Scott v. Scott

• Decision Date: 21 July 1977
• Docket Number: No. 16871,16871
• Citation: 554 S.W.2d 274
• Parties: Catherine Ann SCOTT, Appellant, v. Stephen William SCOTT, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 274

554 S.W.2d 274

Catherine Ann SCOTT, Appellant, v. Stephen William SCOTT, Appellee.

No. 16871.

Court of Civil Appeals of Texas, Houston (1st Dist.).

July 21, 1977.

Floyd H. Christian, Jr., Angleton, for appellant.

Jimmy Phillips, Jr., Angleton, for appellee.

PEDEN, Justice.

Stephen Scott brought this Texas suit for divorce and child custody. His wife, Catherine Scott, had recently moved back to California, and she had initiated a similar suit there. After a hearing, the Texas trial court overruled Mrs. Scott's motion to the jurisdiction and denied her plea in abatement. She perfected this appeal from the subsequent judgment granting the divorce and awarding custody of the child to the husband. Her position is that the Texas court lacked personal jurisdiction over her and that it should have stayed the proceedings in deference to the previously filed California action.

We hold that the record does not show that the trial judge erred.

We summarize the agreed statement of facts filed by the parties.

1. The parties and their minor son moved from California to Texas on 11-22-75 and resided in Angleton, Brazoria County, Texas, until 2-4-76. On that date the parties separated and Mrs. Scott returned to California with the child.

2. Mr. Scott filed suit for divorce in Brazoria County on 2-5-76 in cause # 63,636 and sought custody of the child and a division of community property. Process was served on Mrs. Scott in California.

3. Mrs. Scott filed suit for divorce in Riverside County, California, on 2-6-76 and sought custody of the child, support for the child and herself, division of property and attorney's fees. Process was served on Mr. Scott in Texas.

4. Mrs. Scott filed a special appearance in the Texas suit to present a motion to the jurisdiction and a plea in abatement. After a hearing, judgment was entered on 5-13-76 overruling the motion to the jurisdiction but dismissing Mr. Scott's suit under these terms:

"Upon the evidence, agreements and arguments of counsel presented in behalf of Respondent's Original Plea in Abatement this Court finds that the parties, Stephen William Scott and Catherine Ann Scott established Brazoria County and the State of Texas as their domicile and residence on November 22, 1975; that as of the date of filing of the Original Petition for divorce on February 5, 1976 the Petitioner, Stephen William Scott did not have the length of residence and domicile required in order to maintain a divorce action."

5. On 5-4-76 Mr. Scott filed an affirmative response in the California suit, seeking a divorce, custody of the child, and other relief.

6. On 6-3-76 he filed the instant cause in Brazoria County, seeking a divorce, custody of the child, child support, and other relief. Process was served on Mrs. Scott in California.

7. At that time, Mrs. Scott's California suit was still pending and temporary orders then in effect awarded custody to her, ordering Mr. Scott to pay child support and granting visitation rights to him.

8. On 7-6-76 Mrs. Scott filed a special appearance to present a motion to the jurisdiction and a plea in abatement in this proceeding. At the hearing held on 7-30-76, the trial judge took judicial notice of California Civil Code Sections 4350, 4351, 4355, 4357, 4358, 4370, 4371, 4380, 4501, 4506, 4507, 4508, 4514, 4600, 4700, 4800, 4801, 5107, 5108, 5110, and California Code of Civil Procedure Section 415.40. He also took judicial notice of California case law as presented by Lovell v. Parrish, 34 Cal.App.2d 323 (93 P.2d 166) (1939). (Its only relevance, so far as we can determine, is its holding that under California law a final divorce decree terminates the relationship between the parties.) Authenticated copies of the record in the California suit were admitted in evidence. The court also admitted in evidence and took judicial notice of his court clerk's file in Mr. Scott's earlier suit, cause # 63,636, and a copy of Section 4530(a), California Civil Code, which contained this provision:

"Residence Requirements. Plaintiff or defendant must have been resident of state for six months, and of county for three months, next proceeding commencement of action."

9. A bill of exceptions shows the arguments made concerning the taking of judicial notice.

10. On 8-30-76 the Texas Court entered an order containing this provision:

"It further appearing to the Court, and the Court so finds that Respondent's Original Plea in Abatement is in the nature of a Motion to Stay the proceedings in this cause pending final determination of Case No. D-19,353, styled: "In re the Marriage of Catherine Ann Scott and Stephen William Scott", in the Superior Court of California County of Riverside; that the Petitioner, Stephen William Scott and the Respondent, Catherine Ann Scott, established Brazoria County, Texas, as their domicile and residence on November 22, 1975; that Respondent, Catherine Ann Scott, at the time of filing a Petition for dissolution of marriage on February 6, 1976, in Case No. D-19,353, as aforesaid, did not satisfy the domicile and residency requirements of the State of California; and that Respondent's Original Plea in Abatement should be denied.

"It is therefore Ordered that Respondent's Original Plea in Abatement be, and the same is hereby denied."

11. The public statutes and case law of California as presented by Mrs. Scott are incorporated by reference as facts proved at the 7-30-76 hearing.

12. On 7-30-76 the parties' minor child resided in California with Mrs. Scott.

13. The parties to the different suits are the same.

14. As of 7-30-76 the California suit was set for 10-28-76 and all pre-trial matters had been completed.

15. All property owned by the parties was personal property located in Texas and California.

16. The record of the California case admitted into evidence in the Texas hearing "is included in the transcript of this proceeding and is incorporated herein by reference as proof of the matters stated in such record as if fully set forth herein.

The appellant's first point of error is that the court erred in overruling her motion to the jurisdiction because she lacked the requisite minimum contacts with the State of Texas. In contesting the jurisdiction of the court by special appearance under Rule 120a, Texas Rules of Civil Procedure, the appellant had the burden of pleading and proving that she was not amenable to process issued by the courts of Texas. Hoppenfeld v. Crook,498 S.W.2d 52 (Tex.Civ.App.1973, writ ref. n. r. e.).

The parties' marital cohabitation in Texas from November 22, 1975 until February 4, 1976, clearly brings appellant within the Texas long-arm jurisdiction under § 3.26(a)(1) of the Texas Family Code. That section states:

"(a) If the petitioner is a resident or a domiciliary of this state at the commencement of a suit for divorce, . . . the court may exercise personal jurisdiction over the respondent, . . .. Although the respondent is not a resident or a domiciliary of this state if:

(1) this state is the last state in which marital cohabitation between petitioner and the respondent occurred and the suit is commenced within two years after the date on which cohabitation ended; or

(2) . . .

(b) . . .

Application of this section is constitutionally limited by due process requirements that:

"in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Mitchim v. Mitchim, 518 S.W.2d 362, 366 (Tex.1975).

The appellant was able to present little competent evidence to support her allegations of a lack of minimum contacts with the State of Texas. She relies on information contained in the record of the California proceedings. Even though that record was formally introduced, little of it was competent evidence to establish in the Texas court the matters on which she relies.

A judicial record is always admissible to prove the fact that a judgment has been rendered, the time of its rendition and the terms and effect of the judgment . . . the record may not be introduced to establish the facts on which a judgment was based. Adams v. State Board of Insurance, 319 S.W.2d 750, 754 (Tex.Civ.App.1958, writ ref. n. r. e.), citing 32 C.J.S. Evidence § 636, 488-489 (at p. 808 in 1964 ed.).

Neither the allegations in Mrs. Scott's California pleadings, her affidavits, nor her letters were competent...