Velasco v. Ayala

• Decision Date: 19 November 2009
• Docket Number: No. 01-07-01053-CV.,01-07-01053-CV.
• Parties: Betsabe Ivonne Niessen VELASCO, Appellant, v. Alfonso Ignacio AYALA, Appellee.
• Court: Texas Court of Appeals

312 S.W.3d 783

Betsabe Ivonne Niessen VELASCO, Appellant, v. Alfonso Ignacio AYALA, Appellee.

No. 01-07-01053-CV.

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

November 19, 2009.

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Anita E. Kadala, John A. Halbleib, Weil, Gotshal & Manges LLP, Houston, TX, Arthur C. D'Andrea, Weil, Gotshal & Manges, Austin, TX, for Appellant.

Alfonso Ignacio Ayala, Spring, TX, for Appellee.

Panel consists of Justices JENNINGS, HIGLEY, and SHARP.

OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Betsabe Ivonne Niessen Velasco, appeals from the trial court's denial of her motion for new trial, in which she attacked the underlying decree of divorce and termination of her parental rights as void for lack of personal jurisdiction.

On appeal, Betsabe presents two issues. In her first issue, she contends that she was cited by publication using an incorrect name. In her second issue, Betsabe contends that, in his affidavit to procure service by publication, appellee, Alfonso Ignacio Ayala, "falsely stated" that Betsabe's address was unknown and that he had used due diligence in attempting to serve her. Betsabe contends that Alfonso "did not satisfy constitutional due diligence requirements because . . . he never once attempted to personally serve" her through the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters" (the "Hague Service Convention"), which is the "exclusive method of service on a Mexican resident."

We reverse and remand.

Background

Betsabe and Alfonso,¹ both citizens of Mexico, were married in 1996 and lived in Mexico City. In 1998, their daughter, B.A., was born. In October 2003, Alfonso brought B.A. to Houston to visit his family. In November 2003, Betsabe came to Houston to visit and stayed with Alfonso and B.A. at Alfonso's sister's house. Betsabe believed that she, Alfonso, and B.A. would be returning to their home in Mexico City.

On or about February 13, 2004, Betsabe learned that Alfonso did not intend to return to Mexico and that he intended to keep B.A. with him in Houston. Betsabe and Alfonso argued and it escalated into a physical fray. According to Alfonso's testimony and affidavit, Betsabe attempted to drag, then five-year-old, B.A. out of the house. The police arrived, handcuffed Betsabe, and removed her to a women's shelter in Houston.

Betsabe, who does not speak any English, remained at the shelter for three months. During that time, Alfonso removed B.A. from school, and Betsabe could not find them. By May 2004, Betsabe had little money left and her travel visa was about to expire. She returned to the couple's home in Mexico City, where she sought legal counsel and began proceedings through the Hague Convention on International Child Abduction.²

In the interim, on April 21, 2004, Alfonso filed an original petition for divorce, seeking joint conservatorship of B.A. and child support from Betsabe. He named Betsabe, who is "Betsabe Ivonne Niessen Velasco," as respondent "Betsabe Ivonne Ayala" and stated that she resided in Harris County. Alfonso did not request service of process at that time.

In his first amended petition for divorce, filed July 9, 2004, Alfonso sought joint managing conservatorship of B.A. and the right to determine her primary domicile, but without any child support from Betsabe. Alfonso named Betsabe as respondent "Betsabe Ivonne Ayala," who resided at "Eje Central Lazaro Cardenas No. 616-C 103, Col. Alamos C.P. 03100 Mexico D.F., Mexico." Alfonso requested the Harris County District Clerk to send service of process via certified mail to that address. The citation and petition sent were in English. The "Officer's Return for Certified Mail" reflects that it was "returned unexecuted," postmarked "Returned for Termination of Law."

On September 20, 2004, Alfonso filed a second amended petition, seeking a divorce and termination of Betsabe's parental rights. In his petition, Alfonso alleged that Betsabe had "voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months"; had "engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child"; and had "knowingly engaged in criminal conduct that has resulted in the Respondent's conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date" the petition was filed. Alfonso stated in his petition that "Betsabe Ivonne Ayala, Respondent, resides in: Eje Central Lazaro Cardenas No. 616-C 103, Col. Alamos C.P. 03100 Mexico D.F., Mexico."

On the same day, Alfonso moved for citation by publication. By his affidavit, Alfonso attested, in pertinent part, as follows:

Before my family moved to the Houston area October 24, 2003, my wife had a history of abusing our child by slapping her in the face and neck repeatedly on a weekly basis.

On October 24, 2003, I, my wife and our child came to the United States. We all have the appropriate visas to be here. On or about February 13, 2004, my wife attacked our 5 year old daughter again. The police were called and she was arrested. My daughter and I have not seen her since that day.

. . . .

My wife called me and told me that she went to Kansas for a month or so to stay with her sister and then returned to the Houston area. I filed for divorce on April 21, 2004. My wife told me that she wanted the divorce and she didn't want to have anything to do with me or our daughter, so I told her to call my attorney. She told my attorney that she would sign papers as long as she didn't have to pay child support and attorney's fees. So, I told my attorney to take out the request for child support and attorney's fees and send her the waiver and proposed Agreed Divorce Decree. When I told my wife that I had my attorney draw up the papers, she said she would sign on a new condition that I would pay $30,000 for the sale of our daughter to me. She was in the Houston area until two months ago, sometime in June.

My attorney sent the documents to my wife in Mexico last month in July via Federal Express, but Federal Express was informed that my wife was dead. I do not know the whereabouts of my wife for the last two months. I request that the Court allow me to serve her via publication. I have conducted due diligence to get her served and have been unsuccessful. I request that an ad litem be appointed herein as required.

Since February 13, 2004, other than the two one-minute phone calls to B.A. in April of 2004, my wife has NOT called, sent letters, cards or gifts for B.A.. She has not come to the home to see her or called on the telephone requesting to talk to her. August 5 was our daughter's birthday, but her mom didn't even call or send a card or gift.

Last week, I was informed that my wife will be filing for abduction charges under the Hague Treaty, presumably since I have not paid the $30,000 ransom. I fear that she will abduct my daughter and hide her out until I pay her ransom. For all these reasons, I request special relief that my wife be excluded from having any possession and access to our child.

The trial court found that service of citation by publication on Betsabe was authorized and granted Alfonso's motion. Citation of "Betsabe Ivonne Ayala" was published in the Daily Court Review of Harris County on December 2, 2004.

On December 13, 2004, the trial court appointed Laura Arteaga as attorney ad litem to represent Betsabe and appointed Heather Horwitz as amicus attorney to represent B.A. On December 22, 2004, Horwitz filed an answer. On February 28, 2005, Arteaga filed an answer on behalf of Betsabe, entering a general denial. Arteaga did not challenge the validity of the citation or contest personal jurisdiction over Betsabe. Arteaga propounded interrogatories to Alfonso, and Alfonso provided Arteaga with copies of Betsabe's passport, travel visa, and B.A.'s birth certificate. The record reflects that these documents list Betsabe's name as "Betsabe Ivonne Niessen Velasco," "Betsabe I. Niessen," or "Betsabe Niessen Velasco." Arteaga sent several pieces of correspondence to Betsabe at different addresses, which were returned. Arteaga filed a statement of facts, discussing in detail her unsuccessful efforts to locate Betsabe.

On July 18, 2005 and August 15, 2005, the trial court held a "Default Hearing." Arteaga appeared on behalf of Betsabe, Horwitz appeared on behalf of B.A., and the testimony of Alfonso was taken. Alfonso testified that Betsabe had been physically abusive toward B.A. and toward him. Alfonso said that he had spoken with Betsabe by telephone during the course of the proceedings and had discussed the divorce with her. Alfonso said that Betsabe agreed to the divorce and to "give him" B.A. in exchange for $30,000. According to Alfonso, Betsabe refused to pay child support and told him that she would not sign anything until he paid her.

At the hearing, the trial court asked Arteaga if she thought that "all reasonable efforts had been made to notify Betsabe by more traditional means than publication." Arteaga responded, "All reasonable efforts have been made, Judge, of taking into account what was provided." The trial court asked, "Are you hinting that there is information out there that hasn't been provided that would be more helpful?" Arteaga responded, "I believe there may be, Judge. . . . I believe Alfonso may have information on family members." Arteaga said that she "made at least one phone call" to the Mexican Consulate, but that it had not returned her call. Then, the following colloquy took place:

Alfonso's counsel: We have done everything to locate this woman. She has notice about the lawsuit. She has notice.

THE COURT: Does she know that her rights are asked to be terminated, or sh

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