### NO. 01-15-00073-CV
IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS

CORNELIS WILLIG Appellant ,

v. MARCELA GUTIERREZ DIAZ, Appellee.

Appealed from the 309 th 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

CLERKTABLE 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 iiIDENTITIES OF THE PARTIES AND COUNSEL

Appellee certifies that the following is a comp lete 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 Telephon e: (281) 493-3999 Facsimile: (713) 974-1 181 Facsimile: (281) 493-3993

Trial Judge: Hon. Sheri Y. Dean(Trial)

Brief of Appellee Page 1TABLE 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 Rey nolds 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. Wi lson , 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 Hoff man 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. Lo pez , 6 S.W.3d 292 (Tex. App.—Houston [14th Dist.] 1999) ................................................. 13 Downer v. Aquamarine O perators, 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 2STATEMENT OF THE CASE
This was a divorce action with no children. Petitione r husband (Cornelis Willig) herein after referred to as “appellant” filed initially on March 24 th 2014 (CR. Vol. 1 at 2) then amended his petition for divorce on June 9 th 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 appear ance and plea in abatement on May 27 th 2014. CR. Vol. 1 at 7 . During the course of the case, a mo tion 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 Appearan ce 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 co rrect in granting Appellee’s Special Appearance and entering judgment dism issing the Appellants’ Petition for Divorce stating the Court in the Netherlands ha d assumed jurisdiction over the matter, given that Appellant filed his actual pe tition for divorce in Harris County before the Appellee filed her actual divorce petition in the Netherlands. Issue Two: The trial court was corr ect 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 c ourt issued a proper ruling in entering Findings of Fact and Conclusions of Law and is s upported by the evidence and testimonials presented by the appellee. It is the appe llant who provides contradictory evidence and testimony.

Brief of Appellee Page 3STATEMENT OF THE FACTS
An original petition for divorce was file d 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. Th e original petition stated that appellant had met domicile requirements to obtain Texas di vorce. Paragraph number 5 of the original petition for divorce pleads for long arm ju risdiction over the appellee. CR Vol. 1 at 2 ¶ 5. Paragraph 10 and 11 of the original petiti on asked that the trial court di vide community property and also confirm separate property. CR Vol. 1 at ¶ 10-11 On June 9, 2014 a first amended petiti on for divorce was filed by the appellant. Paragraph 3 of the first ame nded petition alleges that the a ppellant 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 with out 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 a nd a plea in abatement was filed by the appellee, objecting to Texas jurisdiction over the divorce ma tter. 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, th ey had no property in Texas, and that the Appellant was in Texas solely for work pur poses for which arrival wa s on January 8, 2014. Id. at 8. During the course of the proceedings appe llant was served with discovery requests from the appellant, the responses were not prod uced until such time as the court ordered the appellant to provide responses to produc tion on September 26, 2014 as evidenced by the proposed order signed by both attorneys for the parties, ye t never signed by the court. Id. at 88 ¶ 1. At the trial of the special appearance, a ppellant 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 Texa s, he could not answer. Id at 15 ¶ 18 - 21 . For the year 2012, appe llant thought he spent 120 to 140 nights in Te xas, 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 4Brief of Appellee Page 5 At the Special Apperance hearing on Marc h 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 Unit ed States on January 8 th 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 receiv ed 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 exam ination 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 St ates 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 hear ing prior to March 24 th 2014. Id at 49 ¶ 13

. Appellee asserts that the Appellant’s in sistence that his testimony is neither controverted nor contradictory is in itself a contradiction as hi s testimony evidences.SUMMARY OF ARGUMENT The trial court committed no error in di smissing the case because it was the Appellant’s testimony that contradict ed 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 C ounty. 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 f iled 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 Janua ry 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 fi ndings 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 domicilia ry requirements for jurisdiction, he does not ha ve children, nor does he ha ve property in the United States of America. The appellant woul d 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 6ARGUMENT 

### I SSUE 

### N O 

### . 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 res pondent 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 fo r 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 7consistent with the Texas and United States constitutio ns 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 divo rce is not a natural one, but is accorded only by reason of statute, and the stat e 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 8 07, 810 (1959). Under the Family Code, “[a] suit for di vorce may not be maintained in this state unless at the time the suit is filed either the pe titioner or the respondent has been: (1) a domiciliary of this state for the precedi ng 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 jurisdic tional, 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.) (relyi ng 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 unles s the residency requirements are met.

Brief of Appellee Page 8Reynolds , 86 S.W.3d at 276. While the require ments 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 Ant onio 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, th ere 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 establishe d 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 9In 2010, appellant did not po ssess a Texas driver license. Id. at 15 ¶ 3-4. When asked in 2011 how nights appellan t had spent in Texa s, 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 spendi ng well over six months in Texas. Id . at 16 ¶ 3-5. On March 24th 2014, appe llant admitted to signing hi s first residential lease in Texas. Id. at 16 ¶ 8-22. Appellant further ad mitted 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 recei ved 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 Ap ril of 2014, requiring the appellant to pay the mortgage and utilitie s on the family residence. CR Vol. 1 Ex. 4 at 52. Testimony on direct from his attorney duri ng the trial the appella nt admits that a divorce was filed on February 4, 2014 in the Netherlands. RR Vol. 2 at 36 ¶ 22. Appellant filed records with the Un ited States Immigration Service under oath in 2011 stating his address was in the Netherlands. Id. at 42 ¶ 3-25. Appellant admits that his residence a nd home of record in the Netherlands. Id.

Brief of Appellee Page 10at 45 ¶ 4 to 25; at 46 ¶ 3. Finally, appe llant 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 th at 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 utilitie s on the family residence. CR Vol. 1 Ex. 4 at 52. Testimony on direct from his attorney duri ng the trial the appella nt 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 a nd served first in the Netherlands that

Brief of Appellee Page 11was in front of the judge to determine issues of comity and jurisdiction. Appellant alleges in his br ief that appellee is misl eading the court. Further references are made about the appellant testimony ha ving 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 u nder sections 6.301 and 6.308 of the Texas Family Code.

A su it for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the re spondent 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 issu es 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 12Divorce actions are quasi in rem proceedings, so that the court may have jurisdiction over the status of the marr iage 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 petiti on 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 am ended petition alleges that the appellant was a domiciliary and resident of Texa s. Paragraph number 5 of the first

Brief of Appellee Page 13amended petition for divorce invokes “ in rem language ” request that the court grant a divorce, without provisions th at would divide the marital estate. Id. at 12 ¶ 3-5

. Paragraph 11 of the first ame nded petition for divorce asks for confirmation of separate property. Id. at 12 ¶ 11 On March 24 th 2014, appellant testified to signi ng 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 8 th 2014. At the trial of the special appearance, appellant testified to havi ng 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 reco rd in the Netherlands. Id. at 45 ¶ 4 to 25; at 46 ¶ 3. Thus, the trial court did not commit e rror by granting a status divorce as the trial court had no authority under 6.301 a nd 6.308 of the Texas Family code to grant the relief requested.

III. Issue Three:   The trial court issued a proper ruling in enterin g Findings of Fact  and  Conclusions  of  Law  and  is  supported  by  the  evidence  an d testimonials  presented  by  the  appellee.  It  is  the  appellant  who provides

Brief of Appellee Page 14cont radictory ev dence and testimony. The  trial  courts granting  of  a motion  to  dismiss which is  predi cated  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  tri al  courts action. Rather, in  order  to  prov e  the  trial  court  abused its  di scretion,  the complaining  party  must  show  the  trial  court  acted  without  refer ence  to guiding  rules  and  principles,  in  other  words,  the  trial  court  a cted  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 fa ct 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 resi dence was establishe d 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 2 011 stating his address was in the Netherlands. CR Vol. 1 at 50 ¶ 1. Appellant further tes tified 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 15Netherlands. Id. At the special appearance hearing, appe llant 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, a ppellant obtained a Texas Drivers license. RR Vol. 2 at 14 ¶ 17

. In 2010, appellant did not po ssess a Texas driver license. RR Vol. 2 at 15 ¶
3-4 . On March 24 th 2014, appellant testified to signing his first residential lease in Texas. Id at 16 ¶ 8-22 . Appellant further testif ied that his visa had an entry date into the United States on January 8 th 2014. Id at 2¶ 2-6

. Findings of fact No 5, 7, 8, 16, 17 are entirely correct a nd supported by the record as referenced above. CR Vol. Supp at 3-4. Conclusi ons 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 fi ndings of fact a bove, 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 16Yet, during the hearing Appellant tes tified 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 divor ce was not filed in February 2014, but instead a petition for support was filed, then a divorce was filed on March 28 th
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 base d 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 domic iliary 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 confir mation of separate property. Id. at 12 ¶ 11. The original petition stated that th e appellant had me t 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 1710-11 . This was not the live pleading on file at the trial. Both the original petition and the 1 st amended petition allege th at the Petitioner had been domiciled in Texas for the preceding si x months and a re sidence of Harris County. The record at trial showed the most recent entry of appellant on January 8 th 2014 into the United States ( RR Vol 3 at 128) 180 days from January
8 th 2014 is July 7 th 2014. Appellee concedes and acknowledge s that in February of 2014, appellant obtained a Texas Drivers license. RR Vol. 2 at 14 ¶ 17 . On March
24 th 2014, appellant admitted to signi ng his first residential lease. Id at 16 ¶ 8-
22 . These acts may establish intent to domicile himself in Te xas. Yet, it is clear that six months had not passed from the filing of the 1 st 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 Cour t has determined that the first divorce filed was in Texas on March 24 th . 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 ar gued 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 18have 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 requi rement, 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 th e 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 8 th 2014 ( RR Vol. 3 at 128) and not domic iled in Texas for six months prior to filing of the original petition nor the 1 st 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 appe llant 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 Nether lands. 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 st atus 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 19Brief 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 inte rest 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 th e Texas Rules of Appellate Procedure, on this 14 th day of August, 2015 a copy of the Appelle e’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