in the Matter of the Marriage of Charlotte Nadeane Humble and William Dennis Humble ( 2008 )

NO. 07-06-0201-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JANUARY 4, 2008

______________________________

In the Matter of the Marriage of CHARLOTTE NADEANE HUMBLE

and WILLIAM DENNIS HUMBLE

 

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-529,141; HON. J. BLAIR CHERRY, JR. , PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          Charlotte Nadeane Humble appeals from a final decree of divorce ending her marriage to William Dennis Humble. She complains about the trial court’s division of the community estate. It awarded her assets approximating $53,791 while awarding William assets approximating $53,381. Nonetheless, the division was not sufficiently disproportionate in her favor, she posits. We affirm the judgment of the trial court.

          Division of Property  

          The manner in which a trial court divides the marital estate lies within its discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); In re Marriage of Scott, 117 S.W.3d 580, 584 (Tex. App.–Amarillo 2003, no pet.). Moreover, there is a presumption that the trial court exercised its discretion in a lawful manner; so the burden lies with the complainant to establish its exercise was manifestly unfair or unjust. Dankowski v. Dankowski, 922 S.W.2d 298, 304 (Tex. App.–Fort Worth 1996, writ denied); accord Grossnickle v. Grossnickle, 935 S.W.2d 830, 836 (Tex. App.–Texarkana 1996, writ denied) (noting that an appellate court may not interfere with the manner in which the trial court’s discretion was exercised unless the division was manifestly unfair and unjust).

          Next, while a trial court may order an unequal division of property when a reasonable basis exists for doing so, Robles v. Robles, 965 S.W.2d 605, 621 (Tex. App.– Houston [1^st Dist.] 1998, pet. denied), it is not required to do so. Indeed, it is not an abuse of discretion for a trial court to make an equal division when the equities could support an unequal division. Rafferty v. Finstad, 903 S.W.2d 374, 377 (Tex. App.–Houston [1^st Dist.] 1995, writ denied); Humble v. Humble, 805 S.W.2d 558, 562-63 (Tex. App.–Beaumont 1991, writ denied); see also Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987), overruled in part on other grounds by Price v. Price, 732 S.W.2d 316 (Tex. 1987) (holding that it was not an abuse of discretion to deny one spouse a greater share of the estate where the other spouse had committed adultery and had a higher income).

          Here, the trial court divided the marital estate between the litigants in a virtually equal manner, though Charlotte received several hundred dollars worth of property more than William. So, even though she believed that various equities favored her obtaining a greater share, we cannot say that the trial court abused its discretion in rendering the decision it rendered. Rafferty v. Finstad, supra; Humble v. Humble, supra.

            Accordingly, the judgment of the trial court is affirmed, and the motion to dismiss filed by William is denied as moot.

 

                                                                           Per Curiam

        

           

 

            

business" in Texas is sufficient to establish personal jurisdiction. French's brief addresses those issues, but initially focuses on whether VPR waived any objection to personal jurisdiction by filing an answer not subject to a special appearance.

It is fundamental to a court's jurisdiction to hear a dispute that it have both subject matter jurisdiction and personal jurisdiction over the parties to the dispute. Federal Underwriters Exchange v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943). The standards for determining whether a court has personal jurisdiction over a foreign defendant are well established. The Texas long-arm statute authorizes the exercise of jurisdiction over non-residents "doing business" in Texas. Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon 1997). Although it lists particular acts that constitute "doing business," the statute also provides that the non-resident's "other acts" may satisfy the "doing business" requirement. Id. See Schlobohm v. Schopiro, 784 S.W.2d 355, 257 (Tex. 1990). The "doing business" standard of our long-arm statute permits it to reach as far as the federal constitutional requirements of due process will allow. Guardian Royal Exchange Assur. Ltd. v. English China Clays, P.I.C., 815 S.W.2d 223, 226 (Tex. 1981). As a result, we consider only whether it is consistent with federal constitutional requirements of due process for Texas courts to assert in personam jurisdiction over a non-resident defendant. Id.; see also Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 413-14, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1964).

Federal constitutional requirements of due process limit the power of the state to assert personal jurisdiction over non-resident defendants. Helicopteros, 466 U.S. at 413-14. The federal supreme court divides the due process requirements into two parts: 1) whether the non-resident defendant has purposely established "minimum contacts" with the forum state and, if so, 2) whether the exercise of jurisdiction comports with "fair play and substantial justice." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

The federal supreme court also recognizes two categories of personal jurisdiction, namely, specific and general. Guardian Royal, 815 S.W.2d at 228. When specific jurisdiction is asserted, the causes of action must arise out of, or relate to, the non-resident defendant's contact with the forum state in order to satisfy the minimum contacts requirements. Helicopteros, 466 U.S. at 414 n.8. General jurisdiction is applicable when the cause of action does not arise from, or relate to, the non-resident defendant's contact with the forum state in order to satisfy the minimum contacts requirement. Helicopteros, 466 U.S. at 414-16.

In explicating the minimum contacts requirement as it applies to specific jurisdiction, the supreme court observed that due process requires a defendant have "fair warning" that their conduct could make them subject to suit in a jurisdiction. Burger King, 105 U.S. at 472. It instructs that the "fair warning" requirement is satisfied if the defendant has "purposefully directed" his activities at the residents of the forum state. Id. The requirement that a defendant purposefully directed activities at forum residents ensures that a non-resident defendant will not be haled into a jurisdiction based solely upon "random," "fortuitous" or "attenuated" contacts or the "unilateral activity of another party or a third person." Id. at 475; World-wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980).

After determining that the non-resident defendant purposefully established minimum contacts with the forum state, we must then evaluate the contacts in light of other factors in order to determine whether the assertion of personal jurisdiction comports with fair play and substantial justice. A`sahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113-115, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987); Burger King, 471 U.S. at 476. These factors include 1) the burden on the defendant, 2) the interest of the forum state in adjudicating the dispute, 3) the plaintiff's interest in obtaining convenient and effective relief, 4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and 5) the shared interest of the several states in furthering fundamental substantive social policies. Burger King, 471 U.S. at 477. The federal supreme court has even commented that "[t]hese considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required." Id.

A defendant challenging a court's exercise of personal jurisdiction through a special appearance carries the burden of negating all bases of personal jurisdiction. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1986). This court has held that review of a trial court's resolution of questions of fact in a special appearance is one of factual sufficiency. Ball v. Bingham, 990 S.W.2d 343, 347 (Tex.App.--Amarillo 1999, no pet.). See also Shapolsky v. Brewton, 56 S.W.3d 120 (Tex.App.--Houston [14^th Dist.] 2001, pet. denied). But see Whalen v. Laredo Nat. Bankshares, Inc., 37 S.W.3d 89, 91 (Tex.App.--San Antonio 2000, pet. denied).

Under the factual sufficiency standard, we may only reverse the decision of the trial court if its ruling is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). On VPR's request, the trial court filed findings of fact and conclusions of law. We have held that findings of fact are of no effect when the trial court does not hear evidence. Zimmerman v. Robinson, 862 S.W.2d 162 (Tex.App.--Amarillo 1993, no writ) (citing Timmons v. Luce, 840 S.W.2d 582, 586 (Tex.App.--Tyler 1992, no writ)).

A party may waive any objection it might otherwise have to a court's exercise of personal jurisdiction over it. Burger King, 105 U.S. at 472, n.14; Shapolsky, 56 S.W.3d at 140. A party waives the right to contest personal jurisdiction over it when it makes a general appearance before the court. Any answer or other appearance before judgment is a general appearance unless it is made a "special appearance" for the purpose of challenging the trial court's jurisdiction over the party. Tex. R. Civ. P. 120a., Shapolsky, 56 S.W.3d at 140. A special appearance may be made as to a severable claim in the plaintiff's suit. Tex. R. Civ. P. 120a.

Here, VPR filed an answer, initially in federal district court, and another answer in state district court, neither of which were subject to a special appearance. In its appellate brief, VPR does not explain why these answers did not constitute general appearances so as to waive any challenge to the trial court's personal jurisdiction over it. The only discussion touching on this question is VPR's procedural recitation that French's counterclaims "were not properly served [on VPR] originally. But, after formal service, VPR filed its special appearance and motion to dismiss French's claims." This presumes that a special appearance was only required before it answered French's cross-claims.

However, the rule in Texas is that once a party has filed an answer or otherwise appeared, he is before the court for all purposes and formal service of cross-actions is not required. See Carter v. G. & L. Tool Co. of Utah, Inc., 428 S.W.2d 677, 681 (Tex.Civ. App.--San Antonio 1968, no writ) (citing Sullivan v. Doyle, 108 Tex. 366, 194 S.W. 136 (1917)). Because VPR was already before the court by virtue of its answer to CWFS's petition, it waived any objection to personal jurisdiction with regard to French's cross-claims. Carter, supra.

Our holding that VPR waived its objection to the trial court's personal jurisdiction obviates the need to address its issues discussing minimum contacts and whether the exercise of jurisdiction over it comports with traditional notions of fair play and substantial justice.

Finding no reversible error, the judgment of the trial court is affirmed.

John T. Boyd

Chief Justice

Publish.

Johnson, J., concurs in the result.

1. Because the interests of VPR and Gegios are aligned in the suit, to simplify our discussion, we will use the name VPR to include Gegios.