Nikolenko v. Nikolenko
| Decision Date | 17 February 2022 |
| Docket Number | 01-20-00284-CV |
| Parties | DMITRY NIKOLENKO, Appellant v. LUIZA NIKOLENKO, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-251118
Panel consists of Justices Hightower, Countiss, and Guerra.
In this divorce proceeding, we consider whether (1) a Russian divorce decree deprived the trial court of subject-matter jurisdiction to grant the parties a divorce, (2) the trial court abused its discretion by refusing to permit the husband to testify by electronic means, (3) the trial court abused its discretion in rendering arrearage judgments, (4) the trial court abused its discretion in its award of debts, and (5) the trial court abused its discretion in its award of possession and access.
Because we conclude that the temporary orders supporting the arrearage judgments were void, we vacate that portion of the trial court's final divorce decree but affirm the remainder.
Dmitry Nikolenko ("Dmitry") and Luiza Nikolenko ("Luiza") were married on March 15, 2011 in Tashkent, Uzbekistan. Luiza is from Tashkent, and Dmitry is from Russia. Not long after the marriage, Dmitry's employer, Schlumberger, transferred him to Houston, Texas and he and Luiza moved there together. Luiza arrived in the United States under a dependent visa as Dmitry's spouse. In May 2012, the parties purchased their home located on Radcliffe Lake Drive in Katy, Texas (the "Katy house"). A few months later, their first child, Sofia was born in Houston.
Dmitry and Luiza continued to live at the Katy house until October 2014, when Schlumberger transferred Dmitry to Brunei for a temporary, three-year assignment. Because the family planned to return to Houston when the Brunei assignment expired, they kept the Katy house and rented it out while they were living in Brunei. Dmitry and Luiza's youngest daughter, Maria was born in Brunei.
In February 2017, Dmitry's contract expired in Brunei and the parties began planning their return to Houston. Dmitry contacted Schlumberger to request the transfer back to Houston and he applied for new visas for Luiza, Maria, and the family's nanny. Dmitry also began looking at Houston-area schools for the children.
After Maria was born, the parties' marriage began to deteriorate. Dmitry wanted to remain in the marriage for appearances. In April 2017, Luiza told her mother via text message that she wanted a divorce. Dmitry discovered Luiza's text messages. He asked Luiza for a second chance and continued to prepare for the family's return to Houston, including by arranging to ship the family's belongings back to Houston. Dmitry asked Luiza to take the children to Kuala Lumpur, Malaysia for dental work for Maria and then recommended they vacation in the Philippines with friends. He purchased the airfare, and Luiza and the children left for their trip in June.
After Luiza arrived in Malaysia with the children, Dmitry blocked her debit card and left her without access to any other accounts or credit cards. Luiza also discovered that Dmitry had canceled her and the children's health insurance. She borrowed money from friends to pay expenses while she and the children were in Malaysia and the Philippines.
On June 18, 2017, Luiza asked Dmitry to confirm the date of their return to Houston. Dmitry responded that they would leave on July 3 or 4. But Dmitry contacted Luiza again and asked to meet her in Malaysia without the children present. At their meeting, Dmitry told Luiza that he had canceled their return tickets to Houston and that she must move to her mother's house in Uzbekistan.
On June 30, 2017, Luiza emailed Dmitry to tell him she planned to return with the children to the Katy house, as originally planned, because she had nowhere else to go. Two days later, Luiza asked Dmitry by email to forward the tickets for their July 4 flight to Houston. When she did not receive the tickets from Dmitry, Luiza borrowed money from her brother to purchase another set of return tickets. On July 4, she arrived in Houston with the children and the nanny and moved back into the Katy house.
About three weeks later, on July 28, 2017, she let Dmitry know that she and the children were living in Katy. Dmitry responded and acknowledged that he had received Luiza's emails explaining her return to Houston.
On May 4, 2018, Luiza filed for divorce in the 328th District Court of Fort Bend County. She requested to be appointed the children's temporary managing conservator and requested temporary support from Dmitry in the form of child and spousal support.[1] Because Luiza did not know where Dmitry was living, only that he had returned to Russia and was still employed by Schlumberger, Luiza moved to serve Dmitry with the divorce petition via substituted service. The trial court granted Luiza's motion for substituted service.
After Dmitry failed to answer, the trial court conducted a default hearing on Luiza's request for temporary orders. And on June 6, 2018, the trial court entered temporary orders. Dmitry was granted supervised visitation with the children and ordered to pay $2, 137.50 in child support and $2, 000.00 in spousal support each month. He was also ordered to obtain health insurance for the children.
On June 29, 2018, Dmitry filed a special appearance, plea to the jurisdiction, and plea in abatement. In his plea to the jurisdiction, Dmitry argued that the trial court lacked subject matter jurisdiction because he had commenced a divorce proceeding against Luiza in Russia in September 2017 and the Russian court had granted a divorce on March 16, 2018. The copy of the Russian divorce decree attached to his plea to the jurisdiction, entered in case number 2-127/5-2018, stated that Luiza did not appear and that "her place of residence [was] unknown." It also stated that the Russian court had appointed a lawyer to act as a Luiza's representative because her residence was unknown. After finding that Luiza "did not appear in the session of court, not having received legal notice," and that "her whereabouts are unknown," the Russian court dissolved Dmitry and Luiza's marriage.[2] The Russian divorce decree was also admitted as an exhibit at trial.
On July 12, 2018, Dmitry filed his second amended special appearance and plea to the jurisdiction. In his amended plea, he argued that, in a separate lawsuit, a Russian court had granted him temporary custody of the children on June 29, 2018. The Russian court found that Luiza "resides in the territory of the Russian federation, being a citizen of another state, she does not have a permanent place of residence or registration . . . her minor children are forced to move from one home to another . . . [she] cohabits with numerous men at frequent intervals, does not care about the health of the children, [and] hides her place of stay, which infringes on the rights of the father[.]"According to Luiza, she and the children had never resided in Russia and Dmitry had known she was living in Katy since July 2017.
The trial court denied Dmitry's special appearance and plea to the jurisdiction. The trial court considered the effect of the Russian orders and, in its ruling, found they were invalid and refused to recognize them.
In January 2019, Dmitry again challenged the proceedings based on the same Russian orders. He filed a motion to bifurcate the divorce from the custody suit on the ground that the divorce was barred by res judicata. After a hearing, the trial court again refused to recognize the Russian divorce decree and denied the motion to bifurcate.
Dmitry's visa expired on May 9, 2019. On June 14, Dmitry moved for a continuance of the August trial setting, noting that he had recently retained counsel, needed additional time to prepare for trial, and that he needed additional time to secure "the necessary visas" to attend the trial. At the June 27 hearing on Dmitry's motion for continuance Dmitry's counsel argued that, to attend trial, Dmitry needed "to go to Moscow from the town he is in Russia and obtain that Visa." But the process of obtaining a visa was not quick and could take "longer than two, three weeks to get [the visa]." When asked if Schlumberger could assist with a visa, Dmitry's counsel stated that he had asked, but Dmitry said Schlumberger could help only if he was "going to work" and "this is not a work situation."
Luiza opposed a continuance. Her counsel argued:
Dmitry ha[s] known since May 2019, when [Luiza] requested [a] trial setting, that this would be going to trial . . . If he has not done anything since May to go and get a Visa, that's his own doing. It's now mid[-]June and if he has not yet done that, that's a situation of his own making.
Luiza's counsel also objected to the continuance because it was uncertain whether she could be present for later setting, as her own visa was set to expire at the beginning of September and she was told she could not get another extension.
To accommodate both parties' potential visa issues, the trial court ordered Luiza "to attempt to get another extension." If an extension was granted, the trial would be reset in October. But if the extension was not granted the case would proceed to trial on August 26 and 27. Dmitry's counsel expressed concern about an August trial, stating: "I understand the Court is in a pickle but, hopefully, the way we slice the pickle is not by making my guy participate in trial without being here[, ] which is exactly what will happen if we do it in August." When asked whether...
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