MANDAMUS: NO TEXAS DIVORCE FOR COSTA RICAN RESIDENT HERE ON B1/B2 VISA

In re Peter Swart
Dallas Court of Appeals, No. 05-19-00015-CV (July 9, 2019)
Justices Brown, Schenck (Opinion, linked here), and Reichek
The Texas Family Code provides that a divorce proceeding cannot be maintained in Texas “unless at the time the suit is filed either the petitioner or the respondent has been … a domiciliary of this state for the preceding six-month period.” Nina Morales, a Bolivian citizen and resident of Costa Rica, sought to divorce Peter Swart, also a resident of Costa Rica but a Dutch citizen, in a Dallas family court—seemingly doing so because similar proceedings in Costa Rica weren’t going her way. Swart lodged a special appearance, arguing that neither he nor Morales fulfilled the statutory requirements for a divorce here. The district court denied the special appearance, but the Dallas Court of Appeals disagreed.

As a threshold matter, the appeals court held for the first time that mandamus review is available when a special appearance is denied in a case filed under the Family Code—joining other Texas appeals courts in that stance. Absent such review, the Court explained, “jurisdictional and other like issues … would be rendered effectively meaningless.” Of course, TCPRC 51.014(a)(7) authorizes interlocutory appeal of the grant or denial of a special appearance in a civil case, but it expressly carves Family Code cases out of that authorization, creating the need for mandamus review here.

On the merits, the Court observed that, to establish domicile, Morales had to demonstrate both an objective element and a subjective element: physical presence in Texas for the statutory period, and the intent to make Texas her principal place of residence. Morales’s case foundered on the subjective element of intent, because at present she is precluded by law from relocating permanently to Texas. To obtain her B1/B2 visa, Morales was required to represent to the State Department (1) that she was entering the United States temporarily, (2) that she planned to remain only for a specific period, and (3) that she maintained a residence and other ties outside the United States that would ensure her departure. So, the Court explained, “it is precisely Morales’s representation that Texas is not the place she intends to make her permanent home that explains her presence” in Texas. And it defeated her attempt to pursue a divorce here.

The Dallas Court’s holding, rejecting domiciliary status on the basis of Morales’s temporary visa and the representations she made to secure it, sets up an apparent conflict with the decision of the Austin Court of Appeals in Palau v. Sanchez—a conflict the Dallas Court acknowledged. So, there may yet be another chapter in this story.

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