Terminology: International family law | travel | foreign spouses | Hague Convention | jurisdiction | foreign religious marriage customs | religious marriage vs. civil marriage ceremony | enforcement of foreign judgments | parallel divorce proceedings in different countries | recognition and nonrecognition | Recent Cases from Houston ---> Also see Splitsville Appeals Blog Wife's appeal of property division in divorce from against tag-along nonworking foreign spouse fails Jensen v. Jensen (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Brown) (divorce property division, foreign spouse, international aspects of family/divorce law)(divorce property division affirmed) (community vs. separate property, reimbursement claim) Appellant Wife appeals the property division in a divorce case. Wife contends that the evidence does not support several of the trial court's findings of fact and that these findings resulted in a manifestly unjust and unfair property division. She also contends that the trial court abused its discretion by awarding Husband one-half of the shares of stock from one of her accounts while allocating all of the associated debt to her and by denying her claim for reimbursement of her separate funds used for the down payment on their residence. We affirm. Wife and Husband met in July 2001 and were married on July 19, 2003. Their only child was born on July 7, 2004. The parties separated in May 2007, and were granted a divorce on November 20, 2007. Wife and Husband are both Canadian citizens. When the couple met, Wife had a degree in petroleum engineering and had been working for Schlumberger for three years. Husband had been working as a credit analyst with DaimlerChrysler Financial in Canada for twelve years. Husband resigned his position before he married Wife, and after they were married, they moved to Brazil, where Wife was working. Wife's job required that she travel frequently. During their marriage, the couple lived in four different countries—Brazil, Trinidad and Tobago, France, and the United States. In 2006, Wife accepted a job offer with Hess Corporation in Houston and the couple purchased a home in Fort Bend County. Throughout the marriage, Wife worked continuously, except during her maternity leave, but Husband remained unemployed. In May 2007, Husband left Wife and their child and went to Canada. Shortly after that, he returned to Fort Bend County and petitioned for divorce. Wife filed a counter-petition. Issues concerning the child and the property division were tried in a four-day bench trial. On February 28, 2008, the trial court signed the final decree of divorce. The trial court also made findings of fact and conclusions of law. The trial judge signed an amended final decree of divorce on September 9, 2008. On appeal, Wife challenges only the property division. AFFIRMED: Opinion by Justice Jeff Brown Before Justices Brock Yates, Frost and Brown 14-08-00221-CV Tammy C. Jensen v. Barry Dale Jensen Appeal from 328th District Court of Fort Bend County Trial Court Judge: Ronald R. Pope Islamic marriage agreement for husband to pay wife $50,000 (later) was not premarital - enforcement provision reversed along with property division in divorce decree Ahmed v. Ahmed 261 S.W.3d 190 (Tex.App.- Houston [14th Dist.] June 17, 2008)(Yates) (divorce, Islamic marriage, enforceability of agreement for payment of money as prenup) In this divorce case, appellant Amir Ahmed appeals from the trial court's order awarding his ex-wife, appellee Afreen S. Ahmed, $50,000 pursuant to an Islamic marriage certificate signed by the parties. We affirm in part and reverse and remand in part. Amir and Afreen married in a civil ceremony in November 1999. Both are of Indian descent, and both practice the Islamic faith. The marriage was arranged 193*193 between the parties' families. They did not live together until about six months later after their Islamic marriage ceremony in New York on May 21, 2000. As part of this ceremony, the parties signed an Islamic marriage certificate called a "Nikah Nama," which mentions a deferred "Mahr" of $50,000. According to Afreen's trial testimony, a Mahr is an Islamic religious custom whereby the husband contracts to give the wife a sum of money, either at the time of the marriage or deferred in the event of a divorce. Divorce proceedings began in July 2005. The trial court determined that the Mahr was a marital contract executed by the parties "in contemplation of a forthcoming marriage" and "a valid, binding, and enforceable contract under Sections 4.001-003 of the Texas Family Code," which governs premarital agreements. According, the trial court awarded Afreen $50,000 as liquidated contract damages. On appeal, Amir argues that the trial court erred in enforcing the Mahr because (1) it is not a valid premarital agreement under the Family Code, (2) its terms are too vague and uncertain to be enforced, (3) the evidence is legally and factually insufficient to support the $50,000 award, (4) it is a religious agreement and enforcing it violates the Establishment Clause of the United States Constitution, (5) it encourages divorce, which is against public policy, and (6) according to Islamic law, enforcing a Mahr is inconsistent with an additional division of marital property. Amir argues that the Mahr agreement cannot be enforced as a premarital agreement because the parties made the agreement after being married. We agree. A premarital agreement is "an agreement between prospective spouses made in contemplation of marriage." TEX. FAM. CODE ANN. § 4.001(1) (Vernon 2006). It is the parties' marital status, rather than a specific type of ceremony, that is significant. See id. at 389. Because the parties participated in a valid civil wedding ceremony six months before signing the Mahr agreement, they were already spouses, not "prospective spouses," and their agreement could not have been made "in contemplation of marriage." See TEX. FAM.CODE ANN. § 4.001 (1). Thus, the trial court erred in enforcing the Mahr agreement as a premarital agreement. Afreen argues in the alternative that the Mahr agreement can be enforced as a postmarital partition and exchange agreement under Family Code section 4.102. Both parties were raised in the Islamic faith, and Afreen testified that the Mahr agreement is a contract based on Islamic custom and religious principles. Amir offered no testimony regarding the Mahr, but Afreen explained that the Mahr constitutes a promise of an amount to be paid to the bride and if not given before, it must be given at the time of a divorce. If credited by the trial court as factfinder, this evidence establishes that the parties understood their agreement and that the terms are sufficiently specific to be enforced. Nevertheless, we cannot conclude whether the Mahr agreement constitutes a valid postmarital partition and exchange agreement in this case based on the other statutory requirements for such agreements. For example, partition and exchange agreements require an intent to convert community property into separate property. See TEX. FAM.CODE ANN. § 4.102 (Vernon 2006). However, the record is devoid of any evidence as to whether or not the parties intended the Mahr payment to come from Amir's separate property or from the community property. Thus, because Afreen's alternative theory is not established in the record, we cannot affirm the trial court's judgment on this basis. Because the trial court's improper award of $50,000 to Afreen pursuant to enforcement of the Mahr agreement as a premarital agreement materially impacted the trial court's distribution of the parties' assets, we must remand for the trial court to reconsider this distribution. AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Brock Yates Before Justices Brock Yates, Guzman and Brown 14-07-00008-CV Amir Ahmed v. Afreen S. Ahmed Appeal from 308th District Court of Harris County Trial Court Judge: Judge Georgia Dempster Concurring and Dissenting Opinion by Justice Guzman Duruji v. Duruji (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(Fowler)(foreign divorce) In this consolidated appeal from a divorce and a petition to enforce a foreign judgment, Obinna Duruji (Husband) asks us to consider whether the trial court erred in refusing to recognize Husband's Nigerian divorce decree, which he purportedly obtained while Wife's Texas divorce action was pending, and which Husband claims precludes relitigation of the divorce. Husband also challenges the sufficiency of the evidence supporting the trial court's rulings, the trial court's exclusion of certain evidence concerning the property division, child support, and attorney's fees, the trial court's denial of Husband's motion for new trial and motion for contempt and sanctions, and the trial court's failure to enter findings of fact. For the reasons explained below, we affirm in part, and reverse and remand in part. The Nigerian Divorce Decree. Husband contends that, under the Full Faith and Credit Clause of the United States Constitution and Chapter 35 of the Texas Civil Practice and Remedies Code, his Nigerian divorce decree is entitled to full faith and credit in a Texas court.[9] See U.S. CONST. art IV, § 1; Tex. Civ. Prac. & Rem. Code §§ 35.001-35.008 (the "Uniform Enforcement of Foreign Judgments Act"). However, states are not required to give full faith and credit to foreign country judgments. Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 714-15 (Tex. App.CHouston [1st Dist.] 1998, pet. denied). Once grounds for nonrecognition have been timely asserted, the foreign country judgment will not be recognized or enforced until those objections have been expressly overruled by the trial court. Id. at 715.[10] Husband contends that he has satisfied the following factors in determining whether to give a foreign judgment full faith and credit: (1) jurisdiction over the subject matter; (2) jurisdiction over the person or res; and (3) the foreign court's power to render the particular relief awarded. SeeJohnson v. Johnson, 37 S.W.3d 523, 527 (Tex. App.--El Paso 2001, no pet.). He further asserts that "[n]othing before the Houston trial court and nothing before this Court casts doubt or aspersion upon the Nigerian trial court's exercise of jurisdiction." However, when Husband filed his action in Nigeria, it is undisputed that Wife was a resident of Texas. Wife also testified in the trial court that she was never served with any pleadings in the divorce action, and she did not learn about the alleged Nigerian decree until Husband filed it with his answer in the Texas divorce action. Although Husband contends the Nigerian decree attached to his answer reflects that Wife received service, he did not have the document admitted into evidence at either the divorce hearing or the hearing on the motion for new trial in which the petition to enforce the foreign decree was heard.[11] Documents attached to pleadings are not evidence unless they are introduced at trial. See Ceramic Tile Int'l, Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex. App.--San Antonio 2004, no pet.); see also Nat'l Med. Fin. Servs., Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901, 905 (Tex. App.--Dallas 2004, no pet.) (stating that, for exhibits to be considered at trial, they must be properly admitted as evidence, even if already attached to pleadings); Wilson v. Williamson, 586 S.W.2d 148, 150 (Tex. Civ. App.--Houston [1st Dist.] 1979, no writ) (holding that although party was permitted to attach exhibit to pleadings and make reference to it during trial, it was incumbent upon him to offer the exhibit in evidence for it to be considered by the court). Simply attaching a document to a pleading does not make the document admissible as evidence, dispense with proper foundational evidentiary requirements, or relieve a litigant of complying with other admissibility requirements. Balusek, 137 S.W.3d at 725. Consequently, the Nigerian divorce decree was not before the trial court for consideration. The only evidence the trial court had before it was Wife's testimony that she was a Texas resident at the time she filed for divorce and that she was never served in the Nigerian action, and Husband's contrary testimony that Wife was served in the Nigerian action and a divorce was obtained there. However, the trial court, as the fact finder, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Vickery v. Comm'n for Lawyer Discipline, 5 S. W.3d 241, 255 n.5 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). It may accept or reject any part or all of a witness's testimony, believe one witness and disbelieve another, and resolve inconsistencies in any witness's testimony. Id. Although Husband asserts Wife knew he had filed the Nigerian action because he sent her e-mails and copies of the documents, these do not prove proper service.[12] See Caldwell v. Barnes, 154 S.W.3d 93, 97 n.1 (Tex. 2002) ("A party who becomes aware of the proceedings without proper service of process has no duty to participate in them."). Moreover, nothing in the exhibits admitted into evidence demonstrates proper service on Wife. Therefore, on this record, Husband has not met one of the factors used in determining whether to give full faith and credit. We hold the trial court did not err in refusing to enforce the Nigerian decree. Conclusion. We reverse those portions of the Final Decree of Divorce awarding child support and attorney's fees only; and remand for proceedings consistent with this opinion. We affirm the remainder of the Final Decree of Divorce. We also affirm the denial of Obinna Duruji's petition to enforce a foreign judgment. AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler Before Justices Fowler, Edelman and Frost 14-05-01185-CV In the Matter of the Marriage of Obinna Duruji and Esther Oby Duruji Appeal from 309th District Court of Harris County Case from the Texas Supreme Court Alfonso v. Skadden, No. 07-0321 251 S.W.3d 52 (Tex. Mar. 28, 2008)(per curiam) (child custody jurisdiction, international family law, service by publication) In this collateral attack on a child-custody default judgment, the underlying record affirmatively showed lack of subject-matter jurisdiction because the child had lived in Texas for only 25 days. The court of appeals held otherwise, presuming missing parts of the record might support jurisdiction. We agree courts must indulge all reasonable presumptions favorable to a judgment under collateral attack, but disagree that they can indulge a presumption that the record itself shows is untrue. Accordingly, we reverse. Michael Skadden and Ana Maria Tarquis Alfonso were married in Houston in 1991. In March 1999, Tarquis filed for divorce in Spain, and one month later Skadden (a Houston lawyer affiliated with a Madrid firm) filed for divorce in Harris County. Each claims they were not served in the other's suit, although Skadden appeared by attorney in Spain and Tarquis was served by publication. When Tarquis failed to appear in Texas, the trial court granted default, divided the property, named both parents managing conservators of their only child, entered a standard possession order, and ordered Skadden to pay child support. By contrast, the Spanish court granted sole custody to Tarquis, denied visitation to Skadden on the basis he had no relationship with the child (Skadden admits he has not seen their child since 1998), and also ordered Skadden to pay child support. Four years and three months after the Texas decree was signed, Skadden sought to enforce it. Tarquis answered and argued the 1999 judgment was void due to lack of personal jurisdiction because she had not been served, and lack of subject-matter jurisdiction because Texas was not the child's home state. The district judge — who had heard the 1999 case as an associate judge and recommended the divorce 54*54 decree — reviewed the 1999 file, heard evidence, and then denied enforcement, finding the absence of an appointed ad litem or statement of evidence rendered service by publication improper. See TEX.R. CIV. P. 244. Because Skadden's affidavit and testimony affirmatively revealed a jurisdictional defect, the court of appeals should not have presumed otherwise. Subject-matter jurisdiction cannot be waived, and can be raised at any time. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex.2004). Because the trial court lacked subject-matter jurisdiction to enter the custody provisions in the 1999 divorce decree, it properly refused to enforce that portion of the decree here. Accordingly, we grant Tarquis's petition for review, and without hearing oral argument, TEX. R. APP. P. 59.1, we reverse the court of appeals' judgment and render judgment dismissing the enforcement actions for lack of subject-matter jurisdiction. ANA MARIA TARQUIS ALFONSO v. MICHAEL SKADDEN; from Harris County; 14th district (14-05-00489-CV & 14-05-00488-CV, ___ SW3d ___, 03-06-07) Opinion below: Skadden v. Tarquis (Tex. App.- Houston [14th Dist.] Mar. 6, 2007, pet. filed) motion to strike reply brief dismissed as moot Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. |
| International Aspects of Family Court Case Law from the Houston Courts of Appeals |
