*1 ordinarily duty appellate It
court to render the which the However,
trial court should have entered. of the fact that we must reverse view the case to the trial court remand by re-computing
it to reform its attorney’s fees
the interest and
judgment awarded Arkansas Louisiana Gas reverse
Company, proper we deem it so that
and remand the case as a whole may be entered.
new
Accordingly, is reversed is remanded to the trial the cause
court with instructions to enter opinion. accordance with IM, Appellant,
Carmen R. MITCH IM, Appellee.
Charles F. MITCH
No. 12101. Texas, Appeals
Court Civil
Austin.
April 1974.
Rehearing May 8, Denied
seeking declaratory superior divorce of a awarding court of alimony, attor- ney’s fees, appellant, and costs to Carmen Mitchim, grounds R. As for void. relief, appellee claimed that the Arizo- na was void because that court jurisdiction. in personam Upon lacked to trial the district court of Tom Green County, judgment was declaring entered void and unenforcea- ble in Texas insofar as it appel- awarded attorney’s lant alimony, fees and costs. Appellant and were married in living 1949 and were California when Army appellee retired from the in 1961 serving twenty-eight more than years. 1966, they In moved to Arizona years. and remained there several In the autumn of the Mitchims went Ozona, They be- Texas. went to Ozona appellee wanted to visit that com- cause munity possible moving with a view of Ozona, they were shown there. While estate sales several houses several real persons. They then returned to Arizona. 8, 1971, appellee moved January On began practice Ozona there par- optometry. January mar- placed ties’ Arizona home on year appellant went April ket. After few appellee. Ozona to visit on and there days she to Arizona returned 28, 1971, di- filed the suit for she June appellee. against “Long-Arm” to the Arizona Pursuant statute, with was served on petition July the divorce Ozona appearance made no Appellee judgment of proceeding and a divorce 7, 1972, awarding on March was entered Norris, Gerard P. Nugent, Phillips divorce, & among things, appellant, Austin, for appellant. costs, each attorney’s fees and $950.00 month Greg Gossett, Logan, Lear, Massey &
Gossett, Angelo, San In her first amended answer to appellant filed a petition lee’s cross-action
SHANNON, Justice. court to enforce the Arizona asking the Mitchim, Appellee, require appellee to file judgment, Charles suit F. filed appraisal, in the and in inventory district County Tom sworn Green alternative, partition appellee’s military judgment, In a on an suit extrastate en- retirement benefits. defense be that court which jurisdiction, and tered the lacked County The district court Tom Green good by proof defense is judgment declaring entered that the Arizo juris- the facts relied as a basis for judg na court which entered prior proceeding inade- *3 jurisdiction ment did not have to award a quate satisfy requirements of due to the personal judgment enforceable in Texas process process if of Due is violated law. alimony, against appellee for for costs of personam judgment the court enters an in court, attorney’s or fees and that such person jurisdiction without over the purposes was void. for those Leflar, against whom it Amer- entered. respect appellant’s to claim in her With ican (Rev.1968). Conflicts Law 80§ appellee’s to retire cross-action benefits, ap the court declared that pur Unlike a divorce decree which ¾14 n pellant have said benefits of ports only to affect the marital status of appellee that remaining have the lu/iuth matter, parties, the an in an order to rem thereof. costs, pay money at alimony, as court or torney’s is an personam judgment. fees findings of Upon request, the court filed valid, To be must that be entered law, and, among fact and conclusions having personam jurisdiction a court appellee things, found that had resid- Goodrich, Di over the defendant. See January continuously in ed Texas since Laws, and Conflict of Tex.L.Rev. January that at no time after I, appellee did enter the territorial Appellee never boundaries of Arizona. several Traditionally, there have been agreed jurisdic- the subject himself to jurisdiction grounds for over personal courts, tion and that of the Arizona defendant, domicile, con- presence, such as lee, 9, 1971, not January did Principles appearance. Stumberg, sent or significant legally contacts with State 1963). (3rd of Conflicts of Law Ed. of Arizona. claims that the case at bar acquired personam jurisdiction may be part of the concluded that the in a divorce over non-resident defendant judgment providing for Arizona divorce personal proceeding by extraterritorial costs, and attor- payment alimony, (1) if a statute service of fees, ney’s jurisdic- for want was void support authorized ordering state has prop- or his person tion in that acquisition of such Arizona. State of outside the manner, con- exist sufficient (2) there service further that the court determined the forum tacts between the defendant and process upon outside satisfy cause of action relevant ju- to confer was insufficient sub- play and “traditional notions of fair risdiction. justice.” stantial clause, and credit faith full validity consideration Our requires the courts IV, Art. U.S.Const. § by the law is controlled aof to accord the each state Lanpar Company, of Arizona. O’Brien v. given effect as sister the same state an effort Leflar, (Tex.1966). origin. its judgment in the state of law, exam- will first to determine we (Rev.1968). Law American Conflicts § provision, “Long-Arm” ine juris without judgment entered Because a A.R.S., to deter- 4(e)(2), 16 rendered, Ariz.R.Civ.P. the full is void where applies mine or not that rule require whether does not faith and clause credit in divorce persons service of judgment. recognize state that a sister opinion of Rule terms pertinent proceedings. The sufficiently authorize are broad to provides follows: rule Ari- in an person of a non-resident service Summons; personal “4(e)(2) proceeding. divorce zona is a defendant state. When state, corporation is a or resident of it By the terms of Rule 4(e)(2) per- doing business in this or is a necessary plead be would show son, partnership, or unincor- corporation forming the event events in a porated subject to suit association the divorce in Arizona. occurred common name has caused at bar record the case does contain event to this state out of which occur and, petition divorce claim which is the result, as a we do not know the basis complaint arose, be and, importantly, appellant’s more *4 shall provided, herein so made when event, do the or we not know where personal be of the service same effect as events, occurred which the basis formed ” within the . . state. . judgment. the for default divorce Under circumstances, de these we are unable to language, purposes, critical our for termine whether or could is a “When the is defendant ... availed herself of Rule to obtain person . . . which has caused upon valid service event to in occur this of which state out aspect The second of conten- the claim is which of the com- plaint arose, person- that the had in Arizona court tion service be made appellee is due
am over jurisdiction of process because was accorded The rule makes no mention its availa- his the State “minimum contacts” with bility in a proceeding divorce, in a for authority, appellant relies Arizona. As divorce suit alimony may wherein be Mizner, upon Mizner Nev. plaintiff. awarded to the have been We P.2d 679 (1968). unable to authority discover Arizona petitioner and his
applying Mizner the wife language' a had maintained their matrimonial domicile defendant in a divorce case. Backora many they Balkin, for in before California 14 Ariz.App. 485 P.2d litem, separated petitioner moved to Nevada. the guardian pater- ad filed a petitioner in Ne- nity suit filed suit for divorce for an superior infant in the court vada, his and within a month wife filed Maricopa County, Arizona, against the suit for defendant, California on a resident of de- Illinois. The grounds cruelty. fendant was Personal pursuant served in Illinois process upon petitioner was had 4(e)(2), alleged Ariz.R.Civ.P. as the infant pursuant in Nevada to a California that all home gave events which rise to authorizing personal statute her extraterritorial place existence took in Arizona. The was a service where the defendant resident appeals court of said simply, “It our opinion that state when the cause action the trial as- properly court petitioner appearance, personal arose. The jurisdiction sumed over de- the wife the California court awarded fendant.” alimony. for divorce and single Unlike the event cre judg- She then filed suit on the California ates a claim for paternity, basis di Nevada where the trial court usually action many stems from granted summary partial her motion for events. But many, whether one or those alimony on the issue of on events occur, case, could well given ground that the California within the State of Arizona. are of We entitled to full faith and credit. Su- May Anderson,
preme
judg-
held in
of Nevada affirmed
Court
majoriy
the Nevada
resident defendant matrimonial “While may be in domestic cases.1 au- contact’ found rela- have found no Arizona We thority bridge gap tions cases extrater- point. *5 process, resulting ritorial Appellant claims that the minimum con- in judgments and are not decrees assert tacts which enable Arizona to category arising as in cases same those personam jurisdiction appellee are contract, tort, other divi- or the there, leaving that before he voted Arizona legal ‘minimum sions of the field. The taxes, there, paid owned home Arizona ap- properly contact’ cannot be doctrine Af- an driver’s license. held plied personam to confer in Texas, appellee ter continued moving to the domestic relations field. Arizona, family make to own the home of in The minimum contact mortgage payments, money send be reasona- personam jurisdiction cannot lant, daughter. his pay dental bills for judgment be- bly applied alimony to an fact, found, as a matter The trial type contains cause legally sig- not appellee did A uncertainty. element inherent nificant of Arizona contacts with State in the status change of circumstances January 9, Appellant does 1971. entry subsequent to the party, of either specifically finding. attack is, discre- court’s within the tion, grounds modification.” Supreme Court The United States opinion that summary, of the we are theo has that the “minimum contacts” held are personam jurisdiction, the terms of Ariz.R.Civ.P. ry, as a basis for of a the service enough to authorize classes of broad satisfies due in certain person in an Arizona Interna transactions and tort. business been shown have not proceeding. Washington, U.S. We tional 326 Shoe Co. v. or not whether 154, Hess basis for determination 310, 95 (1945), 66 90 L.Ed. S.Ct. herself 632, appellant availed 71 could have Pawloski, 352, 47 274 v. 4(e) Rule to obtain valid (2) v. International (1927), L.Ed. 1091 McGee opin- 199, of the finally, 2 we are Co., 220, And Life Ins. 355 U.S. 78 S.Ct. is still Anderson, supra, However, May ion that v. that court (1957). 223 L.Ed.2d Stucky (Okl.Sup.1970), denning, 443, Cal.App.2d Soule, 460 465 P.2d 14 Cal. v. 193 Soule Stucky, 656 Dillon, Rptr. 185 N.W.2d 46 v. Wis.2d 186 Neb. Dillon 417 Hines Clen N.W.2d 362 176 during accrued ment which controlling the “minimum con- appellee appellant and while marriage of for in theory, tacts” they community property states jurisdiction, process in resided satisfy does not due community subject is marriage to division rela- matters out of the property.1 tionship. point respect second With “inception-of-title” ap rule is error, did not di- plied com to determine the existence
vide the retirement benefits munity-property interest in retirement ben appellee during accumulated his Busby Busby, efits. 457 S.W.2d Army. Appellant that she contends Davis, (Tex.1970), Davis v. 495 S.W.2d bene- to one-half of the retirement entitled dism’d). The (Tex.Civ.App.1973, writ living as fits she and because logic “inception-of-title” rule, how California, a husband wife in commu- ever, rigorous pushed has not to a been nity property at the retire- the time determining conclusion in the extent agree. vested. We do not community Des Dessommes v. interest.
sommes, (Tex.Civ.App. Only the retirement A application writ pending). benefits which accrued the mar during separate that the number the cases hold riage they community ben character of retirement in community resided property states is status efits is to be determined community property. to division as time the benefit was spouse Gaulding Gaulding, S.W.2d if bene example, For some earned. (Tex.Civ.App.1973, writ), see Parson v. employee spouse fits were earned while the States, Cir., (5th United 460 F.2d unmarried, appor then that 1972). separate property. tioned to him as *6 Webster, 442 786 Webster v. S.W.2d judgment is affirmed. writ), Mora (Tex.Civ.App.1969, no v.
Mora, (Tex.Civ.App.1968, Kirkham, dism’d), ON writ Kirkham v. 335 S. MOTION FOR REHEARING see (Tex.Civ.App.1960, writ), W.2d 393 no judgment Arizona did not divide the Dessommes, supra. Dessommes v. military retirement benefits which Likewise, earned after during years Army.
accumulated marriage, in a common law Appellee but Army twenty-eight was in the separate property should be years, and considered one-half and one- which one employee spouse. Gaulding half v. Gauld community prop- were served in ing, 503 617 no (Tex.Civ.App.1973, S.W.2d states. writ), University Hughes, Texas: Com Appellant insists that she is entitled to munity-Property Aspects Profit-Sharing one-half of the retirement benefits because and Pension De Plans in Texas—Recent she living were as husband velopments Proposed Guidelines for California, community wife in prop- Future, 860, 44 Texas (1961), L.Rev. 871 erty state, pro- at the time the Texas, Dutton, retirement University of The Wife’s gram contends, Appellee vested. on the Community Interest Her Husband’s hand, only Qualified Plan, retire- Profit-Sharing Pension or appeal, applicable law, In the trial of the cause and on the laws Texas parties point regarded govern. Procedure, one Texas Rules of Civil Moreover, by be determined Texas law. rule 184a. judicial knowledge absence
726 334,
50
man
Mora
parties
Texas L.Rev.
340
see Peo-
were
and wife.
v.
Mora,
ple v. Bejarano,
(Colo.1961).
(Tex.Civ.App.1968,
Wilkerson Commissioner v. Revenue, 44 T.C. aff’d 368 F. 718 PHILLIPS, (dissenting). Chief Justice Busby, Busby v. (9th 1966); 2d 552 Cir. aff’d 439 (Tex.Civ.App.1969), S.W.2d 687 in- Appellant prima case facie (Tex.1970). 457 551 S.W.2d judgment troducing a of the Arizona Newberry, 412 Hamilton v. trial. S.W. re- grant I motion would (Tex.Civ.App.1967, n.r.e.). 801 writ ref. 2d trial judgment hearing, reverse presumption is a that this There enforcing court and render valid, was not presumption and this for arrears decree Hodges, v. 401 rebutted. Roberts S.W.2d en- to the I err as Should n.r.e.). ref. (Tex.Civ.App.1966, 332 writ judgment, I forceability Therefore, I would hold that awarding appellant would render un- entitled to have her enforced appellee’s one-half interest clause, der the full faith and credit Section earned retirement 1, Article IV of the Constitution man wife. parties United States. I “minimum con- would also hold the applicable
tacts” in matters out of Mizner, relationship.
marriage Mizner 268, de (1968) cert.
84
nied, 847, 21 89 L.Ed.2d 393 U.S. S.Ct. Cal.App. Soule, 193 1117 Soule (1968); Wig-Wam al., J. R. MORROW et de Cal.Rptr. (1961), cert. 2d 14 417 d/b/a Texas, Appellants, nied, 985, 82 7 L.Ed.2d 368 Hall, (1962); 203 Scott v. Kan. Dillon, 46 Dillon v. (1969); P.2d al., Appellees. et STATE Texas ; (1970) Wis.2d N.W.2d No. 12104. Clendenning, Hines 460 (Okl. P.2d *7 Stucky 1970); Stucky, Neb. Texas, Appeals Court of Civil doubt There is little N.W.2d 656 Austin. us that Arizo- under the record before May 8, 1974. un- required jurisdiction na court had the der contacts” doctrine. the “minimum event, I convinced am only holding that
majority are in error in bene- military retirement parties were
fits which accrued while community prop-
living man and wife com- states division vested
munity property. These in á com- parties retired
when the then
munity property state. portion her entitled to
became retire- of the interest earned plan which was