Church v. Quick  (Tex.App.- Houston [14th Dist.] Jul. 14, 2009)(Guzman)(restricted appeal, a
nonresident spouse,
no personal jurisdiction over nonresident spouse, only jurisdiction to grant the divorce,
other
orders found void for want of jurisdiction)  
Because the trial court lacked personal jurisdiction over the nonresident spouse, we
modify the judgment to eliminate all relief other than the divorce, and we affirm the
judgment as modified.)
AFFIRMED AS MODIFIED: Opinion by Justice Guzman    
Before Justices Anderson, Guzman and Boyce)
14-08-00131-CV Joyce Gail Church v. Kenneth Richard Quick  
Appeal from 246th District Court of Harris County
Trial Court
Judge: Jim York  
Trial Court Case #: 2007-21207  

M E M O R A N D U M    O P I N I O N

In this restricted appeal, a nonresident spouse contends the trial court lacked jurisdiction to grant the
resident spouse's request for divorce and make rulings concerning attorneys' fees, tax matters, and
spousal maintenance.  Because the trial court lacked personal jurisdiction over the nonresident spouse, we
modify the judgment to eliminate all relief other than the divorce, and we affirm the judgment as modified.

I.  Factual and Procedural Background

Appellant Joyce Gail Church and appellee Kenneth Richard Quick were married in  Ohio and resided there
when they separated.  Quick then moved to Texas and filed for divorce in Harris County, while Church filed
for divorce in Ohio.

Church filed a special appearance in the Texas divorce suit and moved to dismiss for lack of jurisdiction;
Quick similarly moved to stay or dismiss the Ohio divorce proceedings. On July 31, 2007, the Harris County
trial court found that it lacked personal jurisdiction over Church and granted her special appearance.  The
trial court further found that it had jurisdiction to grant the divorce, and denied Church's motion to dismiss.

Quick then moved for a default judgment of divorce, which the trial court granted.  Contrary to its earlier
ruling, the trial court included in the decree a finding that it had personal jurisdiction over all parties.  
Although it did not divide the parties' existing property, the trial court stated that payments made by one
party to the other party in accordance with the allocation provisions for payment of federal income taxes
would not be deemed income to the party receiving such payments but were instead part of the property
division and necessary for a just and right division of the parties' estate.  The trial court ordered Church
and Quick to furnish tax information to one another and ordered each to indemnify the other “from any tax
liability associated with the reporting party's individual tax return" unless the parties otherwise agreed.  
Moreover, the trial court ruled that Church was ineligible for spousal maintenance under chapter eight of
the Texas Family Code, denied her “any form of court-ordered spousal maintenance," and ordered each
party to pay his or her own attorneys' fees, costs, and expenses.

After the deadline to file a motion for a new trial expired, Church filed several post-judgment motions
subject to her personal appearance.  Her motions were denied, and she timely filed a notice of restricted
appeal on February 14, 2008.

II.  Issues Presented

In three issues, Church contends that (a) the trial court abused its discretion by exercising partial
jurisdiction to grant Quick's petition for divorce; (b) the trial court exceeded its jurisdiction by addressing
spousal maintenance, attorneys' fees, and federal income tax obligations in the judgment; and (c) legally
insufficient evidence supports the parts of the judgment addressing spousal maintenance, attorneys' fees,
and federal income tax obligations.

III.  Analysis

A.        Standard of Review

To prevail on a restricted appeal, an appellant must establish that (1) she filed a notice of the restricted
appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3)
she did not participate in the hearing that resulted in the judgment complained of and did not timely file any
postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on
the face of the record.  See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).  Here, some
of the errors alleged are jurisdictional; thus, we consider these issues first.

The determination as to whether a trial court has jurisdiction of a case is a question of law that is reviewed
de novo.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Patton v. Jones, 212 S.W.3d
541, 545 (Tex. App.- Austin 2006, pet. denied).  A Texas court may exercise personal jurisdiction over a
non-resident respondent in a divorce suit "if there is any basis consistent with the constitutions of this state
and the United States for the exercise of the personal jurisdiction."  Tex. Fam. Code Ann. § 6.305(a)(2)
(Vernon 2006).  Thus, a judgment is void for lack of personal jurisdiction if it is rendered contrary to a
constitutional or valid statutory prohibition.  Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990)(orig.
proceeding) (per curiam); see also
Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (per curiam) (“The
presumption supporting judgments does not apply when the record affirmatively reveals a jurisdictional
defect . . . ."), cert. denied, 129 S. Ct. 402, 172 L. Ed. 2d 286 (2008).  By filing a special appearance, a non-
resident assumes the burden to negate all bases of personal jurisdiction alleged.  Am. Type Culture  
Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002);  Kawasaki Steel Corp. v. Middleton, 699 S.W.
2d 199, 203 (Tex. 1985) (per curiam).

B.        Scope of Jurisdiction

In her second issue, Church contends that the trial court exceeded its jurisdiction by addressing spousal
maintenance, attorneys' fees, and federal income tax obligations in the judgment.  Although the issue as
stated ignores the fact that the trial court's final order includes a finding of personal jurisdiction, Church
nevertheless argues that there is no basis for a finding of personal jurisdiction over her, and in the absence
of in personam jurisdiction, a court may not enter an order binding on both parties regarding such matters
as spousal maintenance or other decrees involving personal obligations.  See Fox v. Fox, 559 S.W.2d 407,
410 (Tex. Civ. App.-Austin  1977, no writ).

Here, Quick's petition contained no jurisdictional allegations, and Church produced uncontroverted
evidence that she is a resident of Ohio, was married to Quick in Ohio, owns no property in Texas, has no
contacts with Texas, and has conducted no business in Texas.  Thus, the face of the record establishes the
trial court's lack of personal jurisdiction over Church.  The trial court nevertheless expressly stated in its
final judgment that its ruling requiring each party to pay his or her own attorneys' fees, expenses, and costs
was made “[t]o effect an equitable division of the estate of the parties."  In addition, the trial court ordered
each party to (a) prepare a separate tax return for 2007, (b) “indemnify and hold the other party and his or
her property harmless from any tax liability associated with the reporting party's individual tax return" unless
otherwise agreed, and (c) “furnish such information to the other party as is requested to prepare federal
income tax returns for 2007."  Moreover, the trial court decreed that “all payments made to the other party
in accordance with the allocation provisions for payment of federal income taxes contained in this Final
Decree of Divorce . . . are part of the property division and necessary for a just and right division of the
parties' estate."  Such orders impose personal obligations upon Church despite the absence of personal
jurisdiction.  The trial court had jurisdiction to grant the divorce, but did not have jurisdiction to adjudicate
such property rights.  Thus, these orders are void.

In arguing against this conclusion, Quick relies on the following language from Texas Rule of Civil
Procedure 108:

A defendant served [outside the State] with such notice shall be required to appear and answer in the same
manner and time and under the same penalties as if he had been personally served with a citation within
this State to the full extent that he may be required to appear and answer under the Constitution of the
United States in an action either in rem or in personam.

Tex. R. Civ. P. 108.  According to Quick, Church was required to file an answer and appear for trial - after
the trial court granted her special appearance - simply because she was served.  In a similar argument,
Quick contends that by filing a restricted appeal in Texas, Church submitted herself to the jurisdiction of the
court.  In support of this argument he relies on Ackerly v. Ackerly[1] and Cates v. Pon.[2]  Both Ackerly and
Cates are based on Texas Rule of Civil Procedure 123, which provides that "[w]here the judgment is
reversed on appeal or writ of error for the want of service, or because of defective service of process, no
new citation shall be issued or served, but the defendant shall be presumed to have entered his
appearance . . . ." (emphasis added).

Each of Quick's arguments misses the mark.  Church does not contend that service was lacking or
procedurally defective, but argues instead that she was not amenable to process; thus, Texas Rule of Civil
Procedure 120a applies, not Rule 108.  See Tex. R. Civ. P. 120a(1) (“Notwithstanding the  provisions of
Rules 121, 122 and 123, a special appearance may be made by any party either in person or by attorney
for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on
the ground that such party or property is not amenable to process issued by the courts of this State.");
Boyo v. Boyo, 196 S.W.3d 409, 418 (Tex. App.-Beaumont 2006, no pet.) ("A special appearance under
Rule 120a does not contest service of process; a special appearance contests whether a defendant is
amenable to process - whether it has sufficient contacts with Texas to satisfy due process and the Texas
long arm statute."); see also Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985) (per
curiam) (“We hold that defective jurisdictional allegations in the petition, defective service of process, and
defects in the citation must be challenged by a motion to quash, not a special appearance.").

Rule 120a(4) additionally provides as follows:

If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any
purpose.  Any such special appearance or such general appearance shall not be deemed a waiver of the
objection to jurisdiction when the objecting party or subject matter is not amenable to process issued by the
courts of this State.

In its final judgment, the trial court concluded that it had personal jurisdiction over Church, effectively
overruling her objection to jurisdiction; thus, Rule 120a(4) applies here.  Because Church actually is not
amenable  to Texas process, her objection to the trial court's exercise of jurisdiction was not waived by a
subsequent general appearance, such as her appearance in this court.             

We conclude that the face of the record demonstrates the trial court's lack of personal jurisdiction over
Church; thus, its orders regarding spousal maintenance, attorneys' fees, and tax obligations are void.  We
therefore sustain Church's second issue.  In light of our disposition of this issue, her third issue is moot.

C.        Partial Jurisdiction

In her first issue, Church contends the trial court abused its discretion by exercising partial jurisdiction to
grant Quick's petition for divorce.  For several reasons, we must reject this argument.  First, this assertion
of error does not match Church's complaint at trial.  See Tex. R. App. P. 33.1(a)(1).  At trial, and subject to
her special appearance, Church moved to dismiss the entire suit for lack of jurisdiction; she did not ask the
trial court to decline to exercise the partial jurisdiction that it actually possessed.[3]  Second, the trial court's
lack of personal jurisdiction has no bearing on this issue:  because a divorce is an adjudication of a
resident's status, the trial court can grant a divorce to a resident even without personal jurisdiction over a
nonresident spouse.  See Dawson-Austin v. Austin, 968 S.W.2d 319, 324 (Tex. 1998) (explaining that trial
court can “grant a divorce - an adjudication of parties' status - without having jurisdiction to divide their
property - an adjudication of parties' rights").  Third, Church cites no cases in which the trial court's
exercise of jurisdiction to grant a divorce was found to be an abuse of discretion, but instead relies
exclusively Boots v. Lopez.  6 S.W.3d 292, 294 (Tex. App.-Houston [14th Dist.] 1999, pet. denied).  There,
we found no abuse of discretion in the trial court's refusal to exercise partial jurisdiction when it had
personal jurisdiction over the spouses, but no jurisdiction to address child custody.  Id.; see also Tex. Fam.
Code Ann. § 152.207 (Vernon 2009) (permitting application of statutes similar to forum non conveniens
doctrine in cases that involve custody disputes).[4]  As previously discussed, however, the trial court here
does not have personal jurisdiction over Church.

In sum, the face of the record does not demonstrate that the trial court erred in exercising its valid
jurisdiction to grant the divorce.  We therefore overrule Church's first issue.

D.        Modification of the Judgment

When reversing a trial court's judgment, we must render the judgment that the trial court should have
rendered except when remand is required.  Tex. R. App. P. 43.3.  We therefore may modify the trial court's
judgment and affirm it as modified.  Tex. R. App. P. 43.2.  Here, the trial court's final divorce decree was
void only in part.  See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) ("A judgment is void only
when it is apparent that the court rendering judgment 'had no jurisdiction of the parties or property, no
jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.'"
(quoting Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (per curiam))); Dosamantes v. Dosamantes,
500 S.W.2d 233, 236 (Tex. Civ. App.-Texarkana 1973, writ dism'd) (explaining that a divorce action by a
resident is directed to the resident's marital status, and hence, is quasi in rem).  The trial court had
jurisdiction to grant a divorce to Quick, as a resident, even though it lacked personal jurisdiction over
Church, his nonresident spouse.  See Dawson-Austin, 968 S.W.2d 319 (Tex. 1998).  We therefore modify
the judgment to eliminate only those orders that exceed the trial court's jurisdiction.

IV.  Conclusion

Because only part of the judgment exceeded the trial court's jurisdiction, we modify the text of the judgment
as follows:

FINAL DECREE OF DIVORCE

On Aug 10, 2007 the Court heard this case.

Appearances

Petitioner, KENNETH RICHARD QUICK, appeared in person and through attorney of record, GEORGE M.
CLIFTON, and announced ready for trial.

Record

The record of testimony was duly reported by the court reporter for the 246th Judicial District Court.

Jurisdiction and Domicile

The Court finds that the pleadings of the Petitioner are in due form and contain all the allegations,
information, and prerequisites required by law.  The Court after receiving evidence, finds that it has
personal jurisdiction over Petitioner Kenneth Richard Quick and his request that the court dissolve his
marriage to Joyce Gail Church, and that at least sixty days have elapsed since the date the suit was filed.  
The Court finds that, at the time this suit was filed, Petitioner had been a domiciliary of Texas for the
preceding six-month period and a resident of the county in which this suit was filed for the preceding ninety-
day period.

Jury

A jury was waived, and questions of fact and of law were submitted to the Court.

Divorce

IT IS ORDERED AND DECREED that KENNETH RICHARD QUICK, Petitioner, and JOYCE GAIL CHURCH,
Respondent, are divorced and that the marriage between them is dissolved on the grounds of
insupportability.

Clarifying Orders

Without affecting the finality of this Final Decree of Divorce, this Court expressly reserves the right to make
orders necessary to clarify and enforce this decree.

Relief Not Granted

IT IS ORDERED AND DECREED that all relief requested in this case and not expressly granted is denied.  
This is a final judgment for which let execution and all writs and processes necessary to enforce this
judgment issue.  This judgment finally disposes of all claims and parties over which the court has
jurisdiction and is appealable.

Date of Judgment

SIGNED on 8/21/07.           

We further affirm the judgment as modified, and dismiss all remaining claims for want of jurisdiction.

/s/        Eva M. Guzman

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

[1]  13 S.W.3d 454, 458 (Tex. App.-Corpus Christi 2000, no pet.).

[2]  663 S.W.2d 99, 102 (Tex. App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.).

[3]  In her motion entitled, “Subject to Respondent's Special Appearance[,] Respondent's Motion to Dismiss
for Lack of Jurisdiction," Church stated, “Respondent claims this Honorable Court is without authority to
determine the subject in controversy because Plaintiff's Petition shows on its face that the Court does not
have subject matter jurisdiction."  This statement is followed by five numbered sentences, the last of which
provides: “Ohio is the more appropriate forum for this litigation as it has jurisdiction over all justiciable
issues in this matter, including personal jurisdiction of both parties and subject matter jurisdiction."  In the
context in which it appears, this statement does not appear to ask the trial court, in the use of its discretion,
to decline to exercise that jurisdiction it actually possessed.

[4]  Significantly, however, the doctrine of forum non conveniens applies only if the trial court has
jurisdiction over the parties.  See Exxon Corp. v. Choo, 881 S.W.2d 301, 302 n.2 (Tex. 1994) (“Before a
court may invoke forum non conveniens, the court must find that it has jurisdiction over the defendant.").