Dankowski v. Dankowski

Decision Date09 May 1996
Docket NumberNo. 2-95-164-CV,2-95-164-CV
Citation922 S.W.2d 298
PartiesJohn William DANKOWSKI, Appellant, v. Lonnie DANKOWSKI, Appellee.
CourtTexas Court of Appeals

Terry P. Gorman, Dallas, for appellant.

Ralph H. Walton, Jr., Granbury, for appellee.

Before CAYCE, C.J., and DAY and BRIGHAM, JJ.

OPINION

BRIGHAM, Justice.

John William Dankowski, respondent below, appeals the trial court's grant of a divorce terminating his marriage to Lonnie Dankowski and the trial court's division of community property. He brings ten points of error: two points challenge the trial court's in personam jurisdiction; two points challenge the trial court's subject matter jurisdiction; one point challenges the trial court's jurisdiction over out-of-state real property; four points of error challenge the sufficiency of the evidence; and one point challenges the trial court's denial of a new trial. We overrule his points of error and affirm the judgment of the trial court.

BACKGROUND

John, a teacher at the Taipei American School in Taiwan, met Lonnie in 1977 and married her in 1978. John and Lonnie did not have any children during the marriage, but they did acquire community property.

During the summer of 1993, John and Lonnie separated, and although they reconciled shortly thereafter, they continued to have marital difficulties. After they reunited, they decided to use their savings to purchase a home in Florida for their retirement. The couple nearly depleted their savings with the purchase of the $131,000 house, and John entrusted Lonnie with the purchase.

John contends that Lonnie was having an extramarital affair with another teacher at the Taipei American School and that Lonnie purchased the house in Florida to be nearer her lover, who had recently moved there. John also maintains that Lonnie began an affair with a Texas man whom she met in August 1993 on a flight from Taiwan to Florida. John conceded, in answers to interrogatories, that he had engaged in various extramarital "love-tryst[s]" with various "non-serious ladies in the romance profession, working in small hotels, who in fact rarely used true names." It is not surprising that the evidence reflected that on two occasions John transmitted venereal diseases to Lonnie.

On December 10, 1993, John and Lonnie signed a Taiwanese divorce agreement, which John claims was mutually agreed upon and the product of negotiation and which Lonnie maintains was coerced through threats of physical violence. Under the terms of the divorce, John paid Lonnie a lump sum in exchange for the Florida property but agreed to give her a percentage if he ever sold the house. Lonnie was also awarded a one-half interest in the Florida house if John died before sale of it. The parties' personal property was also divided, and John agreed to ship Lonnie's belongings to the United States.

John asserts that the Taiwan divorce was negotiated, drafted, reviewed by Lonnie, signed, and witnessed. Taiwan law provides that divorces be registered at the parties' census registration point, but John asserts that because neither he nor Lonnie was a Taiwan resident at the time of the divorce, their divorce was valid without registration.

Lonnie returned to Granbury, Texas after the Taiwan divorce was signed in December of 1993. She consulted with a Taiwan attorney who told her that the Taiwan divorce was invalid, established Texas residency, and filed for divorce on June 13, 1994. A default judgment of divorce was granted on August 25, 1994. John filed a Motion for New Trial, which was granted on November 7, 1994. The second trial began in April of 1995, and the final decree of divorce was signed on May 11, 1995. It is from this second Texas divorce proceeding that John appeals.

POINTS OF ERROR ONE AND TWO

John complains that the trial court erred in overruling his plea to the jurisdiction of the trial court over him and his property because he has not had sufficient minimum contacts with the State of Texas to warrant the exercise of jurisdiction (point of error one) and that, alternatively, even if John had some contact with the State of Texas, the trial court abused its discretion in overruling his plea to the jurisdiction over him and his property (point of error two).

John argues that he had no real property in Texas, no personal property in Texas, he and Lonnie were not married in Texas, and he did not conduct any business in Texas. He asserts that Lonnie brought the Texas divorce action only to try to "re-trade" the Taiwan divorce. John contends that the trial court erred in overruling his pleas to the jurisdiction in the initial Motion for New Trial, the Motion to Dismiss for Lack of Jurisdiction, and the second Motion for New Trial.

John concedes that the first Motion for New Trial and the Motion to Dismiss for Lack of Jurisdiction "could have more clearly set forth the basis for a special appearance under rule 120a of the Texas Rules of Civil Procedure," but he continues that even if his filing of those two motions were construed as "some contacts" with the State of Texas, the trial court could still reject in personam jurisdiction.

The requirements of rule 120a are clear. A special appearance objection to in personam jurisdiction "shall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion." TEX.R.CIV.P. 120a (emphasis added). The filing of a motion for new trial constitutes a general appearance. See TEX.R.CIV.P. 120a; Myers v. Emery, 697 S.W.2d 26, 29 (Tex.App.--Dallas 1985, no writ).

We conclude that John submitted to the trial court's jurisdiction by making the affirmative action of filing his Motion for New Trial. See e.g., Liberty Enterprises, Inc. v. Moore Transportation Co., Inc., 690 S.W.2d 570 (Tex.1985). Because he failed to file a special appearance in accordance with rule 120a, the trial court did not err in overruling his plea to the jurisdiction. Point of error one is overruled.

To address the abuse of discretion claimed in point of error two, we must decide "whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Under an abuse of discretion standard, legal and factual insufficiency are relevant factors in assessing whether the trial court abused its discretion. See Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.1991); In re Driver, 895 S.W.2d 875, 877 (Tex.App.--Texarkana 1995, no writ); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.--Fort Worth 1995, writ denied) (op. on reh'g); Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.--Houston [1st Dist.] 1993, no writ). Merely because a trial judge may decide a matter within its discretion in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Kirkpatrick v. Memorial Hosp. of Garland, 862 S.W.2d 762, 776 (Tex.App.--Dallas 1993, writ denied). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.--Houston [1st Dist.] 1993, writ denied).

After the default judgment, the trial court granted John a new trial. It was not an abuse of the trial court's discretion to refuse John a third trial after he was already on notice, by virtue of the initial default judgment, that Lonnie had brought proceedings in Texas. John failed to comply with the provisions of rule 120a, and the trial court's refusal to reject in personam jurisdiction under Cossey v. Cossey, 602 S.W.2d 591, 593-96 (Tex.Civ.App.--Waco 1980, no writ) was not an abuse of discretion. Point of error two is overruled.

POINTS OF ERROR THREE AND FOUR

John next complains that the trial court erred in overruling his plea to the subject matter jurisdiction because the Dankowskis had already been validly divorced in Taiwan, Lonnie consented to and took part in the Taiwan divorce, and Lonnie failed to carry her burden of proof in challenging the Taiwan divorce (point of error three). He also asserts that the trial court abused its discretion in admitting the affidavit of attorney Dagmar Mei-Nu Yu, because the evidence was hearsay, inadmissible, and probably caused the rendition of an improper rejection of John's plea to subject matter jurisdiction (point of error four).

John maintains that because Lonnie requested, negotiated the terms of, and consented to the Taiwan divorce, she is estopped from challenging the divorce in Texas. He also argues that Lonnie cannot "relitigate" the ownership of real property that was previously determined by an out-of-state divorce decree. John contends that Lonnie had the burden to establish that the Taiwan divorce was not valid and that the only evidence Lonnie presented to that end was the improper affidavit from attorney Dagmar Mei-Nu Yu.

The affidavit, which established that John and Lonnie were not validly divorced in Taiwan, was admissible under rule 203 of the Texas Rules of Civil Evidence, which provides that:

The court, in determining the law of a foreign nation, may consider any material or source, whether or not submitted by a party or admissible under the rules of evidence, including but not limited to affidavits, testimony, briefs, and treatises.

TEX.R.CIV.EVID. 203.

We note that John failed to object at the time the affidavit was offered into evidence at trial. As a result, any objections which John may have had, are waived. The trial court properly admitted the affidavit into evidence and properly...

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