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Lodhi v. Haque

Court of Appeals of Texas, Fourth District, San Antonio

November 6, 2019

Ziaunnisa K. LODHI, Appellant
v.
Shah A. HAQUE, Appellee

          From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2017CI04290 Honorable Rosie Alvarado, Judge Presiding.

          Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice.

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice.

         In this appeal from a divorce decree, appellant Ziaunnisa K. Lodhi asserts that the case was improperly tried in Bexar County because (1) neither she nor appellee Shah A. Haque were residents of Bexar County for ninety days preceding the filing of the original divorce petition and both parties reside in Harris County; (2) a Harris County court had dominant jurisdiction; and (3) a mandatory sixty-day waiting period measured from the date suit was filed had not run when the trial court granted the parties' divorce. Lodhi also asserts the trial court erred by awarding Haque attorney's fees in a pretrial sanctions order and in the divorce decree. We affirm.

         BACKGROUND

         In 2013, Lodhi and Haque were married in New York. In 2015, Haque filed for divorce in DeWitt County, Texas, and this case was later transferred to Harris County, where it was dismissed on February 14, 2017. Soon thereafter, Haque filed for divorce in Alaska, and Lodhi filed for divorce in New York. Eventually, these cases were dismissed. On March 8, 2017, Lodhi filed the present case for divorce in Bexar County. In her pro se divorce petition, Lodhi listed a Bexar County address underneath her signature, and, beneath that, a Victoria, Texas mailing address.

         On August 22, 2017, the Bexar County trial court held a hearing, at which Lodhi testified that she had "moved to San Antonio." Following the hearing, the trial court ordered Haque to make payments to Lodhi for temporary spousal maintenance "starting September 1, 2017 for $800." The order stated it would remain in place for seventy-five days.

         On October 5, 2017, Haque filed a counter-petition for divorce, in which he alleged that Lodhi had been a resident of Bexar County for the preceding ninety days.

         On November 13, 2017, Lodhi filed a motion to clarify the temporary order for spousal support, seeking clarification regarding the duration of the order and frequency of payments. She also filed a motion for temporary spousal support, requesting $2, 500 in temporary spousal support per month. Haque opposed the motions, and the trial court entered an order denying Lodhi's motion for temporary spousal support.[1]

         On November 30, 2017, Lodhi, who by this time was represented by counsel, filed a motion to dismiss the divorce suit for lack of jurisdiction. Her motion asserts: "Ziaunnisa K. Lodhi currently resides in Harris County, Texas, and has resided there since August 1st, 2017." Lodhi argued that the trial court lacked jurisdiction because neither she nor Haque "ha[d] ever resided in Bexar County." Haque opposed the motion. On December 7, 2017, the trial court held an evidentiary hearing on the matter. On direct examination, Lodhi testified that she was not a resident of Bexar County when she filed her petition on March 8, 2017. On cross examination, Lodhi testified that she lived at the Bexar County address listed on the divorce petition, "[m]aybe a single day," but she moved out that same day because the couple she would share the apartment with were heavy smokers. Lodhi also testified that she intended to move to Bexar County, but she changed her mind and returned to New York after her mother had a stroke. Lodhi confirmed that she listed the address of the Bexar County apartment on the civil case information sheet and her request for process. Lodhi also testified that she had received a law degree in Pakistan, and her attorney represented that Lodhi was enrolled in a Master of Laws (L.L.M.) program at the University of Houston Law Center.

         Haque also testified at the hearing. He stated that he signed a residential lease for an apartment in Bexar County on December 6, 2017, which was the day before the hearing. Haque testified that he intended to make Bexar County one of his residences. Haque also testified that he worked Mondays through Fridays in Harris County and planned to come to Bexar County on the weekends and apply for jobs in Bexar County. After hearing the testimony, the trial court orally denied Lodhi's motion to dismiss. The trial court also granted the request made by Lodhi's counsel to withdraw from representation. On December 14, 2017, the trial court signed an order denying Lodhi's motion to dismiss, stating: "The Court does not have enough information at this time to determine if abatement of the divorce cause of action is necessary or not."

         On December 18, 2017, Lodhi, again acting pro se, filed a second motion to dismiss based on her failure to establish residency in Bexar County. Lodhi also filed a motion to transfer venue to Harris County, where she asserted she had lived for the past four months. The next day, an attorney who had not previously appeared for Lodhi filed a notice of appearance as Lodhi's counsel. On December 22, 2017, the trial court signed an "Agreed Order to Abate Case to Establish Residency Requirement." Lodhi's new attorney and Haque's attorney signed the order and indicated their agreement "AS TO FORM AND SUBSTANCE." The order states:

[T]he parties, through their undersigned counsel of record, . . . indicated to this Court the following evidentiary facts-
[1]. At the time of filing this matter's Original Petition for Divorce, on or about March 8th 2017, neither [Lodhi] nor [Haque] had resided within Bexar County, Texas, for the prerequisite 90 day period of time, as required by Tex. Fam. Code §§ 6.301, 6.302; and
[2]. As of December 21st 2017, neither [Lodhi] nor [Haque] have resided in Bexar County, Texas, for the requisite 90 days since the filing of this matter's Original Petition for Divorce on or about March 8th 2017.
IS THEREFORE ORDERED that this case is abated until March 23, 2018, to allow either [Lodhi] and/or [Haque] to meet the necessary 90 day residency requirement, as mandated by Tex. Fam. Code §§ 6.301 and 6.302.

         On January 18, 2018, Lodhi filed a petition for divorce in Harris County, initiating a new suit in that county. On February 20, 2018, Lodhi filed a motion in the Bexar County court to substitute her counsel of record with yet another attorney. On February 23, 2018, Lodhi filed her third motion to dismiss based on the parties' purported failures to establish residency in Bexar County. In her motion, Lodhi argued the Bexar County court did not have "dominant jurisdiction," even though the Bexar County case was the first-filed case as compared to the recently filed Harris County case. On March 12, 2018, Lodhi filed a notice of nonsuit in the Bexar County case.

         The abatement period in the Bexar County case ended on March 23, 2018, and, three days later, Haque filed a response to Lodhi's third motion to dismiss and a request for sanctions. Haque also filed, on March 26, 2019, a third amended counter-petition for divorce, in which he alleged his residency in Bexar County for the preceding ninety-days.[2]

         On March 29, 2018, the trial court held a hearing on Lodhi's motion to dismiss and Haque's request for sanctions. During a brief examination by Lodhi's counsel, Haque testified that he had continuously resided in Bexar County since December 6, 2017. Before Haque's attorney began his examination, Lodhi's counsel stated: "Out of convenience to the Court, we'll stipulate that [Haque has] lived in Bexar County since December 6th of 2017." Haque's counsel then questioned Haque regarding expenses Haque had incurred related to divorce proceedings brought in various courts. Lodhi then testified. She stated that she resided in Harris County when she filed her second motion to dismiss on December 18, 2017. As to the Bexar County address listed on Lodhi's original petition, filed on March 8, 2017, Lodhi stated: "I was there, yes, but I did not live there 90 days." Next, Haque's counsel testified regarding attorney's fees. At the conclusion of the hearing, the trial court denied Lodhi's motion to dismiss and granted Haque's motion for sanctions, ordering Lodhi to pay $6, 000. On April 12, 2018, the trial court signed an order to that effect.

         Lodhi, thereafter, filed a petition for divorce, [3] and, on April 30, 2018, Haque filed a fourth amended counter-petition for divorce. Prior to trial, the trial court realigned the parties. The trial court held a three-day bench trial, and, on May 29, 2018, the trial court granted the parties a divorce.

         Lodhi now appeals the sanctions order, signed on April 12, 2018, and later confirmed in the divorce decree, and the divorce decree. We address first Lodhi's issues pertaining to the trial court's authority to entertain the divorce suit, and then we address her challenges to the monetary awards against her in the divorce decree and in the sanctions order.

         THE NINETY-DAY RESIDENCY REQUIREMENT

         In her first issue, Lodhi argues that the trial court should have dismissed the case because neither she nor Haque were residents of Bexar County for ninety days before Lodhi filed her original petition for divorce on March 8, 2017, and because both she and Haque continue to reside in Harris County.

         Texas Family Code section 6.301 provides:

A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or ...

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