NO.Ol-15-00073-CV 

IN THE 

FIRST COURT OF APPEALS 

at Houston 

Cornelis F. Willig, Appellant 

V. 

Marcela Gutierrez Diaz 

Appellee 

Appealed from the 309'h Judicial District Court 

Harris County, Texas 

APPELLANT'S AMENDED BRIEF ON APPEAL 

Andres P. Chaumont 

State Bar Number 15779400 

834 Fleetwood Place 

Houston, Texas 77079 

Tel. 281-493-3999 

Fax. 281-493-3993 

Email: anchlaw88@gmail.com 

Attorney for Appellant 

Cornelis P. Willig 

Appellant Requests Oral Argument 

ACCEPTED

01-15-00073-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/14/2015 7:05:51 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/14/2015 7:05:51 PM CHRISTOPHER A. PRINE Clerk
No. Ol-15-00073-CV 

Cornelis P. Willig 

Appellant 

V. 

Marcela Gutierrez Diaz 

Appellee 

INTRODUCTION 

TO THE HONORABLE 1't COURT OF APPEALS: 

1. Appellant Camelis P. Willig (petitioner in the lower court) submits this 

brief on Appeal. Throughout his brief; Comelis P. Willig is referred to as "Willig" 

or as Appellant. 

2. Appellee Marcela Gutierrez Diaz (Respondent in the lower court) is 

referred to as Gutierrez or as Appellee, 

3, Records, exhibits and documents are referred to in the following 

manner: 

Sample Abbreviation The Record 

RR 1:15-17 Reporter's Record Volume I, Pages 15-17 

CR I: 18-20 Clerk's Record, Volume I, Pages 18-20 
CR 1" Supp: 01-9 Clerk's Record, I" Supplement, Pages 1-9 

RR 1: P. Ex. 8 Reporter's Record, Vol. 1, Petitioner's Trial Ex. # 8 

RRl: D. Ex2 Reporter's Record, Vol 1, Respondent's Trial Ex. # 2 

App. Tab A Appendix, Tab A 

i i 
1. 

No. 0l-lS-00073-CV 

Cornelis P. Willig 

Appellant 

V. 

Marcela Gutierrez Diaz 

Appellee 

IDENTITIES OF PARTIES AND COUNSEL 

Appellant: 

Appellant's Counsel: 

Appellee: 

Appellee's Counsel: 

Comelis P. Willig 

Andres P. Chaumont 

State Bar No. 15779400 

834 Fleetwood Place 

Houston, Texas 77079 

Tel: 281-493-3999 

Fax: 281-493-3993 

Email: anchlaw88@gmail.com 

Marcela Gutierrez Diaz 

Michael G. Busby 

2909 Hillcroft Ave, Suite 350 

Houston, Texas 77057 

Tel: 713-974-1151 

Fax: 713-974-1181 

Email: consumerlaw@busby-Iee.com 

iii 
TABLE OF CONTENTS 

IN"TRODUCTION................................................................................... i 

IDENTITY OF PARTIES AND COUNSEL.......................... ................ iii 

TABLE OF CO"JTENTS........................................................................ N 

INDEX OF AUTHORITIES................................................................... v 

STATEMENT OF THE CASE............................................................... vi 

ISSUES PRESENTED............................................................................ xi 

STATEMENT OF FACTS................................................................ ...... 1 

SUMMARY OF THE ARGUMENT...................................................... 4 

ARGUMENT........................................................................................... 5 

Issue No. 1................................................................................... 5 

Issue No. 2................................................................................... 12 

Issue No. 3................................................................................... 17 

CONCLUSION....................................................................................... 22 

PRA YER.................................................................................................. 23 

CERTIFICATE OF SERVICE................................................................. 24 

iv 
INDEX OF AUTHORITIES 

CASES 

Dawson AlIStin v. Austin................................................................ 13 

968 SW 2d 319, (Tex. 1998) 

Griffith v. Griffith........................................................................... 6 

341 SW 3d 43, (Tex.App.-San Antonio, 2011, no pet.) 

Mason v. Mason.............................................................................. 12 

321 SW 3d 178, (Tex App.- Houston [ 1 sl Dist.] 2010, no pet.) 

Palau v. Sanchez...... .......... ... ....... ....... ....... .............. ... .............. ...... 15 

2010 Tex App LEXIS 9041 (Tex App.-Austin, 2010, pet. denied) 

Shahani v. Said............................................................................... 7 

2009 Tex. App. LEXIS 4547, (Tex.App.-Corpus Christi, Review Denied) 

Stallworth v. Stallworth... .......... ... ..................... .................................. 14 

201 SW 3d 338, (Tex App.-Dallas 2006, no pet.) 

CODES 

Tex.Fam.Code § 6.301 ......................................................................... 13 

Tex.Fam.Code § 6.308 ......................................................................... 13 

v 
STATEMENT OF THE CASE 

Nature ofthe Case. 

On February 4, 2014, the Appellee submitted what is described as a petition 

for "accompanying arrangements" in the court in the Netherlands, seeking only 

temporary initial maintenance support but not seeking a divorce itself. The filing by 

Appellee in the Netherlands on February, 2014, did not contain within it or involve 

an actual Petition for Divorce. (CRI:35-37; 41-42). Subsequently, the Appellee 

filed, for the first time, on March 28, 2014, her actual petition for divorce with the 

Court in the Netherlands. The Appellee's attorney in the Netherlands, in a filing 

with the court there dated June 25, 2014, judicially admitted that the date of filing 

of the appellee's actual divorce petition in the Netherlands was March 28, 2014, 

stating that "The marriage of the parties has become irreparable, on the basis of which 

the woman submitted a petition for divorce to this Court, with the accompanying 

arrangements, on March 28, 2014 (Reference No. C115/ 21236S!FA RJ< 1411030)." 

(CR 1: 54-59). 

When Appellant received the initial temporary maintenance request from the 

Netherlands filed on February, 2014, it did not include a divorce petition. Appellant 

retained counsel in Texas and on March 24,2014, filed an actual Original Petition for 

Divorce in Harris County, Texas. The case was assigned to the 309'h District Court. 

vi 
(CR 1: 4-6). Appellee filed on May 27, 2014 as her response to the Harris County 

divorce petition a Plea in Abatement and a Special Appearance. (CR 1: 7-11) 

Appellant subsequently filed a First Amended Original Petition for Divorce in Harris 

County on June 9, 2014. (CR 1: 12-16). In the Amended Petition, Appellant sought 

the divorce not only on the grounds of insupportability, but also added the specific 

jurisdictional basis for obtaining the divorce in Harris County, Texas, as an in rem 

divorce, as provided by § 6.301 and § 6.308 of the Texas Family Code Under said 

provisions, the trial court can grant the divorce decree even if the Appellee was not 

a resident or a domiciliary ofthe State of Texas and had not been so before. The 

amended petition also identified and rested upon the legal precedent supporting the 

court granting such a status divorce, without a division of property being included in 

its tem1S, under the provisions of controlling Texas Precedent. 

Course of Proceedings and Trial Court Disposition. 

The Special Appearance was tried on September 26, 2014,to the Honorable Judge of 

the 309th District Court of Harris County, Texas. On October 16, 2014, the Court 

rendered by letter its decision granting the Special Appearance and dismissing the 

case stating in its judgment that another court had assumed jurisdiction over the 

matter in the Netherlands. The court signed the order of dismissal on October 31, 

2014. (CR 1: 90-91). 

VII 
Post Judgment Proceedings. 

Appellant timely filed a Request for Findings of Fact and Conclusions of Law on 

November 14,2014. (CR 1: 92-93) Additionally, Appellee timely filed on November 

18, 2014, a request for entry by the court of specifically suggested findings and 

conclusions as presented to the Court. (CR 1: 94-98) Appellee filed her request for 

specifically suggested findings and conclusions on November 21,20]4. (CR 1: 99-

103). Appellant also timely filed aMotion for New Trial on December 3, 2014. (CR 

1: 104-109 and with exhibits CR 1: 11 0 - 155). 

When the Court did not enter the findings and conclusions that had bcen 

requested, Appellant timely filed on December 5, 2014, a timely Notice of Past Due 

Findings ofFaet and Conclusions of Law. On January 7, 2015, the court rendered its 

decision on Appellant's Motion for New Trial, denying same. Entry was set for June 

9<11, 2015, but somehow the signed order did not become a part ofthe Clerk's Record. 

The proposed order denying the motion for new trial is in the clerk's reeord (CRI: 

173) The notation on the court's docket sheet of the court's decision does state that 

the motion for new trial was denied on Janual-y 7,2015. (CR 1: 175). 

At that time, the court had still not entered its findings of fact and conclusions 

oflaw. Appellant timely filed his Notice of Appeal on January 19, 2015. (CR 1: 176-

177). At the time that the Notice of Appeal was filed on January 19,2015, the trial 

viii 
court had still not entered findings of fact and conclusions oflaw in the case. 

During this period of time, the Court in the Netherlands on December 24,2014, 

entered a ruling in the case pending in that jurisdiction that ordered an abatement of 

the proceedings in the Netherlands until the Appellate Court in Harris County arrived 

at a decision on the jurisdictional issues in the case. 

The Dutch court, in its ruling abating those proceedings, noted that the actual 

divorce petition filed by Appellant in Harris County had been filed on March 24, 

2014 and that the Appellee's actual divorce petition filed in the Netherlands had been 

filed on March 28,2014, four days later. (CR 1: 165-172). 

The appellant's petition was first in time of the two petitions filed in the 

divorce actions in both jurisdictions and for that reason, the court in the Netherlands 

deferred to the jurisdictional authority of the trial court in Harris County, Texas to 

hear the case, and to the jurisdictional authority of the First Court of Appeals to hear 

and rule on the appeal of the dismissal order entered by the trial court by abating the 

action pending in the Netherlands until the First Court of Appeals decided the 

requested appeal. 

1st Court of Appeals. 

On Appellant's request, the Court of Appeals abated the appeal on April 16, 2015, 

with an Order that also directed the trial court to enter findings of fact and 

ix 
conclusions of law in this case. The Trial Court entered its findings of fact and 

conclusions of law on May 19th, 2015. On May 29th, 2015, Appellant filed with the 

trial court while the Appeal was abated in this Court, his request for additional and 

amended fmdings of fact and conclusions of law. The trial court never ruled on 

Appellant's request for the additional and amended findings of fact and 

conclusions of law. On June 41

\ 2015, the Court of Appeals reinstated the appeal 

after the trial court filed the directed findings of fact and conclusions of law and 

this Court directed the Appellant to file his brief within 30 days from the date of its 

Order of Reinstatement ofthe Appeal, which was June 4,2015. 

x 
Issue No.1: 

Issue No.2: 

Issue No.3 

ISSUES PRESENTED FOR REVIEW 

The trial court erred in granting Appellee's Special 

Appearance and entering judgment dismissing the 

Appellant's Petition for Divorce on the basis recited in the 

trial court's Order of Dismissal stating that the court in the 

Netherlands had assumed jurisdiction over the matter, 

given that the Appellant filed his actual petition for divorce 

in Harris County before the Appellee filed her actual 

divorce petition in the Netherlands. 

The trial court erred in not granting Appellant's requestcd 

divorce, since Appellant was entitled under Texas law to 

obtain his requested in rem divorce under the provisions of 

§§ 6.301 and 6.308 of the Texas Family Code. 

The trial court elTed in entering Findings of Fact and 

Conclusions of Law that are not supported by al1y 

evidence, testimonial or documentary, admitted at the trial 

of the speeial appearance. The evidenee that was admitted, 

both testimonial and documentary directly contradicts the 

Findings of Fact and Conclusions of Law as entered by the 

trial court. 

xi 
STATEMENT OF FACTS 

Introduction 

The only testimony given at the trial of the Special Appearance was 

Appellant's. Appellee did not appear as a witness in court or give any testimony 

telephonically. Appellant's entire testimony was uncontroverted and uncontradicted 

by any Appellee testimony since she gave none by not testif'ying at all. 

In January, 2010, Camelis P. Willig moved to Houston and in March 2010 

established his residence and domicile in Harris County, Texas at thc time that hc 

incorporated his Texas company DIAC USA, LLC. At that time he resided in Sleep 

Inn Suite Hotel residence located at 5380 W. 34th Street, Suite 185, Houston, Texas 

77092 and that location became his residence and domicile in Texas. (RR 2: 25), (RR 

2: 10-12). Given his very recent arrival at that time, he also established that address 

as the corporate address for his limited liability company that was registered on 

March 10, 2010 with the Secretary of State.( (CR 1: 31-34). 

Since 20 1 0, Appellant has never abandoned or changed, to the present date, his 

primary residency and his domicile in Harris County, Texas, (RR 2: 28),. even 

though, because of the nature of his business, he has traveled frequently since March 

01'2010 to work internationally on temporary job assignments. (RR2:29). 

Appellant has no plans to effectuate such a change of domicile in the future. 

(RR 2: 38). In March 2014, Appellant changed his residence address in Houston to 

I 
a Grey Star Apartment complex, located at 2424 East T. C. Jester Boulevard, 

Houston, Texas,. (RR 2: 30-31). Appellant has had a Texas phone number since he 

established his Texas company, his Texas residence and his Texas domicile inlOID. 

(RR 2: 32) (RR 3: P: 8, pages 157 to 185 of volume 3); (RR 3: P: 5, pages 57 to 

117 of volume 3); (RR 2: 50-51). 

In his first amended divorce petition, Appellant requested a divorce be granted 

as an action in rem, wherein thc Court would grant Appellant a status divorce to 

which he is entitled under the provisions of § 6.308 ofthe Texas Family Code and 

Texas legal precedent, but not divide the property acquired during the marriage. 

Appellant had satisfied at the time of filing his original petition on March 24, 2014 

the residency and domiciliary requirements identified by § 6.301 ofthe code. (RR 2: 

35-36). 

When the Appellant first came to Houston, he was unaccompanied by the 

Appellee, who had decided shortly before Appellant's departure from the Netherlands 

not to join him in the move. Sh0111y after Appellant established his residence, 

domicile and limited liability company in Houston, Texas, (RR 3: P: 3, pages 9 to 

49 of volume 3) (RR 3: P:3, pages 49 to 54 of volume 3), he was served without 

prior notice with a petition for support that had been filed by the Appellee in the 

Netherlands. 

The item filed in the Netherlands was not a divorce petition. It was a request 
for support from the Appellant by Appellee and the filing did not contain within it 

any request for a divorce itself. In a hearing on April 16Th , 2014. The ruling by the 

Dutch Court onApri130,2014, dealt only with the issue of the initial support that had 

been requested. No reference was made by the court in the Netherlands to the issue 

of any existence of a divorce taking place atthat time. (RR: 3: P: 7, pages 136 to 138 

of volume 3). 

As a result realizing the existence of the support request that had been filed by 

the Appellee in the Netherlands, Appellant retained counsel in Houston and filed his 

Original Petition for Divorce on March 24, 2014. The filing in Harris County took 

place almost a month before the support issue request was heard by the Netherlands' 

court on April 16, 2014. 

Four days after the Harris County petition was filed on March 24,2014 , (CR 

1: 4-6).Appellee finally filed her original petition for divorce in the Netherlands on 

March 28,2014. The date of filing the divorce petition on March 28, 2014 in the 

Dutch court was judicially admitted by Appellee's counsel in the contents of 

Appellee's actual petition for divorce, which shows that Appellee's attorney prepared 

her actual divorce petition on March 27, 2014, (CR 1: 111-127); and by the 

acknowledgment that it was actually filed March 28,2014 by Appellee's attorney as 

noted above.(CR 1: 75-80). 

Appellant filed his Original Divorce Petition on March 24,2014 (CR 1: 4-6) 
and Appellee then filed her Special Appearancc and Plea in Abatement in response 

on May 27,2014 (CR 1: 7-11) . Appellant filed his First Amended Original Petition 

for Divorce on June 12,2014. (CR 1: 12-16). A hearing was held on the Special 

Appearance on September 26, 2014, and Appellees' Special Appearance was 

rendered as granted on October 16,2014. (CR 1: 87). The trial court's Order of 

Dismissal of Appellant's divorce action was signed on October 31,2014. CR 1: 90-

91). 

Appellant timely filed a Request for Findings ofF act and Conclusions of Law 

on November 14,2014. (CR 1: 92-93). He also timely filed a second request for entry 

of findings and conclusions, specifically identifying the [mdings and conclusions 

which Appellant requested be entered to the trial court on and requesting their entry 

on November 18,20]4. (CR 1: 94-98). Appellant filed his Motion for New Trial on 

December 3,2014. (CR 1: 104-155) .. Appellant subsequently timely filed a notiee of 

past due findings and conclusions on December 5, 2014 (CR 1: 156-157). 

Appellant timely filed his notice of appeal on January 8, 2015. (CR 1: 176-

177). Appellant filed his request for abatement of the appeal with the First Court of 

Appeals until the trial court entered its findings and conclusions on March 31,2015. 

The abatement of the appeal was granted by the Appellate Court on Apri116, 2015. 

The trial Court was directed to file findings and conclusions while the appeal was 

abated. The tnal Court entered its findings and conclusions on May 19, 2015. The 
abatement of the appeal was ended by Order ofthe First Court of Appeals onlune 4, 

2015, acknowledging the filing by the trial court of the findings of fact and 

conclusions of law, and the appeal process was then re-activated by the Appellate 

Court. 

SUMMARY OF THE ARGUMENT 

In its Order dismissing appellant's divorce petition and in its findings of fact 

and conclusions of law the trial court disregarded the uncontroverted and 

uncontradicted testimony of the Appellant. The testimony clearly established that 

Appellant had established his residence and his domicile in Houston, Texas in 

January, 2010, and registered his limited liability company with the Secretary of 

Sate of Texas on March 10,2010. (RR 2: 25), (RR 2: 10-12) (CR 1: 31-34). The 

uncontroverted testimony from the Appellant clearly and unequivocally stated that 

Appellant had set up his residence and domicile in Harris County in January 2010. 

The testimony confirms that he has never changed his primary residence and his 

domicile from Hanis County, Texas to any other location since then .(RR2: 25) 

(RR 2: 28-29) (RR 31) 2: (RR 2: 38) (RR 2: 50-51). 

Satisfying the residency and domicile requirements as proven by the 

testimony adduced at trail and by the admitted exhibits, Appellant was entitled to 

pursue his divorce in Harris County and proceed to obtain an in rem divorce 

judgment from the trial court. Instead, the trial court granted Appellee's special 
appearance and dismissed the divorce action in Harris County, Texas. The trial 

court's dismissal order is unsupported by any evidence, whether testimonial or 

documentary in nature, and is founded on the incorrect assumption that the filing 

of the Netherland's actual petition for divorce presented by the Appellee preceded 

the Appellant's filing of hiS divorce petition in Harris County. (CR: 1: 90). 

This is factually wrong. For that reason, the trial court's finding in its 

dismissal order that another action was pending in the court in the Netherlands and 

that the Dutch court had assumed jurisdiction over the matter is incorrect. Since 

the trial court's dismissal, the Dutch court has actually entered a ruling in that 

action that has abated the divorce proceeding in that jurisdiction. The Dutch court 

has deferred to the jurisdiction of the Harris County courts because it has 

acknowledged in its ruling that the petition in the Netherlands was factually filed 

subsequently to the Appellant's Harris County petition and that the jurisdiction 

over the divorce between the parties was originally acquired by and vested in the 

Harris County trial court. (CR 1: 165-172). 

Issue No.1: 

ARGUMENT 

The trial court erred in granting Appellee's Special 

Appearance and entering judgment dismissing the 

Appellant's Petition for Divorce on the basis recited in 

the Order of Dismissal that the co1ll1 in the Netherlands 

had assumed jurisdiction over the matter, since Appellant 

filed his actual petition for divorce in Harris County 

before the Appellee filed her actual divorce petition in 
the Netherlands. 

A. Policy Considerations 

Dominant Jurisdiction, Comity and First filed issues 

1. Appellee has claimed to the trial court that the concept of Comity is 

applicable to this case and that the trial court, through an extension of the principle 

of comity, was obligated to defer to the jurisdiction of the Dutch court under the 

concept of comity and "First filed in time" concepts in that mandated deferring to 

the Dutch court's jurisdiction and allow that court to continue with its case to a 

final decision, while abating or dismissing the action pending in Harris County, 

Texas. 

? In Griffith v. Griffith, 341 SW3d 3, (Tex.App.--San Antonio, 2011, no 

review), the appellate court held: 

"Further we note that this "first-filed" rule argued by Kelmeth 

relates to the doctrine of dominant jurisdiction, which applies 

when multiple proceedings are filed in different Texas counties. 

See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 

1988) ("It is well settled that when suit would be proper in more 

than one county, the court in which suit is first filed acquires 

dominant jurisdiction to the exclusion of other courts"); see 

also PerlY v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (orig. 

proceeding) (citing Wyatt for the first-filed rule in a case where 

there were four proceedings pending in different Texas 

counties); In re Sims, 88 S.W.3d 297, 302 (Tex. App.?San 

Antonio 2002, orig. proceeding) (liAs a general rule, when suit 

would be proper in more than one county, the court in which suit 

is first filed acquires dominant jurisdiction to the exclusion of 

other courts. "). This doctrine of dominant jurisdiction, however, 

does not apply to suits pending in other states. See Ex parte 

Jabara, 556 S.W.2d 592, 596 (Tex. Clv. App.-Dallas 1977, orig. 

7 
proceeding) ("We conclude that the doctrine of dominant 

jurisdiction does not apply to suits pending in other states. Texas 

courts may recognize prior proceedings in other states as a matter 

of comity, but pendency of a proceeding in another state does not 

oust the jurisdiction of Texas courts to entertain the same 

controversy."). 

Rather, when an action is pending in another state, we apply the 

doctrine of comity, which, while not a constitutional obligation, 

is a "principle of mutual convenience whereby one state or 

jurisdiction will give effect to the laws and judicial decisions of 

another." In re AutoNation, Inc., 228 S.W.3d 663, 670 (Tex. 

2007) (orig. proceeding). Under the doctrine of comity, a Texas 

court would usually stay its proceeding pending adj udication of 

the first filed suit pending in another state. See id.; VE Corp. v. 

Ernst & Young, 860 S.W.2d 83,84 (Tex. 1993) (per curiam). 

However, "[i]t is well settled that the mere pendency of a prior 

suit in one state carmot be pleaded in abatement or in bar to a 

subsequent suit in another, even though both suits are between 

the same parties and involve the same subject matter." In re State 

Farm, 192 S.W.3d at 900 (emphasis added). The reason for this 

rule is that "every state is entirely sovereign and unrestricted in 

its powers, whether legislative,judicial, or executive"; therefore, 

each state "does not acknowledge the right of any other state to 

hinder its own sovereign acts or proceedings." Id. at 901. Thus, 

"[c]omity is not a matter of right. " Nowellv. Nowell, 408 S.W.2d 

550, 553 (Tex. eiv. App.-Dallas 1966, writ dism'd). "The 

doctrine does not stand boldly clad in the armor of unyielding 

obedience but is rather anayed in vestments of persuasion." Id. 

"Being voluntary and not obligatory, the application of comity 

vests in the sound discretion of the tribunal of the forum." Id.; 

see also In re State Farm, 192 S.W.3d at 901 (explaining that an 

appellate court reviews a trial court's decision regarding an issue 

of comity for abuse of discretion). 

In determining whether a trial court abused its discretion, we 

look to the two pending actions. In re State Farm, 192 S. W.3 d at 
901. To obtain a stay of the later action, it is generally necessary 

for the petitioner to show that the two suits involve the same 

cause of action, concern the same subject matter, involve the 

same issues, and seek the same relief. id. Here, the Texas and 

Florida divorce proceedings involved the same parties and 

subject matter. However, while "the pendency of a prior suit 

involving the same parties and subject matter strongly urges the 

court of a local forum to stay the proceedings: pending 

determination of the prior suit," "the rule is not mandatory upon 

the court nor is it a matter of right to the litigant." Nowell, 408 

S. W.2d at 553. "It is, after all, a matter resting within the sound 

discretion ofthe court." Id. 

A trial court can also consider additional factors, which include 

but are not limited to the following: (1) which action was filed 

first; (2) whether the parties are the same in both actions; and (3) 

the effeet of a judgment in the later action on any order or 

judgment entered in the prior action. In re State Farm, 192 

S.W.3d at 901. Here, the Florida action was filed first and the 

parties are the same in both actions. However, there is no 

evidence that the trial court's judgment in this Texas case 

affected any order or judgment by the Florida court. 

Additionally, the trial court can consider uncertainty as to the 

amount of time that might pass before the other proceeding 

coneludes, or "what effects an abated trial would havc on the 

parties before the court or to the orderly control of the court's 

docket." In re Estates of Garcia-Chapa, 33 S.W.3d 859, 863 

(Tex. App.-Corpus Christi 2000, no pet.)." 

3. In Shahani v. Said, 2009 Tex. App. LEXIS 4547, (Tex.App.-Corpus Christi, 

Review Denied), the Appellate Court hcld: 

"However, the doctrine of dominant jurisdiction does not apply 

to suits pending in other states. See Ex parte Jabara, 556 

S.W.2d 592, 596 (Tex. Clv. App.--Dallas 1977, orig. 

proceeding). Rather, we apply the doctrine of comity, which, 

while not a constitutional obligation, is "a principle of mutual 

convonionco '\vhoroby ono otato or jurioruotion ,vill sivo offoot to 

the laws and judicial decisions of another." in re AutoNation, 

inc., 228 S.W.3d 663, 670 (Tex. 2007) (orig. proceeding) 
(quoting Gannon v. Payne, 706 S.W.2d 304,306 (Tex. 1986»). 

'VI-'hen a matter is fITst filed in another state, the general rule is 

that Texas courts stay the later-filed proceeding pending 

adjudication of the first suit. See id. 

However, the mere pendency of a prior suit in one state cannot 

be pleaded in abatement or in bar to a subsequent suit in 

another, even though both suits are between the same parties 

and involve the same subject matter. In re State Farm Mut. 

Auto. Ins. Co., 192 S.W.3d 897, 902 (Tex. App.--Tyler 2006, 

orig. proceeding); Evans v. Evans, 186 S.W.2d 277,279 (Tex. 

App.--San Antonio 1945, no writ). The reason for the rule is that 

every state is entirely sovereign and unrestricted in its powers, 

whether legislative, judicial, or executive, and each state 

therefore does not acknowledge the right of any other state to 

hinder its own sovereign acts or proceedings. State Farm ltJut. 

Auto. Ins. Co., 192 S.W.3d at902;Mills v. Howard, 228 S.W.2d 

906,907 (Tex. App.--Amarillo 1950, no writ). '\\'here identical 

suits are pending in different states, the principle of comity 

generally requires the later-filed suit to be abated. VE Corp. v, 

Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) (per curiam); 

State Farm Mut. Auto. Ins. Co., 192 S.W.3d at 902; Mills, 228 

S.W.2d at 908. It is generally appropriate for courts to apply the 

principle of comity where another court has exercised 

jurisdiction over the matter and where the states agree about the 

public policy at issue. Bryant v. United Shortline Inc. 

Assurance Services., NA., 972 S.W.2d 26,31 (Tex. 1998). 

We review a trial court's decision regarding an issue of comity 

under an abuse of discretion standard. State Farm Mut. Auto. 

Ins. Co., 192 S. W.3d at 902; see Nowell v. Nowell, 408 S.W.2d 

550,553 (Tex. Civ. App--Dallas 1966, writ dism'd w.o.j.). To 

obtain a stay of the later action, itis generally necessary that the 

two suits involve the same cause of action, concern the same 

subject matter, involve the same issues, and seek the same relief. 

State Farm ]vfut. Auto. Ins. Co., 192 S.W.3d at 902; Nowell, 408 

S.W.2d at 553. One test to determine whether the causes of 

action are identical is to ascertain whether the parties could 

obtain alI the relief in the prior suit that they would be entitled 

to in the subsequent action. State Farm Mut. Auto. Ins. Co., 192 

S. W.3d at 902. Additional factors include, but are not limited to: 

(1) .... "'hioh notion ' ... , ... ·0-0 filod fir-at; (2) .... yhothcr the PQ.l'i:i00 a,rc t1-1-C 

10 
same in both actions; and (3) the effect of a judgment in the 

later action on any order or judgment entered in the prior action. 

See id. (citing Crown Leasing Corp. v. Sims, 92 S.W.3d 924, 

927 (Tex. App.--Texarkana 2002, no pet.); [*6] Project Eng'g 

USA COJp. v. Gator Hawk, Inc., 833 S.W.2d 716, 725 (Tex. 

App.--Houston [1 st Dist.] 1992, no writ); Evans, 186 S.W.2d at 

279). 

While there are some similarities between the Texas and New 

Mexico lawsuits, we cannot conclude that comity required 

abatement of the Texas litigation, as it would if the lawsuits 

were identical. VE Corp., 860 S.W.2d at 84. The two lawsuits 

involve different causes of action and different parties. See State 

Farm Mut. Auto. Ins. Co., 192 S.W.3d at 902; Nowell, 408 

S.W.2d at 553. Moreover, Said could not obtain his requested 

relief of annulment in the New Mexico litigation. Accordingly, 

the trial court did not abuse its discretion in refusing to stay the 

Texas litigation." 

The Irony of it all 

4. All of the argument by Appellee's counsel at trial on the special appearance 

and all ofthe contents of the verification affidavit supporting the Special Appearance 

pleadings filed by the Appellee insisted upon the trial court, that comity, if not 

dominant jurisdiction policy considerations supported the court dismissing this 

matter in Harris County. This view rested on the basis that Appellee had allegedly 

filed her divorce action in the Netherlands prior to Appellant filing his divorce 

petition in Harris County. 

5. Such supposition was misleading to the trial court and was and continues to be 

factually incorrect. The only filing in the Netherlands in February by the Appellee 

was a request tor support because Appellant had moved to the State of Texas and the 

Appellee wanted to legally impose on Appellant the obligation that he would be 

responsible for her bills in the Netherlands while he was living in Texas. There was 

1/ 
no divorce petition tiled in February of2014 in the Netherlands and no request that 

a divorce be granted by the Dutch Court was made in the original filing by the 

Appellee in February, 2014. 

6. The first time that Appellee filed her original divorce petition in the 

Netherlands was on March 28, 2014. There is no evidence in this matter, of any kind 

that shows that the Appellee filed a divorce petition in the Netherlands in February, 

2014. Appellant had already previously filed, on March 24, 20 14 his original petition 

for divorce in Harris County. (CR 1: 4-6) (CR 1: 75-80) and (CR 1: 111-127). 

Appellant was first in time in filing in Harris County a divorce petition. 

7. It is for those reasons that the extensions of the policies of comity and 

dominant jurisdiction to the filing in the Netherlands upon which the trial court rested 

its granting ofthe special appearance and issued its dismissal order are not applicable 

in this case. Such application ofthe concepts rest on incorrect facts as determined by 

the trial court. The incorrect facts upon which the trial comt's decision was made 

make the trial court's judgment of dismissal incorrect. The judgment of dismissal is 

not supported by any factual evidence, whether testimonial or documentary, and is 

not supported by the legal standards established by legal precedent. The facts upon 

which it the judgment rests do not exist as claimed. 

8. It is ironic that those concepts of first filing and of comity have been applied 

by the Dutch Court to the action filed by Appellant in Harris County. The Dutch 

Court has in fact, in the ruling: it entered. alreadv abated the proceedings in the 

Netherlands and deferred to the Harris County Comt jurisdiction over the divorce 

action because the Harris County divorce petition was filed first in time. (CR 1: 165-

I~ 
172) . It is ironic that the Dutch Court has in fact, in using the principles of comity 

and first filing by Appellant granted the relief that the Appellee requested of and 

argued for to the trial court, erroneously insisting that the Dutch case was filed earlier 

than the Texas case and supposedly justifying the granting ofthe special appearance 

on that basis. 

9. The Dutch Court has found such claims to be incorrect and it has, based on the 

principles of comity involved, abated the action in the Netherlands pending the 

resolution of this matter, including this appeal, in Harris County. It is clear that the 

Dutch court has decided that the divorce should proceed in Harris County by abating 

the matter in the Netherlands because the initial and primary jurisdiction over the 

divorce rests with Harris County's trial and appellate courts and not with the Dutch 

court. 

10. Appellant's divorce petition should have been granted. It was error by the trial 

court to dismiss it instead. 

Issue No.2 The trial court erred in not granting Appellant's requested 

divorce, since Appellant was entitled under Texas law to obtain 

his requested in rem status divorce under the provisions of §§ 

6.301, and 6.308 of the Texas Family Code. 

11. The controlling case resolving the issues involved in the interplay of § 6.301 

and § 6.308 of the Texas Family Code is Mason v. Mason, 321 SW 3d 178, (Tex 

App.- Houston [ 1'1 Dist.] 2010, no pet.). In that decision, this Court ruled: 

It is well-established that a court may grant a divorce to a 

Texas resident, even though it lacks personal jurisdiction over 

the non-resident spouse. See Dawson-Austin v. Austin, 968 

S. W.2d 319, 324-25 (Tex. 1998). Stated differently, a court 

may have jurisdiction to grant a divorce, which is an 

adjudieation of the parties' status, but not have jurisdiction to 

13 
divide their property, which is an adjudication of parties' 

rights.ld. at 324 (citing Estin v. Estin, 334 U.S. 541,549,68 

S. Ct. 1213, 1218, 92 L. Ed. 1561 (1948)). As one court 

explained, "Where the trial court in a divorce proceeding has 

no personal jurisdiction over the respondent, the trial co urt has 

the jurisdiction to grant the divorce, but not to ... divide 

property outside the State of Texas. It may also lack 

jurisdiction to divide property within the state." Hoffman v. 

Hoffman, 821 S.W.2d 3, 5 (Tex. App. Fort Worth 1992, no 

writ) (internal citations omitted). 

In short, a claim for divorce and a claim for division of marital 

property are separate jurisdictional issues. See id.; see also 

TEX.FAM. CODE ANN. § 6.308(a) (Vernon Supp. 2009) ("A 

court in which a suit for dissolution of a marriage is tiled may 

exercise its jurisdiction over those portions of the suit for 

which it has authority."). Here, Anna does not challenge the 

portion of the trial court's decree granting a divorce between 

her and Tony. Rather, she challenges only that portion of the 

decree relating to property division. 

12. As decided by the Supreme Court of Texas in Dawson - Austin v. Austin, 

968 SW2d319,(Tex. 1998): 

"N 0 case holds that claims of divorce and division of property 

do not involve severable jurisdictional issues. The United 

States Supreme Court recognized long ago that a court could 

have jurisdiction to grant a divorce -- an adjudication of 

parties' status -- without having jurisdiction to divide their 

property-- an adjudication of parties' rights. EsUn v. Estin, 334 

U.S. 541, 92 L. Ed. 1561,68 S. Ct. 1213 (1948). The rule has 

been recognized in Texas, as one court has explained: 

Where the trial court in a divorce proceeding has no 

personal jurisdiction over the respondent, the trial court has 

the jurisdiotion to Brant tho divoroo, but not to dotcnnino 

the managing conservatorship of children or divide 

property outside the State of Texas. Comisky v. Comisky, 

597 S.W.2d 6, 8 (Tex. eiv. App.--Beaumont 1980, no 

writ). It may also lack jurisdiction to divide property within 

the state. See Shaffer v. Heitner, 433 U.S. 186,212,97 S. 

Ct. 2569, 2584, 53 L. Ed. 2d 683 (1917). 
In Hoffman v. Hoffman, 821 S.W.2d 3, 5 (Tex. App.--Fort 

Worth 1992, no writ). The court in Hoffman held that a 

special appearance directed to an entire divorce proceeding 

should have been sustained only as to the claim for division of 

property: 

The trial court erred in dismissing [the husband's] divorce 

petition for want of jurisdiction, even though it might not 

have jurisdiction to deal with the property of the parties. 

The special appearance should only have been granted to 

the extent of the trial court's recognition that it does not 

have personal jurisdiction over [the wife] and therefore 

may not divide the property ofthe parties located outside 

the State of Texas and possibly that located within the 

State of Texas. 

Section 6.308 of the Family Code now provides: 

(a) A court in which a suit for dissolution of a marriage is 

filed may exercise its jurisdiction overthose portions ofthe 

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 man-iage .... 

Had Dawson-Austin specially appeared as to the entire 

proceeding, the district court could not have sustained it 

except as to the property division claim. The district court had 

jurisdiction to grant the divorce, and Dawson-Austin could not 

specially appear to that claim. If the court could sustain the 

special appearance as to only the one claim and not the other, 

directing the special appearance only to the claim for which it 

could be sustained could not be a general appearance." 

The Dawson Austin - Austin opinion ends with the 

following holding: 

"The district court had jurisdiction only to grant a divorce 

and not to determine the parties' property claims. 

Accordingly, the judgment of the court of appeals is 

reversed and the case is remanded to the district court for 

rendition of judgment divorcing Austin and Dawson-Austin 

/5" 
and dismissing all other claims for relief for want of 

jurisdiction." 

13. In the Texas Family Code, § 6.301, it is stated that in order to 

maintain a divorce action in this state, either the Petitioner or the 

Respondent has to satisfy the requirements of being a domiciliary of the 

State of Texas for six months and a resident ofthe county that the action 

is filed in for ninety days prior to the filing of the divorce action. 

14. In the Texas Family Code, § 6.308 it is stated that, as it relates 

to a trial Court having partial jurisdiction in a divorce matter: 

(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 non 

resident party in a suit for dissolution of the 

marriage; 

(2) the required jurisdiction under Chapter 152; 

or 

(3) the required jurisdiction under Chapter 159. 

15. In uncontradicted testimony, Appellant testified to the trial court that he was 

only seeking an in rem status divorce, and was not seeking any distribution of property 

from the trial court. (RR 2: 20-21) There are no children's issues involved in this 

divorce action. (RR 2: 20-21) (RR 2: 35-36). This request for a divorce only without 

a division of property is reflected by the contents of Appellant's First Amended 

Original Petition.(CR I: 12-16) The divorce action filed by Appellant was permitted 

IG 
under the provisions of Texas Family Code § 6.308, even if the trial court did not have 

personal jurisdiction over the Appellee at the time of filing. (RR 2: 28-29 ) 

16. It is also uncontradicted by any evidence that Appellant fully satisfied the time 

requirements of Texas Family Code § 6.301 as to having been a resident of Harris 

County for 90 days and a domiciliary of Texas for six months before the filing of his 

divorce petition. (RR2:28 -29), (CR 1: 31-34), (RR2: 32),( RR 3: P: 8, pages 157 

to 185 of volume 3), (RR 3: P: 5, pages 57 to 117 of volume 3); (RR 2: 50-51). 

Having satisfied the requirements of § 6.301 as early as mid 2010, Appellant was 

entitled to pursue and obtain his divorce under the provisions of § 6.308 ofthe Texas 

Family Code, even if the trial court did not have personal jurisdiction over the person 

of the Appellee. The trial court did have jurisdietion over the Appellant and over the 

rem of the divorce action itself at the time of Appellant's fIling of his original divorce 

petition. 

17. In Stallworth v. Stallworth, 201 SW 3d 338, (Tex App.-Dallas 2006, no pet.), 

the appellate court discussed the trial court's jurisdiction over the rem of the divorce 

itself. 

"Subject matter jurisdiction is essential for a court to have the 

authority to resolve a case. Tex. Ass'n of Bus. v. Tex. Air 

Control Bd., 852 S.W.2d 440, 443, 36 Tex. Sup. Ct. J. 607 

(Tex. 1993). A party may challenge a court's subject matter 

jurisdiction by filing a plea to the jurisdiction. Tex. Dep't of 

Transp. v. Jones, 8 S.W.3d 636, 638-39, 43 Tex. Sup. Ct. J. 

143 (Tex. 1999). When a plea to the jurisdiction challenges 

the pleadings, we determine if the pleader has alleged facts 

that affirmatively demonstrate the court's jurisdiction to hear 

the cause. Texas Dep't of Parks & Wildlife v. Miranda, 133 

S.'.V.3d :!17, 226, ~7 TOR. Sup. Ct . .T. 3£6 (Tox. 200~). 

However, if a plea to the jurisdiction challenges the existence 

of jurisdictional facts--as Wife does here--we consider 

17 
relevant evidence submitted by the parties when necessary to 

resolve the jurisdictional issues raised, as the trial court is 

required to do. Id.at 227 (eiting Bland lndep. Sch. Dist. v. 

Blue, 34 S.W.3d 547, 555, 44 Tex. Sup. Ct. J. 125 (Tex. 

2000)). 

Section 6.30 I of the Texas Family Code states that no suit for 

divorce shall be maintained unless, at the time the suit is filed, 

either the petitioner or respondent has been a domiciliary of 

this state for the preceding six-month period and a resident of 

the county of suitforthe preceding 90-day period. TEX. F AM. 

CODE ANN. § 6.301 (Vernon 2006). The provisions of the 

resideney statute are not jurisdictional, but rather provide the 

necessary qualifications for bringing an action for divorce. 

Aucutt v. Aucutt, 122 Tex. 518, 523-24,62 S.W.2d 77, 79 

(1933); Nowell v. Nowell, 408 S.W.2d 550, 556 (Tex. Civ. 

App.-Dallas 1966, writ dism'd). The question of residency is 

a fact issue for the trial court to determine, and the trial court's 

fmdings will not be disturbed unless there is a clear abuse of 

discretion. Stacy v. Stacy, 480 S.W.2d 479, 482 (Tex. Civ. 

App.-Waco 1972, nO'Yvrit); Meyerv. Meyer, 361 S.W.2d 935, 

938 (Tex. Civ. App.-Austin 1962, writ dism'd). There are no 

limits on the number of residences that a party may maintain 

at anyone time. McAlister v. McAlister, 75 S.W.3d 481, 485 

(Tex. App.-San Antonio 2002, pet. denied). 

18. Appellant's divorce petition should have proceeded to fmal decree of 

divorce. It was error by the trial court to dismiss it instead. 

Issue No.3: The trial court erred in entering Findings of Fact and 

Conclusions of Law that are factually incorrect and are not 

supported by any evidence, testimonial or documentary, 

that was admitted at the trial of the special appearance. The 

evidence that was admitted, both testimonial and 

documentary, directly contradicts the Findings of Fact and 

Conclusions of Law as entered by the trial court. 

19. At trial on the Special Appearance, Appellee's counsel made much ado 

about items that are, under Texas law, irrelevant to the determination of establishing 

a residency and a domicile in Texas. Appellee's counsel extensively questioned the 

Appellant about the nature of the visa that he had originally entered the United States 

!(f 
with in 2010, and the kind of visas that he had been allowed reentry into the United 

states since then through the date of trial (RR 2: 12, 16-18). Appellee's counsel 

extensively questioned the Appellant about what national citizenship he holds and 

where he was originally born (RR 2: 13-14); where he slept at night and for how 

long, (RR 2: 12, 15-16); what kind of driver's license he used since 2010 to operate 

a motor vehicle in Texas (RR 2: 14-15) and when, etc. It was decided in Palau v. 

Sanchez 2010 Tex App LEXIS 9041 (Tex App.-Austin, 2010, pet. denied) by the 3rd 

Court of Appeals that such factual considerations do not determine the validity of a 

person's assertions of being a Texas resident or domiciliary in a family case. In the 

Palau case, the Court ruled : 

"Even if we were to assume that the trial court erred in 

denying Galan's plea in abatement, the proper remedy in 

sustaining a plea in abatement is not to dismiss the suit but to 

retain it on the docket so that it may be revived when the 

impediment is removed. See Svensen, 629 S.W.2d at 98; 

Black's Law Dictionary 1269 (9th ed. 2009) ("A defendant 

who successfully asserts a plea in abatement leaves the claim 

open for continuation in the current action or reassertion in a 

later action if the defect is cured."). Thus, even if the 

documents attached by Galan to his plea in abatement 

established that Navarro did not satisfy the domiciliary and 

residency requirements at the time she filed her divorce 

petition, nothing would have stopped her from satisfying the 

requirements at the time the plea in abatement was heard so as 

to cure any defect in her petition. At trial on the day following 

the hearing in November 2007, Navarro testified that she had 

been living at a house in Austin since September 2005. She 

testified that she went back and forth from Austin to Mexico 

"just for a few days" right after she moved to Austin but that 

it had been a long time since she traveled back to Mexico. She 

also testified that it had been her intent since she moved to 

Austin in September 2005 to live in Austin. 

During cross-examination, Navarro conceded that her visa was 

a "tourist visa" and that she had not sought permanent 

residency status in the United States. She also testified that at 

1'1 
the time she filed her VIsa application, she informed 

government officials that her residence was in Mexico. 

However, section 6.301 requires only that a petitioner be a 

domiciliary of Texas and a resident ofthe county in which the 

suit is filed, not that she be a citizen of the United States or 

carry a certain type of visa. SeeTex. Fam. Code Ann. § 6.301. 

Black's Law Dictionary defines "domiciliary" as "[a] person 

who resides in a particular place with the intention of making 

it a principal place of abode." Black's Law Dictional}' 5 59 (9th 

ed. 2009). Navarro testified that she had lived in a house in 

Austin since September 2005 and that at the time of moving 

there, she intended to live there. Thus, she satisfies the 

definition of "domiciliary." Black's Law Dictionary defines 

"resident" as "[ a] person who lives in a particular place" or 

"[a] person who has a home in a particular place." fd. at 1424. 

Regarding the second definition of "resident," Black's Law 

Dictionary adds: "a resident is not necessarily either a citizen 

or a domiciliary." !d. As previously stated, Navarro testified 

that she had lived in a house in Austin since September 2005. 

She therefore also satisfies the definition of a "resident." .......... 

Given all of the circumstances, we conclude that the trial court 

did not abuse its discretion in denying Galan's plea in 

abatement, see Dolenz, 620 S.W.2d at 575, and that in any 

case, Navarro satisfied the domiciliary and residency 

requirements at the time of trial. Accordingly, we overrule this 

issue. 

20. It is clear that Appellant, both in his testimony and through the exhibits 

admitted into evidence at trial, fully satisfies the standards established by the Palau 

Court in satisfying and proving his claims of residency and domicile in the State of 

Texas since 2010 .. 

21. In the Palau case, id., Sanchez had entered into the United States only with 

a tourist visa, had never applied for residency in the United States, had not been in 

petition, had been traveling back and forth to Mexico throughout her presence in 

Austin, and at the time of her obtaining the tourist visa which was in effect at the time 
of filing her petition in Travis county, she had af1irmatively stated to government 

authorities both in the United States and Mexico that her residence was in Mexico. 

22. None of that mattered, as the appellate court found that in tenus of Sanchez 

being able to satisfy the time requirement for purposes of residency and domicile as 

stated in the Texas Family Code, §6.301, she satisfied the requirements ofthe Texas 

Family Code for both residency and domicile. The Texas Supreme Court denied 

Palau's Petition for review in 2011 Tex LEXIS 680 (Tex. Aug. 19,2011.). 

23. It is clear from the record of testimony and from the evidence at trial in this 

matter that Appellant satisfied the time requirements of § 6.301 even more rigorously 

than Sanchez had in the Palau case at the time the Appellant in this matter filed his 

divorce petition in Harris County. 

24. For that reason, the Findings of Fact No.5, No.7, No.8, No. 16, and No. 

17, (CR 1 st Supp: 3-4), as entered by the trial court in this matter are based on factual 

error on the part of the trial court and are directly contradicted by uncontroverted 

evidence adduced at trial. Appellant established his residence and domicile, and his 

limited liability company in January, 2010 In Harris County, Texas and has not 

changed either since their establisIunent in 2010. (RR 2: 25) (RR 2: 28-29 ) ( RR 2: 

32) (RR 2: 35 -38) (CRl: 54-59) (RR 3: P: 8, pages 157 to 185 of volume 3); eRR 

3: P: 5, pages 57 to 117 of volume 3); (RR2: 50-51) There is no evidence of any kind 

that supports Findings of Fact 5,7,8,16 and 17 as they were entered by the trial court. 

Those Findings ofFaM lire flletll~lly ineoITpcot,,~ pntf'f'f'rl 

25. Additionally, for that reason, Conclusions of Law No. 1 and No.4 (CR P' 

Supp: 5-6) as entered by the trial court in this matter are based on both factual and 

~I 
legal error on the part of the trial court and are directly contradicted both by the 

uncontroverted evidence and testimony adduced at trial and by the holdings 

referenced in this brief as controlling precedent in Texas Law. (Griffith v. Griffith, 

Shah ani v. Said, Dawson Austin v. Austin, Palau v. Sanchez, supra). 

26. It is clear from the record of testimony and from the evidence at trial in this 

matter that Appellee originally filed in the Netherlands only a request for temporary 

support from appellant in her filing in February, 2014 and did not file at that time a 

divorce petition in that jurisdiction. She first filed a divorce petition on March 28, 

2014, after Appellant had filed his divorce petition in Harris County on March 24th• 

2014. (CR 1:4-6)(CR I: 75-80) and (CR 1: 111-127) The Dutch Court has entered 

a ruling abating the divorce proceeding in the Netherlands until the matter arrives at 

a resolution in Harris County because it has determined that the divorce petition ±lled 

by Appellant in Harris County was filed first in time. F or that reason the Dutch Court 

has entered its ruling abating the divorce process in the Netherlands until the process 

in Harris County arrives at a conclusion. CR 1: 165-172) 

27. For that reason, the Findings of Fact No. 10, No. 11, No. 12, and No. 21,(CR 

1 sl Supp: 4-5) as entered by the trial court in this matter are based on factual error on 

the part of the trial court, are unsupported by any evidence, and are directly 

contradicted by the uncontroverted evidence adduced at trial. There is no evidence 

that supp0l1s Findings of Fact 10,11, 12, and 21 ( as they were entered by the trial 

court. Those Findimrs of Fact are factually incorrect as entered. 

28. Additionally, for that reason, Conclusions of Law No.1 and No.4 ( CR 1 s, 

Supp: 5-6) as entered by the trial court in this matter are based on both factual and 
legal error on the part ofthe trial court, are not supported by controlling case law, 

and are directly contradicted both by uncontroverted evidence and testimony at trial 

and by the holdings referenced in this brief as controlling precedent in Texas Law. 

(Griffith v. Griffith, Shahani v. Said, Dawson Austin v. Austin, Palau v. Sanchez, 

supra). 

29. It was error for the trial court to cntcr the referenced findings of fact and 

conclusions of law as they were entered since they were not supported by any 

evidence presented and admitted at the trial of the special appearance. 

Conclusion 

30. Appellant presented to the trial court amplc uncontradicted evidence that he 

had establishcd both his residence and his domicile in Texas in 2010 and had never 

changed either at a subsequent time. Appellant presented to the trial court ample 

uncontradicted evidence that he had fully satisfied the requirements of § 6.301 of the 

Texas Family Code as to both residency and domicile by the time that he filed his 

divorce petition in Harris County on March 24, 2014. 

31. Appellant presented to the trial court ample uncontradicted evidence that 

Appellee first filed an actual divorce petition in the Netherlands on March 28,2014, 

four days after Appellant's filing in Harris County. Acknowledging such chronology, 

the Dutch Court has entered a ruling abating the action pending in the Netherlands 

in an application ofthe principle of comity, and has deferred to the fact thatthe Harris 

County court had primary jurisdiction over the divorce matter. 

32. Appellant presented to the trial court ample evidence that he was seeking an 

in rem status divorce, without seeking a division ofthe marital estate, and that under 
the provisions of §6.308 of the Texas Family Code, he was entitled to have the court 

enter a final divorce decree in this matter by which the parties would be divorced. 

33. Appellant presented to the trial court ample evidence that directly refuted the 

findings offact and conclusions oflaw which the trial court entered in this matter and 

upon which the court's judgment rests. The evidence and controlling precedent show 

that the trial court's findings and conclusions as entered are based on incorreet faets 

and on the laek of application to this case of controlling legal precedent that mandates 

the trial eourt's denying the special appearance and allowing this matter to proceed 

to a final decree of divorce. 

34. For these reasons, it was error for the trial court to have granted Appellee's 

special appearance and to have dismissed Appellant's petition for divorce 

Prayer 

For the reasons stated in this brief, Appellant asks the Court to find that the 

trial court erred in granting Appellee's special appearance. Appellant asks the Court 

to overrule the trial court's order granting Appellee's special appearance and 

dismissing Appellant's divorce action and that it render judgment granting the 

Appellant's requested divorce on the terms that it was asked for under the provisions 

of Texas Family Code 6.308, or that alternatively it remand the case to the trial court 

directing the trial court to proceed to render the divorce as stated in Appellant's 

divorce petition. 

Re~'()ectfully Sllhmitted 

(L... ........ f cQ. tJ 

Andres P. Chaumont . 

State Bar No. 15779400 

834 Fleetwood Place 
Houston, Texas 77079 

Tel: 281-493-3999 

Fax: 281-493-3993 

Email: anchlaw88@gmail.com 

Certificate of Service 

I hereby certifY that on the 6th day of July, 2015, a true and correct copy of 

the foregoing document was delivered by fax delivery to the following counsel of 

record: 

'Mr. Michael Busby 

2909 Hillcroft 

Suite 350 

Houston, Texas 77057 

on this 15th of July, 2015. 

Fax: 713-974-1181 

(l-t- ~c.Q • ') 

Andres P. Chaumont 

Certificate of Compliance 

I, Andres P. Chaumont, Counsel for Appellant, hereby certify that the Word 

Processor used in the preparation of this Appellant's Brief has disclosed that the 

brief contains a total of 9,296 words represented in a total of 3 7 pages. 

(\-. '-- ~ e.0 'l 

Andres P. Chaumont