010 to March 24, 2014, he would stay in a suite hotel but signed a lease for an apartment in March 2014 (i.e. the month he filed his petition) and rented furniture. He obtained a Texas drivers’ license in April 2014, which listed the apartment as his address.

Nonetheless, the Court of Appeals noted that when he filed on March 24, 2014, he was required to show that he he’d been a Harris County resident for 90 days and a Texas domiciliary for 6 months. The evidence did not support such a finding, however, and the trial court did not err in finding Willig had not met the requirements of 6.301 to file a divorce.

The Court of Appeals went on to review Willig’s claims under 6.308. Even if he met the domiciliary and residency requirements, he was still required to show the trial court had jurisdiction to grant a divorce. Section 6.308 grants the trial court discretion to exercise authority over a portion of a suit. The Court of Appeals held that Willig did not cite any authority which required the trial court to exercise the minimum discretion to grant the in rem divorce. Given the trial court heard evidence that, inter alia, there were divorce proceedings pending in the Netherlands that both parties had appeared in and in which temporary orders had been entered, the trial court did not abuse its discretion in declining jurisdiction.

Because the second issue was dispositive of the entire matter, the Court of appeals did not reach his other issues.

In a brief five page memorandum opinion in IMMO Apffel, No. 14-15-00076-CV, the Fourteenth Court of Appeals affirmed the Galveston County Civil Court at Law’s decree requiring appellant Ralph Apffel to execute the documents listed in the MSA and resulting divorce decree.

Ralph and Diane married in 1993. After 20 years of marriage, Diane filed for divorce. The parties entered an MSA which required Ralph to pay Diane $140,000 but he was awarded the couple’s property on Airway Lane. It also required him to execute the normal SWD, DOTSA, and promissory note to finalize the matter. Prove up of the MSA occurred in September 2014 and an entry date of October 6, 2014 was set, but the decree was not signed until December 22, 2014.

Ralph appealed the decree and, in his sole issue, contended the trial court erred in requiring him to execute documents securing his $140,000 payment to Diane. He argued that because he had already paid the $140,000 when the decree was signed, there was no need to secure the payment. All the same, the Court of Appeals noted that the agreement between the parties seemed to indicate that the lien should be secured even if the $140,000 payment was made. The MSA included the customary non-revocable and binding language. The Court of Appeals found the trial court did not err in requiring Ralph to execute the documents as required by the agreement and decree.



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