
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-00-00713-CV



Kathryn S. Goodenbour, Appellant

v.


Jay Goodenbour, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 99-08970, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING 



Appellant Kathryn S. Goodenbour appeals from a district court order granting
appellee Jay Goodenbour's special appearance and dismissing Kathryn's suit for divorce in its
entirety.  See Tex. R. Civ. P. 120a.  Kathryn brings two points of error challenging the district court's
ruling regarding jurisdiction.  In her first point of error, Kathryn argues the district court erred when
it found that (i) it did not have personal jurisdiction over Jay, (ii) Texas was not the last marital
residence of the parties, (1) and (iii) the parties' children did not reside in Texas as a result of the acts
or directives of Jay. (2)  In her second point of error, Kathryn argues the district court erred when it
dismissed her petition for divorce and held that it did not have jurisdiction over any issue therein. 
We will reverse the order and remand the cause for further proceedings.


FACTUAL AND PROCEDURAL BACKGROUND

	Kathryn and Jay Goodenbour were married on August 2, 1980 and are the parents of
two minor children.  Before October 1996, Kathryn and Jay resided with their children in the state
of Washington.  On October 8, 1996, Jay moved to New Zealand to start a new job while Kathryn
and the children remained in Washington.  The plan was for Kathryn and the children to move to
New Zealand after the Christmas break.  At the end of 1996, however, Kathryn developed
reservations about moving to New Zealand and decided to stay in Washington, at least until the
children finished the school year.  In July of 1997, Kathryn was offered a job in Texas.  She accepted
the job and moved to Austin in August 1997.
	In March 1998, while Jay was with Kathryn and the children in Austin, they began
looking for a house to buy because they had recently sold their house in Washington.  Jay contends
that he did not want to help Kathryn buy a house, but did so only to ensure that she and the children
would be safe and happy.  He still hoped to convince her to move to New Zealand.  Jay provided
financial information in connection with the mortgage for the house and provided Kathryn with a
power of attorney so she could close the sale in his name while he was on a business trip in Hong
Kong.  The Austin residence Kathryn and Jay purchased is held in both of their names.
	After Kathryn and the children relocated to Austin, Jay returned to his family in Texas
on at least five separate occasions, encompassing approximately forty days.  One purpose of these
trips was to "keep his marriage alive."  Until December of 1998, Jay and Kathryn acted as an intact
family and as husband and wife.  They filed a joint 1998 tax return reflecting Austin as their
residence. (3)  For the same year, Jay filed a "nonresident" tax return in New Zealand.  
	In August 1999 Kathryn filed for divorce in Travis County.  On April 20, 2000, Jay
filed for divorce in Auckland, New Zealand.  On May 9,  Jay was served with citation in the Travis
County divorce.  Kathryn was served with papers in the New Zealand divorce, on May 13.  On June
5, Jay filed his special appearance and original answer subject to special appearance in Travis
County.  On July 12, the Family Court in Auckland granted Jay's application for dissolution of the
marriage but did not divide the property or award custody of the children.  Jay's special appearance
was heard and granted, on July 17.  In its order granting Jay's special appearance, the Travis County
district court found that (1) Jay's contacts with the state of Texas were insufficient to confer either
general or specific jurisdiction over him and (2) Kathryn had failed to establish, pursuant to Texas
Family Code sections 6.305(a)(1) and (a)(2), that Texas is the last marital residence of the parties. 
See Tex. Fam. Code Ann. § 6.305(a)(1)-(2) (West 1998).  In granting the special appearance, the
court ordered Kathryn's petition for divorce dismissed in its entirety, leaving her to seek a property
division, and orders for the conservatorship, possession, and support of her children in another
jurisdiction.





DISCUSSION

	Kathryn contests the district court's finding that Jay is not subject to the jurisdiction
of Texas courts.  We will first address her argument that the district court erred when it found that
Texas was not the last marital residence of the parties.

Standard of Review
	The existence of personal jurisdiction is a question of law, but proper exercise of that
jurisdiction must sometimes be preceded by the resolution of underlying factual disputes.  Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 715 (Tex. App.--Austin 2000, pet. dism'd w.o.j.). 
We determine the appropriateness of the district court's resolution of those disputes by an ordinary
sufficiency of the evidence review based on the entire record.  Conner v. Conticarriers & Terminals,
Inc., 944 S.W.2d 405, 411 (Tex. App.--Houston [14th Dist.] 1997, no writ).  If the court's order is
based on undisputed or otherwise established facts, we conduct a de novo review of the order.  Id. 
A defendant who challenges a court's exercise of personal jurisdiction through a special appearance
carries the burden of negating all bases of personal jurisdiction.  Kawasaki Steel Corp. v. Middleton,
699 S.W.2d 199, 203 (Tex. 1985). 
	When a trial court rules on a special appearance, the losing party should request
findings of fact.  Tex. R. Civ. P. 296; Daimler-Benz, 21 S.W.3d at 715.  If no findings are present
in the record, all facts necessary to support the judgment of the trial court are implied.  Daimler-Benz, 21 S.W.3d at 715.  When a complete reporter's record exists, however, these implied findings
are not conclusive and an appellant may challenge the sufficiency of the evidence to support them. 
Roberson v. Roberson, 768 S.W.2d 280, 281 (Tex. 1989).  When such points are raised, the standard
of review to be applied is the same as that to be applied in the review of jury findings or a trial
court's findings of fact.  Id.
	We will set aside a finding of the trial court only if the finding is so against the great
weight and preponderance of the evidence as to be manifestly erroneous or unjust.  In re King's
Estate, 244 S.W.2d 660, 661 (Tex. 1951); Runnells v. Firestone, 746 S.W.2d 845, 849 (Tex.
App.--Houston [14th Dist.] 1988, writ denied).  In reviewing such a point of error, we must consider
and weigh all of the evidence, both the evidence that tends to prove the existence of a vital fact as
well as evidence that tends to disprove its existence.  Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex.
1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  In considering the evidence, if a finding is
so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the
finding should be set aside, regardless of whether some evidence supports it.  Watson v. Prewitt, 320
S.W.2d 815, 816 (Tex. 1959); King's Estate, 244 S.W.2d at 661.
	If evidence supports the implied findings of fact, we must uphold the trial court's
judgment on any legal theory supported by the findings.  Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 2000); Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); Runnells, 746
S.W.2d at 848.  This is so regardless of whether the trial court articulates the correct legal reason for
the judgment.  Harrington v. Railroad Comm'n, 375 S.W.2d 892, 895 (Tex. 1964); Fish v. Tandy
Corp., 948 S.W.2d 886, 891-92 (Tex. App.--Fort Worth 1997, writ denied); Marifarms Oil & Gas,
Inc. v. Westhoff, 802 S.W.2d 123, 125 (Tex. App.--Fort Worth 1991, no writ).  We review the legal
conclusions supporting the judgment to determine whether they are correct as a matter of law. 
Lawrence v. Kohl, 853 S.W.2d 697, 699 (Tex. App.--Houston [1st Dist.] 1993, no writ).
Texas Long-Arm Jurisdiction
 Texas courts may exercise jurisdiction over a nonresident defendant if the Texas long-arm statute authorizes the exercise of jurisdiction and if the exercise of jurisdiction comports with
due process.  Daimler-Benz, 21 S.W.3d at 714 (citing Guardian Royal, 815 S.W.2d at 226).  In a suit
for dissolution of a marriage, a court of this state may acquire jurisdiction over a nonresident spouse
if Texas was the parties' last marital residence or if there is any basis consistent with the state and
federal constitutions for exercise of personal jurisdiction.  Tex. Fam. Code Ann. § 6.305(a).  Once
a Texas court acquires jurisdiction under section 6.305(a), it also acquires jurisdiction in a suit
affecting the parent-child relationship.  Id. §§ 6.305(b), 102.011 (West Supp. 2001).  In her first
point of error, Kathryn urges that the trial court erred in finding that Texas was not the last marital
residence of the Goodenbours and that no other basis exists for the constitutional exercise of
personal jurisdiction over Jay in this proceeding. (4)  We will address both arguments in turn.

I.  Last Marital Residence
	The Family Code does not define the term last marital residence, and case law
interpreting section 6.305(a)(1) is sparse.  In Cossey v. Cossey, 602 S.W.2d 591 (Tex. Civ.
App.--Waco 1980, no writ), the court held that it would require more than occasional visits by one
spouse with the partner and the children at the other spouse's residence during marital separation. 
Id. at 595.  The Cossey court also noted that one commentator had suggested that last marital
residence implies "a permanent place of abode by the spouses."  Id. In Scott v. Scott, 554 S.W.2d
274 (Tex. Civ. App.--Houston [1st Dist.] 1977, no writ), the court held that marital cohabitation in
Texas from November to February was sufficient to create a last marital residence, bringing the
nonresident spouse within Texas long-arm jurisdiction.  Id. at 277.
	In applying the term "last marital residence," we should acknowledge that more and
more frequently one spouse may, by choice or necessity, work in a state or country apart from the
family unit for a period of time.  A work separation, where spouses live apart to pursue professional
opportunities, must be distinguished from a marital separation when spouses have decided to
dissolve their marriage.  Much as a military member may be on temporary assignment elsewhere,
one spouse may, for a time, pursue a work assignment away from the other family members.  The
family decision to endure a work separation may include consideration of what schooling or other
opportunities are best for the children.  Because the family has made the decision to remain an intact
unit, the fact that the spouses live apart does not mean that a marital residence no longer exists.  As
long as the parties choose to maintain a marriage, there will be a marital residence somewhere.
	To address the first point of error, we must determine the location of the
Goodenbours' last marital residence.  There are only three possible choices: Washington, New
Zealand, or Texas.  It is undeniable that every member of this family left the state of Washington
several years ago.  It is also clear that only Jay has any significant contact with New Zealand.  While
it may be true that Jay initially assumed that his family would follow him to New Zealand, neither
Jay nor Kathryn sought to end their marriage when it became apparent that Kathryn and the children
were not relocating to New Zealand. (5)

	Kathryn and the children moved to Austin because she found employment there; she
and the children lived there for approximately two years while the parties maintained their long-distance marriage.  Jay argues that he never intended to live in Texas.  However, there is evidence
that he intended to maintain his marriage and his family while they were living in Texas: Jay
returned to Austin five times to celebrate his wedding anniversary, family birthdays, and Christmas
vacations.  During these trips, the parties lived together as man and wife.  Jay continued to try to
persuade Kathryn and the children to move to New Zealand; Kathryn continued to try to persuade
Jay to find employment in Austin.  Where was the marital residence while they faced these joint
decisions in their marriage?  All the evidence suggests that it was in Austin, even though Jay never
agreed to work there.  This was the classic commuter marriage.
	At the very least, Jay acquiesced in his family's relocation to Austin.  While Kathryn
and Jay were apart, they had daily email communications and weekly phone conversations discussing
school arrangements for the children, the effects of continuous moves on the children's development
in school, work arrangements for Kathryn, and appropriate housing for the family.  Jay always kept
his personal belongings in the family residence in Austin, both before and after they purchased a
home there.  He traveled to Austin for family occasions and undertook domestic chores while he was
there.
	Jay played a major role in purchasing a home for the family in Austin.  Jay
participated with Kathryn in her search for a suitable home, encouraging her to find a house that
would be comfortable and appropriate for the children and in a desirable school district.  He
completed the necessary financial applications for a mortgage and gave Kathryn his power of
attorney to enable her to close on the property in his absence.  Jay argues that he was simply trying
to ensure that his family had the best available housing by offering his financial support.  However,
Jay did not merely guarantee or co-sign the loan; he took title to the house with Kathryn.  Jay
directed that the closing papers be delivered to an attorney of his choice for review.  After the family
moved into the new house, Jay undertook domestic chores, such as unpacking boxes, painting the
living room, and installing a garage door opener.  Jay participated in normal social activities with
his family when he was in Austin.  He conceded in his special appearance affidavit that his trips to
Austin were made for the purpose of "keeping his marriage alive."  This family bore all the
characteristics of a functioning family unit living in Austin, even though one of the spouses worked
in New Zealand.  In addition, Jay and Kathryn filed a joint tax return in 1998 listing Austin as their
residence.
	In light of the family and marital activities centered in Austin, we conclude that Texas
was the last marital residence of the Goodenbours.  All members of the family were located in
Austin, except Jay, and he was there with the family when his work in New Zealand permitted. 
While his trips to Austin were not frequent or regular (the evidence shows that over two years he was
in Austin five times for a total of forty days), they were purposeful and were designed to keep the
marriage and the family unit intact.  We conclude that the trial court erred in its application of
section 6.305(a)(1) of the Family Code and hold that Texas is the parties' last marital residence.
	Having found the long-arm statute to be satisfied, we next consider whether the
exercise of personal jurisdiction over Jay comports with federal due process.

Personal Jurisdiction
	Federal due process protects a person's liberty interest from being subject to binding
judgments in a forum with which he has established no meaningful contacts, ties, or relations. 
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-472 (1985) (citing International Shoe Co. v.
Washington, 326 U.S. 310, 319 (1945)).  Under the federal constitutional test of due process, a state
may assert personal jurisdiction over a nonresident defendant only if the defendant has purposefully
established minimum contacts with the forum state, and the exercise of jurisdiction comports with
traditional notions of fair play and substantial justice.  Id. at 476; see also Televentures, Inc. v.
International Game Tech., 12 S.W.3d 900, 907 (Tex. App.--Austin 2000, pet. denied).  Central to
the issue of due process "is that the defendant's conduct and connection with the forum State are
such that he should reasonably anticipate being haled into court there."  Burger King, 471 U.S. at
474.


Minimum Contacts
	The minimum contacts analysis has been refined into two types of jurisdiction: (1)
general and (2) specific.  General jurisdiction exists when the defendant's contacts with the forum
state are continuous and systematic, even if the cause of action does not arise from or relate to
activities conducted within Texas.  Televentures, Inc., 12 S.W.3d at 907.  For general jurisdiction,
the minimum contacts analysis is more demanding, requiring a showing of substantial activities
within the forum state.  Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990).  Therefore, we
must determine that there are either minimum contacts sufficient to confer specific jurisdiction or
continuous and systematic contacts sufficient to confer general jurisdiction.
	To establish specific jurisdiction, the cause of action must arise out of or relate to the
nonresident defendant's contact with the forum state, and the conduct must have resulted from that
defendant's purposeful conduct, not the unilateral conduct of the plaintiff or others.  Televentures,
Inc., 12 S.W.3d at 907.  Thus, in analyzing minimum contacts for the purpose of determining Texas
courts' specific jurisdiction, we focus on the relationship among the defendant, the forum, and the
litigation.  Id.
	Under the minimum contacts test for specific jurisdiction, we must determine whether
appellee has had purposeful contacts with the forum state, thus invoking the benefits and protections
of its laws.  Guardian Royal, 815 S.W.2d at 226.  This requirement ensures that a nonresident
defendant will not be haled into a jurisdiction based solely upon random or fortuitous contacts or the
"unilateral activity of another party or a third person."  Id.  As long as the contact creates a
substantial connection with the forum state, even a single act can support jurisdiction, but a single
act or occasional acts may be insufficient to establish jurisdiction if their nature and quality and the
circumstances of their commission create only an attenuated connection with the forum.  Burger
King, 471 U.S. at 475 n.18.  In determining whether a nonresident defendant's contacts are random
and fortuitous, the Texas Supreme Court has looked at whether the contacts are based upon the
unilateral acts of the plaintiff or if the defendant participated in an act that resulted in a contact. 
Dawson-Austin v. Austin, 968 S.W.2d 319, 321, 326 (Tex. 1998); CSR Ltd. v. Link, 925 S.W.2d 591,
595 (Tex. 1996).
	In Dawson-Austin, the Texas Supreme Court held that the district court did not have
personal jurisdiction over the nonresident respondent.  968 S.W.2d at 326.  The husband moved to
Texas after separating from his wife and individually purchased a residence and opened bank
accounts without any participation or cooperation from his wife.  Id. at 327.  He then filed for
divorce.  Id. at 326.  The court held that the husband had unilaterally moved to Texas and had
purchased the residence without the involvement of the wife and therefore concluded that the
nonresident wife in no way purposely availed herself of the privilege of owning property in this state. 
Id. at 327 (citing Burger King, 471 U.S. at 475).
	The case at hand is distinguishable from Dawson-Austin.  Unlike the respondent in
that case, Jay was voluntarily involved in the purchase of property in Texas, which was bought
expressly for the purpose of establishing a residence for his family.  He went house-hunting with
Kathryn on numerous occasions and executed a power of attorney to facilitate the purchase of the
family home, which was to be held jointly in his and his wife's name.  These activities occurred at
a time when the family was operating as an intact unit, albeit one affected by a commuter marriage. 
The purchase was completed and Jay became a record owner of real estate in this state.
	Ownership of real property in Texas is an important consideration in any minimum
contacts analysis.  See Shaffer v. Heitner, 433 U.S. 186, 208 (1977).  Jay's purchase of a family
home in Texas invoked the benefits and protection of the laws of the state of Texas in relation to his
ownership of that property, as well as the laws regarding marital property.
	The evidence as a whole shows that Jay's contacts with Texas were not the result of
the unilateral acts of Kathryn.  Jay was part of an intact family unit; his wife and children resided in
Texas.  He spent time in the family home on a regular basis.  The couple's income tax return for the
time period in question reflected Austin as the family residence, while at the same time Jay filed a
nonresident return in New Zealand.  Jay participated in the purchase of a family residence in Texas
and jointly held title to the property, where his personal belongings remained until the breakup of
the marriage.  Therefore, we conclude that Jay had sufficient minimum contacts with the State of
Texas to subject himself to specific jurisdiction.  Having satisfied the first prong of the personal
jurisdiction test, we must now determine whether the exercise of jurisdiction satisfies the traditional
notions of fair play and substantial justice.


Fair Play and Substantial Justice 

	Having found that Jay had sufficient minimum contacts with Texas, we next turn to
whether the exercise of jurisdiction in Texas is reasonable.  To determine whether jurisdiction is
reasonable, we evaluate the following factors: (1) the burden on the appellee, (2) Texas's interest in
adjudicating the dispute, (3) appellant's interest in obtaining convenient and effective relief, (4) the
interstate judicial system's interest in obtaining the most efficient resolution of controversies, and
(5) the shared interest of the several states in furthering fundamental substantive social policies. 
Burger King, 471 U.S. at 477; Guardian Royal, 815 S.W.2d at 231. 
	There is no evidence in the record showing that litigation in Texas would be unfair
or unreasonable to Jay.  Although there is a significant geographical distance between the parties'
current residences, distance alone is not sufficient to defeat jurisdiction.  Guardian Royal, 815
S.W.2d at 231.  Jay made several trips to Texas in the fourteen months preceding the filing of this
cause of action, which demonstrates that travel to Texas does not impose an unreasonable and unfair
burden.  His employer pays for four round-trip tickets annually to the United States and he has
accumulated numerous frequent flyer miles, lessening any financial burden that may be imposed on
him. 
	Furthermore, Texas has a strong interest in adjudicating this dispute because it
involves a parent-child relationship and protection of the rights of children within the state, as well
as the disposition of Texas real property.  See In the Interest of S.A.V., 837 S.W.2d 80, 84, 87 (Tex.
1992).  Generally, a family relationship is among those matters in which the forum state has such
a strong interest that its courts may reasonably make an adjudication affecting the parent-child
relationship even though one of the parties to the relationship may have had no personal contacts
with the forum state.  Id. at 84.  Consequently, due process permits adjudication of the custody and
visitation of a child residing in the forum state without a showing of minimum contacts on the part
of the nonresident parent.  Id.  There is no dispute that Kathryn and Jay's children have been residing
in Austin since August of 1997.  Moreover, because  Jay and Kathryn own real property in this state,
Texas has a strong interest in serving as the forum for the adjudication of this suit.  A state always
has an interest in assuring the marketability of property within its borders as well as providing a
procedure for resolution of disputes involving the possession of that property.  Shaffer, 433 U.S. at
208.
	Finally, Kathryn's interest in obtaining convenient and effective relief suggests that
Texas is the appropriate forum in which to adjudicate this matter.  It would be more convenient for
Kathryn to litigate the dispute in Texas, the state where she and her children reside, than it would
be for her to go to New Zealand, a foreign nation to which she has no connection.  Unlike Jay,
Kathryn has no access to free travel to New Zealand.  Furthermore, with regard  to the interest of the
judicial system in obtaining the most efficient resolution of this dispute, it should be noted that other
than Texas and New Zealand, Washington serves as the only other possible forum for handling the
dispute.  Given the fact that neither party now has a tie to that state, Washington clearly is an
inappropriate choice as a forum.
	Thus, we conclude that Jay's contacts with Texas are sufficient, particularly
considering the quality and nature of his contacts, to confer specific jurisdiction over him. 
Furthermore, subjecting Jay to the jurisdiction of Texas courts is reasonable under the circumstances
and does not offend the traditional notions of fair play and substantial justice.  Given his activities
and voluntary involvement with the family, and his joint ownership of the Texas residence, Jay
should reasonably anticipate being haled into court in Texas in a suit pertaining to the dissolution
of the marriage.  Accordingly, we sustain Kathryn's first point of error.  Having concluded that there
are sufficient contacts to subject Jay to personal jurisdiction in Texas, we do not need to reach
Kathryn's second point of error.


CONCLUSION

	We conclude that Texas is the last marital residence and that Jay has sufficient
minimum contacts with Texas to subject him to personal jurisdiction here.  We reverse the judgment
of the district court and remand the cause for further proceedings. 


  
					David Puryear, Justice
Before Justices Kidd, B. A. Smith and Puryear
Reversed and Remanded
Filed:   June 29, 2001
Publish
1.       See Tex. Fam. Code Ann. § 6.305 (West 1998).
2.      	See id. § 102.011 (West Supp. 2001).
3.      	Kathryn's affidavit states that they filed a joint 1998 tax return although there is not a copy
of the return in the record.  Jay's affidavit does not dispute this, and he admits in his brief to this
Court that he filed jointly with Kathryn.
4.      	In her pleadings, Kathryn relied on section l02.011 of the Family Code as a basis for long arm
jurisdiction, and she includes the trial court's failure to find jurisdiction under this statute in her first
point of error.  See Tex. Fam. Code Ann. § 102.011.  The trial court heard evidence and based its
ruling solely on section 6.305(a), which we rule was tried by consent.  See Tex. R. Civ. P. 67;
Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673-74 (Tex. App.--Dallas 1993, writ
dism'd by agr.).  Because of our disposition of the court's ruling on that statute, we do not find it
necessary to address appellant's argument that the trial court erred in failing to find that the children
resided in Texas as a result of the acts or directives of Jay.
5.      	In overruling Kathryn's forum non conviens plea, the New Zealand court that granted Jay's
request for a divorce noted that Kathryn  would not be inconvenienced if it entered a decree affecting
only the marital status of the parties because the division of marital property, conservatorship, and
support of the children would have to be handled in the forum more convenient to her, presumably
Texas.  
