Sunday, November 11, 2007

Mexican divorce terminates Texas suit and appeal

Marta Araceli Rodriguez v. Carlos Federico Aviles, No. 04-07-00164-CV (Tex.App.- San Antonio, Oct. 24, 2007)(Opinion by Chief Justice López)(foreign divorce)
Opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: October 24, 2007

Marta Araceli Rodriguez appeals the trial court's order dismissing her divorce petition. Carlos Federico Aviles filed a motion to dismiss this appeal for want of jurisdiction. The basis for the motion was the entry of a final divorce decree by a Mexican court. Under the facts presented, the entry of the divorce decree by the Mexican court renders this appeal moot; therefore, we dismiss the appeal.


On August 19, 2005, Marta filed a petition of separation in Mexico, declaring that Mexico had been her domicile for the past seventeen years and stating her intention to file a divorce petition in Mexico. Instead, on September 1, 2005, Marta filed a divorce petition in Texas. On September 13, 2005, the Mexican court ordered Carlos to pay Marta alimony for her support. On September 22, 2005, the Mexican court accepted a dismissal filed by Marta; however, Carlos appealed the dismissal, and the separation proceeding was subsequently combined and handled by the same court handling the divorce petition filed by Carlos on September 28, 2005. On the same day Carlos filed the divorce petition, the Mexican court entered orders granting Carlos temporary custody of the minor children. On September 29, 2005, the parties entered into a Rule 11 agreement in the Texas proceeding in which they agreed that the minor children would reside with Marta. The Rule 11 agreement stated that Carlos was not consenting to the jurisdiction of the Texas courts.

In December of 2005, Carlos filed a Special Appearance, Plea to the Jurisdiction, Request for Court to Decline Jurisdiction, and Original Answer in the Texas suit. In December of 2006, the trial court dismissed the Texas suit after a hearing. Marta appealed the dismissal order.
On April 13, 2007, during the pendency of the appeal, the Mexican court entered a final divorce decree declaring the parties divorced and stating:

SEVENTH.- Regarding the right of Parental Authority over the minors RODRIGO and MARTHA CECILIA AVILÉS RODRIGUEZ, both parties will keep it, and regarding their care and custody, according to article 552 fraction II, section c) of the Civil Code of Coahuila, once the minors appear before the Court and state who of their parents they want to live with, in consequence a decision shall be made, and their maintenance shall be declared as well. (1)


The mootness doctrine limits courts to deciding cases in which an actual controversy exists between the parties. Collier v. Grant, No. 04-05-00813-CV, 2006 WL 1004822, at *2 (Tex. App.--San Antonio Apr. 19, 2006, no pet.). In this case, Marta willingly participated in the Mexican divorce proceeding resulting in the rendition of a final divorce decree. Because the Mexican court resolved the controversy between the parties by entering a final divorce decree, this appeal is moot. Id.; see also Hunt v. Hunt, 453 S.W.2d 377, 378-79 (Tex. App.--Houston [14th Dist.] 1970, no pet.) (affirming dismissal of divorce case in Texas based on rendition of divorce decree by Mexican court).

Even if the appeal was not moot, we would affirm the dismissal order because the trial court did not abuse its discretion in dismissing the divorce petition based on inconvenient forum. See Dickerson v. Doyle, 170 S.W.3d 713, 718 (Tex. App.--El Paso 2005, no pet.) (noting abuse of discretion standard applies); see also Tex. Fam. Code Ann. § 152.207 (Vernon 2002) (listing factors trial court may consider in dismissing based on inconvenient forum).

Although Marta filed domestic violence charges against Carlos, the civil charges in Texas were dismissed, the criminal charges in Texas were expunged, and the Mexican court found the charges were unfounded. Carlos, Marta, and the children are Mexican citizens, and the parties contracted to be married under the separate property regime in Mexico. The parties frequently traveled between their house in Mexico and their house in Texas during their marriage using E-1 business visas that expire in 2009. Marta initially invoked the jurisdiction of the Mexican court when she filed the petition of separation, declaring that Mexico had been her domicile for seventeen years.

Under Mexican law, a domicile cannot be changed unless the parties agree. The separation proceeding was being handled by the same court handling Carlos's divorce petition. Marta participated in the Mexican proceeding without filing the equivalent of a special appearance. The Mexican court entered an order regarding the temporary custody of the children, and the Mexican government sent a letter rogatory or letter of request to the Bexar County District Courts requesting assistance in enforcing the Mexican court order. Finally, Marta's testimony at the hearing regarding her involvement in the various proceedings was contradictory. Given the evidence before the trial court, the trial court did not abuse its discretion in dismissing the underlying proceeding on the basis that Texas was an inconvenient forum.


Because the entry of the divorce decree by the Mexican court renders this appeal moot, the appeal is dismissed.

Alma L. López, Chief Justice

1. This is a direct quote from the translated version of the final divorce decree entered by the Mexican court.

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