In re Green, 385 S.W.3d 665

Relator Donovan Green filed a petition for writ of mandamus challenging the trial court’s denial of a motion to dismiss the divorce for lack of Texas residency under Tex. Fam.Code § 6.301.
The divorce between Donovan and Maria-Esperanza Green was filed in Bexar County, Texas on January 21, 2011; Donovan has been stationed abroad in Germany with his family since 2008.
This court previously granted mandamus relief in In re Green, 352 S.W.3d 772 (Tex.App.-San Antonio 2011) directing dismissal for lack of jurisdiction, and Donovan re-urged his special appearance and motion to dismiss in 2011–2012.
At hearings in September 2011 and April 2012, Donovan testified he never changed his domicile to Texas and has Virginia as his domicile, with no Texas driver’s license, voter registration, or property ownership, though he had a Texas designation on a leave and earnings statement.
Maria claimed Donovan became a Texas domiciliary in 1992 due to military duties in Bexar County and designation on his LE statement, arguing that time spent outside Texas in service maintained Texas domicile under § 6.803, but the record showed no clear intent coupled with actions to establish Texas domicile.
The majority held that the residency requirements were not met and the suit should be dismissed; because neither party intends to move to Texas, abatement would not cure the impediment, and mandamus relief was warranted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Donovan met the Texas residency requirements under § 6.301	Maria contends Donovan became a Texas domiciliary in 1992 and remained so.	Donovan asserts no clear intent or acts establishing Texas domicile; military duties abroad prevented Texas residence.	Residency not met; § 6.301 requirements not satisfied.
Whether the trial court abused its discretion by not dismissing the divorce for lack of residency	Maria argues the court should retain the suit based on Donovan’s alleged Texas domicile.	Donovan argues there is no domicile in Texas and abatement would not cure this.	Trial court abused its discretion; case should be dismissed.
Whether abatement would remedy the lack of residency	Maria suggests abatement would allow residency to be established.	Donovan asserts neither party will move to Texas; abatement would not fix the impediment.	Abatement would not remedy the impediment; dismissal required.
Whether mandamus relief is appropriate given the exceptional circumstances	Relief is necessary to correct a clear abuse and avoid futile proceedings.	Ordinarily appeal would suffice, but the record shows lack of adequate remedy by appeal.	Mandamus relief warranted due to exceptional circumstances.

In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (balancing test for mandamus adequacy)
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (abuse of discretion standard; ordinary legal standard application not discretionary)
Reynolds v. Reynolds, 86 S.W.3d 272 (Tex.App.-Austin 2002) (residency/domicile as a jurisdictional-like requirement for divorce)
Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (military domicile considerations; intent to change domicile)
In re Barnes, 127 S.W.3d 843 (Tex.App.-San Antonio 2003) (designation of Texas residence during military service not alone establishing domicile)
Phillips v. Phillips, 826 S.W.2d 746 (Tex.App.-Houston [14th Dist.] 1992) (designation of state of residence during government service not controlling)
In re Lai, 333 S.W.3d 645 (Tex.App.-Dallas 2009) (6.301 context; residency requires actual domicile)
Cook v. Mayfield, 886 S.W.2d 840 (Tex.App.-Waco 1994) (abating the suit when residency not met)
Schwartz v. Ins. Co. of Penn., 274 S.W.3d 270 (Tex.App.-Houston [1st Dist.] 2008) (impediment to jurisdiction cannot be removed; dismissal appropriate)