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In re Swart

Court of Appeals of Texas, Fifth District, Dallas

July 9, 2019

IN RE PETER SWART, Relator

          Original Proceeding from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-24538

          Before Justices Brown, Schenck, and Reichek

          OPINION

          DAVID J. SCHENCK JUSTICE

         In this mandamus proceeding, relator Peter Swart seeks relief from the trial court's denial of his special appearance in a divorce proceeding brought against him by real party in interest Nina Morales. Swart is a resident of Costa Rica and a citizen of the Netherlands. Morales is a citizen of Bolivia and a resident of Costa Rica. The parties participated in marital separation proceedings in Costa Rica prior to Morales's decision to travel to the United States. Morales is present in the United States pursuant to a B1/B2 visa. Swart contends that Morales does not meet the statutory requirements for filing a petition for divorce in this state and that her unilateral decision to travel here does not subject him or his assets to the court's territorial jurisdiction. For the reasons that follow, we conditionally grant the writ.

         Background

         Swart and Morales married in Bolivia in April 1997. Two children were born during the marriage. They are now adults. Due to the nature of Swart's employment, the pair lived in several countries after they married and until 2004.[1] In 2004, Swart and Morales became residents of Costa Rica.

         In November 2015, Swart moved out of the marital home in Costa Rica. A few days later, Morales, accusing Swart of "psychological domestic violence" against her, initiated proceedings preliminary to a separation and divorce in Costa Rica. The court, finding the claims meritless, dismissed the case without a contested hearing. Swart financially supported Morales through the spring of 2016, at which time Morales applied for alimony in Costa Rica. Initially the court granted Morales's request for temporary alimony, which Swart paid. However, after reviewing the arguments of the parties, the judge ruled against Morales, finding she had resources, including income, sufficient to meet her needs. Further, the court made a formal finding that Morales had committed adultery and that her accusation of domestic violence against Swart constituted "slander or serious misconduct." Pursuant to the court's ruling, Swart ceased paying alimony.

         On May 1, 2016, Morales traveled to Dallas on a B1/B2 tourist visa, a temporary visa granted for purposes of business and pleasure. She claims to have resided in Dallas County since that time. Under the terms of her visa, Morales must return to either Costa Rica or Bolivia every six months. As a basis for receiving her B1/B2 visa and remaining present in the United States, Morales represented to the United States Department of State that (1) the purpose of her trip was to enter the United States temporarily for business or pleasure; (2) she planned to remain for a specific, limited period; and (3) she had a residence outside of the United States as well as other binding ties that would ensure her departure from the United States at the expiration of her visa. See 22 C.F.R. § 41.31. These representations are required to overcome the presumption that all visitors to the United States intend to immigrate and remain in the United States. See 8 U.S.C. § 1141(b).

         On November 14, 2016, Morales filed her petition seeking to divorce Swart in Dallas, Texas. In the petition, Morales stated that she was a domiciliary of Texas for the six-month period prior to filing and a resident of Dallas County for the ninety-day period prior to filing. She also asked that the court divide the marital estate, award her the bulk of the furniture, furnishings, and other miscellaneous household items currently in possession of both parties, the motor vehicles currently in her possession, and any and all community and separate property of the parties.[2]Specifically she requested the court award her a "division disproportionate share of the parties' estate."

         On August 24, 2017, Swart filed his own suit for a final divorce in the Costa Rican family courts. The Costa Rican suit remains pending. Morales has been served in the Costa Rican case, but she has not filed a response to Swart's petition.

         On September 20, 2017 at his residence in Costa Rica, Morales personally served Swart with a copy of her Texas divorce petition. Upon entering Swart's home, she clawed his arm and forehead, drawing blood. As a result, security services for the building in which Swart resides removed Morales from the premises. The next day, Swart filed a restraining order in the Costa Rican courts, which the court granted.

         On October 13, 2017, Swart specially appeared in the Texas divorce proceeding. He also filed motions to abate, for protection, and to dismiss for forum non conveniens. Swart attacked the court's power to proceed on two sides of the same coin: its right to entertain her filing and his obligation to respond. In his special appearance, Swart contended that "neither party to this suit meets the residency and domicile requirements of the Texas Family Code to confer jurisdiction." Further, he argued that there is no basis for Texas exercising personal jurisdiction over him in this case, as he has no general or relevant specific connection of his own to the State. In response to Swart's special appearance, Morales attempted to support her assertions with her affidavit testimony that she has lived in Dallas County (Garland) since before May 2016 with her brother and "intends to reside in Texas permanently." Morales also presented evidence that she has become involved in the local community by volunteering at her church, helping with her brother's family and caring for his children, and paying bills in her name from a Chase bank account on which her address is listed as Garland, Texas.

         The trial court denied the special appearance in a March 6, 2019 order. Swart now requests this court issue a writ of mandamus directing the trial court to vacate its order and dismiss Morales's claims.[3]

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