in the Interest of E.H., A.H., and E.H., Children , 450 S.W.3d 166 ( 2014 )

Affirmed and Majority Opinion and Concurring Opinions filed October 23,
2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00622-CV
IN THE INTEREST OF E.H., A.H., AND E.H., CHILDREN
On Appeal from the 306th District Court
Galveston County, Texas
Trial Court Cause No. 11-FD-1631
MAJORITY OPINION
The Office of the Attorney General appeals the trial court’s refusal to
register an Israeli child support order awarded to Sara Hamo after Shlomo Hamo,
Sara’s former husband and the father of their three children, contested the
registration, arguing that the Israeli court lacked personal jurisdiction over him
because he was never served and that he was denied due process. The Attorney
General contends that the record establishes that Shlomo was served with notice of
the Israeli proceeding but failed to appear in that tribunal, and therefore full faith
and credit principles incorporated into the Uniform Interstate Foreign Support Act
(UIFSA) and the equitable doctrine of comity require registration of the judgment.
The Attorney General also argues that Shlomo’s bare assertion that he was not
served is an insufficient basis on which to deny registration. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sara and Shlomo Hamo married in Israel in 1984. The couple had three
children between July 1985 and July 1991, all of whom were born in Israel. From
1986 through 1988, however, Sarah and Shlomo lived in Tucson, Arizona, after
which they returned to Israel. In February 1992, Shlomo left Sara and the children
in Israel and moved to the United States. Shlomo originally lived and worked in
Myrtle Beach, South Carolina, but in September 1992, Shlomo moved to
Galveston, Texas.
In June 1993, Sara obtained a judgment for child support against Shlomo in
Israel, after allegedly serving Shlomo with the suit by registered mail as provided
under Israeli law. Several years later, Shlomo was granted a rabbinical divorce in
Galveston through proceedings initiated by Sara. One of Shlomo’s sons, Amos,
eventually came to live with Shlomo in Galveston, and in 2002, Shlomo was
awarded conservatorship of Amos in the 306th District Court of Galveston County.
Sara did not receive any child support payments from Shlomo. The National
Insurance Institute of Israel paid a portion of the monthly support ordered through
a program in which a spouse may obtain a portion of unpaid child support awards
from the Israeli government. Under Israeli law, the spouse is permitted to file suit
against the non-paying spouse for the difference. Sara was granted permission by
an Israeli court to seek arrearages from Shlomo equivalent to $144,763.82 as of
August 30, 2010.
In June 2011, the Office of the Attorney General filed a “Notice of
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Registration of Foreign Support Order (UIFSA)” and a “Motion to Confirm
Support Arrearage (UFISA)” in the 306th District Court of Galveston County to
register the 1993 Israeli court’s order and confirm the child support arrearages.
Shlomo contested the registration arguing, among other things, that he was never
served with process for any child support action by Sara in Israel and that
enforcement of the order would violate his right to due process. The Attorney
General later filed an amended notice of registration of the foreign support order,
as well as an amended motion to confirm the support arrearage as of September 29,
2012, now seeking the equivalent of $168,129.00. In December 2012, an associate
judge initially heard the case and denied registration of the judgment.
The Attorney General sought a de novo hearing before the district court. At
the hearing, Shlomo testified that the first time he had heard of the judgment
against him for child support was in 2011, when he received the notice of
registration from the Attorney General’s office. Shlomo denied ever being served
with documents from the Israeli court or signing a delivery confirmation card
accepting service. Shlomo also contended that the Israeli judgment should not be
registered because the record did not show compliance with Israeli rules of civil
procedure.
On April 17, 2013, the district court signed an order denying registration of
the foreign judgment, finding that Shlomo was denied due process in the
underlying suit in Israel, he was never served with process in the underlying suit,
and he had no notice of the suit. The district court also made extensive findings of
fact and conclusions of law.
ISSUES AND ANALYSIS
In its first issue, the Attorney General argues that under the full faith and
credit principles Texas adopted for foreign judgments in the UIFSA, the trial court
3
was required to register the foreign child-support order against Shlomo because the
record establishes that Shlomo was served with notice of the Israeli proceeding but
failed to raise any challenge in that tribunal. In its second issue, the Attorney
General argues that the trial court should have deferred to the Israeli tribunal’s
personal-jurisdiction determination under the equitable doctrine of comity. In its
third issue, the Attorney General argues that the trial court should have registered
the Israeli support order when Shlomo offered little more than his bald assertion
that he was not served with process.
THE UIFSA
The UIFSA is codified in chapter 159 of the Texas Family Code. See Tex.
Fam. Code §§ 159.001–.901. Under the UIFSA, a party may register a child
support or income-withholding order issued by a tribunal of another state for
enforcement in Texas. Id. § 159.601. A “state” includes “a foreign country or
political subdivision that has been declared to be a foreign reciprocating country or
political subdivision under federal law.” Id. § 159.102(21)(B)(i). It is undisputed
that Israel qualifies as a state for purposes of enforcement of support orders under
the UIFSA. See Memorandum of Understanding for Cooperation in
Child Support Enforcement, U.S. –Isr. (Feb. 5, 2009), available at
http://www.acf.hhs.gov/programs/css/resource/israel-frc.
Once registered, a support order is enforceable in the same manner and is
subject to the same procedures as an order issued by a Texas court. Tex. Fam.
Code § 159.603. A party contesting the registration is required to request a hearing
and has the burden of proving one or more of eight enumerated defenses. Id. §§
159.606, 159.607. The defenses that may be asserted include the defense that “the
issuing tribunal lacked personal jurisdiction over the contesting party.” Id. §
159.607(a)(1). If the contesting party does not establish a defense to the validity or
4
enforcement of the order, the registering court must confirm the order. Id. §
159.607(c).
Analysis of the Attorney General’s Issues
I. Full Faith and Credit and Comity
In its first issue, the Attorney General argues that under the UIFSA, child
support orders of reciprocating countries are entitled to full faith and credit.
Therefore, according to the Attorney General, the trial court should have registered
the Israeli child support order because the record established that Shlomo was
served with notice of the Israeli proceeding but failed to make any challenge in that
tribunal. In its second issue, the Attorney General argues that, even if principles of
full faith and credit do not apply, the trial court still should have registered the
Israeli order under the comity doctrine.
A. Full faith and credit
The United States Constitution requires each state to give full faith and
credit to every other state’s public acts, records, and judicial proceedings. U.S.
Const. art. IV, § 1; Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791,
794 (Tex. 1992). Generally, however, states are not required to give full faith and
credit to foreign country judgments. See Duruji v. Duruji, Nos. 14-05-01185-CV,
14-05-01186-CV, 2007 WL 582282, at *4 (Tex. App.—Houston [14th Dist.] Feb.
27, 2007, no pet.) (mem. op.); see also Schacht v. Schacht, 435 S.W.2d 197, 202
(Tex. Civ. App.—Dallas 1968, no writ) (stating that full faith and credit did not
apply to require that Texas court recognize Mexican divorce decree). Once
grounds for nonrecognition have been timely asserted, the foreign country
judgment will not be recognized or enforced until those objections have been
expressly overruled by the trial court. Duruji, 2007 WL 582282, at *4.
5
The UIFSA does not expressly require that full faith and credit be extended
to qualifying foreign country judgments. Compare Tex. Fam. Code § 159.603(b)
(“A registered order issued in another state is enforceable in the same manner and
is subject to the same procedures as an order issued by a tribunal of this state.”),
with Tex. Civ. Prac. & Rem. Code § 36.004 (the “Uniform Foreign Country
Money-Judgment Recognition Act”) (providing that a foreign country judgment
which satisfies the statutory requirements “is enforceable in the same manner as a
judgment of a sister state that is entitled to full faith and credit”); Tex. Fam. Code §
162.023 (“Except as otherwise provided by law, an adoption order rendered to a
resident of this state that is made by a foreign country shall be accorded full faith
and credit by the courts of this state and enforced as if the order were rendered by a
court in this state unless the adoption law or process of the foreign country violates
the fundamental principles of human rights or the laws or public policy of this
state.”). The Attorney General concedes that it is unaware of any cases which have
extended full faith and credit to international support orders under UIFSA.
Nevertheless, the Attorney General argues that the Legislature intended to
incorporate “full faith and credit principles” into the UIFSA because the Act
defines “state” to include qualifying foreign countries. See Tex. Fam.
Code § 159.102(21)(B)(i). According to the Attorney General, application of full
faith and credit principles should have defeated Shlomo’s challenge to the
jurisdictional recitations in the Israeli record.
Specifically, the Attorney General contends that a state must give another
state’s judgment full faith and credit—even as to questions of jurisdiction—when
the parties have “fully and fairly litigated and finally decided” the issue in the other
state. See, e.g., Durfee v. Duke, 375 U.S. 106, 111 (1963). An issue is considered
fully and fairly litigated when the party contesting jurisdiction has voluntarily
6
appeared, presented his or her case, and been fully heard. Id. (citing Baldwin v.
Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 525–26 (1931)). The Attorney
General argues that the record conclusively shows that Shlomo was served with
Sara’s claim for support consistent with Israeli rules of civil procedure, but he
failed to contest jurisdiction and therefore cannot collaterally attack the Israeli
tribunal’s jurisdiction. See Soc’y of Lloyd’s v. Turner, 303 F.3d 325, 331 n.20 (5th
Cir. 2002). The Attorney General asserts that, if Shlomo was unhappy with the
Israeli court’s decision, the appropriate forum to challenge it was in that tribunal.
See Playnation Play Sys., Inc. v. Guajardo, No. 13-06-302-CV, 2007 WL
1439740, at *3 (Tex. App.—Corpus Christi May 17, 2007, no pet.) (mem. op.) (“If
a defendant is unsatisfied with the foreign court’s ruling as to jurisdiction, the
proper redress is to appeal within the foreign court’s judicial system.”) (citing
Baldwin, 283 U.S. at 525).
In response, Shlomo points out that the UIFSA expressly provides that a
foreign order is not valid and its registration will be vacated if the contesting party
proves that the foreign tribunal lacked personal jurisdiction over the contesting
party. See Tex. Fam. Code § 159.607(a)(1). Shlomo further argues that the order of
another state is entitled to full faith and credit only when the court had jurisdiction
to render its judgment and, even if the record of the rendering state’s court purports
to show jurisdiction, that court’s jurisdiction may be collaterally impeached. See
Williams v. North Carolina, 325 U.S. 226, 229–30 (1945); see also Cook v. Cook,
342 U.S. 126, 128 (1951) (“If it appears on its face to be a record of a court of
general jurisdiction, such jurisdiction over the cause and the parties is to be
presumed unless disproved by extrinsic evidence, or by the record itself.”) (citing
Adam v. Saenger, 303 U.S. 59, 62 (1938)). Likewise, our courts have held that
when asked to give full faith and credit to a foreign judgment, a Texas court may
7
consider evidence that goes to the sister state court’s personal or subject matter
jurisdiction over the parties. See, e.g., Gunther v. Gunther, 478 S.W.2d 821, 827
(Tex. Civ. App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.); Spitzmiller v.
Spitzmiller, 429 S.W.2d 557, 560 (Tex. Civ. App.—Houston [1st Dist.] 1968, writ
ref’d n.r.e.).
We disagree with the Attorney General that the Israeli record conclusively
shows that Shlomo was served with Sara’s support claim in the Israeli court in
1992 and therefore Shlomo is precluded from challenging the Israeli court’s
jurisdiction. As explained in greater detail below, the Israeli record shows that Sara
and her advocate presented some evidence of service at a hearing on her support
claim, but Shlomo denied that he was served and presented evidence that the
record of the Israeli proceeding does not contain the proof of service through mail
that Israeli law requires. And, unlike the Playnation case cited by the Attorney
General, Shlomo made no appearance and filed no jurisdictional or other
challenges in the Israeli court. See Playnation, 2007 WL 1439740, at *4 (holding
appellant had opportunity to fully and fairly litigate his claim when Georgia court’s
judgment included jurisdictional facts reflecting that the appellant filed a limited
appearance and motion to dismiss for lack of jurisdiction and venue that was
denied).
Accordingly, even if full faith and credit applies to a qualifying foreign
country judgment under the UIFSA—an issue we need not decide—the trial court
did not err by considering Shlomo’s evidence supporting his challenge to the
registration of the Israeli judgment. See Tex. Fam. Code § 159.607. We overrule
the Attorney General’s first issue.
8
B. Comity
In its second issue, the Attorney General argues that, even if full faith and
credit principles do not apply, the trial court still should have registered the Israeli
order under the comity doctrine. See Tex. Fam. Code § 159.104(a) (“Remedies
provided in this chapter are cumulative and do not affect the availability of
remedies under other law, including the recognition of a support order of a foreign
country or political subdivision on the basis of comity.”).
Comity is “the recognition which one nation allows within its territory to the
legislative, executive or judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its own citizens or of other
persons who are under the protections of its laws.” Gannon v. Payne, 706 S.W.2d
304, 306 (Tex. 1986) (quoting Hilton v. Guyot, 159 U.S. 113, 163–64 (1895)). In
Texas, comity has been described as “‘a principle of mutual convenience whereby
one state or jurisdiction will give effect to the laws and judicial decisions of
another.’” Id. (citing New Process Steel Corp. v. Steel Corp. of Tex., 638 S.W.2d
522, 524 (Tex. App.—Houston [1st Dist.] 1982, no writ)).
The Attorney General argues that the trial court should have respected the
Israeli court’s determination of its jurisdiction, again asserting that the record
conclusively belies Shlomo’s claim that he did not receive notice of the
proceedings below. Additionally, the Attorney General contends that even if any of
the individual requirements for service under Israeli law were not met to the letter,
Shlomo received notice “of such nature as reasonably to convey the required
information” that “afford[ed] a reasonable time for those interested to make their
appearances,” which is enough to satisfy due process requirements in a collateral
attack. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)
(“An elementary and fundamental requirement of due process in any proceeding
9
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.”). Thus, the Attorney General
maintains that the notice Shlomo received is consistent with American notions of
due process, citing Turner Entm’t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1520
(11th Cir. 1994) (considering whether foreign legal system “follows procedures
that ensure that litigants will receive treatment that satisfies American notions of
due process”).
In response, Shlomo disagrees that the doctrine of comity applies here, but
even if it does, he argues that under either the UIFSA or comity, the Attorney
General was required to show that Shlomo was properly served and had been
afforded his right to due process—something Shlomo denies occurred. Further,
Shlomo argues that in New Process Steel Corp., the court explained that a party “is
not entitled to the application of comity as a matter of right” and held that the trial
court’s failure to apply the doctrine to enjoin proceedings pending in another
jurisdiction was “neither error nor an abuse of discretion.” 638 S.W.2d at 524.
Again, for the reasons explained below, we disagree with the Attorney
General that the record conclusively shows that Shlomo was served as required
under Israeli court rules or that he received notice sufficient to comport with the
requirements of due process. “[D]ue process requires that no other jurisdiction
shall give effect, even as a matter of comity, to a judgment elsewhere acquired
without due process.” Griffin v. Griffin, 327 U.S. 220, 228 (1946) (emphasis
added); see Mullane, 339 U.S. at 314; see also Litvaitis v. Litvaitis, 295 A.2d 519,
522 (Conn. 1972) (“A decree of divorce will not be recognized by comity where it
was obtained by a procedure which denies due process of law in the real sense of
the term . . . or where the foreign court lacked jurisdiction.”). On the facts of this
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case, the trial court was not required to recognize Sara’s support order on the basis
of comity. We overrule the Attorney General’s second issue.
II. The Evidence Supporting the Trial Court’s Judgment
In its third issue, the Attorney General contends that, even if Shlomo were
permitted to re-litigate de novo the Israeli court’s personal jurisdiction over him,
his challenge still should fail “under any standard of review.” According to the
Attorney General, Shlomo’s “bald assertion that he was not served,” without more,
is outweighed by the Attorney General’s evidence and the presumption of
regularity in the judgment. The Attorney General further argues that, even
assuming the evidence were in equipoise, Texas’s long-standing policy of
protecting the best interests of its children, particularly with regard to the
enforcement of child support obligations, should “serve as a thumb on the scale
favoring enforcement.” See Williams v. Patton, 821 S.W.2d 141, 145 (Tex. 1991)
(stating that “[i]t is a strong, long-standing policy of this state to protect the
interests of its children, and this is the policy underlying the enforcement of child
support obligations”); see also id. at 150 (“The change in focus to the best interest
of the child came about only as society came to realize that the welfare of the child
should be the paramount consideration in the formulation and enforcement of child
support obligations.”) (Cornyn, J., concurring).
As an initial matter, although we recognize the important policy of the best
interest of the child, we disagree that this policy should be a “thumb on the scale”
to authorize enforcement of a child support order against a party over whom the
issuing court lacked personal jurisdiction or in violation of that party’s due process
rights. Notably, Texas’s version of the UIFSA specifically allows a child support
obligor to challenge the registration or enforcement of another state’s child-support
or income-withholding order. See Tex. Fam. Code § 159.607(a)(1). Nothing in the
11
statutory scheme suggests that a court may disregard evidence establishing a
defense permitted under this section in favor of a best-interests analysis.
We turn next to the Attorney General’s evidentiary complaint that Shlomo’s
evidence presented in support of his registration contest is insufficient to support
the judgment because it consists of no more than Shlomo’s bald assertion that he
was not served. The Attorney General does not brief the issue as a challenge to the
legal or factual sufficiency of the evidence and does not provide an applicable
standard of review.
Generally, an appellate court reviews a trial court’s order for an abuse of
discretion. See, e.g., In re T.B., No. 07-10-00377-CV, 2012 WL 751950, at *1
(Tex. App.—Amarillo Mar. 8, 2012, pet. denied) (mem. op.); Office of the Att’y
Gen. v. Buhrle, 210 S.W.3d 714, 717 (Tex. App.—Corpus Christi 2006, pet.
denied). A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable it amounts to a clear and prejudicial error of law or it clearly fails to
correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992).
Under a proper abuse-of-discretion review, we defer to the trial court’s
factual findings if supported by the evidence, but we do not defer to the trial court
on questions of law. Perry Homes v. Cull, 258 S.W.3d 580, 598 & n.102 (Tex.
2008). The enforcement of a foreign country judgment is a question of law we
review de novo. See Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied); Courage Co., L.L.C. v. Chemshare Corp., 93 S.W.3d
323, 331 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We therefore review the
record to determine whether the trial court misapplied the law to the established
facts in deciding that Shlomo established his defense to registration of the Israeli
judgment under the UIFSA. See In re T.B., 2012 WL 751950, at *1.
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Although the Attorney General contends that its evidence is sufficient
“under any standard of review,” the Attorney General’s briefing does not address
whether an elevated standard of proof applies. At oral argument, however, the
Attorney General asserted for the first time that the standard of proof is “clear and
convincing” evidence. Shlomo disagreed, arguing that the proper standard is
preponderance of the evidence and pointing out that the issue had not been briefed.
We need not decide whether an elevated standard of review applies, however,
because under any standard, the evidence is more than sufficient to support the trial
court’s judgment.
A. The Attorney General’s evidence
In a single paragraph, the Attorney General contends that Shlomo’s evidence
is overcome by the presumption of regularity in judgments and the following
evidence: (1) an Israeli order authorizing service by mail on Shlomo; (2) a
transcription of the court proceedings and verdict; and (3) a certificate of service.
Relevant here, Rule 495 of the Israeli rules of civil procedure authorizes service by
mail as follows:
(a) Service of court documents by mail shall be by the registered mail
with proof of delivery.
(b) The court clerk shall send the documents stamped with the court
seal and shall record in the Action File, or in the certificate that shall
be attached to the File, description of the documents, method of
service and service date.
(c) Proof of delivery shall be attached to the Action File.
Rule 495, Civil Law Procedure: Civil Law Procedure Regulations 5744-1984, p.
157 (Aryeh Greenfield – A.G. Publications ed. & trans., 11th ed. 2012).1 As
1
The Attorney General provided the source for the rule and both parties agree that Rule
495 applies in this case.
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explained by an Israeli attorney who testified concerning Israeli law on Shlomo’s
behalf, once service by mail is accomplished as provided in the rule, the court has
personal jurisdiction over the defendant.
1. The Israeli order authorizing service. The evidence reflects an Israeli
tribunal’s order of October 1992, authorizing service by mail to Shlomo Hamo at
the address of “510 HWY 17 N #AA, Surfside Beach, S.C. 29577 (USA).” The
summons for Sara’s support claim was dated November 16, 1992, and purports to
enclose the “Statement of Claim” and other required documents.
2. The Israeli court proceedings and verdict. At the hearing in June 1993,
Sara and her advocate appeared before the Tel Aviv District Court, where the
following exchange took place:
Adv. Zafar: Service of the summons was duly made by law following
a decision to serve the summons outside of Israel. I submit the
confirmation. I request a court ruling according to the statement of
claim.
The wife [Sara]: In February my husband told me by telephone that he
has received the claim documents. I identify my husband’s signature
on the confirmation of delivery.
After the claim was submitted, the court announced its verdict, prefaced by the
following: “In the absence of a statement of defense, and since [Shlomo] did not
appear for the hearing, despite receiving service of the summons outside of the
border . . . , I order [Shlomo] to pay the plaintiffs . . . .” However, no confirmation
of delivery is attached to the Israeli court’s file or made an exhibit to the transcript
of the hearing.
3. The certificate of service. The record also includes a copy of two sides
of an untranslated certificate of service directed to a “Shlomo Hemo” (not Hamo),
at “510 Hwy 17 N. #AA, Surfside Beach, S.C. 29577, U.S.A.,” bearing an illegible
14
signature and no clearly ascertainable service date. The parties refer to the
document as “exhibit B2.” At the bottom of exhibit B2 is a statement signed by
Yael Simchi, Advocate, dated September 11, 2012, stating, “I hereby certify that
the copy above is a true copy of both sides of a double-sided certification of
service, the original of which was presented to me.” Simchi is identified as the
“Israeli Supervisor of the Implementation of the [Memorandum of Understanding]
signed by the Government of the United States and the Government of the State of
Israel for Cooperation in Child Support Enforcement.”2 Simchi makes no
representations about the contents of the alleged certification of service or its
origin. Exhibit B2 is attached to an affidavit executed by Sara, in which she states
that the exhibit is “the original certification of service” signed by Shlomo. Sara’s
affidavit and exhibit B2 were attached to amended pleadings filed by the Attorney
General shortly after the Israeli attorney who testified on Shlomo’s behalf was
deposed.
B. Shlomo’s evidence
Conversely, Shlomo argues that he presented sufficient evidence to
demonstrate that he was never properly served. Shlomo argues that that no
certificate of service was attached to the Israeli court’s file as Rule 495 requires,
the alleged certificate of service is suspect, and his testimony supports the trial
court’s determination that he was not served.
Shlomo testified that after leaving Israel he lived in Myrtle Beach, South
Carolina, for a few months in 1992 until the beginning of September 1992, when
he moved to Galveston. Until he received the Attorney General’s notice of the
2
In his brief, Shlomo asserts that Simchi is “the attorney trying to obtain enforcement of
the Israeli judgment in Texas” and notes that her statement is made over 19 years after the Israeli
judgment was entered.
15
registration of the Israeli judgment against him, Shlomo was unaware of the
proceedings in Israel. Shlomo also testified that he was never served with any
papers from Israel, and denied ever talking to Sara and telling her that he signed
any papers for the Israeli proceeding prior to the date of the judgment. Further,
although Sara came to the United States to visit Amos at one time in 1999 or 2000,
Shlomo testified that she never told him that she wanted anything from him.
Shlomo further testified that he had never lived or worked at 510 Highway
17 North in Surfside Beach, the address on the alleged certificate of delivery.
When shown Google Maps screenshots of that address, Shlomo stated that there
was a bowling alley and a fast food establishment at that location, and he often ate
lunch there when he was working as a delivery driver in the area. Shlomo testified
he was never served with any papers at the Surfside Beach address. Further,
Shlomo specifically testified that, from November 16, 1992 through June 21,
1993—the time frame between when the Israeli summons was prepared and the
date of the Israeli court’s judgment—he lived in Galveston. Shlomo also denied
ever seeing the alleged certificate of delivery before it was filed in this case and
denied that the signature on the card was his.3
As noted above, Rule 495 requires proof of delivery, and the proof of
delivery must be attached to the court’s file. The record contains no evidence,
however, that the alleged certificate was ever made part of the Israeli court’s file.
Instead, the Attorney General points to the transcript of the Israeli hearing in which
the advocate “submit[ted] the confirmation” and Sara testified that Shlomo told her
he received the claim documents and it was his signature on the confirmation. The
Israeli judge relied on these statements in holding that Shlomo was served but
3
Moreover, although Shlomo acknowledged that a relative of his had held a liquor
license at one of the businesses at the Surfside Beach location at one time, that relative’s last
name was Hemo, not Hamo.
16
failed to appear. But no certificate of service is made an exhibit to the hearing, so
its contents cannot be determined. Further, Shlomo submitted a copy of the
contents of the Israeli court’s file, obtained by an Israeli family law attorney from
the Israeli court clerk, and the file contains no certificate of service.
Additionally, the purported certificate of service is untranslated, addressed to
a “Shlomo Hemo,” and contains an illegible signature. The only verification of the
document is a third party’s statement that the document is a “true and correct copy
of a double-sided certification of service” and Sara’s affidavit, which Shlomo’s
testimony contradicts. Shlomo also testified that the certificate was directed to an
address where he never lived or worked, was sent at a time when he was not even
present in the state, and was not signed by him.4
C. The trial court’s findings of fact
Additionally, the trial court made fifty-three findings of fact that are
supported by the record and are not specifically challenged by the Attorney
General. Unchallenged findings of fact are binding on an appellate court unless the
contrary is established as a matter of law or if no evidence supports the findings.
McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); In re M.L.W., 358
S.W.3d 772, 774 (Tex. App.—Texarkana 2012, no pet.).
Some of the trial court’s findings are based on its resolution of conflicting
testimony in Shlomo’s favor, but others are based on the Israeli record. Among
4
The Attorney General argues that Shlomo’s complaint that the certificate of delivery is
not in the court’s file, as Rule 495 requires, misses the mark because, in a collateral attack on a
foreign judgment, technical defects in service are permissible as long as they do not “rise to the
level of a due process violation that would render the default judgment void.” See PNS Stores,
Inc. v. Rivera, 379 S.W.3d 267, 273–74 (Tex. 2012). But PNS is distinguishable because in that
case the only complaints were technical defects in service—such as the citation’s failure to list
the time of service, the service agent, and whether the citation had been on file for ten days
preceding the default judgment. See id. at 273. In this case, Shlomo asserts that he was never
served and that his due process rights were violated.
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other things, the trial court found that Shlomo was never served with any process
or papers for the underlying proceeding in Israel, the Attorney General filed no
proof of service of process in its initial filing, the Israeli court’s file contains no
proof of service, delivery confirmation, or proof of delivery; the file contains no
signature of Shlomo Hamo; and a signature is required of a person being served by
mail under the law of Israel.
As to exhibit B2, which the trial court refers to as the “Postal Card,” the trial
court found, among other things, that the Postal Card purports to give notice to a
Mr. Hemo, not Shlomo Hamo; does not include a confirming mail receipt; does not
bear any postal stamp or postal seal; has no court stamps or seals indicating that it
was filed in the Israeli court’s file; has no date of delivery or date of initial mailing;
is not contained in the Israeli court’s file; and the Attorney General offered no
certification of the Israeli court clerk that the Postal Card is in fact contained in the
Israeli court’s file.
Further, the trial court found that Shlomo has lived in Galveston since after
Labor Day in 1992, and that he lived in Myrtle Beach, South Carolina, from the
beginning of 1992 until the beginning of September 1992; the registration alleged
that Shlomo was served at 510 Highway 17 North #AA, Surfside Beach, South
Carolina; Shlomo was familiar with that address, which is a shopping center;
Shlomo did not reside or work at that address and was not served with process
there; Shlomo did not submit himself to the jurisdiction of Israel by consent; he did
not enter a general appearance in Israel; he had no knowledge of any suit in Israel
while it was pending; and he was not officially notified about the judgment after its
entry in Israel.
On this record, the trial court could have resolved the conflicts in the
evidence to conclude that Shlomo had no notice of Sara’s support claim in the
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Israeli court and was never served with process consistent with Israeli law. When
presented with conflicting evidence, the trial court may believe one witness and
disbelieve others, and it may resolve inconsistencies in the testimony of any
witness. McGalliard, 722 S.W.2d at 697. Moreover, once Shlomo presented
probative evidence that he was not served, any presumption in favor of the
judgment no longer applied. See Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex.
2008) (“Because Skadden’s affidavit and testimony affirmatively revealed a
jurisdictional defect, the court of appeals should not have presumed otherwise.”).
Thus, recognizing that it is Shlomo’s burden to establish one or more of the
statutory defenses to registration, we conclude that the evidence amply supports
the trial court’s judgment. Accordingly, we hold that the trial court did not err in
rendering judgment that Shlomo was never served with process or given notice of
the underlying proceeding in Israel and was denied due process in that proceeding.
See Tex. Fam. Code § 159.607; In re M.L.W., 358 S.W.3d at 776 (affirming trial
court’s order to vacate registration of wife’s default divorce obtained in Michigan
when husband demonstrated that he was not properly served under Michigan law).
We overrule the Attorney General’s third issue.
CONCLUSION
We overrule the Attorney General’s issues and affirm the trial court’s
judgment.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise (Frost, C.J.,
concurring).
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