Goodenbour v. Goodenbour

• Decision Date: 29 June 2001
• Docket Number: No. 03-00-00713-CV.,03-00-00713-CV.
• Citation: 64 S.W.3d 69
• Parties: Kathryn S. GOODENBOUR, Appellant, v. Jay GOODENBOUR, Appellee.
• Court: Texas Court of Appeals

64 S.W.3d 69

Kathryn S. GOODENBOUR, Appellant, v. Jay GOODENBOUR, Appellee.

No. 03-00-00713-CV.

Court of Appeals of Texas, Austin.

June 29, 2001.

Jo Ann Merica, Phillips and Merica, P.C., Austin, for Appellant.

James A. Vaught, Edwin J. (Ted) Terry, Jr., Karl E. Hays, Austin, for Appellee.

Before Justices KIDD, B.A. SMITH and PURYEAR.

PURYEAR, Justice.

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. Robinson, 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, 150 Tex. 662, 244 S.W.2d 660, 661 (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, 159 Tex. 305, 320 S.W.2d 815, 816 (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.1990); 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...