RALPH JULIUS KASOW,FROM A DISTRICT COURT APPELLANT, v. KATHLEEN JEAN KASOW, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01017-CV
 
RALPH JULIUS KASOW,FROM A DISTRICT COURT
 
        APPELLANT,
 
 
v.
 
 
KATHLEEN JEAN KASOW,
 
        APPELLEE. OF COLLIN COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, THOMAS AND OVARD
OPINION BY JUSTICE OVARD
AUGUST 30, 1989
        Ralph Julius Kasow (Husband) appeals from an order dismissing his petition for divorce against Kathleen Jean Kasow (Wife). In his sole point of error, Husband contends that the trial court erred in dismissing his petition for divorce for lack of jurisdiction because there was no proof adduced that the Iowa court had disposed of the issues before the Texas court by final judgment. We affirm the trial court's order of dismissal.
        Husband and Wife were married in New York in 1968. Although the record is confusing, it appears that they lived together in Iowa for approximately one and one-half years prior to separating in the early part of 1987. Wife filed a petition for divorce on May 15, 1987, in Iowa. Husband moved to Collin County, Texas, in February, 1987. While the Iowa petition was pending in an Iowa district court, he filed a petition for divorce on November 30, 1987, in Collin County, Texas. Trial proceeded in Iowa on or about March 29, 1988. Thereafter, Husband attacked the Iowa court's jurisdiction.
        The Iowa court rendered a decree on April 1, 1988, and a supplemental decree on April 15, 1988. The Iowa decree disposed of all marital matters, including: dissolution of the marriage; joint custody of one minor son, born November 27, 1970; child support; child support payments by Wife for minor son; award of property to parties; assignment of debt to parties; and award of alimony to Wife. At the time of trial, all assets of the marriage, including proceeds from the homestead, were located in Iowa. The minor child resided with Husband in Texas.
        On April 18, 1988, a hearing was held on the petition for divorce filed by Husband in the 296th District Court of Collin County, Texas. Wife filed a special appearance challenging the jurisdiction of the Texas court. Evidence was presented. The Iowa decree and supplemental decree were admitted without objection. The trial court granted an order dismissing Husband's petition for divorce, which Husband now appeals. Husband contends that because no proof was adduced to show that the Iowa decree was final, the trial court erred in dismissing his petition. He argues that Texas law precludes the trial court from dismissing his petition.
        Upon a finding that the Iowa district court disposed of all issues involved in Husband's petition for divorce, the trial court dismissed the petition. As a matter of comity, a court may refuse jurisdiction over a matter that has already been the subject of another court's jurisdiction. The doctrine of comity involves considerations of convenience and expediency, as well as deference to the courts of sister states. Interfirst Bank-Houston v. Quintana Petroleum, 699 S.W.2d 864, 877 (Tex. App.--Houston [1st Dist.] 1985, no writ); see Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex. Civ. App.--Dallas 1966, writ dism'd). The application of comity vests in the sound discretion of the tribunal of the forum. Id. To prove an abuse of discretion, there must be more than a mere error in judgment; rather, there must be a showing that the trial court acted arbitrarily or unreasonably. Interfirst Bank, 699 S.W.2d at 877.
        In determining whether the trial court abused its discretion, we have reviewed the entire record. The evidence established that the last marital domicile was in Iowa. The first petition for divorce was filed in Iowa. Such issues usually determine dominant jurisdiction. See Beckman v. Beckman, 716 S.W.2d 83, 85 (Tex. App.--Dallas 1986, writ dism'd). All assets of the marriage remained in Iowa. Although the minor child moved to Texas and resided with Husband, his Texas petition did not request custody or child support. The Iowa decree ordered joint custody and child support payable by the Wife to Husband. The Iowa decree disposed of all marital issues.
        Husband argues that the Iowa decree is not final and does not dispose of all marital issues. The application of the comity doctrine does not require a final judgment or disposition of all issues. Autrey v. Autrey, 350 S.W.2d 233, 236 (Tex. Civ. App.--El Paso 1961, writ dism'd). The judgment of a sister state is presumed to be valid, and the party attacking the validity has the burden of proving its invalidity. Autrey, 350 S.W.2d at 235. There was no evidence presented by Husband at the Texas hearing to prove that the Iowa decree was invalid. The Iowa decree was admitted without objection. We determine that the Iowa decree is valid.
        We hold that Husband has not shown that the trial court abused its discretion by dismissing his Texas petition, declining jurisdiction, and deferring to the Iowa court. The trial court properly deferred to the Iowa court's jurisdiction based on the entire record of this case. We overrule Husband's sole point of error. We affirm the trial court's order of dismissal.
                                                  
                                                  JOHN OVARD
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01017.U05
 
 
        Dissenting opinion by Justice Charles Ben Howell.
 
 
File Date[01-02-89]
File Name[881017]