ACCEPTED
01-15-00073-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/6/2015 5:36:11 PM
CHRISTOPHER PRINE
CLERK
No.OI-15-00073-CV
FILED IN
1st COURT OF APPEALS
IN THE HOUSTON, TEXAS
FIRST COURT OF APPEALS 7/6/2015 5:36:11 PM
CHRISTOPHER A. PRINE
at Houston Clerk
Cornelis F. Willig,
Appellant
V.
Marcela Gutierrez Diaz
Appellee
Appealed from the 309th Judicial District Court
Harris County, Texas
APPELLANT'S BRIEF ON APPEAL
Andres P. Chaumont
State Bar Number 15779400
834 Fleetwood Place
Houston, Texas 77079
Tel. 281-493-3999
Fax. 281-493-3993
Email: anchlaw88@gmail.com
Attorney for Appellant
Cornelis P. Willig
Appellant Requests Oral Argument
No. 0l-15-00073-CV
Cornelis P. Willig
Appellant
V.
Marcela Gutierrez Diaz
Appellee
INTRODUCTION
TO THE HONORABLE 1 COURT OF APPEALS:
S[
1. Appellant Camelis P. Willig (Petitioner in the lower court) submits this
brief on Appeal. Throughout his brief, Comelis P. Willig is referred to as "Willig"
or as Appellant.
2. Appellee Marcela Gutierrez Diaz (Respondent in the lower court) is
referred to as Gutierrez or as Appellee.
3. Records, exhibits and documents are referred to in the following
manner:
Sample Abbreviation The Record
RRI:15-17 RepOiter's Record Volume 1, Pages 15-17
CR 1: 18-20 Clerk's Record, Vohmle 1, Pages 18-20
CR 1" Supp: 01-9 Clerk's Record, 1" Supplement, Pages 1-9
RR 1: P. Ex. 8 Reporter's Record, Vol. 1, Petitioner's Trial Ex. # 8
RRl: D. Ex2 Reporter's Record, Vol I, Respondent's Trial Ex. # 2
App. Tab A Appendix, Tab A
ii
No. Ol-15-00073-CV
Cornelis P. Willig
Appellant
V.
Marcela Gutierrez Diaz
Appellee
IDENTITIES OF PARTIES AND COUNSEL
1. Appellant: Camelis P. Willig
Appellant's Counsel: Andres P. Chaumont
State Bar No. 15779400
834 Fleetwood Place
Houston, Texas 77079
Tel: 281-493-3999
Fax: 281-493-3993
Email: anch1aw88@gmail.com
2. Appellee: Marcela Gutierrez Diaz
Appellee's Counsel: Michael G. Busby
2909 Hillcroft Ave, Suite 350
Houston, Texas 77057
Tel: 713-974-1151
Fax: 713-974-1181
Email: cansumerlaw@busby-1ee.com
iii
TABLE OF CONTENTS
INTRODUCTION .................................................................................. .
IDENTITY OF PARTIES AND COUNSEL........................................ ltl
TABLE OF CONTENTS........................................................................ IV
INDEX OF AUTHORITIES................................................................... V
STATEMENT OF THE CASE............................................................... vi
ISSUES PRESENTED............................................................................ Xl
STATEMENT OF FACTS...................................................................... 1
SUMMARY OF THE ARGUMENT...................................................... 4
ARGUMENT........................................................................................... 5
Is sue No. I...................................................... ............ ............... .. 5
Issue No. 2................................................................................... 12
Issue No. 3................................................................................... 17
CONCLUSION....................................................................................... 22
PRAYER..... " ........................................ " ........ ".. ........ ................ ............. 23
CERTIFICATE OF SERVICE................................................................. 24
IV
INDEX OF AUTHORITIES
CASES
Dawson Austin v. Austin................................................................ 13
968 SW 2d 319, (Tex. 1998)
Griffith v. Griffith... .... .......... ......... ............... ......... .......... ............... 6
341 SW 3d 43, (Tex.App.-San Antonio, 2011, no pet.)
Mason v. Mason.............................................................................. 12
321 SW 3d 178, (Tex App.- Houston [ 1" Dist.] 2010, no pet.)
Palau v. Sanchez............................................................................. 15
2010 Tex App LEXIS 9041 (Tex App.-Austin, 2010, pet. denied)
Shahani v. Said... ...... .......... .................. ...... ......... ......... ..................
7
2009 Tex. App. LEXIS 4547, (Tex.App.-Corpus Christi, Review Denied)
Stallworth v. Stallworth........ ...... .......... ......... ............... ............... ........ 14
201 SW 3d 338, (Tex App.-Dallas 2006, no pet.)
CODES
Tex.Fam.Code § 6.301......................................................................... 13
Tex.Fam.Code § 6.308..... .................................. ........................ .......... 13
v
STATEMENT OF THE CASE
Nature ofthe Case.
On February 4,2014, the Appellee submitted what is described as a petition
for "accompanying arrangements" in the court in the Netherlands, seeking only
temporary initial maintenance support but not seeking a divorce itself. The filing by
Appellee in the Netherlands on February, 2014, did not contain within it or involve
an actual Petition for Divorce. (CRI :35-37; 41-42). Subsequently, the Appellee
filed, for the first time, on March 28, 2014, her actual petition for divorce with the
Court in the Netherlands. The Appellee's attorney in the Netherlands, in a filing
with the court there dated June 25, 2014, judicially admitted that the date of filing
of the appellee's actual divorce petition in the Netherlands was March 28, 2014,
stating that "The marriage ofthe parties has become irreparable, on the basis of which
the woman submitted a petition for divorce to this Court, with the accompanying
arrangements, on March 28, 2014 (Reference No. CflS/ 21236S IF A Rl< 14/1 030)."
(CR I: 54-59).
Vlben Appellant received the initial temporary maintenance request from the
Netherlands filed on February, 2014, it did not include a divorce petition. Appellant
retained counsel in Texas and on March 24,2014, filed an actual Original Petition for
Divorce in Harris County, Texas. The case was assigned to the 309th District Court.
vi
(CR 1: 4-6). Appellee filed on May 27, 2014 as her response to the Harris County
divorce petition a Plea in Abatement and a Special Appearance. (CR 1: 7-11)
Appellant subsequently filed a First Amended Original Petition for Divorce in Harris
County on June 9, 2014. (CR 1: 12-16). In the Amended Petition, Appellant sought
the divorce not only on the grounds of insupportability, but also added the specific
jurisdictional basis for obtaining the divorce in HatTis County, Texas, as an in rem
divorce, as provided by § 6.301 and § 6.308 of the Texas Family Code Under said
provisions, the trial court can grant the divorce decree even if the Appellee was not
a resident or a domiciliary of the State of Texas and had not been so before. The
amended petition also identified and rested upon the legal precedent supporting the
court granting such a status divorce, without a division of property being included in
its tenns, under the provisions of controlling Texas Precedent.
Course of Proceedings and Trial Court Disposition.
The Special Appearance was tried on September 26, 2014,to the Honorable Judge of
the 309th Distriet Court of Harris County, Texas. On October 16,2014, the Court
rendered by letter its decision granting the Special Appearance and dismissing the
case stating in its judgment that another court had assumed jurisdiction over the
matter in the Netherlands. The court signed the order of dismissal on October 31,
2014. (CR 1: 90-91).
vii
Post Judgment Proceedings.
Appellant timely filed a Request for Findings of Fact and Conclusions of Law on
November 14, 2014. (CR 1: 92-93) Additionally, Appellee timely filed on November
18, 2014, a request for entry by the court of specifically suggested findings and
conclusions as presented to the Court. (CR 1: 94-98) Appellee filed her request for
specifically suggested findings and conclusions on November 21,2014. (CR ]: 99-
103). Appellant also timely filed a Motion for New Trial on December 3,2014. (CR
1: 104-109 and with exhibits CR 1: 110-155).
'When the Court did not enter the tindings and conclusions that had been
requested, Appellant timely filed on December 5, 2014, a timely Notice of Past Due
Findings ofF act and Conclusions of Law. On January 7, 2015, the court rendered its
decision on Appellant's Motion for New Trial, denying same. Entry was set for June
9l \ 2015, but somehow the signed order did not become a part of the Clerk's Record.
The proposed order denying the motion for new trial is in the clerk's record (CR1:
173) The notation on the court's docket sheet of the court's decision does state that
the motion for new trial was denied on January 7, 2015. (CR 1: 175).
At that time, the court had still not entered its findings offact and conclusions
ot Jaw. Appellant timely hied his Notice otAppeal on January 19,2015. (CR 1: 176-
177). At the time that the Notice of Appeal was filed on January 19,2015, the trial
viii
court had still not entered findings of fact and conclusions of law in the case.
During this period oftime, the Court in the Netherlands on December 24, 2014,
entered a ruling in the case pending in that jurisdiction that ordered an abatement of
the proceedings in the Netherlands until the Appellate Court in Harris County arrived
at a decision on the jurisdictional issues in the case.
The Dutch court, in its ruling abating those proceedings, noted that the actual
divorce petition filed by Appellant in Harris County had been filed on March 24,
2014 and that the Appellee's actual divorce petition filed in the Netherlands had been
filed on March 28, 2014, four days later. (CR 1: 165-172).
The appellant's petition was first in time of the two petitions filed in the
divorce actions in both jurisdictions and for that reason, the court in the Netherlands
deferred to the jurisdictional authority of the trial court in Harris County, Texas to
hear the case, and to the jurisdictional authority of the First Court of Appeals to hear
and rule on the appeal of the dismissal order entered by the trial court by abating the
action pending in the Netherlands until the First Court of Appeals decided the
requested appeal.
1"' Court o.fAppeals.
On Appellant's request, the Court of Appeals abated the appeal on April 16,2015,
with an Order that also directed the trial court to enter findings of fact and
ix
conclusions of law in this case. The Trial Court entered its findings of fact and
conclusions oflaw on May 19th, 2015. On May 29 th , 2015, Appellant filed with the
trial court while thew Appeal was abated in this Court, his request for additional and
amended findings of fact and conclusions of law. The trial court never ruled on
Appellant's request forthe additional and amended findings offact and conclusions
oflaw. On June 4'h, 2015, the Court of Appeals reinstated the appeal after the trial
court filed the directed findings offact and conclusions oflaw and this Court directed
the Appellant to file his brief within 30 days from the date of its Order of
Reinstatement of the Appeal, which was June 4, 2015.
x
ISSUES PRESENTED FOR REVIEW
Issue No.1: The trial court erred in granting Appellee's Special
Appearance and entering judgment dismissing the
Appellant's Petition for Divorce on the basis recited in the
trial court's Order of Dismissal stating that the court in the
Netherlands had assumed jurisdiction over the matter,
given that the Appellant filed his actual petition for divorce
in Harris County before the Appellee filed her actual
divorce petition in the Netherlands.
Issue No.2: The trial court crred in not granting Appellant's requested
divorce, since Appellant was entitled under Texas law to
obtain his requested in rem divorce under the provisions of
§§ 6.301 and 6308 of the Texas Family Code.
Issue No.3 The trial court erred in entering Findings of Fact and
Conclusions of Law that are not supported by any
evidence, testimonial or doeumentary , admitted at the trial
of the special appearance. The evidence that was admitted,
both testimonial and documentary directly contradicts the
Findings ofF act and Conclusions of Law as entered by the
trial court.
xi
STATEMENT OF FACTS
Introduction
The only testimony given at the trial of the Special Appearance was
Appellant's. Appellee did not appear as a witness in court or give any testimony
telephonically. Appellant's entire testimony was uncontroverted and uncontradicted
by any Appellee testimony since she gave none by not testitying at all.
In January, 2010, Comelis P. Willig moved to Houston and in March 2010
established his residence and domicile in Harris County, Texas at the time that he
incorporated his Texas eompany DIAC USA, LLC. At that time he resided in Sleep
Inn Suite Hotel residence located at 5380 W. 34th Street, Suite 185, Houston, Texas
77092 and that location became his residenee and domicile in Texas. (RR 2: 25), (RR
2: 10-12). Given his very recent arrival at that time, he also established that address
as the corporate address for his limited liability company that was registered on
March 10, 2010 with the Secretary of State.( (CR 1: 31-34).
Since 2010, Appellant has never abandoned or changed, to the present date, his
primary residency and his domicile in Harris County, Texas, (RR 2: 28),. even
though, because of the nature of his business, he has traveled frequently since March
of 201 0 to work internationally on temporary job assignments. (RR 2:29 ).
Appellant has no plans to effectuate such a change of domicile in the future.
(RR 2: 38). In March 2014, Appellant changed his residence address in Houston to
I
a Grey Star Apartment complex, located at 2424 East T. C. Jester Boulevard,
Houston, Texas,. (RR 2: 30-31). Appellant has had a Texas phone number since he
established his Texas company, his Texas residence and his Texas domicile in 2010.
(RR 2: 32) (RR 3: P: 8, pages 157 to 185 of volume 3); (RR 3: P: 5, pages 57 to
117 of volume 3); (RR 2: 50-51).
In his first amended divorce petition, Appellant requested a divorce be granted
as an action in rem, wherein the Court would grant Appellant a status divorce to
which he is entitled under the provisions of § 6.308 of the Texas Family Code and
Texas legal precedent, but not divide the property acquired during the marriage.
Appellant had satisfied at the time of filing his original petition on March 24, 2014
the residency and domiciliary requirements identified by § 6.301 of the code. eRR 2:
35-36).
When the Appellant first came to Houston, he was unaccompanied by the
Appellee, who had decided shortly before Appellant's departure from the Netherlands
not to join him in the move. Shortly after Appellant established his residence,
domicile and limited liability company in Houston, Texas, (RR 3: P: 3, pages 9 to
49 of volume 3) (RR 3: P:3, pages 49 to 54 of volume 3), he was served without
prior notice with a petition for support that had been filed by the Appellee in the
The item filed in the Netherlands was not a divorce petition. It was a request
2.
and Appellee then filed her Special Appearance and Plea in Abatement in response
on May 27, 2014 (CR 1: 7-11) . Appellant filed his First Amended Original Petition
for Divorce on June 12, 2014. (CR 1: 12-16). A hearing was held on the Special
Appearance on September 26, 2014, and Appellees' Special Appearance was
rendered as granted on October 16, 2014. (CR I: 87). The trial court's Order of
Dismissal of Appellant's divorce action was signed on October 31, 2014. CR 1: 90-
91).
Appellant timely filed a Request for Findings ofF act and Conclusions of Law
on November 14,2014. (CR 1: 92-93). Healsotime1y filed a second request for entry
of findings and conclusions, specifically identifying the findings and conclusions
which Appellant requested be entered to the trial court on and requesting their entry
on November 18,2014. (CR 1: 94-98). Appellant filed his Motion for New Trial on
December 3,2014. (CR 1: 104-155) .. Appellant subsequently timely filed a notice of
past due findings and conclusions on December 5, 2014 (CR 1: 156-157).
Appellant timely filed his notice of appeal on January 8, 2015. (CR 1: 176-
177). Appellant filed his request for abatement of the appeal with the First Court of
Appeals until the trial court entered its findings and conclusions on March 31,2015.
The abatement ofthe appeal was granted by the Appellate Court on April 16, 2015.
The trial Court was directed to file findings and conclusions while the appeal was
abated. The trial Court entered Its ttndtngs and conCIUSlOns on Nlay 1';1, LUI::>. The
abatement of the appeal was ended by Order of the First Court of Appeals on June 4,
2015, acknowledging the filing by the trial court of the findings of fact and
conclusions of law, and the appeal process was then re-activated by the Appellate
Court.
SUMMARY OF THE ARGUMENT
In its Order dismissing appellant's divorce petition and in its findings of fact
and conclusions of law the trial court disregarded the uncontroverted and
uncontradicted testimony of the Appellant. The testimony clearly established that
Appellant had established his residence and his domicile in Houston, Texas in
January, 2010, and registered his limited liability company with the Secretary of
Sate of Texas on March 10,2010. (RR2: 25), (RR2: 10-12) (CR 1: 31-34). The
uncontroverted testimony from the Appellant clearly and unequivocally stated that
Appellant had set up his residence and domicile in Harris County in January 2010.
The testimony confirms that he has never changed his primary residence and his
domicile from Harris County, Texas to any other location since then .(RR2: 25)
(RR 2: 28-29) (RR 31) 2: (RR 2: 38) (RR 2: 50-51).
Satisfying the residency and domicile requirements as proven by the
testimony adduced at trail and by the admitted exhibits, Appellant was entitled to
pursue his divorce in Harris County and proceed to obtain an in rem divorce
JUdgmem lrom me trial conn. Instead, the trial court granted Appellee' s speCIal
appearance and dismissed the divorce action in Harris County, Texas. The trial
court's dismissal order is unsupported by any evidence, whether testimonial or
documentary in nature, and is founded on the incorrect assumption that the filing
ofthe Netherland's actual petition for divorce presented by the Appellee preceded
the Appellant's filing of his divorce petition in Harris County. (CR: 1: 90).
This is factually wrong. For that reason, the trial court's finding in its
dismissal order that another action was pending in the court in the Netherlands and
that the Dutch court had assumed jurisdiction over the matter is incorrect. Since
the trial court's dismissal, the Dutch court has actually entered a ruling in that
action that has abated the divorce proceeding in that jurisdiction. The Dutch court
has deferred to the jurisdiction of the Hanis County courts because it has
acknowledged in its ruling that the petition in the Netherlands was factually filed
subsequently to the Appellant's Harris County petition and that the jurisdiction
over the divorce between the parties was originally acquired by and vested in the
Harris County trial court. (CR 1: 165-172) .
ARGUMENT
Issue No.1: The trial court erred in granting Appellee's Special
Appearance and entering judgment dismissing the
Appellant's Petition for Divorce on the basis recited in
the Order of Dismissal that the court in the Netherlands
had assumed jurisdiction over the matter, since Appellant
filed his actual petition for divorce in Harris County
betore the Appellee tiled her actual "'-,.'C -d-ct-c1 n'1it"lc if th.;,;. pl..:,..cu:l-.:;.r ho..;, a.ll",-;"ovd fa~t;:)
k
that affirmatively demonstrate the court's jurisdiction to hear
the cause. Texas Dep't of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226, 47 Tex. Sup. Ct. J. 386 (Tex. 2004).
However, if a plea to the jurisdiction challenges the existence
of jurisdictional facts--as Wife does here--we consider
1ft,
relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised, as the trial court is
required to do. Id.at 227 (citing Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 555, 44 Tex. Sup. Ct. J. 125 (Tex.
2000)).
Section 6.301 of the Texas Family Code states that no suit for
divorce shall be maintained unless, at the time the suit is filed,
either the petitioner or respondent has been a domiciliary of
this state for the preceding six-month period and a resident of
the county of suit for the preceding 90-day period. TEX. F AM.
CODE ANN. § 6.301 (Vernon 2006). The provisions of the
residency statute are not jurisdictional, but rather provide the
necessary qualifications for bringing an action for divorce.
Aucutt v. Aucutt, 122 Tex. 518, 523-24, 62 S.W.2d 77, 79
(1933); Nowell v. Nowell, 408 S.W.2d 550, 556 (Tex. Civ.
App.-Dallas 1966, writ dism'd). The question of residency is
a fact issue for the trial court to detennine, and the trial court's
findings will not be disturbed unless there is a clear abuse of
discretion. Stacy v. Stacy, 480 S.W.2d 479, 482 (Tex. Civ.
App.-Waco 1972, no writ); Meyerv. Meyer, 361 S.W.2d 935,
938 (Tex. Civ. App.-Austin 1962, writ dism'd). There are no
limits on the number of residences that a party may maintain
at anyone time. McAlister v. McAlister, 75 S.W.3d 481,485
(Tex. App.-San Antonio 2002, pet. denied).
18. Appellant's divorce petition should have proceeded to final decree of
divorce. It was error by the trial court to dismiss it instead.
Issue No.3: The trial court CITed in entering Findings of Fact and
Conclusions of Law that are factually incorrect and are not
supported by any evidence, testimonial or documentary,
tha.t v"ro.o o.:d.1c"1"'litt-.cd at the tried of'tb:v "p'I,;;.;\;;.ial appv'uQ.u,-,~~ Th~
evidence that was admitted, both testimonial and
documentary, directly contradicts the Findings of Fact and
Conclusions of Law as entered by the trial court.
19. At trial on the Special Appearance, Appellee's counsel made much ado
about items that are, under Texas law, irrelevant to the detennination of estahli "hin2
a residency and a domicile in Texas. Appellee's counsel extensively questioned the
Appellant about the nature of the visa that he had originally entered the United States
/7
with in 2010, and the kind of visas that he had been allowed reentry into the United
states since then through the date of trial (RR 2: 12, 16-18). Appellee's counsel
extensively questioned the Appellant about what national citizenship he holds and
where he was originally born eRR 2: 13-14); where he slept at night and for how
long, (RR 2: 12, 15-16); what kind of driver's license he used since 2010 to operate
a motor vehicle in Texas (RR 2: 14-15) and when, etc. It was decided in Palau v.
Sanchez 2010 Tex AppLEXIS 9041 (TexApp.-Austin, 2010, pet. denied) by the 3rd
Court of Appeals that such factual considerations do not determine the validity of a
person's assertions of being a Texas resident or dpmiciliary in a family case. In the
Palau case, the Court ruled:
"Even if we were to assume that the trial court erred in
denying Galan's plea in abatement, the proper remedy in
sustaining a plea in abatement is not to dismiss the suit but to
retain it on the docket so that it may be revived when the
impediment is removed. See Svensen, 629 S.W.2d at 98;
Black's Law Dictionary 1269 (9th ed. 2009) ("A defendant
who successfully asserts a plea in abatement leaves the claim
open for continuation in the current action or reassertion in a
later action if the defect is cured."). Thus, even if the
documents attached by Galan to his plea in abatement
established that Navarro did not satisfY the domiciliary and
residency requirements at the time she filed her divorce
petition, nothing would have stopped her from satisfYing the
requirements at the time the plea in abatement was heard so as
to cure any defect in her petition. At trial on the day following
the hearing in November 2007, Navarro testified that she had
been living at a house in Austin since September 2005. She
testified that she went baek and forth from Austin to Mexico
"just for a few days" right after she moved to Austin but that
it ha.d been Q long ti,1'l:1.0 "inc.;.;;. .:lh.;:; tra:vclcd. bac.k t'O' h1"';:'Xl\;;.O. 9111,,;,.>
also testified that it had been her intent since she moved to
Austin in September 2005 to live in Austin.
During cross-examination, Navarro conceded that her visa was
a "tourist visa" and that she had not sought permanent
residency status in the United States. She also testified that at
Ii
the time she filed her visa application, she informed
government officials that her residence was in Mexico.
However, section 6.301 requires only that a petitioner be a
domiciliary of Texas and a resident of the county in which the
suit is filed, not that she be a citizen of the United States or
carry a certain type of visa. SeeTex. Fam. Code Ann. § 6.30l.
Black's Law Dictionary defines "domiciliary" as "[a] person
who resides in a particular place with the intention of making
it a principal place of abode." Black's Law Dictionary 5 59 (9th
ed. 2009). Navarro testified that she had lived in a house in
Austin since September 2005 and that at the time of moving
there, she intended to live there. Thus, she satisfies the
definition of "domiciliary." Black's Law Dictionary defines
"resident" as "[a] person who lives in a particular place" or
"[a] person who has a home in a particular place." Id. at 1424.
Regarding the second definition of "resident," Black's Law
Dictionary adds: "a resident is not necessarily either a citizen
or a domiciliary." Id. As previously stated, Navarro testified
that she had lived in a house in Austin since September 2005.
She therefore also satisfies the definition of a "resident." ..........
Given all of the circumstances, we conclude that the trial court
did not abuse its discretion in denying Galan's plea in
abatement, see Dolenz, 620 S.W.2d at 575, and that in any
case, Navarro satisfied the domiciliary and residency
requirements at the time of trial. Accordingly, we overrule this
Issue.
20. It is clear that Appellant, both in his testimony and through the exhibits
admitted into evidence at trial, fully satisfies the standards established by the Palau
Court in satisfYing and proving his claims of residency and domicile in the State of
Texas since 2010 ..
21. In the Palau case, id., Sanchez had entered into the United States only with
a tourist visa, had never applied for residency in the United States, had not been in
the United States for a continuous period of 6 months prior to the filing of her divorce
petition, had been traveling back and forth to Mexico throughout her presence in
Austin, and at the time of her obtaining the tourist visa which was in effect at the time
/9
of filing her petition in Travis county, she had affirmatively stated to government
authorities both in the United States and Mexico that her residence was in Mexico.
22. None of that mattered, as the appellate court found that in terms of Sanchez
being abI e to satisfy the time requirement for purposes of residency and domicile as
stated in the Texas Family Code, §6.301, she satisfied the requirements ofthe Texas
Family Code for both residency and domicile. The Texas Supreme Court denied
Palau's Petition for review in 2011 Tex LEXIS 680 (Tex. Aug. 19,2011.).
23. It is clear from the record of testimony and from the evidence at trial in this
matter that Appellant satisfied the time requirements of § 6.3 0 1 even more rigorously
than Sanchez had in the Palau case at the time the Appellant in this matter filed his
divorce petition in Harris County.
24. For that reason, the Findings of Fact No.5, No.7, No.8, No. 16, and No.
17, (CR I Sl Supp: 3-4), as entered by the trial court in this matter are based on factual
error on the part of the trial court and are directly contradicted by uncontroverted
evidence adduced at trial. Appellant established his residence and domicile, and his
limited liability company in January, 2010 In Harris County, Texas and has not
changed either since their establishment in 201 O. (RR 2: 25) (RR 2: 28-29) (RR 2:
32) (RR 2: 35 -38) (CR1: 54-59) (RR 3: P: 8, pages 157 to 185 of volume 3); (RR
3: P: 5, pages 57to 117 of volume 3); (RR2: 50-51) There is no evidence of any kind
that supports Findings of Fact 5,7,8,16 and 17 as theywcre entered by the trial court.
Those Findings of Fact are factually incorrect as entered.
25. Additionally, for that reason, Conclusions of Law No.1 and No.4 (CR 15t
Supp: 5-6) as entered by the trial court in this matter are based on both factual and
~«tl
legal error on the part of the trial court and are directly contradicted both by the
uncontroverted evidence and testimony adduced at trial and by the holdings
referenced in this brief as controlling precedent in Texas Law. (Griffith v. Griffith,
Shahani v. Said, Dawson Austin v. Austin, Palau v. Sanchez, supra).
26. It is clear from the record of testimony and from the evidence at trial in this
matter that Appellee originally t1led in the Netherlands only a request for temporary
support from appellant in her filing in February, 2014 and did not file at that time a
divorce petition in that jurisdiction. She first filed a divorce petition on March 28,
2014, after Appellant had filed his divorce petition in Harris County on March 24 th •
2014. (CR 1:4-6) (CR 1: 75-80) and (CR 1: 111-127) The Dutch Court has entered
a ruling abating the divoree proceeding in the Netherlands until the matter arrives at
a resolution in Harris County because it has determined that the divorce petition t1led
by Appellant in Ha11'is County was filed first in time. For that reason the Dutch Court
has entered its ruling abating the divorce process in the Netherlands until the proeess
in Harris County arrives at a conclusion. CR 1: 165-172)
27. Forthat reason, the Findings of Fact No. 10,No. 11,No.12,andNo.21,(CR
1't Supp: 4-5) as entered by the trial court in this matter are based on factual error on
the part of the trial court, are unsupported by any evidence, and are directly
contradicted by the uncontroverted evidence adduced at trial. There is no evidence
that supports Findings of Fact 10,11, 12, and 21 ( as they were entered by the trial
court. Those Findings of Fact are factually incorrect as entered.
28. Additionally, for that reason, Conclusions of Law No.1 and No.4 ( CR 1st
Supp: 5-6) as entered by the trial court in this matter are based on both factual and
:z..1
legal error on the part of the trial court, are not supported by controlling case law,
and are directly contradicted both by uncontroverted evidence and testimony at trial
and by the holdings referenced in this brief as controlling precedent in Texas Law.
(GriffIth v. GriffIth, Shah ani v. Said, Dawson Austin v. Austin, Palau v. Sanchez,
supra).
29. It was error for the trial court to enter the referenced findings of fact and
conclusions of law as they were entered since they were not supported by any
evidence presented and admitted at the trial of the special appearance.
Conclusion
30. Appellant presented to the trial court ample uncontradicted evidence that he
had established both his residence and his domicile in Texas in 2010 and had never
changed either at a subsequent time. Appellant presented to the trial court ample
uncontradicted evidence that he had fully satisfied the requirements of § 6.301 of the
Texas Family Code as to both residency and domicile by the time that he filed his
divorce petition in Harris County on March 24, 2014.
31. Appellant presented to the trial court ample uncontradicted evidence that
Appellee fITst filed an actual divorce petition in the Netherlands on March 28, 2014,
four days after Appellant's filing in Harris County. Acknowledging such chronology,
the Dutch Court has entered a ruling abating the action pending in the Netherlands
in an application ofthe principle of comity, and has deterred to the fact that the Harris
County court had primary jurisdiction over the divorce matter.
32. Appellant presented to the trial court ample evidence that he was seeking an
in rem status divorce, without seeking a division of the marital estate, and that under
:2..2....
the provisions of §6.308 of the Texas Family Code, he was entitled to have the court
enter a final divorce decree in this matter by which the parties would be divorced.
33. Appellant presented to the trial court ample evidence that directly refuted the
findings offact and conclusions oflaw which the trial court entered in this matter and
upon which the court's judgment rests. The evidence and controlling precedent show
that the trial court's findings and conclusions as entered are based on incorrect facts
and on the lack of application to this case of controlling legal precedent that mandates
the trial court's denying the special appearance and allowing this matter to proceed
to a final decree of divorce.
34. For these reasons, it was error forthe trial court to have granted Appellee's
special appearance and to have dismissed Appellant's petition for divorce
Prayer
For the reasons stated in this brief, Appellant asks the Court to find that the
trial court erred in granting Appellee's special appearance. Appellant asks the Court
to overrule the trial court's order granting Appellee's special appearance and
dismissing Appellant's divorce action and that it render judgment granting the
Appellant's requested divorce on the terms that it was asked for under the provisions
of Texas Family Code 6.308, or that alternatively it remand the case to the trial court
directing the trial court to proceed to render the divorce as stated in Appellant's
divorce petition.
Respectful!}' Submitted
(1-- (- fO: ~, -')
Andres P. Chaumont
State Bar No. 15779400
834 Fleetwood Place