                                                                           ACCEPTED
                                                                       01-15-00073-CV
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                  8/13/2015 7:20:26 PM
                                                                 CHRISTOPHER PRINE
                                                                                CLERK




            NO. 01-15-00073-CV                        FILED IN
                                               1st COURT OF APPEALS
                                                   HOUSTON, TEXAS
     IN THE FIRST COURT OF APPEALS
                                               8/13/2015 7:20:26 PM
            HOUSTON, TEXAS
                                               CHRISTOPHER A. PRINE
                                                       Clerk

              CORNELIS WILLIG
                 Appellant,

                        v.

        MARCELA GUTIERREZ DIAZ,
               Appellee.


Appealed from the 309th Judicial District Court of
                Houston, Texas
            Cause No. 2014-16063


             APPELLEE’S BRIEF




                             Michael G. Busby
                             State Bar No. 24036294
                             Busby & Associates, P.C.
                             2909 Hillcroft Ave.
                             (713) 974-1151

                             ATTORNEY FOR APPELLEE
                                                        TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................... ii

INDENTITIES OF PARTIES AND COUNSEL ......................................................1

INDEX OF AUHTORITIES......................................................................................2

STATEMENT OF THE CASE..................................................................................3

ISSUES PRESENTED...............................................................................................3
  Issue No. One: ............................................................................................................................................... 7 
    .  ..............................................................................................................................
  Issue No. Two:.............................................................................................................................................12 


  Issue No. Three: .........................................................................................................................................14 
    . ..............................................................................................................................

STATEMENT OF FACTS ........................................................................................4
  Factual: .............................................................................................................................................................. 4 
  Procedural : .................................................................................................................................................... 4 

SUMMARY OF ARGUMENT .................................................................................6

ARGUMENT .............................................................................................................7

CONCLUSION........................................................................................................20

PRAYER ..................................................................................................................20

CERTIFICATE ........................................................................................................20




Brief of Appellee                                                                                                                                               Page ii
                     IDENTITIES OF THE PARTIES AND COUNSEL



Appellee certifies that the following is a complete list of parties, attorneys, and any

other person who has any interest in the outcome of this lawsuit:




Defendants / Appellee:                               Appellate & Trial Counsel
Marcela Gutierrez Diaz                               Cornelis Willig
Michael Glynn Busby                                  Andres Chaumont
State Bar No. 240362294                              State Bar No. 02909450

Busby & Associates, P.C.                             Andres P. Chaumont
2909 Hillcroft Street, Suite 350                     806 Daria Drive
Houston, Texas 77057                                 Houston, Texas 77079
Telephone: (713) 974-1151                            Telephone: (281) 493-3999
Facsimile: (713) 974-1181                            Facsimile: (281) 493-3993



Trial Judge:
Hon. Sheri Y. Dean(Trial)




     




Brief of Appellee                                                                 Page 1
TABLE OF AUTHORITIES

Cases
In re Milton, 420 S.W.3d 245 (Tex. App. 2013) ......................................................................................... 5
Schlobohm v. Schapiro, 784 S.W.2d 355 (Tex. 1990) ............................................................................... 5
Stallworth v. Stallworth, 201 S.W.3d 338 (Tex. App. 2006) ...................................................................... 6
Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807 (1959) ............................................................................. 6
Reynolds v. Reynolds, 86 S.W.3d 272 (Tex. App.—Austin 2002) ............................................................ 6
In re Marriage of Lai, 333 S.W.3d 645 (Tex. App.—Dallas 2009) ............................................................ 6
Griffith v. Griffith, 341 S.W.3d 43 (Tex. App.—San Antonio 2011) ......................................................... 7
Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) .......................................................................................... 7
Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964) ........................................................................................... 7
Wilson v. Wilson, 189 S.W.2d 212 (Tex. Civ. App.—Fort Worth 1945) .......................................... 7, 8, 9
Dearing v. Johnson, 947 S.W.2d 641 (Tex. App.—Texarkana 1997) ...................................................... 11
Hoffman v. Hoffman, 821 S.W.2d 3 (Tex. App.—Fort Worth 1992) ...................................................... 11
Calvert v. Calvert, 801 S.W.2d 217 (Tex. App.—Fort Worth 1990) ........................................................ 11
Boots v. Lopez, 6 S.W.3d 292 (Tex. App.—Houston [14th Dist.] 1999) ................................................. 13
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1982) .................................. 13, 14, 15, 17

Statutes
Tex. Fam. Code Ann. § 6.301 (West 2006) .................................................................................. 5, 6, 7, 10
Tex. Fam. Code Ann. § 6.305(a)(2) (West 2006) ....................................................................................... 6
Tex. Fam. Code Ann. §§ 6.301, 6.308 (West 2006) ................................................................................. 10
Tex. Fam. Code Ann. § 6.308 (West 2006) .............................................................................................. 10
Tex. Fam. Code Ann. § 6.308(a) (West 2006) .................................................................................... 11, 12

Other
Section 6.301 and 6.308 .............................................................................................................................. 1
Id. at 12 ¶ 5 ................................................................................................................................................. 2
Id. at 12 ¶ 11 ............................................................................................................................................... 2
Id. at 8 ......................................................................................................................................................... 2
Id. at 88 ¶ 1 ................................................................................................................................................. 2
Id. at 45 ¶ 4 ................................................................................................................................................. 3
Id. at 11, 12, 42 ........................................................................................................................................... 4
9.5 of the Texas Rules of Appellate Procedure ......................................................................................... 18




Brief of Appellee                                                                                                                                         Page 2
                           STATEMENT OF THE CASE

       This was a divorce action with no children. Petitioner husband (Cornelis Willig)
herein after referred to as “appellant” filed initially on March 24th 2014 (CR. Vol. 1 at 2)
then amended his petition for divorce on June 9th 2014. CR. Vol. 1 at 12. The Respondent
(Marcela Gutierrez Diaz) herein referred to as “appellee,” objected to jurisdiction of
Texas courts by filing a special appearance and plea in abatement on May 27th 2014. CR.
Vol. 1 at 7. During the course of the case, a motion to compel discovery was filed and
then granted against the appellant for the production of certain documents used to
determine residency of the appellant. CR Vol. 1 at 60. On October 16, 2014, the trial
court rendered its decision, Special Appearance was granted and the case was dismissed.
The court signed the order of dismissal on October 31, 2014. Id at 90.




                                ISSUES PRESENTED

Issue One:          The trial court was correct in granting Appellee’s Special
Appearance and entering judgment dismissing the Appellants’ Petition for Divorce
stating the Court in the Netherlands had assumed jurisdiction over the matter,
given that Appellant filed his actual petition for divorce in Harris County before
the Appellee filed her actual divorce petition in the Netherlands.

Issue Two:          The trial court was correct in granting Appellant’s requested
divorce, since the court did not have the authority under sections 6.301 and 6.308
of the Texas Family Code

Issue Three:       The trial court issued a proper ruling in entering Findings of
Fact and Conclusions of Law and is supported by the evidence and testimonials
presented by the appellee. It is the appellant who provides contradictory evidence
and testimony.




Brief of Appellee                                                                     Page 3
                           STATEMENT OF THE FACTS


        An original petition for divorce was filed by appellant in Harris County, Texas on
March 24, 2014. The appellee was personally served with the Original Petition for
Divorce on June 23, 2015. The original petition stated that appellant had met domicile
requirements to obtain Texas divorce. Paragraph number 5 of the original petition for
divorce pleads for long arm jurisdiction over the appellee. CR Vol. 1 at 2 ¶ 5. Paragraph
10 and 11 of the original petition asked that the trial court divide community property and
also confirm separate property. CR Vol. 1 at ¶ 10-11
        On June 9, 2014 a first amended petition for divorce was filed by the appellant.
Paragraph 3 of the first amended petition alleges that the appellant was a domiciliary and
resident of Texas. The fifth paragraph of the petition includes “in rem language,” which
requested that the court grant a divorce without the provisions that divide the marital
estate. Id. at 12 ¶ 5. The eleventh paragraph of the First Amended Petition for Divorce
requests for confirmation of separate property. Id. at 12 ¶ 11.
        On May 27, 2014 a Special Appearance and a plea in abatement was filed by the
appellee, objecting to Texas jurisdiction over the divorce matter. The Special Appearance
verified pleading alleged that a divorce had been filed in the Netherlands, which granted
the Dutch courts Jurisdiction. The Dutch courts issued temporary orders between the
appellee and the appellant in addition to assuming jurisdiction over the divorce.
Additional testimony from the record alleges that the parties had never lived together as
husband and wife in Texas, they had no property in Texas, and that the Appellant was in
Texas solely for work purposes for which arrival was on January 8, 2014. Id. at 8.
        During the course of the proceedings appellant was served with discovery requests
from the appellant, the responses were not produced until such time as the court ordered
the appellant to provide responses to production on September 26, 2014 as evidenced by
the proposed order signed by both attorneys for the parties, yet never signed by the court.
Id. at 88 ¶ 1.
        At the trial of the special appearance, appellant testified to having two pieces of
real property in the Netherlands. RR Vol. 2 at 11. Appellant testified that he was given
status in the United States as an investor. Id at 12 ¶ 3. In addition, the appellant alleged
to have established a residence in the Texas in 2010, but was unable to state at trial how
many nights he had stayed in Texas during 2010. RR Vol. 2 at 12 ¶ 16. Appellant
testified he is a citizen of the Netherlands and not a citizen of the United States of
America. RR Vol. 2 at 14 ¶ 4; 7-8.
        In 2010, appellant did not possess a Texas driver license. RR Vol. 2 at 15 ¶ 3-4.
When asked in 2011 how nights appellant had spent in Texas, he could not answer. Id at
15 ¶ 18 - 21. For the year 2012, appellant thought he spent 120 to 140 nights in Texas,
but could not remember. Id at 15 ¶ 24-25. Yet for the year 2013, appellant remembers
spending well over six months in Texas. Id at 16 ¶ 3-5. In February of 2014, appellant
obtained a Texas Drivers license. RR Vol. 2 at 14 ¶ 17.




Brief of Appellee                                                                     Page 4
        At the Special Apperance hearing on March 24 2014, appellant testified to signing
his first residential lease. Id at 16 ¶ 8-22. Appellant further testified that his visa had an
entry date into the United States on January 8th 2014. Id at 2¶ 2-6. Appellant testifies that
a divorce was filed in the Netherlands by the appellee. Id at 19 ¶ 11-12. Appellant
further testifies that he received divorce pleading on February 6, 2014. Id at 21 ¶ 16-25.
Appellant testifies that the appellee resided in the marital homestead in the Netherlands.
Id at 22 ¶ 16-19. Further, Exhibit 4 contains temporary orders had been entered in April
of 2014, requiring the appellant to pay the mortgage and utilities on the family residence.
CR Vol. 1 Ex. 4 at 52. During the hearing, direct examination with appellant’s attorney
reveals that the appellant knew a divorce was filed on February 4, 2014 in the
Netherlands. RR Vol. 2 at 36 ¶ 22.
        Appellant filed records with the United States Immigration Service under oath in
2011 stating his home address was in the Netherlands. Id at 42 ¶ 3-25. Appellant admits
that his residence and home of record in the Netherlands. Id. at 45 ¶ 4 to 25; at 46 ¶ 3.
Finally, appellant testifies that he answered the divorce from The Netherlands and had a
temporary orders hearing prior to March 24th 2014. Id at 49 ¶ 13.
        Appellee asserts that the Appellant’s insistence that his testimony is neither
controverted nor contradictory is in itself a contradiction as his testimony evidences.




Brief of Appellee                                                                       Page 5
                         SUMMARY OF ARGUMENT

The trial court committed no error in dismissing the case because it was the
Appellant’s testimony that contradicted itself and not the court ignoring
uncontroverted evidence. The appellant’s testimony clearly shows that he was
aware that the appellee filed for divorce in The Netherlands on February 14, 2014
before he filed for divorce in Harris County. This was demonstrated when he
testified that he answered the divorce from Holland and had a temporary orders
hearing prior to March 24th 2014. RR Vol. 2 at 49 ¶ 13.

It was proper to grant a status divorce as the court lacked authority under Texas
law. The appellant’s records, which he filed to in 2011, state that his home address
was in the Netherlands and that he owns two pieces of property in the Netherlands.
By his own testimony, the appellant is a Dutch citizen and the entry date on his
visa for the United States was January 8, 2014 with Investor Status. Id. at 11, 12,
42. Thus the court has no authority in this case.

The trial court was proper in publishing findings of fact and conclusions of law
because the evidence and testimony was not contradictory to the rulings. This is
demonstrated by the facts that were demonstrated by the evidence and the
testimony he gave at the hearing. He does not meet domiciliary requirements for
jurisdiction, he does not have children, nor does he have property in the United
States of America. The appellant would only benefit from the divorce in Harris
County, Texas because it would cause the appellee to lose her status in the
Netherlands and force her to leave. Thus, the appellant has unclean hands. RR Vol.
2 at 21, 35, 36.




Brief of Appellee                                                              Page 6
                                      ARGUMENT

                                      ISSUE NO. 1:

    I.                 The trial court was correct in granting Appellee’s Special
             Appearance and entering judgment dismissing the Appellants’ Petition
             for Divorce stating the Court in the Netherlands had assumed jurisdiction
             over the matter, given that Appellant filed his actual petition for divorce
             in Harris County before the Appellee filed her actual divorce petition in
             the Netherlands.


    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: (1) a domiciliary of this

    state for the preceding six-month period; and (2) a resident of the county in

    which the suit is filed for the preceding 90–day period. Tex. Fam.Code Ann. §

    6.301 (West 2006). In re Milton, 420 S.W.3d 245, 251-52 (Tex. App. 2013).

         A trial court may exercise jurisdiction over a nonresident defendant when (1)

    the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the

    exercise of jurisdiction is consistent with federal and state constitutional

    guarantees of due process. Schlobohm v. Schapiro, 784 S.W.2d 355, 356

    (Tex.1990). In a suit for dissolution of a marriage, a trial court may exercise

    personal jurisdiction over a non-resident respondent if there is any basis




Brief of Appellee                                                                  Page 7
    consistent with the Texas and United States constitutions for the exercise of

    personal jurisdiction. Tex. Fam.Code Ann. § 6.305(a)(2) (Vernon 2006);

    Stallworth v. Stallworth, 201 S.W.3d 338, 343 (Tex. App. 2006)



    “The right to apply for, or obtain a divorce is not a natural one, but is accorded

    only by reason of statute, and the state has the right to determine who are

    entitled to use its courts for that purpose and upon what conditions they may do

    so.” Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 810 (1959). Under the

    Family Code, “[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: (1) a

    domiciliary of this state for the preceding six-month period; and (2) a resident

    of the county in which the suit is filed for the preceding 90–day period.” See

    Tex. Fam.Code Ann. § 6.301 (General Residency Rule for Divorce Suit).

    Although section 6.301 is not itself jurisdictional, it is akin to a jurisdictional

    provision because it controls a party's right to maintain a suit for divorce and is

    a mandatory requirement that cannot be waived. Reynolds v. Reynolds, 86

    S.W.3d 272, 276 (Tex.App.-Austin 2002, no pet.) (relying on Oak v. Oak, 814

    S.W.2d 834, 837 (Tex.App.-Houston [14th Dist.] 1991, writ denied)); See also

    In re Lai, 333 S.W.3d 645, 648 (Tex.App.-Dallas 2009, no pet.). Therefore, the

    trial court cannot maintain a suit unless the residency requirements are met.




Brief of Appellee                                                                Page 8
    Reynolds, 86 S.W.3d at 276. While the requirements of domicile and residence

    under section 6.301 are a fact issue for the trial court to determine, such

    findings will be reversed if there is a clear abuse of discretion. Griffith v.

    Griffith, 341 S.W.3d 43, 53 (Tex.App.-San Antonio 2011, no pet. h.).9101112.

    “The test for ‘residence’ or ‘domicile’ typically involves an inquiry into a

    person's intent.” Powell v. Stover, 165 S.W.3d 322, 326 (Tex.2005). When

    determining where a person resides, volition, intention and action are all

    elements to be equally considered. See Mills v. Bartlett, 377 S.W.2d 636, 637

    (Tex.1964). In order to be a resident, there must be an intention to establish a

    permanent domicile or home, and the intention must be accompanied by some

    act done in the execution of the intent. Wilson v. Wilson, 189 S.W.2d 212, 213

    (Tex.Civ.App.-Fort Worth 1945, no writ).

        At the trial of the special appearance, appellant testified to having two pieces

    of real property in the Netherlands. RR Vol. 2 at 11. Appellant testified that he

    was given status in the United States as an investor. Id at 12 ¶ 3. In addition,

    the appellant alleged to have established a residence in the Texas in 2010, but

    was unable to state at trial how many nights he had stayed in Texas during

    2010. RR Vol. 2 at 12 ¶ 16. Appellant admitted he is a Dutch citizen and not a

    citizen of the United States. RR Vol. 2 at 14 ¶ 4; 7-8.      In February of 2014,

    appellant obtained a Texas Drivers license. RR Vol. 2 at 14 ¶ 17.




Brief of Appellee                                                                 Page 9
        In 2010, appellant did not possess a Texas driver license. Id. at 15 ¶ 3-4.

    When asked in 2011 how nights appellant had spent in Texas, he could not

    answer. Id. at 15 ¶ 18 - 21. For the year 2012, appellant thought he spent 120

    to 140 nights in Texas, but could not remember. Id. at 15 ¶ 24-25. Yet for the

    year 2013, appellant remembers spending well over six months in Texas. Id. at

    16 ¶ 3-5.

        On March 24th 2014, appellant admitted to signing his first residential lease

    in Texas. Id. at 16 ¶ 8-22. Appellant further admitted that his visa had an entry

    date into the United States on January 8th 2014. Id. at 2¶ 2-6. Appellant admits

    that a divorce was filed in the Netherlands by the appellee. Id. at 19 ¶ 11-12.

    Appellant further admits that he received divorce pleading on February 6, 2014.

    Id. at 21 ¶ 16-25. Appellant admits that the appellee resided in the family

    homestead in the Netherlands. Id. at 22 ¶ 16-19. Further, Exhibit 4, the

    Temporary Orders, had been entered in April of 2014, requiring the appellant to

    pay the mortgage and utilities on the family residence. CR Vol. 1 Ex. 4 at 52.

    Testimony on direct from his attorney during the trial the appellant admits that a

    divorce was filed on February 4, 2014 in the Netherlands. RR Vol. 2 at 36 ¶ 22.

        Appellant filed records with the United States Immigration Service under

    oath in 2011 stating his address was in the Netherlands. Id. at 42 ¶ 3-25.

    Appellant admits that his residence and home of record in the Netherlands. Id.




Brief of Appellee                                                              Page 10
    at 45 ¶ 4 to 25; at 46 ¶ 3. Finally, appellant admits that he answered the divorce

    from Holland and had a temporary orders hearing prior to March 24th 2014. Id.

    at 49 ¶ 13.

        Appellant argues that he filed first his divorce in Texas in his brief on page 6

    and references that the Dutch Court has abated the proceedings in the

    Netherlands based on evidence submitted that the Appellant case was first in

    time. Brief for Appellant at 12 ¶ 9.

        In Appellant’s Motion for New Trial he raised the issue for the first time that

    his divorce action was filed first and that the initial lawsuit filed in the

    Netherlands was for support only. CR Vol. 1 at 104 ¶ 2. At the trial, the

    Appellant admitted that the Appellee filed for Divorce in the. RR Vol. 2 at 19 ¶

    11-12. Appellant further admits that he received divorce pleadings on February

    6, 2014. Id at 21 ¶ 16-25. Appellant admits that the appellee resided in the

    family homestead in the Netherlands. Id at 22 ¶ 16-19. Further, the temporary

    orders in Exhibit 4 had been entered in April of 2014, requiring the appellant to

    pay the mortgage and utilities on the family residence. CR Vol. 1 Ex. 4 at 52.

    Testimony on direct from his attorney during the trial the appellant admits that a

    divorce was filed on February 4, 2014 in the Netherlands. RR Vol. 2 at 36 ¶ 22.

        Therefore, at the trial of the case, it was the testimony of the appellant that

    confirmed a divorce had been filed first and served first in the Netherlands that




Brief of Appellee                                                                Page 11
    was in front of the judge to determine issues of comity and jurisdiction.

    Appellant alleges in his brief that appellee is misleading the court. Further

    references are made about the appellant testimony having been uncontroverted

    and not contradicted. Yet, it is the appellant himself who has contradicted

    himself and thus not credible to the fact finder. The trial court committed no

    error, but properly dismissed the divorce.



    II. Issue Two:               The  trial  court  was  correct  in  granting  Appellant’s 

             requested  divorce,  since  the  court  did  not  have  the  authority  under 

             sections 6.301 and 6.308 of the Texas Family Code. 


        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:(1) a domiciliary of

    this state for the preceding six-month period; and(2) a resident of the county in

    which the suit is filed for the preceding 90-day period. Tex. Fam. Code Ann. §

    6.301.

        (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; or
                 (3) the required jurisdiction under Chapter 159.



                 Tex. Fam. Code Ann. § 6.308 (West)




Brief of Appellee                                                                                   Page 12
        Divorce actions are quasi in rem proceedings, so that the court may have

    jurisdiction over the status of the marriage even if the court lacks personal

    jurisdiction over one of the parties. Dearing v. Johnson, 947 S.W.2d 641 (Tex.

    App. Texarkana 1997); Hoffman v. Hoffman, 821 S.W.2d 3 (Tex. App. Fort

    Worth 1992); Calvert v. Calvert, 801 S.W.2d 217 (Tex. App. Fort Worth

    1990)]. A court presiding over a divorce action may exercise its jurisdiction

    over those portions of the suit for which it has authority. Tex. Fam. Code Ann. §

    6.308(a). Thus, it may grant a divorce even if it lacks jurisdiction to grant some

    other relief requested by the parties.

        An original petition for divorce was filed by appellant in Harris County

    Texas on March 24, 2014. CR Vol. 1 at 4. Service was made via personal

    service on March 23, 2014 of the original petition for divorce. Id. at 4 ¶ 3. The

    original petition stated that the appellant had met the domicile requirements to

    obtain Texas divorce. Paragraph number 5 of the original petition for divorce

    pleads for long arm jurisdiction over the appellee. CR Vol. 1 at 2 ¶ 5.

    Paragraph 10 and 11 of the original petition asked that the trial court divide

    community property and also confirm separate property. CR Vol. 1 at ¶ 10-11

        On June 9, 2014 a first amended petition for divorce as filed by the

    appellant. Paragraph 3 of the first amended petition alleges that the appellant

    was a domiciliary and resident of Texas. Paragraph number 5 of the first




Brief of Appellee                                                              Page 13
       amended petition for divorce invokes “in rem language” request that the court

       grant a divorce, without provisions that would divide the marital estate. Id. at 12

       ¶ 3-5. Paragraph 11 of the first amended petition for divorce asks for

       confirmation of separate property. Id. at 12 ¶ 11

           On March 24th 2014, appellant testified to signing his first residential lease.

       Id at 16 ¶ 8-22. The Appellant further testofoed that his visa had an entry date

       into the United States on January 8th 2014. At the trial of the special

       appearance, appellant testified to having two pieces of real property in the

       Netherlands. RR Vol. 2 at 11. The Appellant testified that he was given status

       in the United States as an investor. Id. at 12 ¶ 3. In 2011The Appellant filed

       records with the United States Immigration Service under oath, stating his

       address was in the Netherlands. Id at 42 ¶ 3-25. Appellant also testifies that his

       residence and home of record in the Netherlands. Id. at 45 ¶ 4 to 25; at 46 ¶ 3.

           Thus, the trial court did not commit error by granting a status divorce as the

       trial court had no authority under 6.301 and 6.308 of the Texas Family code to

       grant the relief requested.



III. Issue Three:       The trial court issued a proper ruling in entering Findings of 

       Fact  and  Conclusions  of  Law  and  is  supported  by  the  evidence  and 

       testimonials  presented  by  the  appellee.  It  is  the  appellant  who  provides 




   Brief of Appellee                                                               Page 14
    contradictory evidence and testimony. 

    The  trial  courts  granting  of  a  motion  to  dismiss  which  is  predicated  on  a 

    discretionary  statute  is  reviewed  under  an  abuse  of  discretion  standard. 

    Boots v. Lopez, 6 S.W.3d 292,294 (Tex App. ‐ Houston [14th Dist.] 1999, pet. 

    denied). The test for an abuse of discretion is not whether, in the appellate 

    court's  view,  the  facts  present  an  appropriate  case  for  the  trial  courts 

    action.  Rather,  in  order  to  prove  the  trial  court  abused  its  discretion,  the 

    complaining  party  must  show  the  trial  court  acted  without  reference  to 

    guiding  rules  and  principles,  in  other  words,  the  trial  court  acted  in  an 

    arbitrary  or  unreasonable  manner.  Downer v. Aquamarine Operators, Inc., 

    701 S.W.2d 238, 241‐242 (Tex. 1982).  


        Appellant argues that the Findings of fact No 5, 7, 8, 16, 17 are based on

    factual error. CR Supp. Vol. at 3,4 Appellant asserts on page 20 of his brief that

    January 2010 was the date that his residence was established in Harris County

    Texas. Brief for Appellant at 20 ¶ 24. Yet the verified sworn affidavit admitted

    into evidence at the trial Appellant filed records with the United States

    Immigration Service under oath in 2011 stating his address was in the

    Netherlands. CR Vol. 1 at 50 ¶ 1. Appellant further testified that his residence

    and home of record in the Netherlands on 17 of January 2011 and the address of

    his residence is at 2 Herman Hejiermanslaan, North Holland 2106ES



Brief of Appellee                                                                    Page 15
    Netherlands. Id.

        At the special appearance hearing, appellant testified to having two pieces of

    real property in the Netherlands. RR Vol. 2 at 11. Appellant testified that he

    was given status in the United States as an investor. Id at 12 ¶ 3. Appellant

    admitted he is a Dutch citizen and not a citizen of the United States. RR Vol. 2

    at 14 ¶ 4; 7-8.        In February of 2014, appellant obtained a Texas Drivers

    license. RR Vol. 2 at 14 ¶ 17.

        In 2010, appellant did not possess a Texas driver license. RR Vol. 2 at 15 ¶

    3-4.         On March 24th 2014, appellant testified to signing his first residential

    lease in Texas. Id at 16 ¶ 8-22. Appellant further testified that his visa had an

    entry date into the United States on January 8th 2014. Id at 2¶ 2-6.

         Findings of fact No 5, 7, 8, 16, 17 are entirely correct and supported by the

    record as referenced above. CR Vol. Supp at 3-4. Conclusions of law No 1 and

    No 4. are therefore proper findings of law as applied to the facts of this case. Id.

    at 5-6.

        On page 21 of his brief, Appellant further argues that Findings of Fact 10,

    11, 12, and 21 are also incorrect. Id. at 5-6; Brief of Appellant at 21 ¶ 27.

    Because of the purported error in the findings of fact above, appellant argues

    that conclusions of law No 1 and No 4 (CR Vol. Supp. at 5-6) are also incorrect

    on page 21 and page 22. Brief of Appellant at 21 ¶ 28




Brief of Appellee                                                                 Page 16
        Yet, during the hearing Appellant testified that a divorce was filed in the

    Netherlands by the appellee. Id at 19 ¶ 11-12. Appellant further admitted that

    he received divorce pleading on February 6, 2014. Id at 21 ¶ 16-25. Appellant

    states that court erred because a divorce was not filed in February 2014, but

    instead a petition for support was filed, then a divorce was filed on March 28th

    2014. Id. at 21-22 ¶ 30, 31.

        This contradiction was not brought to the attention of the trial court during

    the trial. This contradiction was based on the testimony of the appellant.

    Furthermore, any error in the record is harmless error, as on June 9, 2014 a first

    amended petition for divorce as filed by the appellant. Paragraph 3 of the first

    amended petition alleges that the appellant was a domiciliary and resident of

    Texas. Paragraph number 5 of the first amended petition for divorce invokes

    “in rem language” request that the court grant a divorce, without provisions that

    would divide the marital estate. Id. at 12 ¶ 5. Paragraph 11 of the first amended

    petition for divorce asks for confirmation of separate property. Id. at 12 ¶ 11.

        The original petition stated that the appellant had met the domicile

    requirements to obtain Texas divorce. Paragraph number 5 of the original

    petition for divorce pleads for long arm jurisdiction over the appellee. CR Vol. 1

    at 2 ¶ 5. Paragraph 10 and 11 of the original petition asked that the trial court

    divide community property and also confirm separate property. CR Vol. 1 at ¶




Brief of Appellee                                                               Page 17
    10-11. This was not the live pleading on file at the trial. Both the original

    petition and the 1st amended petition allege that the Petitioner had been

    domiciled in Texas for the preceding six months and a residence of Harris

    County. The record at trial showed the most recent entry of appellant on

    January 8th 2014 into the United States (RR Vol 3 at 128) 180 days from January

    8th 2014 is July 7th 2014.

                 Appellee concedes and acknowledges that in February of 2014,

    appellant obtained a Texas Drivers license. RR Vol. 2 at 14 ¶ 17. On March

    24th 2014, appellant admitted to signing his first residential lease. Id at 16 ¶ 8-

    22. These acts may establish intent to domicile himself in Texas. Yet, it is

    clear that six months had not passed from the filing of the 1st Amended Petition

    for Divorce since appellant had obtained a Texas drivers license or signed his

    first residential lease.

                 Appellant additionally cites to Clerk’s Record Volume 1, pages165-

    172 in his argument that because the Dutch Court has abated the divorce in the

    Netherlands, the Dutch Court has determined that the first divorce filed was in

    Texas on March 24th. In reading CR 1: 167 paragraph 2.2.2

                         “The woman has responded to this argument. She has argued that the man be declared

                 non-suited on appeal. To this end, the woman has argued that even if it would indeed appear that

                 the man’s petition was divorce has been filed in America prior the woman’s petition in the

                 Netherlands, the man, in order for this petition to be declared admissible in America, must also




Brief of Appellee                                                                                       Page 18
                 have been a domiciliary of Texas, for six month of a resident of this county( the court assumes this

                 to be Harris County for ninety days. Since the man’s name was only removed from the municipal

                 Register in the Netherlands in January 2014, he does not meet this requirement, and therefore on

                 appeal, his petition will also be declared to be non-suited.”




        Analysis of language that “the man removed himself from the Register in

    January of 2014 from the Netherlands”, (Id. at 167 ¶ 2.2.2) reveals that he was

    a resident in the Netherlands up until the date of his entry into the United States

    on January 8th 2014 (RR Vol. 3 at 128) and not domiciled in Texas for six

    months prior to filing of the original petition nor the 1st amended petition for

    divorce.

        Further reading of this ruling from the Dutch court (CR 1 at 167-168),

    appellant has successfully stayed the entire divorce in the Netherlands yet only

    requests that Texas grant him a “status divorce” and not divide any property.

    CR Vol. 1 at 12. The intent of the appellant can be ascertained from the

    reporters record RR Vol. 2 at 21 ¶ 13-15.                            If a divorce is granted in the

    Netherlands she cannot stay in the Netherlands. Further, the appellant states he

    is not asking Texas Courts to divide any property. Id. at 35 ¶ 24-25; at 36 ¶ 1.

    The intent of the appellant is to obtain status divorce in Texas, have the appellee

    deported from the Netherlands and then handicap her in the final trial of the

    property in the Netherlands. The appellant has unclean hands.




Brief of Appellee                                                                                           Page 19
                                CONCLUSION
        The facts presented support the Trial court’s decision to grant Special

appearance to the appellee and dismiss the case. The Court has no authority to

grant a status divorce to the appellant as he was a Dutch Citizen with investor

status; his only purpose would have been to gain favorable verdict through

improper proceeding. Therefore, in the interest of fair play, the judgment of the

trial court should be affirmed.


                                        PRAYER

Appellee Marcela Gutierrez Diaz prays that this Court affirm the judgment of the

trial court




                           CERTIFICATE OF SERVICE

        I certify that, pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, on

this 14th day of August, 2015 a copy of the Appellee’s Brief was served on all parties of

record.



                                          By: _____/s/ Michael G. Busby____
                                            Michael G. Busby
                                            Attorney for Appellee
Word Count: 5,363

Page Count: 22 Pages




Brief of Appellee                                                                  Page 20
