NO. 01-15-00073-CV 

IN THE FIRST COURT OF APPEALS 

HOUSTON, TEXAS 

CORNELIS WILLIG 

Appellant, 

v. 

MARCELA GUTIERREZ DIAZ, 

Appellee. 

Appealed from the 309th Judicial District Court of 

Houston, Texas 

Cause No. 2014-16063 

APPELLEE’S BRIEF 

 

 

 Michael G. Busby 

 State Bar No. 24036294 

 Busby & Associates, P.C. 

 2909 Hillcroft Ave. 

 (713) 974-1151 

 

ATTORNEY FOR APPELLEE 

 

ACCEPTED

01-15-00073-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

8/13/2015 7:20:26 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 8/13/2015 7:20:26 PM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENTS 

TABLE OF CONTENTS.......................................................................................... ii

INDENTITIES OF PARTIES AND COUNSEL ......................................................1

INDEX OF AUHTORITIES......................................................................................2 

STATEMENT OF THE CASE..................................................................................3 

ISSUES PRESENTED...............................................................................................3 

Issue No. One: ............................................................................................................................................... 7

. .............................................................................................................................. 

Issue No. Two:.............................................................................................................................................12

Issue No. Three:.........................................................................................................................................14

. .............................................................................................................................. 

STATEMENT OF FACTS ........................................................................................4 

Factual:.............................................................................................................................................................. 4

Procedural :.................................................................................................................................................... 4

SUMMARY OF ARGUMENT.................................................................................6 

ARGUMENT.............................................................................................................7 

CONCLUSION........................................................................................................20

PRAYER..................................................................................................................20 

CERTIFICATE ........................................................................................................20

Brief of Appellee  Page ii
IDENTITIES OF THE PARTIES AND COUNSEL 

Appellee certifies that the following is a complete list of parties, attorneys, and any 

other person who has any interest in the outcome of this lawsuit: 

Defendants / Appellee: Appellate & Trial Counsel 

Marcela Gutierrez Diaz Cornelis Willig 

Michael Glynn Busby Andres Chaumont 

State Bar No. 240362294 State Bar No. 02909450 

Busby & Associates, P.C. Andres P. Chaumont 

2909 Hillcroft Street, Suite 350 806 Daria Drive 

Houston, Texas 77057 Houston, Texas 77079 

Telephone: (713) 974-1151 Telephone: (281) 493-3999 

Facsimile: (713) 974-1181 Facsimile: (281) 493-3993 

Trial Judge: 

Hon. Sheri Y. Dean(Trial) 

Brief of Appellee  Page 1
TABLE OF AUTHORITIES 

Cases 

In re Milton, 420 S.W.3d 245 (Tex. App. 2013) ......................................................................................... 5 

Schlobohm v. Schapiro, 784 S.W.2d 355 (Tex. 1990) ............................................................................... 5 

Stallworth v. Stallworth, 201 S.W.3d 338 (Tex. App. 2006) ...................................................................... 6 

Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807 (1959) ............................................................................. 6 

Reynolds v. Reynolds, 86 S.W.3d 272 (Tex. App.—Austin 2002) ............................................................ 6 

In re Marriage of Lai, 333 S.W.3d 645 (Tex. App.—Dallas 2009) ............................................................ 6 

Griffith v. Griffith, 341 S.W.3d 43 (Tex. App.—San Antonio 2011) ......................................................... 7 

Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) .......................................................................................... 7 

Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964) ........................................................................................... 7 

Wilson v. Wilson, 189 S.W.2d 212 (Tex. Civ. App.—Fort Worth 1945) .......................................... 7, 8, 9 

Dearing v. Johnson, 947 S.W.2d 641 (Tex. App.—Texarkana 1997) ...................................................... 11 

Hoffman v. Hoffman, 821 S.W.2d 3 (Tex. App.—Fort Worth 1992) ...................................................... 11 

Calvert v. Calvert, 801 S.W.2d 217 (Tex. App.—Fort Worth 1990) ........................................................ 11 

Boots v. Lopez, 6 S.W.3d 292 (Tex. App.—Houston [14th Dist.] 1999) ................................................. 13 

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1982) .................................. 13, 14, 15, 17 

Statutes 

Tex. Fam. Code Ann. § 6.301 (West 2006) .................................................................................. 5, 6, 7, 10 

Tex. Fam. Code Ann. § 6.305(a)(2) (West 2006) ....................................................................................... 6 

Tex. Fam. Code Ann. §§ 6.301, 6.308 (West 2006) ................................................................................. 10 

Tex. Fam. Code Ann. § 6.308 (West 2006) .............................................................................................. 10 

Tex. Fam. Code Ann. § 6.308(a) (West 2006) .................................................................................... 11, 12 

Other 

Section 6.301 and 6.308 .............................................................................................................................. 1 

Id. at 12 ¶ 5 ................................................................................................................................................. 2 

Id. at 12 ¶ 11 ............................................................................................................................................... 2 

Id. at 8 ......................................................................................................................................................... 2 

Id. at 88 ¶ 1 ................................................................................................................................................. 2 

Id. at 45 ¶ 4 ................................................................................................................................................. 3 

Id. at 11, 12, 42 ........................................................................................................................................... 4 

9.5 of the Texas Rules of Appellate Procedure ......................................................................................... 18 

Brief of Appellee  Page 2
STATEMENT OF THE CASE 

 This was a divorce action with no children. Petitioner husband (Cornelis Willig) 

herein after referred to as “appellant” filed initially on March 24th 2014 (CR. Vol. 1 at 2) 

then amended his petition for divorce on June 9th 2014. CR. Vol. 1 at 12. The Respondent 

(Marcela Gutierrez Diaz) herein referred to as “appellee,” objected to jurisdiction of 

Texas courts by filing a special appearance and plea in abatement on May 27th 2014. CR. 

Vol. 1 at 7. During the course of the case, a motion to compel discovery was filed and 

then granted against the appellant for the production of certain documents used to 

determine residency of the appellant. CR Vol. 1 at 60. On October 16, 2014, the trial 

court rendered its decision, Special Appearance was granted and the case was dismissed. 

The court signed the order of dismissal on October 31, 2014. Id at 90.

ISSUES PRESENTED 

Issue One: The trial court was correct in granting Appellee’s Special 

Appearance and entering judgment dismissing the Appellants’ Petition for Divorce 

stating the Court in the Netherlands had assumed jurisdiction over the matter, 

given that Appellant filed his actual petition for divorce in Harris County before 

the Appellee filed her actual divorce petition in the Netherlands. 

 

Issue Two: The trial court was correct in granting Appellant’s requested 

divorce, since the court did not have the authority under sections 6.301 and 6.308 

of the Texas Family Code 

Issue Three: The trial court issued a proper ruling in entering Findings of 

Fact and Conclusions of Law and is supported by the evidence and testimonials 

presented by the appellee. It is the appellant who provides contradictory evidence 

and testimony. 

 

Brief of Appellee  Page 3
STATEMENT OF THE FACTS 

An original petition for divorce was filed by appellant in Harris County, Texas on 

March 24, 2014. The appellee was personally served with the Original Petition for 

Divorce on June 23, 2015. The original petition stated that appellant had met domicile 

requirements to obtain Texas divorce. Paragraph number 5 of the original petition for 

divorce pleads for long arm jurisdiction over the appellee. CR Vol. 1 at 2 ¶ 5. Paragraph 

10 and 11 of the original petition asked that the trial court divide community property and 

also confirm separate property. CR Vol. 1 at ¶ 10-11

 On June 9, 2014 a first amended petition for divorce was filed by the appellant. 

Paragraph 3 of the first amended petition alleges that the appellant was a domiciliary and 

resident of Texas. The fifth paragraph of the petition includes “in rem language,” which 

requested that the court grant a divorce without the provisions that divide the marital 

estate. Id. at 12 ¶ 5. The eleventh paragraph of the First Amended Petition for Divorce 

requests for confirmation of separate property. Id. at 12 ¶ 11.

 On May 27, 2014 a Special Appearance and a plea in abatement was filed by the 

appellee, objecting to Texas jurisdiction over the divorce matter. The Special Appearance 

verified pleading alleged that a divorce had been filed in the Netherlands, which granted 

the Dutch courts Jurisdiction. The Dutch courts issued temporary orders between the 

appellee and the appellant in addition to assuming jurisdiction over the divorce. 

Additional testimony from the record alleges that the parties had never lived together as 

husband and wife in Texas, they had no property in Texas, and that the Appellant was in 

Texas solely for work purposes for which arrival was on January 8, 2014. Id. at 8.

 During the course of the proceedings appellant was served with discovery requests 

from the appellant, the responses were not produced until such time as the court ordered 

the appellant to provide responses to production on September 26, 2014 as evidenced by 

the proposed order signed by both attorneys for the parties, yet never signed by the court. 

Id. at 88 ¶ 1.

 At the trial of the special appearance, appellant testified to having two pieces of 

real property in the Netherlands. RR Vol. 2 at 11. Appellant testified that he was given 

status in the United States as an investor. Id at 12 ¶ 3. In addition, the appellant alleged 

to have established a residence in the Texas in 2010, but was unable to state at trial how 

many nights he had stayed in Texas during 2010. RR Vol. 2 at 12 ¶ 16. Appellant 

testified he is a citizen of the Netherlands and not a citizen of the United States of 

America. RR Vol. 2 at 14 ¶ 4; 7-8. 

 In 2010, appellant did not possess a Texas driver license. RR Vol. 2 at 15 ¶ 3-4. 

When asked in 2011 how nights appellant had spent in Texas, he could not answer. Id at

15 ¶ 18 - 21. For the year 2012, appellant thought he spent 120 to 140 nights in Texas, 

but could not remember. Id at 15 ¶ 24-25. Yet for the year 2013, appellant remembers 

spending well over six months in Texas. Id at 16 ¶ 3-5. In February of 2014, appellant 

obtained a Texas Drivers license. RR Vol. 2 at 14 ¶ 17. 

Brief of Appellee  Page 4
Brief of Appellee  Page 5

 At the Special Apperance hearing on March 24 2014, appellant testified to signing 

his first residential lease. Id at 16 ¶ 8-22. Appellant further testified that his visa had an 

entry date into the United States on January 8th 2014. Id at 2¶ 2-6. Appellant testifies that 

a divorce was filed in the Netherlands by the appellee. Id at 19 ¶ 11-12. Appellant 

further testifies that he received divorce pleading on February 6,

 2014. Id at 21 ¶ 16-25. 

Appellant testifies that the appellee resided in the marital homestead in the Netherlands. 

Id at 22 ¶ 16-19. Further, Exhibit 4 contains temporary orders had been entered in April 

of 2014, requiring the appellant to pay the mortgage and utilities on the family residence.

CR Vol. 1 Ex. 4 at 52. During the hearing, direct examination with appellant’s attorney 

reveals that the appellant knew a divorce was filed on February 4, 2014 in the 

Netherlands. RR Vol. 2 at 36 ¶ 22. 

 Appellant filed records with the United States Immigration Service under oath in 

2011 stating his home address was in the Netherlands. Id at 42 ¶ 3-25. Appellant admits 

that his residence and home of record in the Netherlands. Id. at 45 ¶ 4 to 25; at 46 ¶ 3. 

Finally, appellant testifies that he answered the divorce from The Netherlands and had a 

temporary orders hearing prior to March 24th 2014. Id at 49 ¶ 13. 

 Appellee asserts that the Appellant’s insistence that his testimony is neither 

controverted nor contradictory is in itself a contradiction as his testimony evidences. 

 

 
SUMMARY OF ARGUMENT 

The trial court committed no error in dismissing the case because it was the 

Appellant’s testimony that contradicted itself and not the court ignoring 

uncontroverted evidence. The appellant’s testimony clearly shows that he was 

aware that the appellee filed for divorce in The Netherlands on February 14, 2014 

before he filed for divorce in Harris County. This was demonstrated when he 

testified that he answered the divorce from Holland and had a temporary orders 

hearing prior to March 24th 2014. RR Vol. 2 at 49 ¶ 13. 

It was proper to grant a status divorce as the court lacked authority under Texas 

law. The appellant’s records, which he filed to in 2011, state that his home address 

was in the Netherlands and that he owns two pieces of property in the Netherlands. 

By his own testimony, the appellant is a Dutch citizen and the entry date on his 

visa for the United States was January 8, 2014 with Investor Status. Id. at 11, 12, 

42. Thus the court has no authority in this case. 

The trial court was proper in publishing findings of fact and conclusions of law 

because the evidence and testimony was not contradictory to the rulings. This is 

demonstrated by the facts that were demonstrated by the evidence and the 

testimony he gave at the hearing. He does not meet domiciliary requirements for 

jurisdiction, he does not have children, nor does he have property in the United 

States of America. The appellant would only benefit from the divorce in Harris 

County, Texas because it would cause the appellee to lose her status in the 

Netherlands and force her to leave. Thus, the appellant has unclean hands. RR Vol. 

2 at 21, 35, 36. 

Brief of Appellee  Page 6
ARGUMENT 

ISSUE NO. 1: 

I. The trial court was correct in granting Appellee’s Special 

Appearance and entering judgment dismissing the Appellants’ Petition 

for Divorce stating the Court in the Netherlands had assumed jurisdiction 

over the matter, given that Appellant filed his actual petition for divorce 

in Harris County before the Appellee filed her actual divorce petition in 

the Netherlands. 

A suit for divorce may not be maintained in this state unless at the time the suit 

is filed either the petitioner or the respondent has been: (1) a domiciliary of this 

state for the preceding six-month period; and (2) a resident of the county in 

which the suit is filed for the preceding 90–day period. Tex. Fam.Code Ann. § 

6.301 (West 2006). In re Milton, 420 S.W.3d 245, 251-52 (Tex. App. 2013). 

A trial court may exercise jurisdiction over a nonresident defendant when (1) 

the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the 

exercise of jurisdiction is consistent with federal and state constitutional 

guarantees of due process. Schlobohm v. Schapiro, 784 S.W.2d 355, 356 

(Tex.1990). In a suit for dissolution of a marriage, a trial court may exercise 

personal jurisdiction over a non-resident respondent if there is any basis 

Brief of Appellee  Page 7
consistent with the Texas and United States constitutions for the exercise of 

personal jurisdiction. Tex. Fam.Code Ann. § 6.305(a)(2) (Vernon 2006); 

Stallworth v. Stallworth, 201 S.W.3d 338, 343 (Tex. App. 2006) 

“The right to apply for, or obtain a divorce is not a natural one, but is accorded 

only by reason of statute, and the state has the right to determine who are 

entitled to use its courts for that purpose and upon what conditions they may do 

so.” Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 810 (1959). Under the 

Family Code, “[a] suit for divorce may not be maintained in this state unless at 

the time the suit is filed either the petitioner or the respondent has been: (1) a 

domiciliary of this state for the preceding six-month period; and (2) a resident 

of the county in which the suit is filed for the preceding 90–day period.” See 

Tex. Fam.Code Ann. § 6.301 (General Residency Rule for Divorce Suit). 

Although section 6.301 is not itself jurisdictional, it is akin to a jurisdictional 

provision because it controls a party's right to maintain a suit for divorce and is 

a mandatory requirement that cannot be waived. Reynolds v. Reynolds, 86 

S.W.3d 272, 276 (Tex.App.-Austin 2002, no pet.) (relying on Oak v. Oak, 814 

S.W.2d 834, 837 (Tex.App.-Houston [14th Dist.] 1991, writ denied)); See also 

In re Lai, 333 S.W.3d 645, 648 (Tex.App.-Dallas 2009, no pet.). Therefore, the 

trial court cannot maintain a suit unless the residency requirements are met. 

Brief of Appellee  Page 8
Reynolds, 86 S.W.3d at 276. While the requirements of domicile and residence 

under section 6.301 are a fact issue for the trial court to determine, such 

findings will be reversed if there is a clear abuse of discretion. Griffith v. 

Griffith, 341 S.W.3d 43, 53 (Tex.App.-San Antonio 2011, no pet. h.).9101112. 

“The test for ‘residence’ or ‘domicile’ typically involves an inquiry into a 

person's intent.” Powell v. Stover, 165 S.W.3d 322, 326 (Tex.2005). When 

determining where a person resides, volition, intention and action are all 

elements to be equally considered. See Mills v. Bartlett, 377 S.W.2d 636, 637 

(Tex.1964). In order to be a resident, there must be an intention to establish a 

permanent domicile or home, and the intention must be accompanied by some 

act done in the execution of the intent. Wilson v. Wilson, 189 S.W.2d 212, 213 

(Tex.Civ.App.-Fort Worth 1945, no writ). 

 At the trial of the special appearance, appellant testified to having two pieces 

of real property in the Netherlands. RR Vol. 2 at 11. Appellant testified that he 

was given status in the United States as an investor. Id at 12 ¶ 3. In addition, 

the appellant alleged to have established a residence in the Texas in 2010, but 

was unable to state at trial how many nights he had stayed in Texas during 

2010. RR Vol. 2 at 12 ¶ 16. Appellant admitted he is a Dutch citizen and not a 

citizen of the United States. RR Vol. 2 at 14 ¶ 4; 7-8. In February of 2014, 

appellant obtained a Texas Drivers license. RR Vol. 2 at 14 ¶ 17. 

Brief of Appellee  Page 9
 In 2010, appellant did not possess a Texas driver license. Id. at 15 ¶ 3-4. 

When asked in 2011 how nights appellant had spent in Texas, he could not 

answer. Id. at 15 ¶ 18 - 21. For the year 2012, appellant thought he spent 120 

to 140 nights in Texas, but could not remember. Id. at 15 ¶ 24-25. Yet for the 

year 2013, appellant remembers spending well over six months in Texas. Id. at 

16 ¶ 3-5. 

 On March 24th 2014, appellant admitted to signing his first residential lease 

in Texas. Id. at 16 ¶ 8-22. Appellant further admitted that his visa had an entry 

date into the United States on January 8th 2014. Id. at 2¶ 2-6. Appellant admits 

that a divorce was filed in the Netherlands by the appellee. Id. at 19 ¶ 11-12. 

Appellant further admits that he received divorce pleading on February 6, 2014. 

Id. at 21 ¶ 16-25. Appellant admits that the appellee resided in the family 

homestead in the Netherlands. Id. at 22 ¶ 16-19. Further, Exhibit 4, the 

Temporary Orders, had been entered in April of 2014, requiring the appellant to 

pay the mortgage and utilities on the family residence. CR Vol. 1 Ex. 4 at 52. 

Testimony on direct from his attorney during the trial the appellant admits that a 

divorce was filed on February 4, 2014 in the Netherlands. RR Vol. 2 at 36 ¶ 22. 

 Appellant filed records with the United States Immigration Service under 

oath in 2011 stating his address was in the Netherlands. Id. at 42 ¶ 3-25. 

Appellant admits that his residence and home of record in the Netherlands. Id.

Brief of Appellee  Page 10
at 45 ¶ 4 to 25; at 46 ¶ 3. Finally, appellant admits that he answered the divorce 

from Holland and had a temporary orders hearing prior to March 24th 2014. Id. 

at 49 ¶ 13. 

 Appellant argues that he filed first his divorce in Texas in his brief on page 6 

and references that the Dutch Court has abated the proceedings in the 

Netherlands based on evidence submitted that the Appellant case was first in 

time. Brief for Appellant at 12 ¶ 9. 

 In Appellant’s Motion for New Trial he raised the issue for the first time that 

his divorce action was filed first and that the initial lawsuit filed in the 

Netherlands was for support only. CR Vol. 1 at 104 ¶ 2. At the trial, the 

Appellant admitted that the Appellee filed for Divorce in the. RR Vol. 2 at 19 ¶ 

11-12. Appellant further admits that he received divorce pleadings on February 

6,

 2014. Id at 21 ¶ 16-25. Appellant admits that the appellee resided in the 

family homestead in the Netherlands. Id at 22 ¶ 16-19. Further, the temporary 

orders in Exhibit 4 had been entered in April of 2014, requiring the appellant to 

pay the mortgage and utilities on the family residence. CR Vol. 1 Ex. 4 at 52. 

Testimony on direct from his attorney during the trial the appellant admits that a 

divorce was filed on February 4, 2014 in the Netherlands. RR Vol. 2 at 36 ¶ 22. 

 Therefore, at the trial of the case, it was the testimony of the appellant that 

confirmed a divorce had been filed first and served first in the Netherlands that 

Brief of Appellee  Page 11
was in front of the judge to determine issues of comity and jurisdiction. 

Appellant alleges in his brief that appellee is misleading the court. Further 

references are made about the appellant testimony having been uncontroverted 

and not contradicted. Yet, it is the appellant himself who has contradicted 

himself and thus not credible to the fact finder. The trial court committed no 

error, but properly dismissed the divorce. 

II. Issue Two:    The  trial  court  was  correct  in  granting  Appellant’s 

requested divorce, since  the court did not have  the authority under 

sections 6.301 and 6.308 of the Texas Family Code. 

A suit for divorce may not be maintained in this state unless at the time the 

suit is filed either the petitioner or the respondent has been:(1) a domiciliary of 

this state for the preceding six-month period; and(2) a resident of the county in 

which the suit is filed for the preceding 90-day period. Tex. Fam. Code Ann. § 

6.301. 

(a) A court in which a suit for dissolution of a marriage is filed may exercise its 

jurisdiction over those portions of the suit for which it has authority. 

(b) The court's authority to resolve the issues in controversy between the parties may be 

restricted because the court lacks: 

(1) the required personal jurisdiction over a nonresident party in a suit for 

dissolution of the marriage; 

(2) the required jurisdiction under Chapter 152; or 

(3) the required jurisdiction under Chapter 159. 

Tex. Fam. Code Ann. § 6.308 (West) 

Brief of Appellee  Page 12
Divorce actions are quasi in rem proceedings, so that the court may have 

jurisdiction over the status of the marriage even if the court lacks personal 

jurisdiction over one of the parties. Dearing v. Johnson, 947 S.W.2d 641 (Tex. 

App. Texarkana 1997); Hoffman v. Hoffman, 821 S.W.2d 3 (Tex. App. Fort 

Worth 1992); Calvert v. Calvert, 801 S.W.2d 217 (Tex. App. Fort Worth 

1990)]. A court presiding over a divorce action may exercise its jurisdiction 

over those portions of the suit for which it has authority. Tex. Fam. Code Ann. § 

6.308(a). Thus, it may grant a divorce even if it lacks jurisdiction to grant some 

other relief requested by the parties. 

An original petition for divorce was filed by appellant in Harris County 

Texas on March 24, 2014. CR Vol. 1 at 4. Service was made via personal 

service on March 23, 2014 of the original petition for divorce. Id. at 4 ¶ 3. The 

original petition stated that the appellant had met the domicile requirements to 

obtain Texas divorce. Paragraph number 5 of the original petition for divorce 

pleads for long arm jurisdiction over the appellee. CR Vol. 1 at 2 ¶ 5. 

Paragraph 10 and 11 of the original petition asked that the trial court divide 

community property and also confirm separate property. CR Vol. 1 at ¶ 10-11

 On June 9, 2014 a first amended petition for divorce as filed by the 

appellant. Paragraph 3 of the first amended petition alleges that the appellant 

was a domiciliary and resident of Texas. Paragraph number 5 of the first 

Brief of Appellee  Page 13
amended petition for divorce invokes “in rem language” request that the court 

grant a divorce, without provisions that would divide the marital estate. Id. at 12 

¶ 3-5. Paragraph 11 of the first amended petition for divorce asks for 

confirmation of separate property. Id. at 12 ¶ 11 

 On March 24th 2014, appellant testified to signing his first residential lease. 

Id at 16 ¶ 8-22. The Appellant further testofoed that his visa had an entry date 

into the United States on January 8th 2014. At the trial of the special 

appearance, appellant testified to having two pieces of real property in the 

Netherlands. RR Vol. 2 at 11. The Appellant testified that he was given status 

in the United States as an investor. Id. at 12 ¶ 3. In 2011The Appellant filed 

records with the United States Immigration Service under oath, stating his 

address was in the Netherlands. Id at 42 ¶ 3-25. Appellant also testifies that his 

residence and home of record in the Netherlands. Id. at 45 ¶ 4 to 25; at 46 ¶ 3. 

 Thus, the trial court did not commit error by granting a status divorce as the 

trial court had no authority under 6.301 and 6.308 of the Texas Family code to 

grant the relief requested. 

 

III.Issue Three:   The trial court issued a proper ruling in entering Findings of 

Fact  and  Conclusions  of  Law  and  is  supported  by  the  evidence  and 

testimonials  presented  by  the  appellee.  It  is  the  appellant  who  provides 

Brief of Appellee  Page 14
contradictory ev dence and testimony.

The  trial  courts granting  of  a motion  to  dismiss which is  predicated  on a 

discretionary  statute  is  reviewed  under  an  abuse  of  discretion  standard. 

Boots v. Lopez, 6 S.W.3d 292,294 (Tex App. ‐ Houston [14th Dist.] 1999, pet. 

denied). The test for an abuse of discretion is not whether, in the appellate 

court's  view,  the  facts  present  an  appropriate  case  for  the  trial  courts 

action. Rather, in  order  to  prove  the  trial  court  abused its  discretion,  the 

complaining  party  must  show  the  trial  court  acted  without  reference  to 

guiding  rules  and  principles,  in  other  words,  the  trial  court  acted  in  an 

arbitrary  or  unreasonable  manner.  Downer v. Aquamarine Operators, Inc., 

701 S.W.2d 238, 241‐242 (Tex. 1982).  

i

 Appellant argues that the Findings of fact No 5, 7, 8, 16, 17 are based on 

factual error. CR Supp. Vol. at 3,4 Appellant asserts on page 20 of his brief that 

January 2010 was the date that his residence was established in Harris County 

Texas. Brief for Appellant at 20 ¶ 24. Yet the verified sworn affidavit admitted 

into evidence at the trial Appellant filed records with the United States 

Immigration Service under oath in 2011 stating his address was in the 

Netherlands. CR Vol. 1 at 50 ¶ 1. Appellant further testified that his residence 

and home of record in the Netherlands on 17 of January 2011 and the address of 

his residence is at 2 Herman Hejiermanslaan, North Holland 2106ES 

Brief of Appellee  Page 15
Netherlands. Id. 

 At the special appearance hearing, appellant testified to having two pieces of 

real property in the Netherlands. RR Vol. 2 at 11. Appellant testified that he 

was given status in the United States as an investor. Id at 12 ¶ 3. Appellant 

admitted he is a Dutch citizen and not a citizen of the United States. RR Vol. 2 

at 14 ¶ 4; 7-8. In February of 2014, appellant obtained a Texas Drivers 

license. RR Vol. 2 at 14 ¶ 17. 

 In 2010, appellant did not possess a Texas driver license. RR Vol. 2 at 15 ¶ 

3-4. On March 24th 2014, appellant testified to signing his first residential 

lease in Texas. Id at 16 ¶ 8-22. Appellant further testified that his visa had an 

entry date into the United States on January 8th 2014. Id at 2¶ 2-6. 

 Findings of fact No 5, 7, 8, 16, 17 are entirely correct and supported by the 

record as referenced above. CR Vol. Supp at 3-4. Conclusions of law No 1 and 

No 4. are therefore proper findings of law as applied to the facts of this case. Id. 

at 5-6. 

 On page 21 of his brief, Appellant further argues that Findings of Fact 10, 

11, 12, and 21 are also incorrect. Id. at 5-6; Brief of Appellant at 21 ¶ 27. 

Because of the purported error in the findings of fact above, appellant argues 

that conclusions of law No 1 and No 4 (CR Vol. Supp. at 5-6) are also incorrect 

on page 21 and page 22. Brief of Appellant at 21 ¶ 28 

Brief of Appellee  Page 16
Yet, during the hearing Appellant testified that a divorce was filed in the 

Netherlands by the appellee. Id at 19 ¶ 11-12. Appellant further admitted that 

he received divorce pleading on February 6,

 2014. Id at 21 ¶ 16-25. Appellant 

states that court erred because a divorce was not filed in February 2014, but 

instead a petition for support was filed, then a divorce was filed on March 28th

2014. Id. at 21-22 ¶ 30, 31. 

This contradiction was not brought to the attention of the trial court during 

the trial. This contradiction was based on the testimony of the appellant. 

Furthermore, any error in the record is harmless error, as on June 9, 2014 a first 

amended petition for divorce as filed by the appellant. Paragraph 3 of the first 

amended petition alleges that the appellant was a domiciliary and resident of 

Texas. Paragraph number 5 of the first amended petition for divorce invokes 

“in rem language” request that the court grant a divorce, without provisions that 

would divide the marital estate. Id. at 12 ¶ 5. Paragraph 11 of the first amended 

petition for divorce asks for confirmation of separate property. Id. at 12 ¶ 11. 

The original petition stated that the appellant had met the domicile 

requirements to obtain Texas divorce. Paragraph number 5 of the original 

petition for divorce pleads for long arm jurisdiction over the appellee. CR Vol. 1 

at 2 ¶ 5. Paragraph 10 and 11 of the original petition asked that the trial court 

divide community property and also confirm separate property. CR Vol. 1 at ¶ 

Brief of Appellee  Page 17
10-11. This was not the live pleading on file at the trial. Both the original 

petition and the 1st amended petition allege that the Petitioner had been 

domiciled in Texas for the preceding six months and a residence of Harris 

County. The record at trial showed the most recent entry of appellant on 

January 8th 2014 into the United States (RR Vol 3 at 128) 180 days from January 

8th 2014 is July 7th 2014. 

 Appellee concedes and acknowledges that in February of 2014, 

appellant obtained a Texas Drivers license. RR Vol. 2 at 14 ¶ 17. On March 

24th 2014, appellant admitted to signing his first residential lease. Id at 16 ¶ 8-

22. These acts may establish intent to domicile himself in Texas. Yet, it is 

clear that six months had not passed from the filing of the 1st Amended Petition 

for Divorce since appellant had obtained a Texas drivers license or signed his 

first residential lease. 

 Appellant additionally cites to Clerk’s Record Volume 1, pages165-

172 in his argument that because the Dutch Court has abated the divorce in the 

Netherlands, the Dutch Court has determined that the first divorce filed was in 

Texas on March 24th. In reading CR 1: 167 paragraph 2.2.2 

“The woman has responded to this argument. She has argued that the man be declared 

non-suited on appeal. To this end, the woman has argued that even if it would indeed appear that 

the man’s petition was divorce has been filed in America prior the woman’s petition in the 

Netherlands, the man, in order for this petition to be declared admissible in America, must also 

Brief of Appellee  Page 18
have been a domiciliary of Texas, for six month of a resident of this county( the court assumes this 

to be Harris County for ninety days. Since the man’s name was only removed from the municipal 

Register in the Netherlands in January 2014, he does not meet this requirement, and therefore on 

appeal, his petition will also be declared to be non-suited.” 

Analysis of language that “the man removed himself from the Register in 

January of 2014 from the Netherlands”, (Id. at 167 ¶ 2.2.2) reveals that he was 

a resident in the Netherlands up until the date of his entry into the United States 

on January 8th 2014 (RR Vol. 3 at 128) and not domiciled in Texas for six 

months prior to filing of the original petition nor the 1st amended petition for 

divorce. 

Further reading of this ruling from the Dutch court (CR 1 at 167-168), 

appellant has successfully stayed the entire divorce in the Netherlands yet only 

requests that Texas grant him a “status divorce” and not divide any property. 

CR Vol. 1 at 12. The intent of the appellant can be ascertained from the 

reporters record RR Vol. 2 at 21 ¶ 13-15. If a divorce is granted in the 

Netherlands she cannot stay in the Netherlands. Further, the appellant states he 

is not asking Texas Courts to divide any property. Id. at 35 ¶ 24-25; at 36 ¶ 1. 

The intent of the appellant is to obtain status divorce in Texas, have the appellee 

deported from the Netherlands and then handicap her in the final trial of the 

property in the Netherlands. The appellant has unclean hands. 

Brief of Appellee  Page 19
Brief of Appellee  Page 20

CONCLUSION 

 The facts presented support the Trial court’s decision to grant Special 

appearance to the appellee and dismiss the case. The Court has no authority to 

grant a status divorce to the appellant as he was a Dutch Citizen with investor 

status; his only purpose would have been to gain favorable verdict through 

improper proceeding. Therefore, in the interest of fair play, the judgment of the 

trial court should be affirmed. 

PRAYER 

Appellee Marcela Gutierrez Diaz prays that this Court affirm the judgment of the 

trial court 

CERTIFICATE OF SERVICE 

I certify that, pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, on 

this 14th day of August, 2015 a copy of the Appellee’s Brief was served on all parties of 

record. 

By: _____/s/ Michael G. Busby____ 

Michael G. Busby 

Attorney for Appellee 

Word Count: 5,363 

Page Count: 22 Pages