In the Matter of the Marriage of Alberto Salas Roman and Ruth N. Latorre Gonzalez and in the Interest of A.E.S.L., a Child--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00023-CV

In the Matter of the Marriage of

Alberto Salas Roman and

Ruth N. Latorre Gonzalez and

in the Interest of A.E.S.L., a Child,

From the 249th District Court

Johnson County, Texas

Trial Court No. D200505351

MEMORANDUM Opinion

Alberto Salas Roman appeals the trial court s divorce decree and its award to Ruth N. Latorre Gonzales (Latorre) of custody of their son. In a single point, Roman argues the court erred in denying his special appearance and plea to the jurisdiction. Roman complains that he was improperly served with citation in the divorce proceeding, the court lacked personal jurisdiction over him, and the court lacked subject matter jurisdiction over the divorce and child custody proceeding. We will affirm in part and dismiss the child custody dispute for want of jurisdiction.

Whether the trial court has personal and subject matter jurisdiction over a nonresident defendant is a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Texas 2002). With respect to the resolution of factual issues or matters committed to the trial court s discretion, we may not substitute our judgment for that of the trial court unless it is shown that the trial court could reasonably have reached only one decision and the trial court s decision is arbitrary and unreasonable. Walker v. Packer, 827 S.W.2d 833, 839 (Texas 1992) (orig. proceeding).

Roman and Latorre are both native Puerto Ricans. They were married in 1990, and their son was born in 1994. The record is unclear as to when the family moved to Texas, but by the summer of 2004 they had lived in Burleson for about six years. In July 2004, Roman told Latorre he was taking A.E.S.L. to the store. Eight hours later he called to say he had A.E.S.L. in Puerto Rico. For several months there was some hope of reconciliation. Then, Latorre s repeated phone calls, letters, and emails went unreturned. She filed for divorce and custody of A.E.S.L. in Texas in March 2005, almost nine months after Roman took their son to Puerto Rico. Roman filed suit for divorce and custody in Puerto Rico and challenged the jurisdiction of the Texas court.

Roman contends there is a lack of personal jurisdiction because he was ineffectively served with process and he lacks minimum contacts with Texas. Latorre counters that Roman waived his personal jurisdiction complaint, and in the alternative, that Roman had sufficient minimum contacts with Texas to support personal jurisdiction.

Special appearances must follow the due order of pleadings and procedural requirements in order to avoid waiving the personal-jurisdiction argument and making a general appearance. See Tex. R. Civ. P. 120a. We construe Roman s motion, which focuses in part on service, as a motion to quash as well as a special appearance. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985). A special appearance motion that appropriately challenges personal jurisdiction is not converted into a general appearance merely because it also challenges the method of service. See GFTA v. Varme, 991 S.W.2d 785, 786 (Tex. 1999). Similarly, because personal and subject matter jurisdiction in the context of interstate divorce and child custody disputes are so inextricably intertwined, addressing both in a single motion or hearing is not a general appearance. See In re S.A.V., 837 S.W.3d 80, 85 (Tex. 1992). Though Roman s special appearance motion and arguments are far from the model of procedural clarity, he does not make a general appearance by his unorthodox manner of addressing the issues.

Regarding the method of service, Roman argues that service was not in compliance with the Hague Convention because the citation should have been translated to Spanish and service by certified mail is not permitted. See Hague Convention on Service Abroad of Documents in Civil Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. He is incorrect on both counts. The Commonwealth of Puerto Rico is a territory of the United States, and its residents are citizens of the United States. Puerto Rico is included in the definition of state in the Family Code. Tex. Fam. Code Ann. 101.030 (Vernon 2002). Therefore, the Hague Convention does not apply. There is no requirement that a citation being served in Puerto Rico be translated to Spanish. Despite Roman s argument to the contrary, the Rules of Civil Procedure specifically provide for service on a nonresident by certified mail. Tex. R. Civ. P. 106(a)(2); see also Tex. Fam. Code Ann. 6.408 (Vernon 2006) (service is the same as in civil cases). We overrule Roman s complaint that service was improper.

Roman next argues that the court lacks personal jurisdiction over him because, since leaving Texas in July 2004, he has had insufficient contacts with the State to satisfy due process. Because status determinations do not require personal jurisdiction, a Texas court can issue a decree of divorce and a decree as to child custody without personal jurisdiction over all the parties. Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207, 212-213, 87 L. Ed. 279 (1942); Dearing v. Johnson, 947 S.W.2d 641, 643-644 (Tex. App. Texarkana 1997, no writ); Tex. Fam. Code Ann. 152.201(c) (Vernon 2002) (Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination).

The final divorce decree in this matter also included spousal maintenance payments and child support. To impose such personal obligations on Roman, the court must have personal jurisdiction. See Kulko v. Super. Ct. of Cali., 436 U.S. 84, 91, 98 S. Ct. 1690, 1696, 56 L. Ed. 2d 132 (1978); S.A.V., 837 S.W.2d at 83. For a Texas court to properly exercise personal jurisdiction of a nonresident, there must be a Texas long-arm statute authorizing the exercise of jurisdiction, and the exercise of jurisdiction must be consistent with the constitutional guarantees of due process. S.A.V., 837 S.W.2d at 85. The Family Code provides jurisdiction where the petitioner for divorce is a resident of Texas, the last marital residence of the couple was in Texas, and suit is filed within two years of the couple s separation. Tex. Fam. Code Ann. 6.305(a) (Vernon 2006). The undisputed testimony of Latorre established the requisites of this statute. Personal jurisdiction over the divorce extends to the child custody matter. Id. 6.305(b).

The remaining issue is whether, under the federal due process clause, Roman had sufficient minimum contacts with Texas to support personal jurisdiction and whether the assertion of jurisdiction comports with traditional notions of fair play and substantial justice. S.A.V., 837 S.W.2d at 85. Roman focuses the court s attention on the nine months immediately preceding the divorce; however our review of minimum contacts is not that limited. See Phillips v. Phillips, 826 S.W.2d 746, 748 (Tex. App. Houston [14th Dist.] 1992, no pet.) (considering trips to Texas prior to marriage in establishing minimum contacts). For six years preceding this divorce, Roman lived and worked in Texas. He bought two cars and a home in Texas, which he continued to own after moving to Puerto Rico. Owning real property in Texas carries great importance in the minimum contacts analysis. Goodenbour v. Goodenbour, 64 S.W.3d 69, 79-80 (Tex. App. Austin 2001, pet. denied). By purchasing and continuing to own property in Texas, Roman invoked the benefits and protection of the state with regard to ownership and marital property. Id. This is not a case where the unilateral acts of party are being used to confer jurisdiction. Id.; see also Dawson-Austin v. Austin, 968 S.W.2d 319, 327 (Tex. 1998). Rather, Roman had purposeful contacts with Texas, invoking the benefits and protection of its laws with regard to his family and property for years, and a few months absence cannot erase those contacts.

Though minimum contacts are met, Roman argues that fair play and substantial justice weigh against the exercise of jurisdiction. The factors to consider in this determination are: 1) the burden on the respondent; 2) Texas s interests in adjudicating the dispute; 3) the petitioner s interest in obtaining convenient and effective relief; 4) the interstate judicial system s interest in obtaining the most efficient resolution of controversies; 5) the shared interest of the several states in furthering fundamental substantive social policies. S.A.V., 837 S.W.2d at 85-86. However, once minimum contracts have been established, jurisdiction will rarely fail for not comporting with fair play and substantial justice. Id. at 86. It is disingenuous for Roman, who absconded with A.E.S.L. to Puerto Rico without the knowledge of Latorre and has cut off her communication with the child, to now argue it is too great a burden on him to travel to Texas. Any burden here is of his own making and is slight given the modern modes of transportation. Texas has a strong interest in providing for Latorre s support. Reynolds v. Reynolds, 2 S.W.3d 429, 431 (Tex. App. Houston [1st Dist.] 1999, no pet.). We find that there are sufficient contacts with Texas to confer personal jurisdiction over Roman and that the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. We overrule Roman s complaint that the court lacked personal jurisdiction over him.

Subject matter jurisdiction in the context of divorce and child custody proceedings is a status determination in that jurisdiction exists where the parties meet the requirements outlined in the relevant statutes. See Tex. Fam. Code Ann. 6.308 (Vernon 2006), 102.011 (Vernon 2002). We have already established that Latorre meets the jurisdictional requirements for a divorce proceeding. See id. 6.308. We overrule Roman s complaint that the court lack subject matter jurisdiction over the divorce.

Status or subject matter jurisdiction in a child custody dispute is established by satisfying one of the bases for jurisdiction set forth in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) found in chapter 152 of the Texas Family Code. Id. 152.001-152.317 (Vernon 2002). The UCCJEA gives jurisdictional priority to the child s home state, defined as the state in which the child lived with a parent or person acting as such for the six months preceding the filing of the suit. Id. 152.201(a)(1). A state may gain priority if it was the home state within six months of the filing of suit and one parent still lives in the state.

Roman claims that because he and A.E.S.L. lived in Puerto Rico the nine months before suit was filed, Texas must decline to exercise jurisdiction in favor of Puerto Rico. Latorre contends that the first several months of A.E.S.L. s time in Puerto Rico were merely a temporary absence and should not count toward divesting Texas of home state status. She further contends that because Roman absconded with A.E.S.L. the refusal to exercise jurisdiction would be improper.

Roman states in his brief that because the UCCJEA is a uniform law it applies to Puerto Rico. However, uniform law must be adopted by each jurisdiction.[1] Nonetheless, where the court does not take judicial notice of the laws of another state and there is no pleading or proof of that law, it is presumed that the law of the foreign state is the same as that of Texas.[2] Coca-Cola Co. v. Harmar Bottling Co., 50 Tex. Sup. Ct. J. 1077, 2006 WL 2997436, at *8 (Oct. 20, 2006); see also Greavin v. Moloney, 773 S.W.2d 698, 702 (Tex. App. Corpus Christi 1989, den.); Hollis v. Hollis, 508 S.W.2d 179, 182-83 (Tex. Civ. App. Amarillo 1974, no writ); Franklin v. Wolfe, 483 S.W.2d 17, 2021 (Tex. Civ. App. Houston [14th Dist.] 1972, no writ). Therefore, we presume that Puerto Rico s laws are consistent with Texas in asserting jurisdiction in this matter.

Latorre argues that, during the first four months in which A.E.S.L. and Roman lived in Puerto Rico, there was some hope of reconciliation and return in Texas. She had phone, mail, and email communication with her son and husband and twice traveled to Puerto Rico. Latorre contends that only in November 2004 did Roman indicate that the move was permanent. A temporary absence from the state continues to count as though the child lived within the state for the purposes of determining the home state. Tex. Fam. Code Ann. 152.102(7). While other states and older Texas decisions place emphasis on the intent of the parent or the totality of the circumstances in determining home state, the Texas Supreme Court has found that physical presence in the state is the primary factor in determining a home state. Powell v. Stover, 165 S.W.2d 322, 326 (Tex. 2005). A subjective analysis into whether a parent thought a move to another state was temporary or permanent serves only to increase jurisdictional conflicts rather than carry out the UCCJEA s purpose of avoiding such conflicts. Id. at 326-27. Because A.E.S.L. lived in Puerto Rico for the nine months preceding suit, Puerto Rico is the child s home state, regardless of what Latorre subjectively believed about the permanency of his stay.

In the absence of home state status, a Texas court may exercise jurisdiction only in certain statutorily defined situations. Tex. Fam. Code Ann. 152.201. UCCJEA requires a court to decline to assert jurisdiction over a case in which jurisdiction is based solely on the unjustifiable conduct of the party, such as here where Puerto Rico acquired home state status solely because Roman took A.E.S.L. without the knowledge or consent of the mother. Id. 152.208. It also provides for a Texas court to assert jurisdiction in circumstances in which the home state court has declined to hear the case because of the unjustifiable conduct of the party. Id. 152.201. However, these provisions do not permit a Texas court to assert jurisdiction until after the home state has declined jurisdiction. See id. 152.201, 152.208. Whether Roman has invoked jurisdiction in Puerto Rico by virtue of unjustifiable conduct is a question for the Puerto Rico court to consider. Dickerson v. Doyle, 170 S.W.3d 713, 720 (Tex. App. El Paso 2005, no pet.). We sustain Roman s complaint that the court lacked subject matter jurisdiction of the child custody determination.

We affirm those portions of the judgment granting Latorre s divorce petition and awarding spousal maintenance. We vacate those portions of the judgment addressing child custody and child support matter and dismiss those portions of the case for want of jurisdiction. See Tex. R. App. P. 43.2(e); Seligman-Hargis v. Hargis, 186 S.W.3d 582, 587 (Tex. App. Dallas 2006, no pet.).

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring and dissenting)

Affirmed in part and dismissed

Opinion delivered and filed May 9, 2007

[CV06]

[1] Contrary to Roman s assertion, Puerto Rico has adopted neither the UCCJEA nor its predecessor the Uniform Child Custody Jurisdiction Act.

[2] Roman attached to his original and supplemental briefs court documents relating to the divorce and custody matter pending in Puerto Rico. With limited exceptions not applicable here, the appellate court may not consider matters outside of the appellate record. Sabine Offshore Serv. v. Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979). Attaching document as exhibits or appendices to a brief is not a formal inclusion in the record, and those documents cannot be considered. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 292-293 (Tex. App. Houston [14th Dist.] 2002, no pet.).