Juan De La Parra Franyutti v. Leticia Arauz de Franyutti--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00786-CV
Juan de la Parra FRANYUTTI,
Appellant
v.
Leticia Arauz de FRANYUTTI,
Appellee
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-02329
Honorable Carol R. Haberman, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: November 12, 2003

MOTION TO DISMISS DENIED; AFFIRMED IN PART; REVERSED AND RENDERED IN PART

Juan de la Parra Franyutti appeals the trial court's divorce decree as well as its enforcement order issuing a capias for Juan's arrest and granting a default judgment in favor of Juan's ex-wife, Leticia Arauz de Franyutti, for unpaid child support and attorney's fees. We reverse the trial court's award of appellate attorney's fees and render judgment that Leticia take nothing on this claim. In all other respects, we affirm the trial court's judgment and its enforcement order.

Appeal From The Divorce Decree

1. In his first issue, Juan argues the trial court erred in failing to grant his motion to dismiss for lack of jurisdiction because Leticia had not been domiciled in Texas for the statutorily-required six month period when she filed her divorce petition. We disagree.

"A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been ... a domiciliary of this state for the preceding six-month period[, and] a resident of the county in which the suit is filed for the preceding 90-day period." Tex. Fam. Code Ann. 6.301 (Vernon 1998) (emphasis added). However, "[t]he residency requirement ... does not deal with jurisdiction or the right to bring suit"; "[i]t deals with the right to maintain suit." Cook v. Mayfield, 886 S.W.2d 840, 841 (Tex. App.-Waco 1994, no writ). Accordingly, "[a] plea in abatement is the proper vehicle to challenge residency." Id. And it is clear under Texas law that "[t]he name by which a motion is designated does not determine its nature. Rather, it is the substance of the motion and the effect which it will have that determines its character." M & M Const. Co. v. Great American Ins. Co., 747 S.W.2d 552, 554 (Tex. App.-Corpus Christi 1988, no writ) (citing Texas Highway Dep't v. Jarrell, 418 S.W.2d 486, 488 (Tex. 1967); Bryce v. Corpus Christi Area Convention & Tourist Bureau, 569 S.W.2d 496, 498 (Tex. Civ. App.-Corpus Christi 1978, writ ref'd n.r.e.); Tex. R. Civ. P. 71).

In his motion to dismiss Leticia's divorce petition, Juan asserted that neither he nor his wife had "been domiciliaries of this state for a six month period." Therefore, in keeping with Rule 71 and established law, the trial court properly treated Juan's motion as a plea in abatement and abated the proceedings until Leticia met the statutory residency requirements. See, e.g., Hoffman v. Hoffman, 821 S.W.2d 3, 5-6 (Tex. App.-Fort Worth 1992, no writ) (holding that if husband had not been a domiciliary of Texas or a resident of county in which he filed divorce petition for the required statutory period, wife "would have been entitled only to present a plea in abatement and to have the lawsuit abated until such time as [her husband] met the requirements, at which time he would be entitled to file an amended petition showing compliance with those requirements").

Juan also argues that it would be "unconscionable" to allow Leticia to claim Texas as her domicile because she entered the United States under a tourist visa, which required that she intend not to abandon her Mexican domicile. See Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 330 (Tex. App.-Fort Worth 1998, pet. denied) ("The theory of quasi-estoppel should apply where it would be unconscionable to allow someone to maintain a position inconsistent to one in which he acquired, or by which he accepted a benefit."). However, Juan does not cite and we have not found any authority contrary to the trial court's statement at the hearing on the motion to dismiss that, regardless of Leticia's statement to the Immigration and Naturalization Service, she is still able to decide she wants to "live in Texas ... forever and ever[.]"

2. Juan next contends "the trial court erred in signing a final decree of divorce after a trial on less than forty-five days notice." We again disagree.

"The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial[.]" Tex. R. Civ. P. 245. However, Rule 245's notice requirement, while mandatory, is not absolute. "A party may waive a complaint by failing to take action when the party receives some, but less than forty-five days', notice." Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.-San Antonio 2002, no pet.).

Here, Juan was notified, both by registered mail, return receipt requested and by regular first class air mail, of the trial court's July 3, 2002 order setting a trial on the divorce action for July 30, 2002. Juan thus had twenty-seven days notice that the trial court had set the trial date with less than forty-five days notice. But Juan did not object or otherwise complain of the trial court's failure to comply with Rule 245. "We cannot countenance a party doing nothing to protect its rights and then complaining on appeal that its rights have been violated." Balogh v. Ramos, 978 S.W.2d 696, 699 (Tex. App.-Corpus Christi 1998, pet. denied), cert. denied, 528 U.S. 822 (1999); see Tex. R. App. P. 33.1. We therefore hold Juan waived his right to complain on appeal that the trial court failed to comply with Rule 245's notice requirement.

3. Juan next argues that the trial court erred in consolidating the motion for a protective order with the divorce action. Again, however, Juan did not object at the time of the consolidation and thus waived his complaint. See Tex. R. App. P. 33.1. Moreover, even if we were to consider the merits of Juan's complaint, he fails to present any authority contrary to the general rule that a protective order may be joined with a pending divorce proceeding. See Tex. Fam. Code Ann. 85.004 (Vernon 2002). Finally, Juan has not shown how he was harmed by the consolidation or that the consolidation "probably caused the rendition of an improper judgment[.]" Tex. R. App. P. 44.1.

4. Juan next argues "the trial court erred in signing two final judgments in the consolidated cause" - namely the protective order and the divorce decree. We again disagree. Rule 301 requires "[o]nly one final judgment ... in any cause except where it is otherwise specially provided by law." Tex. R. Civ. P. 301 (emphasis added). In family law cases, "it is otherwise specially provided" by the Texas Family Code. See, e.g., Tex. Fam. Code Ann. 85.004 (Vernon 2002) (providing for the issuance of a protective order awarding child support as part of a divorce proceeding).

5. Juan next argues that the trial court abused its discretion in several respects in setting child support. We disagree.

a. Juan argues that the trial court abused its discretion in basing its $31,000 monthly "child support obligation ... on evidence of his pre-property division net resources." We again disagree.

"[F]or the purpose of determining child support liability," "[t]he court shall calculate net resources." Tex. Fam. Code Ann. 154.062(a) (Vernon 2002). "Resources include: (1) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses); (2) interest, dividends, and royalty income; (3) self-employment income; (4) net rental income ...; and (5) all other income actually being received ...." Id. at 154.062(b). Resources do not include accounts receivable. Id. at 154.062(c). To determine net resources, the court must deduct from resources certain specified taxes and other expenses. Id. at 154.062(d). "If the obligor's net resources exceed $6,000 per month, the court shall presumptively apply the percentage guidelines to the first $6,000 of the obligor's net resources. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child." Id. at 154.126(a). (1)

Juan was neither present nor represented at the hearing to determine the child support award; accordingly, only Leticia testified regarding the value of the marital estate and Juan's net income. According to Leticia, the value of the couple's marital estate was $46 million; and her husband's net income was in excess of $2 million annually. She also testified that, before the divorce, Juan had transferred to himself the stock in a jointly-owned corporation for which Leticia and her mother had provided the initial capital, as well as the couple's substantial bank accounts and investments. Leticia also testified that, in some unspecified manner, Juan had accumulated between $15,000,000 to $18,000,000 in offshore bank accounts. Nonetheless, Juan was awarded 50% of the proceeds from the emptied bank and investment accounts and certificates of deposits worth in excess of $2.6 million, as well as 50% in each of two jointly-owned corporations.

Although it is true that the trial court's judgment states that "the amount of net resources available to ... Juan ... is in excess of Forty Million," it also states that "the amount of monthly net resources available to Juan ... is in excess of ... $166,000"; and Leticia testified that the children's monthly expenses are $31,000, which is 18.6% of $166,000. Thus, the record clearly establishes that the $31,000 monthly child support award is based not upon the value of the couple's marital estate before divorce but upon Leticia's undisputed testimony that Juan's net annual resources are $2 million annually or $166,000 monthly and the children's monthly expenses are $31,000.

It may be that Juan's post-divorce monthly net income will not be $166,000. But we have combed the record and find no suggestion - and certainly no proof - of this. And we cannot assume it in light of the substantial resources available to him in the offshore accounts and awarded to him in the divorce. Accordingly, while the trial court may have erred in attributing to Juan the value of the couple's estate before divorce in the divorce decree, Juan has not demonstrated that he was harmed by the error. See Tex. R. App. P. 44.1(a). We further note that, if Juan desires to establish his monthly net resources are less than $166,000 he may file a motion to modify in accordance with the Texas Family Code.

b. Juan also argues that both the protective order and the final decree of divorce award Leticia $31,000 in monthly child support, thus "amount[ing] to $62,000.00 in monthly child support." We disagree. The divorce decree expressly states that "the Protective Order and other rulings contained therein ... are ordered to survive this judgment and to remain in full force and effect and the child support order contained therein is now contained in this decree."

6. Juan argues the divorce decree violates his state and federal due process rights and his state and federal rights to freedom of speech. Specifically, Juan argues against two provisions of the divorce decree: (1) "Respondent, if allowed access to the children, will not engage in any conduct designed to entice the children from the possession or conservatorship of the mother[;]" and (2) "Respondent ... is never to mention or discuss with the children any of the difficulties, strife or disagreements between Respondent and Petitioner or Respondent and the children[.]" We disagree that these restrictions violate Juan's constitutional rights.

Citing Grossnickle v. Grossnickle, 935 S.W.2d 830 (Tex. App.-Texarkana 1996, writ denied), Juan contends that the restraints on his speech violate his constitutional rights because they amount to a prior restraint not "necessary to serve a significant government interest." In Grossnickle, the court concluded that "[a] major purpose of the freedom of speech provisions in our Constitutions is to protect the free discussion of governmental affairs, including public officials"; and an order prohibiting such speech is unconstitutional. Id. at 850-51. In contrast, we find no authority that the court's restrictions, plainly intended to protect the best interests of the children, amount to an unconstitutional infringement upon Juan's constitutional rights. Cf. Chandler v. Chandler, 991 S.W.2d 367, 404 (Tex. App.-El Paso 1999, pet. denied), cert. denied, 529 U.S. 1054 (2000) (allowing a prior restraint on speech to ensure compliance with a divorce decree).

Further, citing Troxel v. Granville, 530 U.S. 57 (2000), Juan argues that the restriction forbidding him from "enticing" his children from their mother unconstitutionally infringes upon his "fundamental rights and liberty interests, including the interest of parents in the care, custody and control of their children." According to Juan, the court restricted his actions "[i]n the absence of a finding, supported by evidence, that the safety and welfare of the children is significantly impaired by the parent's decision or action[.]" To the contrary, the court found:

that [Juan] has a history and/or pattern of committing family violence and a pattern of committing spousal and children abuse during the two year period preceding the dates of filing of this suit for divorce and that awarding [Juan] any access to the children will endanger the children's physical health and/or emotional welfare and would not be in the best interest of the children and that the following orders are designed to protect the safety and well being of the children and that [Juan] should be denied access to the children and/or possession of the children and that the following orders are also in the best interest of the children.

Ample evidence adduced at the divorce hearing supports the trial court's findings, including testimony that Juan physically abused Leticia and the children. See Tex. Fam. Code. Ann. 153.004(a) (Vernon 2002) ("In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit[.]"). We find no authority, and Juan provides none, that his constitutional rights were violated. Rather, the trial court was merely exercising its discretion in protecting the best interests of the couple's children. See Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex. App.-Austin 2003, no pet.) ("In determining issues of conservatorship and possession of a child, the primary consideration of the court is the best interest of the child.").

Finally, Juan argues that his constitutional due process rights were violated by the court's restrictions because they are "unreasonably vague and fail to describe the prohibited conduct with sufficient specificity[.]" However, Juan does not cite any authority, and we find none, that his due process rights were violated.

7. Juan argues the trial court erred in awarding Leticia real property located in Mexico because "[a] Texas Court does not have and cannot acquire in rem jurisdiction over real estate lying outside the State of Texas." This may be true. Nevertheless, "[t]here is ample authority for the proposition that a trial court may require parties over whom it has in personam jurisdiction to execute a conveyance of real estate located in another state." Dankowski v. Dankowski, 922 S.W.2d 298, 303 (Tex. App.-Fort Worth 1996, writ denied). In so doing, "[t]he trial court can consider the existence and value of such realty in dividing the community property of the parties and, in the exercise of its equitable powers, order one party to execute [the] conveyance[.]" In re Read, 634 S.W.2d 343, 348-49 (Tex. App.-Amarillo 1982, writ dism'd). This is precisely what the trial court ordered here. It is apparent from the divorce decree that the trial court considered the value of the real properties located in Mexico in dividing the property, awarded the properties to Leticia, and "exercise[d] its equitable powers" to order conveyance of the properties to Leticia. See id. Hence, the trial court did not exceed its jurisdiction in this regard. See In re Glaze, 605 S.W.2d 721, 724 (Tex. App.-Amarillo 1980, no writ).

8. Juan complains that the evidence is legally insufficient to support the trial court's award of appellate attorney's fees because Leticia did not present any evidence in support of the award. We agree. The trial court awarded Leticia $100,000 in appellate attorney's fees. While a court may award attorney's fees to enforce a divorce decree, McPherren v. McPherren, 967 S.W.2d 485, 492 (Tex. App.-El Paso 1998, no pet.); see Tex. Fam. Code Ann. 106.002 (Vernon 2002), the award must be supported by evidence regarding the usual and customary fees for services to be rendered on appeal. See Panozzo v. Panozzo, 904 S.W.2d 780, 785 (Tex. App.-Corpus Christi 1995, no writ); Tex. R. Civ. P. 301 ("The judgment of the court shall conform to the pleadings [and] the nature of the case proved[.]"). At the divorce hearing, Leticia's counsel, Jack Paul Leon, testified in support of the attorney's fees necessary to obtain a final judgment in the case; however, Leon did not testify regarding his request for appellate attorney's fees. Therefore, the evidence is legally insufficient to support the trial court's award. See Panozzo, 904 S.W.2d at 785. Accordingly, we reverse the award of appellate attorney's fees and render judgment that Leticia take nothing on this claim.

Appeal From The Enforcement Order

On May 16, 2002, Leticia moved to enforce the protective order, requesting that Juan be found in contempt for failing to comply with the child support and attorney's fees provisions of the order and seeking judgment for the total amounts due pursuant to the order. Juan was served notice of the motion and of the hearing on the motion by registered mail, return receipt requested, but failed to appear at the June 7, 2002 hearing. The trial court found Juan in contempt for failing to comply with the protective order and rendered a default judgment against him for $90,500 in unpaid child support and $25,000 in attorney's fees. On July 2, 2002, Juan moved for a new trial, arguing the court erred in granting Leticia's motion because he was not provided with statutorily prescribed notice and that the evidence was legally insufficient to support the attorney's fee award. Juan was served notice of the July 12, 2002 hearing on his motion for new trial via registered mail. Juan did not attend the hearing. Nonetheless, the court granted Juan's motion for new trial and set a July 30, 2002 hearing date on the attorney's fees provisions of the enforcement order. On July 30, 2002, the court signed an order holding Juan in contempt and rendered a default judgment against him for $148,500 in child support and $25,000 in attorney's fees. On August 2, 2002, Leticia asked the court to correct its July 30, 2002 order to reflect the issuance of capias for Juan's arrest, rather than a finding of contempt, because he had not attending the hearing. Juan was served with notice of the hearing on the motion to correct by registered mail and regular first class air mail. On August 13, 2002, the court signed an order issuing capias for Juan's arrest and rendering a final default judgment against him for $148,500 in unpaid child support and $25,000 in attorney's fees.

1. We first consider Leticia's motion to dismiss Juan's appeal for lack of jurisdiction. According to Leticia, "[t]he order being appealed does not dispose of all issues raised in the Motion for Enforcement ... [ because] [t]he contempt issue has not yet been determined[.]" We disagree. The August 13, 2002 enforcement order implicitly settles the contempt issue by issuing the capias for Juan's arrest, see Tex. Fam Code Ann. 157.066 (Vernon 2002); In re Taylor, 39 S.W.3d 406, 413 (Tex. App.-Waco 2001, orig. proceeding) ("[S]ection 157.066 makes it clear that ... failure to appear [at a hearing on a motion to enforce a protection order] is not punishable by contempt, but rather ... the court can render a default judgment and order a capias for the arrest of the respondent."); and by rendering an enforceable, appealable money judgment for child support arrearages and attorney's fees. See Tex. Fam. Code Ann. 85.004, 85.006, 157.001(a), 157.263 (Vernon 2002); cf. In re Gonzalez, 993 S.W.2d 147, 157 (Tex. App.-San Antonio 1999, no pet.) (judgment included with contempt order is appealable even though contempt order is not). Therefore, we conclude that we have jurisdiction to consider the merits of Juan's appeal and deny Leticia's motion to dismiss.

2. Juan argues that the trial court reversibly erred in issuing the August 13, 2002 order because the court allowed him to be served by mail, impermissibly deviating "from the mandatory statute requiring personal service[.]" See Tex. Fam. Code Ann. 157.062(c) (Vernon 2002) ("Notice of hearing on a motion for enforcement of an existing order providing for child support ... shall be given to the respondent by personal service[.]"). We disagree.

"If a party has been ordered under Chapter 105 to provide the court and the state case registry with the party's current mailing address, notice of a motion for enforcement may be served by mailing a copy of the notice to the respondent, together with a copy of the motion, by first class mail to the last mailing address of the respondent on file with the court and the registry." Tex. Fam. Code Ann. 157.065(a) (Vernon 2002). Therefore, read in conjunction with Section 157.062(c), section 157.065(a) provides an alternative method of service if the court has ordered the respondent to provide a current mailing address.

Despite his argument to the contrary, the court ordered Juan to provide his current mailing address in its final divorce decree: "[E]ach person who is a party to this order is ordered to notify each other party, the court, and the state case registry of any change in the party's current residence address [and] mailing address[.]" See Tex. Fam. Code Ann. 105.006(e) (Vernon 2002) (providing that a final order requiring the payment of child support contain statutorily prescribed "boldfaced type, capital letters, or underlined" language ordering notification of current residence and mailing address to each party, the court, and the state case registry).

Juan's last known mailing address in Mexico was originally provided to the court by Juan's former attorney, Sam Bashara, in his March 8, 2002 motion to withdraw. This was Juan's address throughout the proceedings, as evidenced by the fact that this is the same address Juan provided in his pro se notice of appeal. Because the record reflects that Juan was notified of Leticia's motion to correct the July 30, 2002 contempt order and of the August 13, 2002 hearing on that motion at his address by registered mail and first class air mail, we conclude he was afforded statutorily valid notice. We further conclude that, because Juan's constitutional due process argument is premised upon his statutory argument, there was no due process violation.

3. Juan also argues that the court reversibly erred "because [he] was never provided notice of the new trial date sought and obtained by [Leticia] after the Court granted his Motion for New Trial[,]" resulting in a violation of his due process rights. We disagree. Whether Juan received notice of the July 30, 2002 hearing is irrelevant because the contempt order and default judgment of that date were superceded by the August 13, 2002 order issuing a capias for Juan's arrest and granting a default judgment. And, as we have noted, Juan received constitutionally and statutorily valid notice of the hearing resulting in the August 13, 2002 enforcement order.

We reverse the trial court's award of appellate attorney's fees and render judgment that Leticia take nothing on this claim. In all other respects, we affirm the trial court's judgment and its enforcement order.

Sarah B. Duncan, Justice

1. Leticia's testimony that the children's monthly expenses are $31,000 is undisputed. Therefore, the issue of "proven needs" is not before us.