Skadden v. Alfonso

• Decision Date: 31 October 2006
• Docket Number: No. 14-05-00488-CV.,No. 14-05-00489-CV.,14-05-00488-CV.,14-05-00489-CV.
• Citation: Skadden v. Alfonso, 217 S.W.3d 611 (Tex. App. 2006)
• Parties: Michael SKADDEN, Appellant, v. Ana Maria Tarquis ALFONSO, Appellee.
• Court: Texas Court of Appeals

217 S.W.3d 611

Michael SKADDEN, Appellant, v. Ana Maria Tarquis ALFONSO, Appellee.

No. 14-05-00488-CV.

No. 14-05-00489-CV.

Court of Appeals of Texas, Houston (14th Dist.).

October 31, 2006.

Supplemental Opinion on Overruling of Rehearing March 6, 2007.

Michael Skadden, Houston, pro se.

James G. Rytting, Eugene P. Tausk, Marlene Dancer Adams, Pamela E. George, Houston, for appellee.

Panel consists of Justices HUDSON, FROST, and SEYMORE.

OPINION

KEM THOMPSON FROST, Justice.

More than four years after the trial court's divorce decree became final, appellant instituted proceedings in the trial court to enforce the decree against his ex-wife. The trial court granted the ex-wife's motion to dismiss the enforcement actions based on the court's conclusion that she was never validly served with process in the underlying divorce action. The trial court erred in dismissing the enforcement actions because, after the time expired for filing a motion for new trial and direct appeal, a restricted appeal or a bill of review were the only available procedural avenues for the ex-wife to attack the decree based on an alleged failure to effect valid service of process on her. We cannot affirm the trial court's dismissal orders based on its alleged lack of subject-matter jurisdiction over child custody issues because the record before the trial court from the underlying divorce action did not negate the existence of facts essential to the trial court's subject-matter jurisdiction over child custody issues. Therefore, we reverse the trial court's orders dismissing the enforcement actions, and we remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On or about March 15, 1999, appellee Ana Maria Tarquis Alfonso ("Tarquis") instituted the Spanish equivalent of divorce proceedings in a court in Madrid, Spain.¹ About a month later, on April 14, 1999, Skadden filed a petition for divorce in the trial court below. This petition contains an affidavit from Skadden stating that the only child of the marriage, Benjamin, has lived in Spain from birth until April 14, 1999, except for 25 days he spent in Houston, Texas, in September 1998. The record indicates that Skadden, after filing the Texas divorce action, tried to serve Tarquis (1) under the Hague Convention, (2) through personal service by a person authorized by the trial court under Texas Rule of Civil Procedure 103, (3) through service by registered mail sent to Tarquis's address in Spain, and (4) through service by publication in the Daily Court Review. Skadden alleges that he sent a copy of the petition and citation by regular air mail to Tarquis at her residence address in Madrid in November 1999.

The Texas Proceeding

On December 13, 1999, the Texas divorce case was called to trial.² Skadden appeared along with counsel. Tarquis did not appear in person or through counsel. The record reflects that evidence was presented at trial; however, we do not know what evidence was presented. Although a record was made of the trial, no party asked the court reporter to transcribe her notes. Eventually, the court reporter discarded her notes of the trial without ever having transcribed them. See TEX. GOV'T CODE ANN. § 52.046(a)(4) (Vernon 2005) (requiring court reporters to preserve their notes for only three years from the date on which they were taken). Thus, there is no trial record for this court to review.

After trial, Skadden presented to the associate judge a proposed final divorce decree, which both Skadden and his counsel approved as to form and substance. The associate judge reviewed the proposed decree, made various revisions to it, and then approved it as the decree he recommended the trial judge to sign. On December 22, 1999, the presiding judge of the trial court signed the decree recommended by the associate judge without making any changes to it (hereinafter the "Texas Decree"). The Texas Decree adjudicated property and child custody issues, and it states, among other things, as follows:

Based upon the evidence presented, the Court finds that [Tarquis] had adequate notice of these proceedings[.] Due process of law has been satisfied[.] [Tarquis] is wholly in default[.]

The Court, after receiving evidence, finds that it has jurisdiction of this case. All prerequisites to the exercise of its jurisdiction have been duly complied with . . .

. . .

The Court finds that [Skadden] and [Tarquis] are the parents of only one child:

Name[:] Benjamin Skadden-Tarquis

Sex[:] Male

Birthplace[:] Madrid, Spain

Birth Date[:] October 21, 1997

Home State: Texas

(emphasis added). No party timely filed a post-judgment motion, regular appeal, restricted appeal, or bill of review regarding this final divorce decree.

The Spanish Proceeding

In June 2002, the court in the Spanish divorce proceeding rendered its final divorce judgment, ordering Skadden to pay child support and awarding Tarquis custody of Benjamin. The Spanish judgment, which does not establish a visitation schedule in favor of Skadden, states that the court did not deem it proper to establish a visitation schedule, in part because Benjamin does not know Skadden or have any relationship with him.

The Texas Enforcement Actions

On April 2, 2004, Skadden filed in the Texas proceeding a petition for interference with possessory rights and a motion for enforcement of the Texas Decree, which provides that both Skadden and Tarquis are joint managing conservators of Benjamin. On the same day, Skadden also filed an application for writ of habeas corpus. The habeas corpus action has a separate cause number from the proceeding containing the petition for interference with possessory rights and the motion for enforcement. In this opinion, we refer to both of these enforcement cases collectively as the "Enforcement Actions."

On June 29, 2004, Tarquis filed an original answer that contained only a general denial and a request for attorney's fees. A few weeks later, on July 14, 2004, Tarquis filed a "Special Appearance," seeking a dismissal because (1) Tarquis allegedly does not have sufficient minimum contacts with Texas and the trial court's exercise of personal jurisdiction over her allegedly would offend traditional notions of fair play and substantial justice, and (2) the motion for enforcement is allegedly based on a void judgment.

On September 29, 2004, the trial court held a hearing and determined that Tarquis waived her personal-jurisdiction objection in the Enforcement Actions by not filing her special appearance before her answer. On October 27, 2004, the trial court issued a capias for Tarquis based on her failure to appear as ordered at a prior hearing.

On November 29, 2004, Tarquis filed a "Motion to Dismiss for Lack of Subject-Matter Jurisdiction." In this motion, Tarquis asserted that, both at the time of the motion and when the trial court issued the Texas Decree, the trial court lacked subject-matter jurisdiction over child custody issues under Chapter 152 of the Texas Family Code. Tarquis also asserted that the Texas Decree was void because she was not validly served with process before the rendition of the Texas Decree. On December 10, 2004, Tarquis filed a "Motion to Dismiss for Lack of Personal Jurisdiction." In this motion, Tarquis asserted that, both at the time of the motion and when the trial court issued the Texas Decree, the trial court lacked personal jurisdiction over Tarquis because Tarquis did not have sufficient minimum contacts with Texas and because the trial court's exercise of personal jurisdiction over her would offend traditional notions of fair play and substantial justice. This motion did not mention any alleged lack of service of process on Tarquis. On the same day, Tarquis filed a "First Amended Motion to Dismiss for Lack of Subject-Matter Jurisdiction." This amended motion is substantially similar to the original motion Tarquis filed on November 29, 2004, except that in it Tarquis emphasizes that her motion is directed toward Skadden's motion for enforcement, petition for interference with possessory rights, and application for writ of habeas corpus. Tarquis's two motions were set for hearing on December 27, 2004.

On December 21, 2004 and December 22, 2004, the trial court faxed a handwritten letter to counsel. Although it is difficult to read, this letter appears to state the following:

As I indicated to you, I have now reviewed this file from divorce through enforcement and habeas corpus. I have reviewed my docket sheet and note that my findings/rendition provided "JMC—no jurisd. over child to determine primary JMC or geographical provision/no jurisd. on periods of poss."

The Decree is inconsistent with the rendition but clearly there never was personal jurisdiction, only in rem to grant the divorce.

Therefor [sic], the court now renders that it has no personal jurisdiction, only in rem jurisdiction. Motion to Enforce + Habeas are Dismissed W.O.J.

On December 27, 2004, the trial court held a hearing and read from its letter to counsel. The trial judge stated that he did not intend to use the docket entry to override the Texas Decree but that he had used the docket sheet to refresh his memory regarding whether service of process had been validly effected on Tarquis. Tarquis's counsel asserted that Skadden's divorce petition shows that the trial court did not have subject-matter jurisdiction over Benjamin under section 152.201 of the Texas Family Code. Skadden asserted that the court already had ruled that Tarquis's special appearance was untimely, so that Tarquis should not be able to raise personal jurisdiction. The trial court stated that it was relying on the fact that there was no valid service of process on Tarquis and then took judicial notice of everything in its file in the underlying divorce case, which reflected various attempts by Skadden to effect service of process on Tarquis.

The trial court stated that its ruling, as...