Domicile is an important legal concept because it establishes where a person has certain legal rights and obligations. A Texas divorce suit requires a party to have been domiciled in Texas for the preceding six-month period and a resident of the county where the suit was filed for the preceding 90-day period. TEX. FAM. CODE ANN. § 6.301. Domicile is the place a person intends to establish a permanent home. To establish domicile, the person must also act in execution of the intent. For most people, domicile is fairly easy to identify, but it can be more complicated for members of the military.
The wife of a member of the Air Force recently challenged jurisdiction of a Texas divorce proceeding. According to the appeals court’s opinion, the couple married in Texas in 2003. The husband identified Kendall County, Texas as his home of record. Both parties testified that they and the children had lived in North Carolina continuously for the previous six years. The wife filed for legal separation in North Carolina, and the husband subsequently filed for divorce in Kendall County, Texas.
The wife argued Texas did not have subject-matter jurisdiction. The trial court dismissed the petition for divorce, finding Texas was not the children’s home state and they did not have significant contacts with Texas. The trial court also found the father was not a resident of Kendall County, Texas. The trial court ultimately concluded North Carolina was the more convenient forum and more suitable for hearing both the custody and the divorce. The husband appealed. The appeals court identified two separate issues in this case: the divorce and the custody.
Although the parties lived in North Carolina during the relevant period, the husband’s status in the military requires further inquiry. A member of the military does not change domiciles just because he or she is stationed in a new location. His or her domicile remains what it was when he or she entered the military, unless he or she clearly intended to change domicile. The appeals court did not find an “unequivocal intention to change domicile.” The husband testified he was a resident of Kendall County when he joined the Air Force and he had not established a permanent home elsewhere. He intended to return when he retired. He maintained Texas voter registration and a Texas driver’s license. The record supported a finding that the husband was a Texas domiciliary. Under the Texas Family Code, time a Texas domiciliary spends outside the state or county of residence while serving in the military is considered residence in Texas and the county of residence. The appeals court therefore found the husband could maintain his divorce proceeding in Kendall County.
Texas has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which governs jurisdiction of child custody cases. A Texas court only has jurisdiction to make an initial custody determination: 1) if Texas is the child’s home state when the proceeding commenced or was the child’s home state within 6 months before commencement and the child is absent from the state, but a parent or acting parent still lives in Texas; 2) if another state’s court does not have “home state” jurisdiction or the court that does have home state jurisdiction declines to exercise it because Texas is the more appropriate forum; or 3) all courts with jurisdiction have declined it on the ground Texas is the more appropriate forum. A child’s “home state” is the state where he or she lived with a parent or acting parent for the six months preceding the commencement of the custody proceeding.
The father did not submit the affidavit required by the Family Code, but the mother filed one indicating the children lived in North Carolina since they were born. Thus, based on the only evidence available, North Carolina was the children’s home state.
There was no indication that a North Carolina court had declined jurisdiction. The appeals court found the Kendall County court did not have subject matter jurisdiction over the custody case.
The husband argued Kendall County had jurisdiction pursuant the statute which provides that time spent by a Texas domiciliary outside the state while in the service of the armed forces is considered residence in Texas and the county of residence. The appeals court noted, however, that the UCCJEA provides that it is the “exclusive jurisdictional basis” for custody cases, and that the UCCJEA controls in the event of a conflict with other statutes.
The appeals court also found no error in the trial court’s decision to decline jurisdiction over the divorce. A trial court may retain jurisdiction over a divorce when it does not have jurisdiction for the custody proceeding, but it does not have to do so. Here, the couple had not lived in Texas for many years. The husband intends to remain in North Carolina until his retirement in 2019. Most of the property in dispute is also in North Carolina. Additionally, the wife had filed separation proceedings in North Carolina before the husband petitioned for divorce in Texas.
The appeals court affirmed the portion of the trial court’s order granting the mother’s plea to the jurisdiction regarding custody and her request that the trial court decline jurisdiction over the divorce.
Seek Skilled Legal Representation
Family law issues involving members of the military or multiple jurisdictions can be very complex. If you are facing such issues, an experienced Texas divorce attorney can assist you through the process. Call McClure Law Group at 214.692.820 to schedule a consultation.
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