*1 ZEISLER, Shirley Interest of In the Sue child, Zeisler, Appellant, Paige
Paula ZEISLER, Appellee.
Paul
No. 19156. Appeals
Court of Civil
Dallas.
April
Rehearing May Denied *2 parties were formerly residents of
Texas. The father left the mother and the child about three weeks after the child’s birth. In 1971 were divorced in by a decree gave which the mother custody and ordered the father to make monthly payments for the support of the child to the County Dallas child support office. In 1972the mother and child moved Georgia, where they still reside. In 1972 or 1973 the father moved to Florida. He there, still resides but has continued to make his under the decree through the Dallas County support office, which has transmitted them to the mother. In 1976 the mother brought this action in one of the domestic relations courts of County, Dallas alleging that the needs and expenses of the child have in- creased and that the father’s income also has substantially increased.1 Process was served personally on the father in Florida in accordance with Tex.R.Civ.P. 108. The father special appearance made a and moved to dismiss the action for lack of person. over his The trial court Bowman, Jr., Turner, Bruce W. Rodgers, heard the evidence on the motion to dismiss Sailers, Dallas, Jordan Calloway, ap- & along with evidence on the merits. After pellant. hearing, made findings of Fisehman, Weil, Lawrence Craig & Fisch- fact in which he found that was a man, C., Dallas, P. for appellee. reasonable amount for the father to
each month for
of the child. How-
ever,
also found
GUITTARD,
the court
Chief Justice.
jurisdiction,
had no
and he sustained the
appeal
raised
is
motion to dismiss.
whether a nonresident father who has been
ordered
a Texas divorce decree to make
appeal
On this
the mother contends that
periodic payments
for the
the trial
under Tex.
process
child is amenable to Texas
served
(Vernon
Family Code Ann.
11.051
Supp.
§
the mother to
outside the state in a suit
1976),
provides:
which
payments, although
increase the
none of
affecting
parent-child
In a suit
We hold
now resides in Texas.
lationship,
person-
the court
exercise
in Texas
that the father is amenable to suit
person
al
over a
on whom
trial
accordingly, we reverse the
required
service of citation is
or over the
want of
court’s dismissal of the action for
person’s personal
representative,
al-
Appellant
rely
concept
divorce decree was issued before
does
enactment of
continuing jurisdiction
Tex.Family
under
Code
Title 2 of the Code in 1973.
(Vernon Supp.1976),
Ann.
11.05
§
or
conducting
is not
resident
activities within the forum
of this
if:
domiciliary
State,
invoking
thus
protec-
benefits and
In
Lanpar
tions of its laws.”
O’Brien v.
(1) the child was conceived
this state
person on whom service
Co.,
and the
(Tex.1966),
required
alleged
is a
or an
Supreme Court of Texas added another re-
child;
probable father of
quirement to the effect that the cause of
*3
(2)
state, as
the child resides in this
action must arise from the act or transac-
code,
by
of
defined
Section 11.04 this
tion in the state on which
is
or
of the acts or directives
as a result
adopted
based. The court also
a statement
on
approval
person
with the
of the
Tyee
from
Construction Co. v. Dulien Steel
service is required;
whom
Products, Inc.,
106,
62 Wash.2d
381 P.2d
(3)
service is re-
whom
245,
(1963), amplifying
requirement
251
has
in
quired
resided with the child
of
of
play
“traditional notions
fair
and sub-
state;
this
or
justice” by saying
stantial
that considera-
(4)
(2),
notwithstanding
(1),
Subdivisions
given
quality,
tion should be
to “the
nature,
above,
(3)
any
there is
basis con-
activity
and extent of the
in the forum
of this
with the constitutions
sistent
state, the
par-
relative convenience of the
States for
state or
United
ties,
protection
the benefits and
laws
of the personal
exercise
of the forum
respective
state afforded the
Appellant contends that
statute
parties,
equities
and the basic
situa-
was conceived in
applicable since the child
tion.”
(1), appellee lived
Texas within subdivision
in
with the child
Texas within subdivision
Within
guidelines,
these
concept
un-
(3),
continuing duty
had a
extraterritorial
per
over the
decree
make support
der the divorce
been pushed
son has
further in contract and
(4).
payments in Texas within subdivision
tort cases than in
litiga
domestic-relations
Appellant recognizes
application
of the
case,
tion.
In a
obligation
contract
an
statute is limited
the minimum-contacts
perform in the
appears
forum state
to be
requirement
process,
argues
due
but
coupled
sufficient when
with any other rel
these facts are sufficient to establish mini-
contact,
negotiation
evant
such as
of the
Appellee replies
mum
that mini-
contacts.
contract
forum state or
mailing
established,
are
mum contacts
signed
of a
contract
other party in
none of the
has resided in Texas for
the forum state. Atwood
v.
Hatcheries
has done no
years
pur-
several
Farms,
&
(5th
Heisdorf Nelson
tedly, strong is not so because appellee’s faced we are case present In the longer absence from the state and also be- the removal whether with cause the mother and child are longer Tex Georgia leaves to and child the mother Texas. residents of Considerations of con- adequate in providing interest with no venience cannot be cited to support assump- therefore, re child for the support jurisdiction here, but, tion of personal claim for pursue to her appellant quires hand, the other no other forum is shown to wherever support increased parties. more convenient for both be More- reviewing the author After found. may be over, since Texas is the state of last matri- the minimum-contacts ities, hold that we domicile, no other state monial has both a notwithstanding present is satisfied test superior authority interest and clear to en- her child. appellant and nonresidence obligation appellee’s support force to his requirement pur v. Denckla Hanson Georgia, child.2 where is satisfied in the state activity poseful live, have an would in child now interest in relationship with father’s support, but, far child’s so for the providing domi Texas, of last matrimonial the state shows, appellee engaged as this record requirement cile. The O’Brien there, and we are significant activities in no that activi- arise out of cause of action must ly together appear resided another but we to 11.051would its terms 2. Section due-process subsequent- lim- apply not consider whether the need quirements process of due appellee’s whether are otherwise position not in a to decide child, obligation support to undoubted argument persuasive satisfied. A be contacts, enough would without other be application made for of forum non conven- jurisdiction in for that state. extraterritorial separated between litigation iens in obligation support to appellee’s Since but we need not decide parents,4 divorced in Texas and until now has been child arose whether the trial court had discretion to regulated and defined a Texas decree doctrine, the action under that dismiss make ordering payments him to attempt made no to invoke it appellant has him requiring respond to we conclude For discussion of that doc in this case. in Texas to a suit to increase the amount of trine, Moore, see Flaiz v. does not offend “traditional those Lee, (Tex.1962) and Cole justice.”3 play and substantal notions of fair dism’d). writ (Tex.Civ.App. — Dallas the de- conclusion is consistent with stated, For the reasons we hold that the and tort cited in both contract cisions above dismissing erred in the cause for lack to why reason an action cases. We see no parent’s obligation appellee. over and enforce determine great- child should encounter support his shows, however, The record respect with er obstacles did not the action until after dismiss he had contract or obligation arising from than an heard the evidence and had found that a encour- tort. Denial reasonable amount for for obliga- to avoid noncustodial age the Ap- of his child is month. by moving to a of children tions *5 challenge finding does not that pellee parent state where custodial different appeal by cross-point or otherwise. might practical encounter difficulties duty Our under Tex.R.Civ.P. 434 is to ren- adequate sup- to require remedies pursuing judgment der the which the trial court may exist port. These difficulties Therefore, should have rendered. we re- the child parent the custodial and judgment verse the of the trial court and con- moved to another state. We have also judgment increasing the render amount of equities of the situa- clude that “basic $400, monthly payments from effec- $200 the non- purpose that for this require tion” October, 1976, day tive on the first subject to contin- parent should be custodial jurisdiction of the state uing personal following the trial court’s first month order. domicile, long at least as last matrimonial Reversed and rendered. order of that currently as a enforceable to be made requires state
there. ON MOTION FOR REHEARING rehearing appellee In his motion Although considerations of conve rendering judg contends that we erred in with other weighed along must be nience remanding rather than appellant ment for Mitchim, not under factors, we do as hearing for a new trial because the on the is, in that inconvenience of the forum stand itself, nullity, if the re- merits was a as were also a constitutional obstacle also, point permit assumption different considerations. On this of extra- itation cf., Clayton jurisdiction Sampson, supra, For a in that situation. see at and territorial scope Newton, (Tex.Civ.App.— in this § of the 11.051 discussion context, Long Sampson, Arm Jurisdiction writ) (Oklahoma see divorce Fort Worth Code, Family Tex.B.J. Marries the Texas relitigate custody jurisdiction to court lacked 1023, 1028, and footnote 37. and child had become residents after custodian Texas). interpreted sup- holding should not be litigation conservatorship porting issues in a Sampson, supra, at 1031. nor the custodial where neither the child state resides, involve that conclusions, findings court’s and since the After close of evidence, all the the judge cause was jurisdic- dismissed for want of arguments jurisdiction ques- agree tion. We do not hearing tion as well as on the merits. He then findings were ineffective. announced that he would make his decision
The record shows that the trial court later in the did week. 120a, not observe section 2 of rule There is no record of the pro- actual Procedure, provides: Rules of Civil which nouncement of judge’s decision except “Any jurisdiction motion to the . his order dismissing September the cause on shall be heard and plea determined before a 29, 1976, findings conclusions, and his privilege or any plea other or pleading 4,1976, dated October to the effect that the may be heard.” After a conference in parties did not have such “recent minimal chambers proceeding and before with the contacts” as due-process to meet hearing, announced that the court quirement of in-personam would first take up special-appearance October 11 he made findings additional plea of lack of and would “with- the effect the circumstances of the ruling hold its in connection with that mat- child and of go appellee materially ter and ahead and had hear the evidence with reference to the motion for substantially changed modifica- entry of the support.” objection tion of No to this pro- decree providing for support in amount of by appellee. cedure was offered Counsel per $300 month and that “should for appellee presented evidence in support be required the sum of and called month for Paige of Paula Zeis- as witnesses. ler.” After both announced they In this state record we see no no further evidence on the plea, reason for hearing another to determine the directed counsel for to proceed on amount support payments. The trial his motion for support. additional child judge apparently recognized that the plea Again for appellee objec- counsel made no raised a legal question of tion, and he cross-examined witnesses called *6 some difficulty, accordingly, by appellant. pro- he ceeded to hear the evidence on both matters merits, the testified con- at the same hearing, apparently for the cerning the child’s needs and the increased convenience of parties, both of whom expenses caring for her. She asked for had come from other states. If an increase in the from to $300 objected had procedure, to this per Appellee, month. $600 called as a wit- would have required ness appellant, testified that he under rule 120a was $21,000 making year as an pilot airline to rule on the plea before 1971 and that in 1975 his income from all hearing merits, evidence on the and if he $45,000. sources had increased to He antici- proceeded had appellee’s objection, over pated making at least that much in 1976. different presented. would now be He had an itemized list monthly objection No such was made. Appellee, expenses, income and which was offered in therefore, presumed must be to have con- evidence. He testified that he owned a new sented to this procedure, which was calcu- $14,000 Cadillac automobile on which he lated to serve his convenience as well as making was payments and also owned an appellant’s because it would obviate anoth- airplane and an hunting interest in a and er trip to Dallas in the event plea fishing Appellant’s venture in Alaska. overruled, should be either counsel testified on attorney’s his claim for the trial court or on appeal. fee. Appellee’s counsel cross-examined and called The to the stand trial court’s fact testimony findings concerning for that she money to pay attorney. her the amount of support appear entirely rea- We improper. in this record. conclude that this was an under the evidence sonable cross-point at- presented Appellee appropriate exercise court’s fact- findings, although appellant tacking these finding function. judg- for in her brief rendition prayed called Our attention has been to the fact “declaring ment judgment purports that our to raise the now, he does Even $400.” amount per month, payments from to $200 $400 we them lack of evidence. If for attack rather than from month. $400 court remand the case the trial should made, This correction now it although re- should with instructions change the judgment. does not the effect of and already evidence he has heard view the we would no rea- findings, new make rehearing Motion for overruled. findings to believe that the new would son suggest Appellee does not be different. available additional evidence be
that might expected change be
that is that Appellee’s sole contention
sult. ultimately the trial court dismissed jurisdiction, cause for lack is now to'
though that dismissal determined erroneous, hearing on the merits
be are now “nullities.” We findings
the fact require that law does not
conclude unrelated to the merits of
empty formality manifestly contrary to
the action and parties. and convenience all
interests Touchy relies on v. Houston Le Appellee vir., Appellants, Carol Ann GRIFFIN et Foundation, (Tex. gal 1968), in which the defendant filed both a ground in abatement
plea MILES, Appellee. Dr. Norman A. standing had no and a plaintiffs to sue No. 1637. summary judgment on that motion ground others. trial court Court Appeals of Civil hearing at the entered an same Dist.). (14th Houston granting supreme both. order sustaining after observed June suit, dismissing abatement and Rehearing July granting summary Denied action in court’s *7 meaningless, conse was judgment appeal on was only
quently, proper was abatement
whether regard do not that case sustained. We
ly
controlling in this case here because not, Touchy, as in enter court did
trial remedies. granting two inconsistent
order case want of court dismissed the nevertheless, but person,
having presented evidence merits, objec without findings for
tion, the benefit made fact appellate and the be held of dismissal should
event the order