Saturday, July 3, 2010

Non-US Divorce Not Subject to Domestication


No. 01-08-00648-CV
Court of Appeals of Texas, First District, Houston.

June 10, 2010

This case is all about timelines. To make it easier to follow, I've organized all the proceedings chronologically in the tables below.

10/23/1950Sanchez and Palau married in Mexico agreeing that their owned and acquired property would remain separate.
12/11/2003Sanchez filed for divorce in Mexico alleging that Palau was committing adultry and was no longer supporting her (How old is this guy?).
2/28/2006Mexican court denies divorce due to unproven facts. Following this denial, Sanchez moved to Austin, Texas.
5/4/2006Sanchez files for divorce in Texas citing as grounds insupportability due to discord or conflict of personalities, adultery on the part of Palau, and cruel treatment by Palau toward her. Sanchez again requested a division of the property acquired by Palau during their marriage. Palau was personally served with the lawsuit while in Texas the same day.
5/16/2006Palau files special appearance with the trial court and askes that the suit be dismissed for lack of personal jurisdiction over Palau.
5/23/2006Palau files for divorce in Mexico citing as grounds that the couple had been separated for 2 years
6/26/2006Sanchez receives summons in Palau's divorce case
6/27/2006Trial court dismisses suit for lack of personal jurisdiction.
8/30/2006Sanchez is granted a new trial after asserting and proving that Palau was personally served while in Travis County, Texas.

Comment on the Timeline - So Far - And Practice Tip
Note that even though Resondent Palau was personally served within the Court's jurisdiction, the court initially granted Palau's motion to dismiss for lack of personal jurisdiction. How could this happen? I doubt it happened because the judge didn't know the law or because neither attorney knew the law.

My experience suggests that what happened is this: Ms. Sanchez employed a private process server (how else could she have Palau served the same day the suit was filed?). The private process server failed to file proof of service and failed to provide Ms. Sanchez's attorney with proof of service. Seeing a procedural weakness in the case and ever-vigilant for a way to delay the proceedings, Mr. Palau claimed he had never been served, the judge had no way of knowing he had been served and Ms. Sanchez's attorney had no evidence to show that Palau had been served.

Two months later, the lawsuit resumed because by then either the private process server finallay filed the return of service with the court or Ms. Sanchez's attorney received a copy of the proof of service. With that evidence now available, Ms. Sanchez was able to get a new trial.

Most probably an incompetent private process server and an inattentive Petitioner's attorney allowed Respondent Palau to delay the lawsuit by 3 1/2 months over a procedural mistake.

Morals of the story: (1) DO NOT PAY PRIVATE PROCESS SERVERS IN ADVANCE; (2) Once Respondent it served, demand proof of service that same day; (3) Once the private process server files the return of service with the court, then and only then pay the private process server's invoice--and pay it immediately. If your process server won't work on this schedule, find another one. There are hundreds of good process servers out there--don't jeopardize your client's case by hiring the cheapest unless they are also the best.

Timeline - Continued
5/1/2007Palau filed an Affidavit of Filing Foreign Judgment Pursuant to the Uniform Enforcement of Foreign Judgments Act with regard to the 2006 denial of the divorce Sanchez had sought in Mexico.
7/13/2007Travis County court held that the Mexican judgment was entitled to full force and effect, but it was not res judicata as to the Travis County suit because the Travis County suit was based on grounds not available under Mexican law or facts (i.e. insupportabilty).
8/22/2007Sanchez's case was set for trial on this day so Palau filed a notice of removal to federal court stating that the Texas court did not have personal jurisdiction over him and that the 2006 Mexican judgment barred the Texas proceeding. (Really? The old lack of jurisdiction gambit again?) Ruling that the Palau's attempt at removal was made in bad faith and calculated to delay trial, the federal court remanded the case back to the state court.
11/5-6/2007Trial was held. Court granted the divorce and divided the marital property between the parties.
11/16/2007"This divorce judicially PRONOUNCED AND RENDERED . . . on November 6, 2007, and further noted on the Court's docket sheet on the same date but SIGNED on the 16 day of November, 2007."
11/X/2007UBS filed an interpleader in the divorce action to resolve an issue where both parties were claiming an interest in the same account.
3/31/2008At a hearing in the trial court, both parties told the court they wanted to settle the UBS matter and finalize the case so they could get a ruling from the appeals court.
4/1/2008Attorneys for both parties approve and sign the court's decree.
4/28/2008Bank of America filed an interpleader, presumably to resolve conflicting claims on an account
4/29/2008Mexican court grants Palau's divorce and finds that Palau never submitted to the jurisdiction of the American court, except in a "preventative" way. The Mexican court did not divide any property or award any money.
4/30/2008Palau filed the Mexican decree for domestication in Harris County, Texas pursuant to the "Uniform Enforcement of Foreign Judgments Act." Palau mailed a copy of the filing to Sanchez that same day.
5/7/2008Court issues findings of fact and conclusions of law finding that the 2006 Mexican judgment denying Sanchez's request for divorce did not award any property or characterize any of the property as separate or community and concluding that the Mexican divorce case was not res judicata as to any issue in the Travis County divorce caseand that the court had jurisdiction over both parties and the subject matter of the suit.
5/8/2008Sanchez files a motion for new trial in Harris County asserting three grounds for relief. (1) The decree was not fully translated from Spanish to English. (2) She included a copy of the Travis County original petition and decree and asked the Harris County court to find that the 2008 Mexican divorce decree was of no effect. (3) She argued that the enforcement of foreign country judgments is limited to money judgments.
5/13/2008Court grants Bank of America's interpleader.
5/23/2008Sanchez filed a "Motion to Transfer Venue, or Alternatively Motion to Vacate Judgment, or Alternatively, Motion to Dismiss or, Alternatively First Amended Motion for New Trial" in the Harris County court claiming that (1) Harris County was not a proper venue because neither party had ever resided there; (2) the UFCMJRA required the judgment to be domesticated in the county of residence of the party against whom recognition was being sought; (3) the Travis County divorce action was filed before Galan's Mexican divorce action; (4) the Travis County divorce decree was finalized before the 2008 Mexican judgment; and (5) the UFCMJRA only applies to money judgments.
5/28/2008Palau resonded to Sanchez's motions in Harris County stating that UFCMJRA was applicable to the Mexican divorce decree, that Harris County was a proper venue, and that the Travis County judgment was not finalized before the Mexican judgment.
8/20/2008The Harris County court denied all of Sanchez's motions and domesticated the Mexican judgment of divorce.
7/23/2008Sanchez filed a notice of appeal as to the Harris County rulings.

Issue Before the Court
So after all this wrangling, the question the appeals had to decide was whether Palau's Mexican divorce decree was subject to domestication under UFCMJRA. If the appeals court concluded that it was not subject to domestication under UFCMJRA, then Sanchez wins and the rest of her points of error are moot. Otherwise, the appeals court would have to move on to deciding other points of law.

Foreign Decree CANNOT be Domesticated Under UFCMJRA Where No Money Issue Exists
A judgment creditor may seek recognition of a foreign country judgment in Texas by filing "a final, authenticated copy of the foreign judgment in the judgment debtor's county of residence. The judgment debtor must also "serve the judgment debtor with notice of the Texas filing." "The Texas filing symbolizes both a plaintiff's original petition and a final judgment: the filing initiates the recognition proceeding, but also instantly creates an enforceable Texas judgment."

The UFCMJRA applies to "a judgment of a foreign country granting or denying a sum of money other than a judgment for . . . support in a matrimonial or family matter." Recognition of a foreign country judgment is conclusive between the parties "to the extent that it grants recovery or denial of a sum of money."

Because the UFCMJRA's express terms clearly provide that it applies only to money judgments--and the Mexican decree did not award property, costs, or expenses--the appeals court concluded that the plain language of the UFCMJRA did not authorize the trial court to recognize the 2008 Mexican divorce decree. Therefore the appeals court vacated the Harris County judgment and dismissed Palau's petition for domestication.

Sanchez wins . . . after 6 years and 7 months of litigation.

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