| I. INTRODUCTION
Whether a court has authority to determine issues germane to family law matters arising from relationships that are brought before that court depends upon whether the participant or participants have a sufficient connection with the state to justify the state’s involvement in the controversy, and, if so, whether the venue for the contest meets the criterion set forth in the Texas Family Code. This article will first analyze the current status of the law with regard to jurisdiction of the sovereign to hear the case and then analyze the appropriate county or venue within the state to address the issues. The author wishes to acknowledge with thanks Tom Vick for his excellent paper “Jurisdiction and Venue: UCCJA & PKPA” presented at the 1998 Advanced Course; Jim Farris for his treatise “Interstate Divorce and Property Update” at the 1998 Advanced Course, and Victor Negron for his paper “The UCCJEA: What Has Really Changed” at the 1999 Advanced Family Law Drafting Course in Houston.
II. JURISDICTION
Jurisdiction questions may arise as to whether the forum state can entertain a dissolution of a marriage in general, as well as to whether the forum state has the ability to exercise authority over a non-resident respondent (defendant) in ancillary litigation affecting the rights and duties of the non-resident which arise as a result of the litigation. Such an analysis requires examination of the trial court’s authority as it relates to divorce, division of property, awarding of spousal support, enforcement of the division and award, enforcement of sister state judgments relating to the property, and issues relating to suits affecting the parent child relationship (SAPCR’s) as they may arise under federal case law, the UCCJEA, and the PKPA.
A. JURISDICTION IN TITLE I (i.e. NON-SAPCR) LITIGATION
a) Dissolution of the mar-riage
1. Status jurisdiction generally
Most of us are aware that the United States Supreme Court has identified two types of jurisdiction in which a state may exercise its authority. One type of jurisdiction in which a state court can exercise its jurisdiction is referred to as “in personam” jurisdiction, in which the court, once it has acquired such jurisdiction, can proceed to lawfully exercise authority over every aspect of a case by virtue of the person of the defendant being fully and completely within the power of the court. International Shoe v. Washington, 66 S.Ct. 154 (1945). This concept will be discussed at length in the sections that follow.
However, the Supreme Court has also recognized that even without “in personam” jurisdiction, states may exercise status, or subject matter jurisdiction where the state has a compelling concern by virtue of its sovereignty over its citizens in determining a resident’s status under its law. This jurisdiction is commonly referred to as “in rem” jurisdiction. No more compelling status determination appears to have appeared in American Jurisdiction than the sovereign’s ability to establish the marital status (or lack thereof) of that state’s citizens. Thus, the Supreme Court, in the precedent setting case of Pennoyer v. Neff, 95 U.S. 714 (1878) first enunciated the rule that a state may determine the marital status of one of its citizens as being divorced provided that the divorcing party has met a residency requirement to become a citizen of the state regardless of the citizen’s spouse’s residence. In so ruling, the Supreme Court established that such authority is available by virtue of the petitioner’s citizenship in the state. Relying on the full faith and credit clause of the U.S. Constitution, the Supreme Court later declared that an ex parte decree of divorce must be recognized throughout the nation once it is granted to a domiciliary of the state granting the divorce. In the so-called Williams I case, Williams v. North Carolina, 317 U.S. 287 (1942). In so ruling the court set out its reasoning:
“Certainly if decrees of a state altering the marital status of its domiciliaries are not valid throughout the Union even though the requirements of procedural due process are wholly met, a rule would be fostered which could not but bring “considerable disaster to innocent persons” and “bastardized children hitherto supposed to be the offspring of lawful marriage”, or else encourage collusive divorces. These intensely practical considerations emphasize for us the essential function of the full faith and credit clause in substituting a command for the former principles of comity.”
However, in the so-called Williams II decision, Williams v North Carolina, 325 U.S. 226, the Supreme court recognized that such unbridled ability of a court of one state to grant a divorce to its citizens is tempered by the recognition that a sister state may review the granting of another state’s divorce under limited circumstances to determine if the divorce is procured by fraud or collusion. It is further well settled that the “in rem” granting of the divorce by a sovereign to its citizen may be granted where service of citation is obtained by properly posted notice by publication provided the state’s publication laws are properly adhered to. Estin v. Estin, 334 U.S. 541 (1948). The ability to grant a divorce or dissolution of marriage to its residents without personal jurisdiction over the non-resident parent, however, does not necessarily carry with it the ability to affect property rights of the parties in their property.
Further, it is clear that the issue of domicile may not be collaterally attacked by a spouse who appeared in the divorce action. In Sherrer v. Sherrer, 334 Y.S. 343, 68 S.Ct. 1097, 92 L.Ed. 1429 (1948), the Court ruled that the parties to a divorce in Florida where both appeared and had an opportunity to contest the jurisdiction could not later attack the jurisdiction issue in a Massachusetts proceeding without violating the Full Faith and Credit Clause.
As to residency requirements, states have traditionally required not only that one of the litigants in an action for divorce be a domicile of that state but also that such litigant have resided there for a sufficient length of time. Although an issue existed as to whether a state could constitutionally deny a domiciliary a divorce solely on the basis of residency for an insufficient period of time, in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) the Court upheld a one-year residence requirement as being justified and constitutional due to the interests of the state in avoiding becoming a divorce mill and in having full faith and credit afforded to its divorce decrees.
Texas does not allow collateral attack on either domicile or residency. Texas cases clearly hold that neither domicile nor residence are jurisdictional to the extent that a divorce decree may subsequently be collaterally attacked on the basis of lack of subject matter jurisdiction provided that the litigants had an adequate opportunity to address the issue. This applies to the granting of the divorce. Ex parte Tyler, 261 S.W.2d 833 (Tex.Sup. 1953); Schreiner v. Schreiner, 502 S.W.2d 840 (Tex.Civ.App.—San Antonio 1973, writ dism’d); Buffaloe v. Buffaloe, 210 S.W.2d 429 (Tex.Civ.App.—Dallas 1948, writ dism’d).
Although some early Texas authority stood for the contrary, this author believes it is clear that, without in personam jurisdiction, a Texas court cannot divide property outside the state in which the non-resident spouse has an interest. Fox v. Fox, 559 S.W.2d 407 (Tex.Civ.App.—Austin, 1977, no writ). Hoffman v. Hoffman, 821 S.W.2d3 (Tex.App.—Ft. Worth 1992, no writ); Shaffer v. Heitner, 433 U.S. 186 (1977). As we will see later in this paper, with in personam jurisdiction the court may effectuate a transfer of interest in such property however.
Query: Can a Texas court that acquires in rem jurisdiction only over a non-resident spouse divide property that is within the state? Some Texas cases have held that it can, but only in dicta. See, e.g. Fox v. Fox, 559 S.W.2d 407 (Tex.Civ.App.—Austin, 1977, no writ). Comisky v. Comisky, 597 S.W.2d 6 (Tex.Civ.-Beaumont 1980, no writ). However, in the recent decision by our Supreme Court, Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex.1998) the Court held that without “minimum, purposeful contacts with Texas” by the non-citizen spouse, if in personam jurisdiction does not exist with regard to that spouse, this state is powerless to divide marital property found either within or without the state. id at 326.
Justice Hecht, writing for the majority in a 6-3 decision reasoned that in rem jurisdiction for the granting of a divorce is divisible and severable from jurisdiction to divide the property of the parties – that a proper challenge as to personal jurisdiction of the respondent in its entirety does not prevent the granting of divorce, but does prohibit the trial court from dividing any of the property over which the non-resident spouse failed to have the minimum Texas involvement. The issue is addressed at length later in this paper.
2) The Texas statutory scheme
For purpose of dissolution of a marriage by divorce in rem, in Texas one must refer to §6.301 and §6.302 of the Texas Family (TFC). §6.301 TFC provides that a suit for divorce may be maintained by a resident if he is a domiciliary of the state for six (6) months and a resident of the county for 90 days. The county of residence is not jurisdictional for in rem purposes but only determinative for venue purposes. McCaskill v. McCaskill, 761 S.W.2d 470 (Tex.App.—Corpus Christi 1998, writ denied). A non-resident may file against a domiciliary spouse once the spouse has met the six-month rule. §6.302 TFC. An annulment in rem may be filed if (1) both parties were married in the state, or (2) either party is domiciled here. §6.306 TFC. Of course, whether a person is actually a domiciliary of the forum state for the required time is a fact issue.
§6.301 is constitutional and may not be waived by the parties. Berry v. Berry, 612 S.W.2d 213 (Tex.App.—Beaumont 1980, writ dism’d). Thus, a trial court may not grant any ancillary temporary orders if the statutory requirements have not been fulfilled. Mlcoch v. Mlcoch, 612 S.W.2d 682 (Tex.App.—Dallas 1981, no writ). The purpose of residency requirements is to prevent forum shopping between the parties to the divorce.
b) Marital issues other than dissolution
This portion of the paper will analyze the court’s authority to adjudicate issues related to marriage dissolution other than those dealing with children. SAPCR litigation, including PKPA issues and UCCJEA issues will be dealt with later in this paper.
1) In personam jurisdiction required
In all issues other than the marital status of the parties, it appears now clear that a Texas court must have in personam jurisdiction to make a binding determination in property division, money judgment enforcement, or termination of rights (such as alimony) under a sister court order. Dawson-Austin, supra.
(a) property division
(1) With regard to property whose situs is located outside the state, Texas has long recognized that it is powerless to divide such property. Comisky v. Comisky, 597 S.W.2d 6 (Tex.Civ.—Beaumont 1980, no writ).
(2) With regard to property whose situs is located in this state, Texas law now seems clear that even a division of such property requires in personam jurisdiction, or at least “quasi in personam” jurisdiction. The Texas Supreme Court citing CMMC v. Salinas, 929 S.W.2d 435 (Tex. 1966) reasoned in Dawson-Austin, supra that absent personal jurisdiction over a non-resident litigant, Texas is powerless to exercise authority over either real or personal property located within the state unless the defendant’s relationship with the property resulted from “minimum, purposeful contacts” within Texas. In Dawson-Austin the non-resident wife’s only connection to this state was attendance at a meeting in this state some 9 years previously. Even though the resident husband had himself moved to Texas, bought a homestead, opened a bank account, and physically brought with him a stock certificate evidencing his ownership interest in an admittedly community property corporation, no evidence existed that his non-resident spouse had any significant connection with the state. The Texas Supreme court reviewed several United States Supreme Court decision to reach its conclusion, stating:
“In Pennoyer v. Neff, 95 U.S. 714 (1878), the United States Supreme Court held that a state court could exercise jurisdiction over property within the state’s borders and determine the rights and interests of non-residents. But in Shaffer v. Heitner, 97 S.Ct. 2569, the Court abandoned this position and concluded instead that jurisdiction over property, like jurisdiction over persons, must be based on minimum, purposeful contacts and must not offend traditional notions of fair play and substantial justice: The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant. We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. Id. at 212, 97 S.Ct. at 2584. Shaffer was a shareholder derivative suit against officers and directors of two Delaware corporations. A Delaware court sequestered defendants’ stock in the corporations, even though neither defendants nor their stock were physically present in Delaware, basing its jurisdiction to do so on a Delaware statute that deemed Delaware the situs of ownership of all stock in Delaware corporations. Id. at 192, 97 S.Ct. at 2573. The Supreme Court held that neither defendants nor their stock had sufficient contacts with Delaware to justify the state court’s exercise of jurisdiction over them. Id. at 213-217, 97 S.Ct. at 2584-2587.
c) Acquiring personal jur-isdiction over a non-resident
1) The Texas Statutory Scheme
§6.305 of the TFC reads:
“(a) If the petitioner in a suit for dissolution of a marriage is a resident or a domiciliary of this state at the time the suit for dissolution is filed, the court may exercise personal jurisdiction over the respondent or over the respondent’s personal representative although the respondent is not a residence of this state if: (1) this state is the last marital residence of the petitioner and the respondent and the suit is filed before the second anniversary of the date on which marital residence ended; or (2) there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction. (b) A court acquiring jurisdiction under this section also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship.”
2) Domicile in this state
“Domicile” has been defined in Texas law as “a place where a person has his true, fixed and permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning. Otherwise stated, the term in its legal signification means the place in which he has fixed his habitation, without any present intention of removing therefrom.” 31 Tex. Jur. 3d Domicile § 1 (1984).
“Residence is a lesser included element within the technical definition of domicile. Thus, residence signifies living in a particular locality, but domicile means living in that locality with the intent to make it a fixed and permanent home. Residence simply requires bodily presence, as an inhabitant in a given place while domicile requires, in addition, the intention to make it one’s domicile.” 31 Tex. Jur. 3d Domicile § 2 (1984).
A state clearly has jurisdiction of its domiciliaries even if they are served in sister states or in foreign countries. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1941); Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932).
A variation on the concept that present domicile of the respondent must be the forum state is contained in §6.305(1) TFC which grants in personam jurisdiction over a non-resident if the suit is filed soon enough (within 2 years) and Texas was the state of last marital residence. Prior to the current statute, its predecessor used the language the “state in which the last marital cohabitation occurred.”
In Cossey v. Cossey, 602 S.W.2d 591, 595 (Tex.Civ.App.—Waco 1980, no writ) the Court observed the following:
The term “marital cohabitation” as used in Family Code §3.26(a)(1) has not been defined by the courts. It has been suggested that at a minimum it should require the establishment of “a permanent place of abode” by the spouses. Sampson, Long-Arm Jurisdiction Marries the Texas Family Code, 38 Tex.B.J. 1023, 1027 (1975). It would certainly require more than occasional visits by one spouse with the other and their children at the other’s place of residence during marital separation coupled with submission of the parties to marriage counseling during the visits in an attempt to reconcile their problems.
Also citing Shaffer, supra, of like authority is Hoffman v. Hoffman, cited previously.
3) Personal service while present in the state (non-resident’s long-arm jurisdiction)
In Burnham v. Superior Court of California, 110 S.Ct. 2105 (1990), the United States Supreme Court addressed the issue of “whether the Due Process Clause of the Fourteenth Amendment denies California Courts jurisdiction over a nonresident who is personally served with process while temporarily in that State.” Id. at 2109. Specifically, the Burnham case concerned whether California had personal jurisdiction over a New Jersey resident who was served with divorce papers by surprise while voluntarily in California on unrelated business and while visiting his children who resided there. Id.
The Supreme Court’s holding in Burnham stated fairly succinctly that, with a few exceptions, personal service on a defendant who was temporarily in the state was sufficient for the courts of that state to acquire personal jurisdiction regardless of the defendant’s contacts with the state. Id. at 2115. The Court held that in such a situation it was not necessary for the court claiming jurisdiction to do the minimum contacts analysis required when personal jurisdiction is asserted over a nonresident defendant who was not personally served while within the state. Id.
Keep in mind, however, that a court might have jurisdiction in some areas of a family law case and not in others.
§6.308 of the TFC recites:
“(a) A court in which a suit for dissolution of a marriage is filed may exercise its jurisdiction over those portions of the suit for which it has authority. (b) The court’s authority to resolve the issues in controversy between the parties may be restricted because the court lacks: (1) the required personal jurisdiction over a nonresident party in a suit for dissolution of the marriage; (2) the required jurisdiction under Chapter 152 [Uniform Child Custody Jurisdiction Enforcement Act]; or (3) the required jurisdiction under Chapter 159 [Uniform Interstate Family Support Act].” Dawson-Austin has taken this proposition so far as to establish that a divorce is divisible from the property division. Id. at 327-328.
Pennoyer v. Neff, supra, Burnham v. Superior Court, and their progeny had long been cited to assert that should a party be served while physically present within this state, except under circumstances where such presence is brought by fraud or duress in personam jurisdiction was established. This doctrine often called “gotcha” jurisdiction had long been the basis for the concept that a court could divide any property found in its borders until the U.S. Supreme Court decided the case of Shaffer v. Heitner, 433 U.S. 186 (1977).
In Shaffer a stockholder’s derivative action led to a “seizure” of the ownership interest in a corporation of individual defendants by placing stock transfer orders on the corporation’s books. As the U.S. Supreme Court drew the issues, “The relationship among the defendant, the forum and the litigation rather than the mutually exclusive sovereignty of states on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction.” [at 433 U.S. 204, 97 S.Ct. 2569, 53 L.Ed.2d 683].
“Gotcha” jurisdiction over the property was no longer sufficient. Instead, “…in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over the interest of persons in a thing.’” The standard for determining whether an exercise of jurisdiction over the interest of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe.” [at 433 U.S. 207, 97 S.Ct. 2581, 53 L.Ed.2d 680].
However, any time service can be accomplished on a respondent while he is physically present in the state, a strong case can be made that this state has acquired personal jurisdiction over the respondent for most purposes.
d) Authority to divide property
The petitioner is permitted to file for the divorce in either the county of his or her residence, or that of the respondent. Lutes v. Lutes, 538 S.W.2d 256 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ). If one spouse commences an action before the residency requirements are met, the other spouse may file a separate action in a county where the requirements are satisfied. The first filing will not prevent the court in the second action from granting a divorce if the second action was filed before the residency requirements were fulfilled in the first action, since the first court did not acquire dominant jurisdiction. Allen v. Allen, 593 S.W.2d 133 (Tex.Civ.App.—Amarillo 1979, no writ).
The domiciliary requirements of §6.301 may be fulfilled by a showing of actual and continuous physical residency in Texas or a good faith intent to establish a home in the county. Beavers v. Beavers, 545 S.W.2d 29 (Tex.Civ.App.—Waco 1976, no writ). A temporary absence from the county will not interrupt a party’s residency in Texas. Posey v. Posey, 561 S.W.2d 602 (Tex.Civ.App.—Waco 1978, writ dism’d). Other indicia of a party’s domicile includes voter registration, home ownership, residency declared on tax returns, place of employment, situs of bank accounts and state of issuance of an auto license and registration.
1) In-state property
As we have seen, the court’s power to divide property in state does not exist absent sufficient minimum contacts that would meet the test enunciated in Dawson-Austin. Of like result is the court’s ruling in Kramer v. Kramer, 668 S.W.2d 457, (Tex.Civ.App.—El Paso 1984, no writ) where the court found “not only insufficient minimum contacts but no contacts” between the respondent and the forum state.
2) Out of state
(a) Case law
The traditional rule is that foreign realty is not subject to direct division by a Texas court in connection with a divorce proceeding. Deger v. Deger, 526 S.W.2d 272, 274 (Tex.Civ.App.—Dallas 1962, no writ); Kaherl v. Kaherl, 357 S.W.2d 622, 624 (Tex.Civ.App.—Dallas 1962, no writ). However, when a Texas court has personal jurisdiction over a party to the proceeding it may order that party to execute a conveyance of real estate located in another state. Read v. Read, 634 S.W.2d 343 (Tex.App.—Amarillo 1982, writ dism’d). A court which lacks personal jurisdiction to order the conveyance of foreign realty is powerless to divide the land. However, this rule is subject to the court’s power to carry out its own orders, as we shall see.
(b) Statutory provisions
§7.002 TFC reads: Division of Property Under Special Circumstances. In addition to the division of the estate of the parties required by §7.001, in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right having due regard for the rights of each party and any children of the marriage:
(a) property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or
(b) property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition. §7.002 of TFC.
This provision appears to extend the trial court’s jurisdiction to divide foreign realty that has been classified as community property. However, division of the foreign realty must be accomplished through the courts in personam jurisdictional powers. Brown v. Brown, 590 S.W.2d 808 (Tex.Civ.App.—Eastland 1979, no writ). Thus, in Glaze v. Glaze, 605 S.W.2d 721 (Tex.Civ.App.—Amarillo 1980, no writ), the court ordered a conveyance of foreign realty in a divorce proceeding and stated:
“A Texas court does not have, and cannot acquire, in rem jurisdiction over real estate lying outside the state of Texas. When a party is properly before a Texas court, however, the court has in personam jurisdiction over the person and can sometimes do indirectly what it cannot do directly. In a divorce case, where the parties own out-of-state real property, the trial court can consider the existence and value of that realty in dividing the community property of the parties and can, in the exercise of its equitable powers, order one party to execute a conveyance of the out-of-state property to the other party. Id. at 724.”
The jurisdiction of Texas courts also extends to the division of foreign mineral interests held by the community estate when the court has in personam jurisdiction over both parties to the divorce proceeding. Wise v. Estabrook, 519 S.W.2d 632 (Tex. 1974).
In a situation where a foreign divorce court has ordered the conveyance of Texas realty, the Texas Supreme Court held that, as a matter of comity, Texas courts will enforce the equitable decrees of a sister state affecting Texas land, so long as such enforcement would not contravene an established public policy in Texas. McElreath v. McElreath, 345 S.W.2d 722 (Tex. 1961). In McElreath, the foreign divorce decree ordered a conveyance of an interest in Texas realty between parties who had never resided in Texas and who possessed no particular property right growing out of Texas marital laws. Additionally, in a later case, a Court of Civil Appeals held that an in personam decree which indirectly affected title to land acquired while the parties were Texas residents was valid. Forman v. Forman, 496 S.W.2d 243 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ).
In Miller v. Miller, 715 S.W.2d 786 (Tex.App.—Austin 1986, writ ref’d n.r.e.), the court’s opinion began with the proposition that Texas courts are without power or jurisdiction to adjudicate title to land located in another state. The court went on to discuss at length the issue of when a court having jurisdiction over the parties could nevertheless order a conveyance of land in another state. The court characterized the obligations created by the decree in McElreath as “analogous to the personal obligations – to rectify fraud or to enforce a trust or contract – which have traditionally conferred jurisdiction on courts to compel conveyance of out-of-state property.” Id. at 790.
Miller involved an adjudication of title to oil and gas mineral rights in Oklahoma in a will dispute. The wife, trustee and beneficiaries appealed the trial court’s order to quitclaim the Oklahoma property to the decedent’s son by a previous marriage. The appellate court, in setting aside the judgment and dismissing the appeal stated:
“The power of a court of one state to compel a party to convey real property located in another state has always been limited in its application, subject to the ultimate restriction that it cannot be applied in cases which involve a direct adjudication as to title to real property. Where none of these situations is present, and the case involves a “naked question of title”, a Texas court has no jurisdiction to adjudicate title the lands located in another state. Id. at 789; See also Ismail, 702 S.W.2d at 222 (Texas courts do not assert jurisdiction to determine title to real property lying outside of Texas, but may consider the foreign investment in an equitable division of property).
e) Jurisdiction Over Mili-tary Personnel
For the purpose of establishing jurisdiction in Texas, time spent by a Texas domiciliary while serving in the military is considered residence in that individual’s county and Texas. §6.303 of TFC. However, rules regarding military personnel who were not previous domiciliaries of Texas, but are seeking a Texas divorce are governed by §6.304 of the Family Code.
A person not previously a resident of this state who is serving in the armed forces of the United States and has been stationed at one or more military installations in this state for at least the last six months and at a military installation in a county of this state for at least the last 90 days is considered to be a Texas domiciliary and a resident of that county for those periods for the purpose of filing suit for dissolution of a marriage. §6.304 of TFC. Under this section, a Texas court has jurisdiction to grant a divorce even if the military spouse fails to prove an intent to establish a domicile in Texas. Skubal v. Skubal, 584 S.W.2d 45 (Tex.Civ.App.—San Antonio 1979, writ dism’d). By establishing the basis for an in rem proceeding this provision also gives the court the authority to divide property within its jurisdiction. However, the court may not issue a binding order in an ex parte proceeding dividing property outside the state, ordering the payment of personal obligations such as support, or other issues requiring personal jurisdiction. Fox, 559 S.W.2d at 410. A court may, however, order a party to execute deeds transferring title to out-of-state real property.
Under the provisions of the Uniform Services Former Spouses Protection Act (USFSPA), a Texas court may, within the limitations imposed by the Act, divide military retirement benefits as community property upon divorce. 10 U.S.C. §14.08 (1988); Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982). Jurisdictional requisites still apply, and a court may not treat retirement pay as community property subject to division upon divorce unless the court has jurisdiction over the military spouse by reason of the service person’s residence in the territorial jurisdiction of the court (other than because of military assignment within the jurisdiction), the service person’s domicile within the jurisdiction of the court, or the service person’s consent to the court’s jurisdiction. 10 U.S.C. §§14.08(c)(4)(1988). Barrett v. Barrett, 715 S.W.2d 110 (Tex.App.—Texarkana 1986, no writ). Even if the jurisdictional requirements of the USFSPA did not apply, in order for Texas to exercise jurisdiction, the minimum contact test must be met. Thus, in Barrett, there were no sufficient contacts to warrant the trial court’s exercise of jurisdiction where the former husband had only temporarily resided in Texas while in the Air Force, and had no contact with Texas since the divorce except for agreeing to an earlier modification of child support.
f) Recognition of Foreign Decrees in Texas
1) Divorce
The question of whether a foreign divorce decree is valid has not been the subject of frequent litigation. An ex parte foreign divorce may be collaterally attacked for lack of jurisdiction based on durational residency. Callicoatte v. Callicoatte, 324 S.W.2d 81 (Tex.Civ.App.—Waco 1959, writ ref’d n.r.e.). But if the Texas resident appeared in the out-of-state proceeding and unsuccessfully litigated the question of jurisdiction, he or she may not relitigate the jurisdictional issue in Texas. Kellog v. Kellog, 559 S.W.2d 126 (Tex.Civ.App.—Texarkana 1977, no writ). Texas courts have on occasion gone beyond the requirements of full faith and credit in deferring to foreign decrees.
In Burleson v. Burleson, 419 S.W.2d 412 (Tex.Civ.App.—Houston [14th Dist.] 1967, no writ) the court would not allow a collateral attack upon allegedly spurious domicile and held that a judgment cannot be attacked in Texas if under procedural rules of the state of rendition the time for setting aside a judgment has passed.
2) Alimony
A Texas court is required to give full faith and credit to foreign alimony decrees with respect to past due installments which may not be modified retroactively. Barber v. Barber, 323 U.S. 77 (1944) to make any reduction to money judgments or modification of an out-of-state alimony order which could be made by a court in the state rendering the original alimony order, including the award of attorney’s fees in some cases. Tibbetts v. Tibbetts, 679 S.W.2d 152 (Tex.App.—Dallas 1984, no writ). In the case of other money judgments, the standard articulated in International Shoe and its progeny must be satisfied before a state has jurisdiction to render an alimony decree. Fox v. Fox, 559 S.W.2d 407 (Tex.Civ.App.—Austin 1977, no writ) (in the absence of in personam jurisdiction, a court may not enter an order binding on both parties regarding such matters as division of property outside the state, alimony, and other decrees involving personal obligation).
If under the laws of the foreign state the alimony payments do not become vested when they become due, and the court which rendered the original decree has continuing jurisdiction to reduce or modify the arrearage, the alimony decree is not entitled to full faith and credit until the past due installments have been reduced to judgment. Thus, Texas courts must honor foreign judgments for alimony arrearages. Rumpf v. Rumpf, 242 S.W.2d 416 (Tex. 1951). Additionally, if the installments have become vested and are not subject to retroactive modification, the arrearage need not be reduced to a money judgment in the sister state before it is entitled to full faith and credit. Whitwood v. Whitwood, 560 S.W.2d 776 (Tex.Civ.App.—Waco 1977, no writ).
3) Foreign realty
As previously discussed, Texas courts will equitably enforce a foreign decree ordering a party to execute a conveyance of Texas realty where the foreign forum had personal jurisdiction over the property owners. McElreath v. McElreath, 345 S.W.2d 722 (Tex. 1961).
4) Enforcement of Foreign Orders
A party may prevent the enforcement of a foreign judgment by proving that the issuing court did not have proper jurisdiction. When the plaintiff files a properly authenticated copy of the foreign judgment, a presumption of validity arises and the burden is on the defendant to prove the lack of jurisdiction. A & S Distributing Co., Inc. v. Providence Pile Fabric Corp., 563 S.W.2d 281 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r.e.).
The defendant may also challenge jurisdiction of the sovereign state on the basis that service was inadequate under the foreign state’s rules of service. First Nat’l Bank of Libby, Mot. v. Rector, 710 S.W.2d 100 (Tex.App.—Austin 1986, writ ref’d, n.r.e.).
Any decree of another jurisdiction can always be attacked on the ground that the issuing court had no subject matter jurisdiction. McElreath, 345 S.W.2d at 722. The defendant can introduce evidence outside the record to show lack of jurisdiction. This is an exception to the general rule that jurisdictional recitals in a judgment may not be challenged by the introduction of evidence outside the record. Id. at 774.
If the defendant appeared in a foreign state and did not challenge the court’s jurisdiction, the issue cannot be litigated in the Texas Court. Merritt v. Harless, 685 S.W.2d 708 (Tex.App.—Dallas 1984, no writ). The foreign state’s determination that it has jurisdiction over the defendant is binding. Kellogg v. Kellogg, 559 S.W.2d at 128.
Texas courts will not give full faith and credit to a foreign judgment procured by fraud if that same fraud would have been a defense in a suit brought in the foreign state where the judgment was rendered. Marsh v. Millward, 381 S.W.2d 110 (Tex.Civ.App.—Austin 1964, writ ref’d n.r.e.). For example, in Smith v. Young, the Dallas court of Appeals applied California law allowing only fraud extrinsic to the record of court proceedings as a basis for relief from the judgment. Smith v. Young, 620 S.W.2d 66 (Tex.App.—Dallas 1981, no writ).
g) Contesting Subject Mat-ter Jurisdiction
The appropriate procedure for contesting the court’s having subject matter jurisdiction should consist of an initial answer asserting a plea to the jurisdiction (such as a motion to dismiss) in accordance with Rule 85, Tex. R. Civ. Proc. (1988).
If the record affirmatively shows that the trial court was without jurisdiction over the subject matter, the entry of a judgment is fundamental error which may be asserted for the first time on appeal. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947).
It must be noted that in Footnote 1 of the majority opinion in In the Interest of S.A.V., 837 S.W.2d 80, 85(Tex. 1992), the Texas Supreme Court specifically cautioned that although challenging the court’s subject matter jurisdiction in a suit to modify child custody did not constitute a general appearance, “We do not reach the broader question of whether raising subject matter jurisdiction in a typical suit that seeks to impose a personal obligation constitutes a general appearance. See Goodwine v. Superior Court of Los Angeles, 407 P.2d 1 (Cal. 1965); see also Annotation, Objection Before Judgment to Jurisdiction of Court Over Subject Matter as Constitutional Appearance, 25 A.L.R.2d 833 (1952).”
Accordingly, even given the greater liberality authorized in Dawson-Austin v. Austin, supra, the prudent practitioner should make any challenge to subject matter jurisdiction separate from and specifically subject to any special appearance pleading. Furthermore, any argument before the court as to subject matter jurisdiction should be made by the respondent only after the hearing on and an adverse determination as to the special appearance challenge to personal jurisdiction.
h) Contesting personal jurisdiction
1) General appearance – if made, the litigant may not further contest lack of personal jurisdiction
Of course, a general appearance made at any time prevents a litigant from thereafter in the litigation asserting a challenge to the exercise of personal jurisdiction over such litigant. Liles v. Woods & Co., 58 Tex. 416 (1883); Williams v. Huling, 43 Tex. 113 (1875).
(a) What constitutes general appearance?
In Letersky v. Letersky, 820 S.W.2d 12 (Tex.App.—Eastland 1991, no writ) the following actions were held not to constitute a general appearance: 1) a foreign wife’s letter to the divorce court’s district clerk where “she informed the clerk that a divorce proceeding was pending in a Scottish court; that a Scottish court had already awarded her temporary custody of the minor children; that she and the children had minimal contact with Texas; and that she was instructing her lawyer in Scotland to contact eh court.” [at p. 13]; 2) a letter from her Scottish attorney sending the district clerk a copy of the divorce action pending in Scotland; and 3) a subsequent filing of a special appearance on her behalf.
The Court in Letersky reasoned that the wife’s letter to the district clerk “questioned both the court’s subject matter and in personam jurisdiction. The letter did not seek a judgment or any adjudication by the court.” [at p. 14]
The Court further reasoned that the letter from the Scottish counsel was not an appearance by “an attorney of the court” as is set forth in Rule 7, Tex.R.Civ.Proc. (1998) which provides, “Any party to a suit may appear and prosecute or defend his rights therein, in person or by an attorney of the court.”
The Court further held that the letter from the Scottish attorney did not constitute an appearance as the wife’s “duly authorized agent” pursuant to Tex.R.Civ.Proc. 120 which provides that “The defendant may, in person or by attorney, or by his duly authorized agent, enter an appearance in open court.”
The Court found that the wife had only authorized her Scottish counsel to act for her in Scotland and had noted in her letter that “[I]f the Texas court action is not dropped, I would require the services of a Texas lawyer.” The court found that the Scottish attorney was only authorized to send a copy of the pending Scottish court action to the clerk “and to question the Texas court’s jurisdiction” but not to enter any appearance. [at p. 14]
(b) Does a pro-se answer require notice?
Smith v. Lippmann, 826 S.W.2d 137 (Tex.Sup. 1992) the court overruled a default judgment granted in a trespass to try title lawsuit holding that the defendant had sufficiently answered the service of citation thereby deserving notice of any subsequent proceedings by mailing a letter to the district clerk stating that he had received the citation and reading as follows, “This correspondence certifies that I (Gilbert Smith) have received and signed for the citation for cause No. 43,846, Rae Lippmann v. Gilbert Smith, issued by the Honorable District Court 75th Judicial District Court of Libert (sic) County at the Court House of said County in Liberty, Texas, on the 31st day of March 1989.” [at p. 137]
The Supreme Court then stated, “Although Mr. Smith’s letter was not in the ‘standard form’ of an answer, it nevertheless gave the court a timely response acknowledging receipt and acceptance of Mrs. Lippmann’s citation and petition. See Santex Roofing Sheet Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56-57 (Tex.App.—San Antonio 1987, no writ).” [at p. 138]
The Supreme Court further stated, “We conclude that a defendant, who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant’s current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings in the case. Accord Terehkov v. Cruz, 648 S.W.2d 441, 442 (Tex.App.—San Antonio 1983, no writ).” [at p. 138]
2) Waiver of special appearance
(a) Special appearance must be filed prior to any other pleading
Rule 120a specifically provides that a Special Appearance must be filed prior to any motion to transfer venue or any other plea, pleading or motion.
When filing the Special Appearance and an Answer or any other type of pleading, the instruments can be drafted separately and should be carefully filed so the Special Appearance’s file marking affirmatively shows it was filed prior to the other pleading.
However, because of the high stakes involved in even an inadvertent misfiling order (i.e., the client’s for all time having made a general appearance in the cause), the more prudent practice is: 1) to prepare the Special Appearance and the Answer or other pleadings in the same instrument, 2) have the Special Appearance appear first and in entirety in the instrument, and 3) have the subsequent Answer or other pleadings specifically recite that they are filed subject to the previously filed Special Appearance.
(b) Special appearance must be heard before a hearing on any other matter
In Liberty Enterprises v. Moore Transp. Co., 690 S.W.2d 570 (Tex.Sup. 1985), the Court held that the mere agreement by a party to an agreed order granting a new trial constituted a general appearance waiving the properly filed special appearance.
However, in Myers v. Emery, 697 S.W.2d 26 (Tex.App.—Dallas 1985, no writ) a trial judge’s setting aside a default judgment on his own motion without any motion other than a Special Appearance having been filed by the defendant was held not to constitute conduct on the part of the defendant sufficient to amount to a waiver.
In Barrett v. Barrett, 715 S.W.2d 110 (Tex.App.—Texarkana 1986, writ ref’d n.r.e.), the court noted that although the respondent’s pleadings both asserted lack of personal jurisdiction by way of a special appearance and also asserted the lack or subject matter jurisdiction to divide his military retirement benefits in accordance with the federal statute, the court held that because the only issue raised at the time of the hearing was personal jurisdiction without any raising of the subject matter jurisdiction issue, no waiver of special appearance occurred.
(c) Waiver problems regarding discovery
Although discovery prior to a hearing on the special appearance is specifically provided for by the Rule, an issue arises as to the appropriate remedy for obtaining sanctions when proper discovery is resisted. In Portland Sav. & Loan Ass’n v. Bernstein, 716 S.W.2d 532 (Tex.Civ.App.—Corpus Christi 1985, writ ref’d n.r.e.) cert. denied, 475 U.S. 1016, 106 S.Ct. 1200, 89 L.Ed.2d 313 (1986), it was stated that a hearing on motions for sanctions did not waive the special appearance where the subject of such discovery was relevant to the jurisdictional hearing. However, the Court therein stated that a Motion for Discovery Sanctions with the pertinent discovery directed to the merits of the case rather than to the jurisdiction would constitute a waiver of the special appearance.
While Dawson-Austin v. Austin, supra, specifically approves a continuance to allow jurisdictional discovery prior to the special appearance hearing, discovery clearly not related to personal jurisdiction definitely must be avoided prior to such hearing.
The Texas Supreme Court seems to have finally clarified that other discovery may constitute a waiver or general appearance in Dawson-Austin v. Austin, supra at p. 404:
Dawson-Austin was also entitled to seek a postponement of the special appearance hearing until she could complete discovery, as expressly permitted by Rule 120a, and she was entitled to ask for more time for discovery on her motion to quash, provided she did not attempt to take that discovery before the special appearance was decided. [emphasis added]
(d) Waiver problems and an appeal from a default judgment
When a court has entered a default judgment but still retains plenary jurisdiction, the proper procedure is to file a Special Appearance and a Motion for New Trial Subject to Previously Filed Special Appearance, and to first obtain a hearing solely upon the special appearance. Following the overruling of such special appearance, the Motion for New Trial may be urged without waiving the special appearance. Martinez v. Valencia, 824 S.W.2d 719 (Tex.App.—El Paso 1992, no writ).
However, if the trial court has lost plenary jurisdiction or fails to act upon the special appearance prior to losing plenary jurisdiction, the defendant may not thereafter proceed in the court of appeals, even by way of statutory writ of error, without making a general appearance in the same manner as if no special appearance had ever been filed and with an appeal taken from the default judgment. Clements v. Barnes, 822 S.W.2d 658 (Tex.App.—Corpus Christi 1991, no writ).
(e) Dawson-Austin has established liberality in area of special appearance procedure
The most recent and significant jurisdiction case from our Supreme Court is Dawson-Austin. Dawson-Austin filed pro se a single instrument including a special appearance, a motion to quash service of citation, a plea to the jurisdiction of the court, a plea in abatement, and subject to all of the above, an original answer. Only the answer was expressly made subject to the special appearance; the motion and pleas were not. The instrument contained a verification of the facts and allegations stated in each component of the instrument except the special appearance. Dawson-Austin contended that the failure to include the special appearance in the verification was a typographical error. The district court overruled Dawson-Austin’s special appearance because it was not sworn as required by Rule 120a(1), Tex.R.Civ.Proc., and because a motion to quash service of citation, plea to the jurisdiction, and plea in abatement, all included in the same instrument with the special appearance, were not expressly made subject to the special appearance.
The day after the court’s overruling of the special appearance, Dawson-Austin filed a motion for reconsideration and an amended special appearance. The court denied the amended special appearance “on the merits”, in the court’s words, and did not rule on the motion to reconsider.
The court of appeals held that Dawson-Austin’s special appearance was properly overruled because it was unsworn. The court did not consider whether the other pleadings in the same instrument should have been expressly subject to the special appearance. 920 S.W.2d at 782. The court also held that Dawson-Austin waived her amended special appearance because, before it was filed, Dawson-Austin argued her motion to quash and did not object to the district court’s consideration of it. 920 S.W.2d at 782-783.
The following are the major procedure determinations of the Dawson-Austin decision:
(1) A defective Special Appearance pleading is not a general appearance but may be cured by an amendment
Dawson-Austin v. Austin, supra at p. 402 states:
Austin argues that an unsworn special appearance cannot be cured and is itself a general appearance. Austin’s argument is contrary to the express provision of Rule 120a(1) that a special appearance “may be amended to cure defects”. By “cure”, the rule means to restore the special appearance. The rule does not limit the kinds of defects that can be cured. The absence of a verification is such a defect, and an amendment that adds a verification cures the special appearance.
(2) A defective Special Appearance pleading may be cured by an amendment even after the hearing and ruling on the special appearance
Dawson-Austin v. Austin, supra at p. 402 states:
Austin argues, alternatively, that even if an unsworn special appearance can be cured by amendment, the amendment must be filed before the special appearance is ruled on. This argument, too, finds no footing in Rule 120a(1). The rule simply does not require that an amendment be filed before a ruling on the special appearance, as long as the amendment is filed before there is a general appearance.
***
Austin’s arguments are not only contradicted by both the language and silence of Rule 120a, they misperceive what constitutes a general appearance. One court has explained:
A party enters a general appearance whenever it invokes the judgment of the court on any question other than the court’s jurisdiction; if a defendant’s act recognizes that an action is properly pending or seeks affirmative action from the court, that is a general appearance.
Moore v. Elektro-Mobil Tecknik GMBH, 874 S.W.2d 324, 327 (Tex.App.—El Paso 1994, writ denied). Another court has stated the same proposition in the negative:
“[A]lthough an act of defendant may have some relation to the cause, it does not constitute a general appearance, if it in no way recognizes that the cause is properly pending or that the court has jurisdiction, and no affirmative action is sought from the court.”
Investors Diversified Servs., Inc. v. Bruner, 366 S.W.2d 810, 815 (Tex.Civ.App.—Houston 1963, writ ref’d n.r.e.) (quoting 6 C.J.S. Appearances § 13 (19__)); see also Letersky v. Letersky, 820 S.W.2d 12, 13 (Tex.App.—Eastland 1991, no writ); United Nat’l Bank v. Travel Music, Inc., 737 S.W.2d 30, 32-33 (Tex.App.—San Antonio 1987, writ ref’d n.r.e.). These courts have accurately restated the principle underlying a general appearance. An unverified special appearance neither acknowledges the court’s jurisdiction nor seeks affirmative action. While it cannot be used to disprove jurisdiction, it certainly does not concede it.
(3) Other pleadings contained in the same instrument as the special appearance need not be expressly made subject to the special appearance
Dawson-Austin v. Austin, supra at p. 403 states that such a requirement for being made expressly subject to the Special Appearance, “… is contrary to Rule 120a, which states: ‘a motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance’. The rule makes matters in the same instrument and subsequent matters subject to the special appearance without an express statement to that effect for each matter.”
The Supreme Court noted the often recited language of Portland Sav. & Loan Ass’n v. Bernstein, supra, wherein the court held that motions for sanctions and to disqualify counsel that were not filed subject to the special appearance did not “comply with Rule 120a” and therefore constituted a general apperance.
The Supreme Court disapproved such a contention and stated, “Portland is contrary to the plain language of Rule 120a and to that extent is overruled.” [at p. 403]
(4) Subsequent pleadings filed after a Special Appearance need not be expressly made subject to the special appearance
Dawson-Austin v. Austin, supra at p. 403 states:
Austin argues that Dawson-Austin’s motion for continuance was not made subject to the special appearance and was therefore a general appearance… Austin’s argument is incorrect for several reasons. First, as already discussed, Rule 120a expressly states that pleadings and motions may be “filed subsequent [to a special appearance] without waiver of such special appearance”. Dawson-Austin’s motion for continuance was filed subsequent to her special appearance and thus, by the plain language of the rule, was not a general appearance. Second, the motion for continuance did not request affirmative relief inconsistent with Dawson-Austin’s assertion that the district court lacked jurisdiction, which, as we have noted, is the test for a general appearance. Rather, the motion asked the court to defer action on all matters. Third, the motion was particularly appropriate, given that Austin, not Dawson-Austin, set the matters for hearing. Dawson-Austin was obliged to request that hearing of her motion and pleas be deferred until after the special appearance. Rule 120a(2) states: “Any motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.” She could not request a postponement of the special hearing without also requesting a postponement of her other matters on which Austin, not Dawson-Austin, had requested a hearing. Dawson-Austin was also entitled to seek a postponement of the special appearance hearing until she could complete discovery, as expressly permitted by Rule 120a, and she was entitled to ask for more time for discovery on her motion to quash, provided she did not attempt to take that discovery before the special appearance was decided.
(5) Motions for Continuance and other motions not inconsistent with assertion of lack of personal jurisdiction may be heard prior to a hearing on the Special Appearance without waiving the Special Appearance or generally appearing
Although it would make little sense to allow filing a Motion for Continuance prior to a hearing on the Special Appearance without also allowing such motion also to be previously heard, that argument has been made in the past and the Court in Dawson-Austin v. Austin, supra, specifically allowed such.
Dawson-Austin was also entitled to seek a postponement of the special appearance hearing until she could complete discovery, as expressly permitted by Rule 120a, and she was entitled to ask for more time for discovery on her motion to quash, provided she did not attempt to take that discovery before the special appearance was decided. [at p. 404]
(6) A special appearance made only as to the division of property and not the granting of the divorce is permissible
Both Dawson-Austin’s special appearance and her amended special appearance stated: “This special appearance is made to the severable claim asserted by BILL wherein BILL seeks a division of the parties’ property.” In other words, Dawson-Austin specially appeared only with respect to the claim for division of the marital estate, not the claim for divorce. (Since the couple had no children, these were the only two claims in the proceeding.) Rule 120a permits a special appearance to be made “as to an entire proceeding or as to any severable claim involved herein.” It is well settled in this State that the division of a marital estate is not a claim severable from the rest of a divorce proceeding… Thus, Austin argues that Dawson-Austin’s special appearance to a non-severable portion of the proceeding constituted a general appearance.
***
No case holds that claims of divorce and division of property do not involve severable jurisdictional issues. The United States Supreme Court recognized long ago that a court could have jurisdiction to grant a divorce—an adjudication of parties’ status—without having jurisdiction to divide their property—an adjudication of parties’ rights. Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948).
***
Had Dawson-Austin specially appeared as to the entire proceeding, the district court could not have sustained it except as to the property division claim. The district court had jurisdiction to grant the divorce, and Dawson-Austin could not specially appear to that claim. If the court could sustain the special appearance as to only the one claim and not the other, directing the special appearance only to the claim for which it could be sustained could not be a general appearance.
Dawson-Austin v. Austin, supra at pp.404-405.
(7) Requesting a hearing on Motion to Quash Service of Process or other matters inconsistent with assertion of lack of personal jurisdiction will constitute a general apperance.
While the Dawson-Austin Court agreed with Mr. Austin’s counsel that requesting a hearing on a Motion to Quash Service of Process or other matters inconsistent with assertion of lack of personal jurisdiction would constitute a general appearance, the Court disagreed that Ms. Dawson-Austin’s counsel had requested such a hearing or asserted such motion at the hearing which was held. Dawson-Austin v. Austin, supra at p. 405. The case is copied as Exhibit One to this paper.
B. Jurisdiction in Title 5 Litigation (SAPCR’s)
a) INTRODUCTION
§6.305 of the Texas Family Code permits the exercise of personal jurisdiction over a non-resident in a suit affecting the parent-child relationship connected with divorce whenever personal jurisdiction exists over the non-resident to litigate the divorce. Prior to the adoption of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) rules existed in each state which set out the minimum contacts necessary to establish jurisdiction over the parental rights of non-resident parents. The minimum contacts requirements for acquiring personal jurisdiction over a non-resident are specifically set forth in §102.011 of TFC. This section allows the court to exercise personal jurisdiction over a person on whom service is required in a SAPCR although the person is not a resident or domiciliary of Texas.
§102.011(b). Acquiring Jurisdiction Over Nonresident
The court may also exercise personal jurisdiction over a person on whom service of citation is required or over the person’s personal representative, although the person is not a resident or domiciliary of this state, 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 parental 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 act of intercourse;
7) the person registered with the paternity registry maintained by the bureau of vital statistics as provided by Chapter 160 [Determination of Paternity]; or
8) there is any basis consistent with the constitutions of this state and the United States for the exercise of the person jurisdiction. §102.011(b) of TFC.
Thus, Texas courts have been provided a means to litigate parental rights on the basis of personal jurisdiction, as an alternative to exercising status or subject-matter jurisdiction over the suit as provided by the Texas version of the UCCJEA.
b) Intrastate jurisdiction
Intrastate jurisdiction of Title 5 litigation is now controlled in Texas by Chapter 152 of TFC, also known as the UCCJEA, the successor to the Texas version of the UCCJA, as reconciled with the PKPA. §102.012 TFC reads:
“(a) A court in which a suit is filed may exercise its jurisdiction over those portions of the suit for which it has authority.
(b) The court’s authority to resolve all issues in controversy between the parties may be restricted because the court lacks:
(1) the required personal jurisdiction over a nonresident party;
(2) the required jurisdiction under Chapter 152 [UCCJEA); or
(3) the required jurisdiction under Chapter 159 [UIFSA] [157].
(c) If a provision of Chapter 152 or Chapter 159 expressly conflicts with another provision of this title and the conflict cannot be reconciled, the provision of Chapter 152 or Chapter 159 prevails.
(d) In exercising jurisdiction, the court shall seek to harmonize the provisions of this code, the federal Parental Kidnapping Prevention Act (28 U.S.C. Section 1738A), and the federal Full Faith and Credit for Child Support Order Act (28 U.S.C. Section 1738B).
Clearly, therefore, any conflicts between §102.011 and Chapter 152 (UCCJEA) must be reconciled in favor of the UCCJEA.
1) UCCJA v. UCCJEA: UCCJEA NOW THE LAW IN TEXAS
The Uniform Child Custody Jurisdiction Act (UCCJA) has been the law governing interstate child custody disputes in Texas since 1968, when it was adopted here.
The UCCJA was designed to discourage interstate kidnapping of children by non-custodial parents. It operated on the following principles:
(1) it sought to establish jurisdiction over a child custody case in one state, and
(2) it sought to protect the order of that state from modification in any other state, so long as the original state retained jurisdiction over the case.
2) UCCJA v. PKPA
However, the acts were distinguishable in their application of jurisdictional principles. There were two main differences: First, unlike the PKPA, the UCCJA did not give first priority to the home state of the child in determining which state may exercise jurisdiction over the child custody action. Second, the PKPA also provides that once a state has exercised jurisdiction, that jurisdiction remains the continuing, exclusive jurisdiction until every party to the dispute has left that state. The UCCJA simply stated that a legitimate exercise of jurisdiction must be honored by any other state until the basis for that exercise of jurisdiction no longer existed.
The idea sounded good in principle, but in practice became impracticable.
The federal statue, the PKPA, was an effort to put the weight of the full faith and credit clause behind the principles of the UCCJA.
Both acts attempted to deter non-custodial parents from illegally removing children from the custodial parent.
3) UCCJEA – the new act
(a) Introduction – In 1977, the Uniform Law Commissioners promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in an effort to address many shortcomings in the 30 year-old UCCJA. The UCCJEA became effective in Texas on September 1, 1999, and primarily does two things: It reconciles the UCCJA principles with the PKPA, and it adds interstate civil enforcement for child custody orders.
While the new act is more extensive than the former Chapter 152, TFC, the changes for Texas attorneys will not be dramatic, as the Texas version of the UCCJA was fairly consonant with the PKPA. A treatment of the major changes follows.
(b) Home State Given Priority – The UCCJA established four general bases for the exercise of jurisdiction:
1. The child’s home state;
2. A significant connection between the state and the parties in a child custody dispute;
3. Exercise of emergency jurisdiction when the child is present and the child’s welfare is threatened; and
4. Presence of the child in the event there is not other state with another sound basis for the exercise of jurisdiction.
Under the UCCJA, the preferable state within which to determine the best interest of the child was considered to be that of the home state; however, once another court established jurisdiction under any of the other bases, that state would be able to proceed without further inquiry as to whether some other state had home state status.
For their part, the drafters of the PKPA believed strongly that having a home state was considered better than any other ground of jurisdiction. As a result, the home state always has the first opportunity to take jurisdiction under the PKPA.
(c) The UCCJEA approach – The UCCJEA compliments the PKPA approach. Any state that is not the home state of the child must defer to the home state when confronted with a request for an initial custody determination. Temporary emergency jurisdiction may be taken, but only long enough to secure the safety of the threatened person and to transfer the proceeding to the home state.
The Texas version of the old UCCJA provided for home state priority, and provided for assumption of jurisdiction under the “significant connection” ground only if a home state did not exist or the home state declined jurisdiction.
(d) Bases for Assuming Jurisdiction Under the UCCJEA – Under the UCCJEA, there are four bases for assuming jurisdiction over a child custody dispute:
1. The state is the child’s home state.
2. There is a significant connection between the state and the parties to the child custody dispute.
3. The child’s welfare is immediately threatened, and emergency jurisdiction is necessary when the child is present in the state.
4. The presence of the child in the event there is no other state with a sound basis for taking jurisdiction.
(e) Continuing, Exclusive Jurisdiction – The UCCJEA also provides for continuing, exclusive jurisdiction. Once a state takes jurisdiction over a child custody dispute, it retains jurisdiction for so long as that state, by its own determination, maintains a significant connection with the parties, or until all parties have moved out of the state. This is a departure from the UCCJA, which allowed jurisdiction to shift if the initial ground for taking jurisdiction caused to exist, i.e., if the child subsequently moved out of state.
The UCCJEA keeps the original home state as long as a parent remains a resident, unless the home state declines its jurisdiction in favor of the new home state.
Just like the old Texas version of the UCCJA, the new UCCJEA provides for temporary emergency jurisdiction that can develop into continuing jurisdiction if no other state with grounds for jurisdiction can be found, or, if found, declines to take jurisdiction. The UCCJEA provides for a temporary order under emergency jurisdiction which expires upon a court of competent jurisdiction in another state signing an order in the suit, or on the 91st day after the date the court entered its emergency temporary order.
(f) UCCJEA is Really Enforceable – One of the thorniest problems with the old UCCJA was the inability to litigants to enforce a custody order.
Enter the UCCJEA. The most significant improvement provided by the UCCJEA are the new provisions for interstate enforcement of custody and visitation orders. Once an out-of-state order has been registered, and such registration is not contested, it may then be enforce by any means available to enforce a domestic order. §152.306. This makes available the contempt powers of the court to assure that the custody or visitation order is honored by the parent subject thereto. Additionally, an expedited remedy is available through the UCCJEA, resembling a writ of habeas corpus. §152.308. Once the court is presented with a verified petition, the court may order the party with the child to submit to an immediate hearing for enforcement. §152.310. The court may rule with respect to enforcement at the hearing, or conduct an extended hearing upon standards established in the statute to contest enforcement. §§ 152.306 and 152.310.
And like a writ of attachment, another powerful provision allows law enforcement officers with a warrant to obtain physical custody of a child who might be removed from the enforcing jurisdiction or appears to be in danger. §152.311. Obviously, such a request would have to be accompanied by a verified pleading. Id.
The UCCJEA also gives prosecutors the authority to enforce custody or visitation orders, and law enforcement officers the authority to locate a child under instructions from prosecutors. Id.
(g) Definitions – The §152.102 of the UCCJEA defines seventeen terms compared to the eleven in the UCCJA. Added terms include the following: abandoned, child, commencement, court, issuing court, issuing state, legal custody, person acting as a parent, tribe and warrant. It is clear that the new UCCJEA seeks to tighten definitions which were ambiguous or unclear under the old UCCJEA.
1. “Child” – The UCCJEA defines “child” as an individual under 18 years of age.
2. “Child Custody determination” – The definition of “child-custody determination” (formerly “custody determination”) encompasses any judgment, decree, or other order which provides for the custody of, or visitation with a child, regardless of different, local terminology; the term does not include an order relating to child support or another monetary obligation of an individual. The definition now also includes permanent, temporary, initial, and modification orders.
3. “Child custody proceeding” – Previously, there was a great deal of confusion about what constituted a “custody proceeding” under the old UCCJA. Now we have a laundry list.
“Child custody proceeding” (formerly “custody proceeding”) encompasses a more detailed, expanded list of proceedings such as: divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or child support enforcement.
4. “Commencement” – “Commencement” has been included in the definitions as a replacement for the term “pending”.
5. Other definitions – The UCCJEA also includes a formal definition for “court”, “issuing court”, “issuing state”, and “legal custody”.
There is no significant change in the definition of “home state” or “initial determination” (formerly “initial decree”).
“Modification” was formerly known as “modification decree,”; there is not significant change in definition here.
The UCCJEA expands the definition of “person acting as a parent” to include a person, other than a parent, who had physical custody of the child for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding, and has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
“Physical custody” means the physical care and supervision of a child. Under the UCCJA, “physical custody” meant actual possession and control f a child.
The definition of “warrant” hints at the power of the UCCJEA to authorize law enforcement officers to take physical custody of a child.
(h) General provisions
1. When the UCCJEA Doesn’t Apply – There are circumstances where the UCCJEA may not apply:
a) Adoption proceedings are not subject to the UCCJEA.
b) The UCCJEA does not apply when dealing with emergency medical care for a child. § 152.103.
c) When the Indian Child Welfare Act requires that a case be heard in tribal court. § 152.104.
None of the above proceedings could be considered the equivalent of custody determinations.
2. Foreign decrees – The UCCJEA will also treat a foreign country as a state of the United States for purposes of applying Subsections B (Definitions) and C (Jurisdiction) of the Act. §152.105. However, the court may refuse to apply the Act if the child custody law of the other country violates basic principles relating to the protection of human rights and fundamental freedoms. In applying this subsection, presumably the court’s scrutiny should be on the child custody law of the foreign country, and not on other aspects of the country’s legal system. However, introduction into evidence of the laws of the foreign jurisdiction which indicate less-than-desirable protection of human rights and fundamental freedoms may support a court’s refusal to apply the Act in favor of the foreign decree’s dictates. This remains to be seen, however.
3. Priority to jurisdiction questions – The UCCJEA provides in §152.107 that if the court’s jurisdiction is questioned, that question must be given priority on the court’s docket and handled expeditiously. There is no substantive change in this section from former §152.024 (UCCJA).
Of note is a change in terminology substituting “question” for the term “case”, which is intended to clarify that it is the jurisdiction issue which must be expedited, and not the entire custody case.
4. Use of sister state process – A new change is reflect in §152.108, which simply authorizes notice and proof of service to be made by any method allowed by either the state which issues the notice, or the state where the notice is received.
5. Special Appearance in sister state – In the past, the practitioner has had concerns about exposing their non-resident clients to the jurisdiction of the court. Much like a proceeding involving a Special Appearance under Texas Rules of Civil Procedure, Rule 120a, that concern is addressed in new §152.109, which allows a party who is not otherwise subject to personal jurisdiction to appear in a custody proceeding, or an enforcement action, without being subject to the general jurisdiction of the state merely by virtue of the appearance. If the petitioner would otherwise be subject to the jurisdiction of the state, appearing in a custody proceeding, or filing of an enforcement proceeding, will not provide the immunity under this Section. Also, the immunity granted does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.
6. Litigant participation in court to court conferences – Another change that fortifies due process for litigants in Texas, new UCCJEA §152.110 provides that the parties may participate in the communication, an that they must be given the opportunity to present facts and legal arguments before a decision is made based on the conversation between the home state court and any other state. This provision attempts to remedy the violation of due process rights of the appellant in Wilson v. Toler, 799 S.W.2d 773 (Tex.App.—Tyler 1990, no writ).
Although the court may allow their participation (not mandated, though) in these communications, no longer are litigants and their attorneys relegated to orders which are the result of material proceedings which have taken place in their absences, and without their legal and factual input.
In recognition of the advances in communication and technology, the Act does not preclude any method of communication – via telephone, online or by other mediums—for the taking of witness testimony. In light of this new change, communication can be just as instantaneous as telephonic communications. §152.111.
As a further protection, a record of the conversation must be made, and the parties have access to that record in order to be informed of the conversation. §152.110.
7. Other means of communication – New UCCJEA §152.111 relates to 152.110, but is not substantively different from former §152.018. Modern modes of communication are now permissible in taking testimony and transmittal of documents.
8. Court communication – Cooperation between courts is encouraged in §152.112. Courts may request assistance from courts other states, and may assist courts of other states. This section, however, does not take a position on admissibility of a custody “evaluation” (formerly called a “social study”) that was conducted in another state.
The old UCCJA provided that the costs associated with travel to another state could be assessed against the parties or the state. It is noteworthy that the provision in the former UCCJA authorizing and assessment of costs against the parties or the state has been removed. An excellent resource for communication has been promulgated in September of 1977 by the American Bar Association called “Interstate Family Practice Guide, a Primer for Judges” which may be obtained. It is available by contacting the ABA Center on Children and the Law from the American Bar Association.
(i) Subchapter C: Jurisdiction
1. Background – Subchapter C of Chapter 152 provides the mandatory jurisdiction rules for the original child custody proceeding. Texas was one of a very few states that enacted the PKPA home state priority in the versions of the UCCJA. Therefore, the UCCJEA will not present a significant departure from the former Act which already prioritized home state jurisdiction.
Under the UCCJEA, it is not longer necessary to determine why the child has been removed. The only inquiry relates to the status of the person left behind. The six-month extended home state jurisdiction in the UCCJEA is narrower than the comparable provision in the PKPA, which applies whenever a “contestant” remains in the home state. This Act retains the original classification of “parent or person acting as parent” to define who must remain for a state to exercise the six-month extended home state jurisdiction, rather than speaking in terms of a “contestant” (as under the old UCCJA).
2. Initial child custody jurisdiction; significant connection – A test for “significant connection” jurisdiction has been established under §152.201(a)(2): Only when there is no home state, or the home state decides that the significant connection state would be a more appropriate forum, and declines jurisdiction, may be “significant connection” state assume jurisdiction over the dispute. In the event one party is, for instance, a member of the Armed Services stationed overseas, so long as the divorce is filed within two years that Texas was the last state of cohabitation, this test might give the service connected spouse a viable argument to file in Texas as his home state event if the non-service connected spouse has moved to another state for more than six months.
Subsections (b) and (c) of §152.201 also make it clear that neither personal jurisdiction over a party nor the child’s presence within the state is required for the court to have jurisdiction to make a custody determination; neither do the presence of minimum contacts nor service within the state confer such jurisdiction.
3. Exclusive continuing jurisdiction - §152.202, the exclusive continuing jurisdiction provisions are narrower than the comparable provisions of the PKPA by reason of the omission of the term “contestant.” The significant connection to the original decree state must relate to the child, the child and a parent, or the child and a person active as a parent. The continuing jurisdiction of the original decree state is exclusive. It continues until one of two events occurs:
a) if a parent, or person acting as a parent, remains in the original decree state, continuing jurisdiction is lost when neither the child, the child and a parent, nor the child and a person active as a parent continue to have a significant connection with the original decree state, and
b) that substantial evidence is no longer available concerning the child’s care, protection, training, and personal relationships in that state.
In spite of the fact that the child has acquired a new home state, the original decree state retains exclusive continuing jurisdiction so long as the general requisites of the “substantial connection” jurisdiction provision of §152.201 are met. Only a “thinning” of the relationship between the remaining parent and the child which would result in loss of a “substantial connection” could forfeit jurisdiction in the original decree state.
4. Original decree state gets to decide - Subsection (a)(1) makes it clear that the original decree state is the sole determinant of whether it continues to enjoy jurisdiction.
A party seeking to modify a custody determination in another state must first obtain an order from the original decree state finding that it no longer has jurisdiction is lost because neither the child, the child’s parents, nor any person active as parent are residing in the original decree state.
The court in either state may make a determination under §152.202 that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
5. Modification - Under §152.203, the “other state” gets to decide if it has jurisdiction in the event the Texas litigant wants to modify the foreign decree. The only exception is if Texas determines that none of the essential individuals [see §152.202(a)(1)] reside in Texas.
6. Temporary emergency juris-diction - The UCCJEA at §152.204 provides for temporary emergency jurisdiction to protect a child that is present in the state even though the court can claim neither home state nor significant connection jurisdiction, until the state which has jurisdiction has an opportunity to enter an order. The time period must be specified in the order, and must be sufficient for the court with jurisdiction to take action. The UCCJA limited that time to 90 days. Communication is required between the court of the state exercising emergency jurisdiction and the court of another state that is exercising home state jurisdiction. “Neglect”, which was sufficient under the former UCCJA, has been eliminated as a baiss for the assumption of temporary emergency jurisdiction. Such jurisdiction can now be based only on a finding that the child has been abandoned, or subjected to or threatened with mistreatment or abuse.
7. Notice and Opportunity to be heard – According to §152.205, and consistent with the PKPA, an order entitled to enforcement only if there has been notice and a reasonable opportunity to be heard.
8. Inquiry into other state’s proceedings – The Texas court is required to look into whether proceedings have been commenced in another state substantially in conformity with the Texas version of the UCCJEA. §152.206.
Simultaneous proceedings arise when:
a) there is no home state;
b) there is no state with exclusive, continuing jurisdiction;
c) there is more than one “significant connection” state.
If this happens, then the state that is “first in time” should prevail, once the courts have communicated with each other. Communication between courts is mandatory when a proceeding has been commenced in another state.
9. Inconvenient forum – The Texas court has the option of declining jurisdictin if it is an inconvient forum and if another forum is more appropriate. §152.207.
There are several factors listed in §152.207 for the court to look at in making its decision, such as: domestic violence, length of child’s residence, distance between the courts, financial circumstances, and the like.
The court is also to allow the parties to submit information to assist in its determination.
Upon determining that it is an inconvenient forum, the Texas court shall stay proceedings upon condition that a child custody proceeding be promptly commenced in the other jurisdiction. The court can add other conditions, if it desires.
10. Unjustified behavior - §152.208 (formerly §152.008 UCCJA) allows the Texas court to decline to exercise jurisdiction if it acquired jurisdiction by the “unjustifiable conduct” of the petitioner.
All is not lost for the bad actor, however, because the Texas court can still exercise jurisdiction if:
a) the parties agree;
b) the other court determines that Texas is the more appropriate forum; or
c) no court of any other state would have jurisdiction.
Interestingly, the court can still assess the costs, attorney’s fees and expenses delineated in the statute if it does not exercise jurisdiction, unless such assessment “would be clearly inappropriate.” §152.208.
11. Information submitted to the court – The petitioner is still required to provide the information previously required to be submitted under oath, under the former UCCJA §152.209. This information is required in the first pleading, whether all the contestants reside in Texas, or not.
a. Appearance of parties and child – The court can require the presence of the parties and the child. It can also require a party to pay the expenses of having the child and another party appear. §52.210.
(j) Subchapter D: Enforcement
1. Definitions – This section (152.301) defines “petitioner” and “respondent” for purposes of clarification.
2. Hague convention – The Act allows orders requiring return of the child under International Child Abductions Remedies Act, 42 U.S.C., §11601, et seq., to be enforced.
3. Court’s duty to enforce – It is the mandatory duty of the Texas courts to enforce and recognize another state’s child custody determination, so long as the foreign court exercised jurisdiction in substantial conformity with the Act.
4. Temporary visitation - §152.304 authorizes a court to enforce visitation rights, including by providing make-up or substitute periods of possession, without modifying the order. Such temporary visitation order shall stay in effect long enough to allow the petitioner to obtain a permanent modification order in the other state.
5. Registration of the child custody determination – The mechanism for registration of the child custody determination of the foreign jurisdiction is set out in §152.305. The party submitting the order for registration need not seek enforcement simultaneously.
Once the order is registered, the court must notify the persons named in the request, and give them an opportunity to be heard and contest the registration. A hearing must be contested within 20 days of the notice.
6. Enforcement of the registered determination – The registered child custody determination can be enforced as if it were a Texas order or decree. It can be modified only if this state would have jurisdiction to do so under Subchapter C.
7. Simultaneous proceedings – If the Texas court determines that a proceeding to modify is pending in another state, it must communicate with the court of that state. §152.307. The court that has exclusive, continuing jurisdiction will make the ultimate decision. If there is not such court, then the court having the power to modify under §152.203 would have the right to make the ultimate decision. Failure of the parties to obey the court having exclusive, continuing jurisdiction, or the power to modify, could be enjoined by the court having jurisdiction.
8. Expedited enforcement – One of the better improvements to the UCCJA is §152.308, which provides a mechanism for a form of habeas corpus proceeing. It is initiated by the filing of a sworn pleading setting forth requisite facts regarding the issuing court’s jurisdiction, the status of any such order, allegations of any simultaneous proceedings, and other information that would assist the court in providing relief requested.
The hearing must take place the next judicial day, and the result of such hearing can be an order requiring delivery of the child to the petitioner.
At the hearing, the court should attempt to determine whether the issuing state lacked jurisdiction, that notice was not given in accordance with §152.108, or that the order sought to be enforced has been vacated, modified, or stayed by a court with jurisdiction to do so. The court can also order payment of fees and expenses as set out in §152.312.
If the court determines that the order is valid and entitled to enforcement, then it shall order the child delivered to the petitioner immediately.
The court may also award fees and determine if additional relief is appropriate, including requesting law enforcement officers to assist th |