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Quimby v. Quimby

Court of Appeals of Texas, First District

June 20, 2019

ERNEST THEOPHILUS QUIMBY IV, Appellant
v.
JESSICA YVETTE QUIMBY, Appellee

          On Appeal from the County Court at Law No. 1 Galveston County, Texas Trial Court Case No. 17FD3360

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          MEMORANDUM OPINION

          Sherry Radack, Chief Justice.

         In this suit for divorce, appellant, Ernest Theophilus Quimby IV, appeals the trial court's orders granting the special appearance and motion to dismiss brought by appellee, Jessica Yvette Quimby. In two issues, Ernest argues that the trial court erred (1) in granting Jessica's special appearance, because she established minimum contacts with Texas and because the exercise of jurisdiction comports with fair play and substantial justice, and (2) in granting Jessica's motion to dismiss his suit, because the trial court had jurisdiction to grant a divorce.

         We affirm.

         Background

         Ernest and Jessica were married on August 24, 2009 in Washington State. Thereafter, they were stationed in various locations while both serving in the military. During their marriage, they had two children. On June 21, 2016, the couple separated. Ernest moved to the State of Mississippi, where he was stationed. Jessica left the military and moved, with their minor children, to the State of Florida to attend school. On December 22, 2017, Ernest filed the instant suit for divorce in Galveston County, Texas. On December 28, 2017, Jessica filed for legal separation in Clay County, Florida.

         In his petition, Ernest alleged that, although he was serving in the military outside of the State of Texas, Texas had been his home state for at least six months and Galveston County had been his home county for at least 90 days. Ernest pled that Jessica could be served at an address in Fleming Island, Florida. He further pled that the children had not lived in Texas and were not under the continuing jurisdiction of any court.[1] Ernest asked the trial court to grant a divorce and divide the community property. He further requested that he and Jessica be appointed as joint managing conservators of the children, with neither party having an exclusive right to designate the primary residence of the children, but with orders that the children not be moved out of "the State of Florida." On January 5, 2018, Ernest served Jessica with process in Florida.

         Jessica filed a special appearance in the instant suit, arguing that the Galveston County court lacked personal jurisdiction over her because she had lived in Florida continuously for greater than six months and thus she was a domiciliary of Florida. She further argued that the Galveston County court lacked jurisdiction over the children because they had never resided in Texas. She asserted that, on December 28, 2017, she had filed an action for legal separation in Florida, "causing jurisdiction of this matter to fall in the State of Florida."

         Subject to her special appearance, Jessica also filed a plea to the jurisdiction in the Galveston County court. In her plea, she sought dismissal of Ernest's suit on the ground that, under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), [2] the Texas court lacked subject-matter jurisdiction to make child custody determinations in this case. She asserted that the couple's last marital residence was in Washington State and that she and the children had never resided in Texas. In the alternative, she asked the trial court to decline its exercise of jurisdiction on the ground that Galveston County, Texas, was an inconvenient forum to make such determination and that Clay County, Florida, was a more appropriate forum.

         The associate judge recommended to the referring court that Jessica's special appearance and plea to the jurisdiction be denied, and it issued a report as to conservatorship and support of the children and property division.

         At a de novo hearing before the referring court, Ernest testified that Jessica had been to Texas one time, right after they got married, to meet his parents. He noted that, since that time, she had never been back to Texas. Jessica also testified that she had been to Texas one time. She testified that neither of her children had ever been to Texas. She noted that Ernest claimed Texas as his residence because he had enlisted in the military while in Texas.

         On May 25, 2018, the trial court granted Jessica's special appearance and plea to the jurisdiction. On May 29, 2018, the trial court signed Temporary Orders adopting the associate judge's recommendations as to conservatorship and support of the children and a division of property. On June 5, 2018, Jessica filed a "Motion to Dismiss and Vacate Temporary Orders," asking the trial court to dismiss the case based on its order granting her plea to the jurisdiction and to vacate its temporary orders. On June 8, 2018, the trial court granted the motion and dismissed the case.

         Special ...


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