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Adeleye v. Driscal

Court of Appeals of Texas, Fourteenth District

February 27, 2018

TOKES ADELEYE, Appellant
v.
MARGARET MODUPE DRISCAL, Appellee IN RE TOKES ADELEYE, Relator

         On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 2013-66224

         ORIGINAL PROCEEDING WRIT OF MANDAMUS

          Panel consists of Justices Jamison, Wise, and Jewell.

          OPINION

          Martha Hill Jamison Justice

         Tokes Adeleye appeals from a final decree of divorce in which the trial court determined that a valid marriage occurred between Adeleye and Margaret Modupe Driscal on May 18, 1984 in Nigeria and then dissolved that marriage and divided the property and debts of the marriage. In eight appellate issues, Adeleye contends that (1) the evidence was insufficient to support the trial court's determination that a valid marriage occurred between Adeleye and Driscal; (2) the trial court erred in permitting an expert witness to testify on a topic not raised in the pleadings; (3) the trial court erred in not assuming Nigerian law was the same as Texas law in the absence of proper pleadings regarding Nigerian law; (4) the trial court erred in granting a judgment that did not conform to the pleadings in the absence of trial by consent; (5) the trial court erred in not applying the presumption that the most recent marriage of a party is valid as against a prior marriage; (6) Driscal did not have standing or capacity to bring the divorce proceeding; (7) the trial court erred in awarding certain property to Driscal that belonged to a third party; and (8) the trial court did not have personal jurisdiction over Adeleye as a nonresident of Texas.

         It was suggested during the course of trial court proceedings as well as in this appeal that Adeleye had a pending bankruptcy case. We therefore abated the appeal and remanded to the trial court for further development of the record regarding the bankruptcy and any potential conflict with the automatic bankruptcy stay. See Adeleye v. Driscal, 488 S.W.3d 498, 499-500 (Tex. App.-Houston [14th Dist.] 2016, no pet.). It now appears that Adeleye filed for bankruptcy prior to the filing of the divorce petition and that the bankruptcy stay was not lifted prior to issuance of the divorce decree.

         In the first part of this opinion we address the impact of the bankruptcy proceedings on this divorce case and conclude that the portions of the decree concerning division of the marital estate are void. In the second part of this opinion, we address Adeleye's jurisdictional issues. And, in the final part of the opinion, we address Adeleye's evidentiary sufficiency and other issues pertaining to the existence of a valid marriage.[1] We affirm the decree to the extent it recognized and dissolved the couple's marriage, and we reverse and remand the remainder of the decree for division of the marital estate. We further deny as moot the petition for mandamus that Adeleye filed after we remanded the case to the trial court.[2]

         I. Impact of Adeleye's Bankruptcy

         A. Prior Proceedings Relating to the Bankruptcy

         Driscal filed her petition for divorce on November 1, 2013, and the trial court held a bench trial in September 2014. On October 8, 2014, prior to rendition of judgment, Adeleye informed the judge in open court that he had filed for Chapter 13 bankruptcy in 2013. The trial judge then asked Adeleye if he had previously informed the court about the bankruptcy and specifically asked if he had filed a "suggestion of bankruptcy" with the court. Adeleye responded that he had not, and the trial judge rendered judgment dissolving the marriage and dividing the marital estate.

         Adeleye appealed, and we initially affirmed the trial court's judgment on March 8, 2016. On March 21, Adeleye informed this court for the first time that he had filed for bankruptcy on January 1, 2013, prior to any proceedings in this case. We therefore withdrew our judgment, abated the appeal, and remanded to the trial court "for a determination as to whether an automatic bankruptcy stay barred the proceedings in this case." Adeleye, 488 S.W.3d at 499. To aid the trial court, we set forth the law governing automatic bankruptcy stays, including that such stays apply automatically, do not require notice to other parties or courts, apply to divorce proceedings to the extent they seek to divide the marital estate, render void any action taken against the debtor or his property, and can be raised at any time, even sua sponte on appeal. Id. We further directed that "[t]he parties should have . . . an opportunity to develop a record to support their positions" regarding whether and to what degree an automatic bankruptcy stay may have barred the proceedings in the trial court. Id. at 500 (quoting Evans v. Unit 82 Joint Venture, 377 S.W.3d 694, 695 (Tex. 2012)).

         On November 14, 2016, Adeleye filed a petition for writ of mandamus complaining, among other things, regarding the trial court's refusal to hold a hearing on the issue of the bankruptcy stay. Two days later, the trial court signed an order stating, in relevant part:

The Court finds that there was no notice of filing for Bankruptcy presented to the Court. The Court finds that if there was proper notice given of the filing of bankruptcy that an automatic stay would have been issued and the Court would have requested the attorneys to have the stay lifted prior to any further proceedings.

         After receiving this order, we issued our own clarifying order, explaining that the trial court's findings did not accomplish the purpose for the original abatement and expressly directing the trial court to make written findings of fact regarding: (1) the date or dates a bankruptcy petition involving any of the parties to this proceeding was filed, if any; (2) the date or dates an automatic stay in any relevant bankruptcy case was lifted, if any; (3) whether and how the bankruptcy court's order lifting stay, if any, references the trial court's proceedings, if at all; and (4) if an automatic bankruptcy stay was in place during the pendency of the proceedings below, what impact that fact has on the trial court's judgment, if any. Adeleye v. Driscal, No. 14-14-00822-CV (Tex. App.-Houston [14th Dist.] Feb. 2, 2017, order).

         The trial court thereafter held an evidentiary hearing during which a notice of bankruptcy and a bankruptcy discharge order were admitted as exhibits. The notice states that Adeleye filed for bankruptcy on January 1, 2013, and the discharge is dated July 10, 2015. The trial court issued an "Amended Order" including the following findings:

The Trial Court finds that a Petition for Bankruptcy was filed by Respondent, MR. TOKES TOSIN ADELEYE on JANUARY 1, 2013. The Trial Court finds that there was no notice of any stay, however, in the Notice of Bankruptcy, it states, "In most instances, the filing of the bankruptcy case automatically stays certain collection and other actions against the debtor [and] the debtor's property. Under certain circumstances, the stay may be limited to 30 days or not exist at all, although the debtor can request the court to extend or impose a stay." This Court finds that there was no stay as the 30 days had passed and no notice of stay was presented. The Bankruptcy Court did not lift the stay, nor reference the Trial Court's proceedings, however, the property in the Trial Court's division was not listed or contained in the bankruptcy filing. If an automatic stay was in place during the proceedings the Court would have stayed the proceedings. The Court finds that the stay was in place and that would have precluded any further proceedings pending the lifting of the stay.

         Upon receiving the Amended Order, we reinstated the appeal. Adeleye has also filed a mandamus complaining about the trial court's findings. We have consolidated the appeal and the mandamus for purposes of their resolution.

         B. Discussion

         We review the trial court's findings of fact regarding Adeleye's bankruptcy under the same legal and factual sufficiency standards used to review jury verdicts. Guggenheim Corp. Funding, LLC v. Valerus Compression Servs., L.P., 465 S.W.3d 673, 685 (Tex. App.-Houston [14th Dist.] 2015, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 810-27 (Tex. 2005) for legal sufficiency standards and Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam) for factual sufficiency standards). We review the trial court's legal conclusions de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

         The trial court's findings begin by confirming, as does the notice of bankruptcy admitted into evidence, that Adeleye filed for bankruptcy prior to the start of the divorce proceedings. The trial court further indicates that the bankruptcy court did not lift the stay to permit the divorce proceedings to take place, and the bankruptcy discharge order indicates that the bankruptcy proceedings did not end until after the trial court entered the divorce decree. It therefore appears that the automatic bankruptcy stay was in place during the entirety of the lower court proceedings in this case and that the trial court therefore had no power to render a judgment dividing the marital estate. See 11 U.S.C. §§ 362(a)(1) (providing that the filing of a bankruptcy petition automatically stays the commencement or continuation of any action against the debtor), 362(b)(2)(A)(iv) (explaining that the stay applies to divorce proceedings to the extent they seek to divide the marital estate); York v. State, 373 S.W.3d 32, 42 (Tex. 2012) ("As a matter of Texas law, a state court has no power to render a judgment in violation of the automatic stay under fundamental, constitutional law . . . .").

         The trial court's Amended Order, however, appears to contain conflicting statements regarding whether the stay barred the proceedings below. The final sentence of the order proclaims that "the stay was in place and that would have precluded any further proceedings pending the lifting of the stay, " but an earlier sentence suggests that "there was no stay as the 30 days had passed and no notice of stay was presented." In rectifying these inconsistent statements, we note that the reasoning provided in the second sentence (regarding the passage of 30 days and the lack of notice) was legally inconsequential. While a bankruptcy stay may be limited to 30 days under certain circumstances, see 11 U.S.C. § 362(c)(3)(A), there is no indication or finding that such circumstances existed in this case. Also, as we stated in our prior opinion of April 28, 2016 and order of February 2, 2017, it does not matter whether a party or the court learns of the bankruptcy action prior to taking action against the debtor, such action is stayed during the pendency of the bankruptcy proceedings unless permitted by the bankruptcy court. Adeleye, 488 S.W.3d at 499 (citing In re Small, 286 S.W.3d 525, 530 (Tex. App.-Houston [14th Dist.] 2009, orig. proceeding), and Darr v. Altman, 20 S.W.3d 802, 806-07 (Tex. App.-Houston [14th Dist.] 2000, no pet.)). There is no indication in this case that the bankruptcy court authorized the divorce proceedings to go forth; indeed, the trial court found that the bankruptcy court did not even reference this divorce action.[3]

         The trial court's division of the marital estate in this case was void because it occurred in violation of the automatic bankruptcy stay. See, e.g., Howell v. Thompson, 839 S.W.2d 92, 92 (Tex. 1992); Small, 286 S.W.3d at 530. However, because the trial court's determination that a valid marriage existed between Adeleye and Driscal and dissolution of that marriage are unaffected by the bankruptcy stay, see 11 U.S.C. § 362(b)(2)(A)(iv), we will now turn to Adeleye's jurisdictional issues.

         II. Jurisdictional Issues

         Adeleye's issues raising jurisdictional concerns include his sixth issue, challenging Driscal's standing and capacity, and his eighth issue, challenging the trial court's personal jurisdiction over him.

         A. Standing & Capacity

         In order to bring a lawsuit, a party must have standing and capacity. Standing concerns whether a party has a sufficient relationship with the lawsuit to have a justiciable interest in its outcome. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). The standing doctrine requires that there be (1) a real controversy between the parties that (2) will be resolved by the judicial declaration sought. Id. at 849. In the absence of standing, a trial court lacks subject matter jurisdiction to hear the case. Id. Capacity concerns the personal qualifications of a party to litigate. Id. at 848. A party has capacity when it has the legal authority to act. Id. at 848-49. "Implicit in these requirements is that litigants are 'properly situated to be entitled to [a] judicial determination.'" Id. at 849 (quoting 13 Fed. Prac. & Proc. Juris. § 3531, at 338-39 (2d ed. 1984)).

         Adeleye's standing and capacity arguments under his sixth issue are both premised on his assertion that in filing the lawsuit, Driscal represented herself as having a false name ("Margaret Driscal"), birth date ("10/26/56"), and country of origin ("Nigeria"). Adeleye claims that Driscal's real name is Margaret Egun and that she was born in Jamaica on November 26, 1956.

         We first note that Adeleye's argument appears more in line with an allegation of misnomer than standing or capacity. A misnomer occurs when a party misnames itself or another party, but the correct parties are involved in the lawsuit. In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009). Whether raised as standing, capacity, or misnomer, key assumptions underlying Adeleye's arguments are not supported by the record. It is undisputed that Driscal is the person alleging she was married to Adeleye. As will be discussed more fully below, Driscal testified at length regarding her connection to Adeleye, and this testimony was supported by documentary evidence as well as the testimony of Adeleye's brother and Adeleye himself, who acknowledged many of the connections alleged by Driscal, though he denied a legally valid marriage existed.

         The only evidence Adeleye cites in support of his contention that Driscal is not who she claims to be are the birth certificates of the couple's three children.[4]All three certificates show the mother's maiden name to be "Margaret Egun." The third additionally shows her then current name to be "Margaret Driscal, " the same name used in this lawsuit. Driscal explained that "Egun" was her maiden name and "Driscal" was the name she took when Adeleye arranged a sham marriage for her to a man named Marvin Driscal. There is, therefore, no actual discrepancy in the names.

         Regarding the apparent discrepancies in Driscal's birth date and country of birth as occurred in her testimony and recorded on the children's birth certificates, Driscal stated simply that the certificates contained errors. No other evidence was submitted on the questions of her birth date and country. Adeleye provides no cogent argument, and we can discern none, that the birth date and country discrepancy impair Driscal's capacity or standing to bring this lawsuit. As stated, there is no dispute that she is the person alleging to have been married to Adeleye at the time of trial, regardless of whether she was born in October or November or in Nigeria or Jamaica. There was a real controversy between the parties ...


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