jurisdiction in divorce and conservatorship suits

JURISDICTION IN DIVORCE ANDCONSERVATORSHIP SUITS

John J. Sampson*

I. Introduction ................................. 161II. Federal Decisions Relating to Family Law

C a se s .... .............. ........ .... .. ....... 16 2A. The Jurisdictional Basis for Divorce ........ 162B. Divisible Divorce ......................... 163C . Child Custody ............................ 163D. Concurrent Development of the Long Arm

Jurisdiction Concept ...................... 165III. Traditional Texas View of Jurisdiction in

Domestic Relations Cases .................... 167A . Introduction ............................. 167B. Divorce Jurisdiction ...................... 167C. Child Custody and Support Jurisdiction .... 172D. Response to Foreign Divorce Decrees ....... 174E. Response to Foreign Child Custody and Sup-

port A w ards .............................. 176

Copyright 1976 by John J. Sampson. All rights reserved.

* Professor of Law, University of Texas. B.B.A., University of Minnesota, 1957; LL.B.

1966.Invaluable assistance in the preparation of this article was received from Professors Hans

W. Baade and Russell J. Weintraub and from my research assistants, Peter Curry and HectorLeal, Jr.

A condensed version of the portion of this article discussing the new Family Code long-arm statutes appeared in a copyrighted article as, Sampson, Long-Arm Jurisdiction Marriesthe Texas Family Code, 38 Texas B.J. 1023 (Dec. 1975). That portion is reprinted with thepermission of the Texas Bar Journal.

TEXAS TECH LAW REVIEW

IV. The Jurisdictional Impact of the Family CodeBefore the 1975 Amendments ................. 179A . D ivorce .................................. 179B. Child Custody and Support ............... 180

V. Long Arm Jurisdiction Under the 1975 FamilyC o d e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3A . Introduction ............................. 183B. The Mitchim Decision and its Progeny ..... 183C. Enactment of Long Arm Statutes .......... 187D. The M arital Long Arm .................... 189E. The Parent-Child Long Arm ............... 200F. Partial Personal Jurisdiction .............. 205G. Child Absent from Texas .................. 206H . P rocedure ................................ 214I. Retroactive Effect ........................ 215J. The Effect of Amended Rule 108 ........... 216

VI. Continuing Jurisdiction Over ConservatorshipDecrees: The Extraterritorial Impact ......... 218A . Introduction ............................. 218B. Texas Case Law on the Recognition of Contin-

uing Custody and Support Jurisdiction ofForeign C ourts ........................... 222

C. The Uniform Child Custody Jurisdiction Act:Continuing Jurisdiction Supreme (In Theory) 232

D. The Assertion of Continuing Jurisdiction andCommon Sense: Restraint Required ........ 235

E. Family Code Implications for Asserting Extra-territorial Continuing Jurisdiction .......... 239

F. Forum Non Conveniens: Self-Imposed Re-stra in t . . . . . . . . .. .. . . . . . .. . .. . . . . . . . . . . .. . 2 4 5

G. The Due Process Perspective: Constitutional-ly M andated Restraint .................... 246

V II. C onclusion .................................. 253

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LONG ARM JURISDICTION

I. INTRODUCTION

Jurisdictional principles in family law matters, are at bestconfusing, and at worst a hodge-podge.' In the past 30 or moreyears the United States Supreme Court has developed an un-systematic, albeit relatively extensive, body of case law relat-ing to divorce and parent-child jurisdiction in response to anumber of legal, societal, and political factors, including theexistence of divorce mill states such as Nevada, the resistanceof many states to this intrusion into local control over divorce,the significant mobility of individuals in modern society, anda greatly increasing divorce rate.

Many of the problems have arisen when the divorcingspouses resided in different states at the time of divorce. Al-though this situation presents difficulties enough, even greatercomplications arise when the parties move to other states afterthe initial decree. Because family disputes sometimes resultin virtually continuous litigation, conflict of laws problems donot end at the initial "final hearing"; they often first occur ina subsequent suit for modification or enforcement of a priordecree.

Courts and legislatures have struggled manfully with theSupreme Court's rules, attempting to bring some order to thechaos. Texas, long a leader in this regard, culminated its ef-forts in 1975 by recognizing foreign long-arm statutes2 andenacting two such statutes in the Family Code.3 These actions,

1. The volume of reported cases and the consequent legal literature generated by thissubject is truly staggering. The reader who wishes to pursue the subject will find summaries

of this most complex topic in H. CLARK, LAW OF DOMESTIC RELATIONS 280-326 (1968)

[hereinafter cited as CLARK]; A. EHRENZWEIG, CONFLICT OF LAWS 235-300 (1962); R. LEFLAR,AMERICAN CONFLICTS LAW 529-95 (1968) [hereinafter cited as LEFLAR]; RESTATEMENT (SECOND)OF CONFLICT OF LAWS §§ 69-79 (1971); G. STUMBERG, PRINCIPLES OF CONFLICT OF LAWS 279-341(3d ed. 1963) [hereinafter cited as STUMBERC]; R. WEINTRAUB, COMMENTARY ON THE CONFLICT

OF LAWS 168-199 (1971) [hereinafter cited as WEINTRAUB], See also H. Baade, Marriage and

Divorce in American Conflicts Law: Governmental Interests Analysis and the Restatement(Second), 72 COLUM. L. REV. 329 (1972); Hudak, Seize, Run, and Sue: The Ignominy ofInterstate Child Custody Litigation in American Courts, 39 Mo. L. REV. 521 (1974); Note,

Long-Arm Jurisdiction in Alimony and Custody Cases, 73 COLUM. L. REV. 289 (1973); Com-

ment, The Jurisdiction of Texas Courts in Interstate Child Custody Disputes: A Functional

Approach, 54 TEXAS L. REV. 1008 (1976).

2. Mitchim v. Mitchim, 518 S.W.2d 362 (Tex. 1975), rev'g and remanding 509 S.W.2d720 (Tex. Civ. App.-Austin 1974).

3. TEX. FAMILY CODE ANN. §§ 3.26, 11.051 (1975).

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coupled with the "continuing jurisdiction" concept embracedby the Family Code in 1973,1 have moved Texas law towardultimate resolution of the problems involved.

II. FEDERAL DECISIONS RELATING TO FAMILY LAW CASES

A. The Jurisdictional Basis for Divorce

The Supreme Court has often stated that divorce jurisdic-tion "is founded on domicile," 5 although it has never squarelyheld that domicile is the only jurisdictional basis. However, acourt's finding of domicile as the basis of jurisdiction is subjectto collateral attack. Therefore, another state of primary inter-est is not bound to extend full faith and credit to a finding ofdomicile by a divorce mill court.' In addition, any strict re-quirement of domicile has been largely undercut by the appli-cation of estoppel principles. If both parties appeared in theaction or were otherwise subject to the court's jurisdiction, acollateral attack by either party upon the jurisdiction of thecourt is not permitted.' Moreover, extended military serviceand other significant relationships may be bases for divorcejurisdiction .'

4. TEX. FAMILY CODE ANN. § 11.05, as amended, (Supp. 1975).5. E.g., Sosna v. Iowa, 419 U.S. 393 (1975); Williams v. North Carolina, 325 U.S. 226,

229 (1945) (Williams II); accord, Williams v. North Carolina, 317 U.S. 287 (1942) (WilliamsI). But see note 9 infra and accompanying text.

6. Williams v. North Carolina, 325 U.S. 226 (1945) (Williams II); Williams v. NorthCarolina, 317 U.S. 287 (1942) (Williams I); Callicoatte v. Callicoatte, 324 S.W.2d 81 (Tex.Civ. App.-Waco 1959, writ ref'd n.r.e.).

7. See cases cited at footnote 6, supra.8. Coe v. Coe, 334 U.S. 378 (1948) (admitted domicile); Sherrer v. Sherrer, 334 U.S.

343 (1948) (contested issue of wife's domicile). Persons indirectly affected by a divorce decreeare also precluded from mounting a collateral attack. Johnson v. Muelberger, 340 U.S. 581(1951) (daughter of deceased father who had been served in state).

Texas courts are bound by these estoppel rules. Moody v. Moody, 465 S.W.2d 836 (Tex.Civ. App.-Corpus Christi 1971, writ ref'd n.r.e.) (attacker filed in Nevada); Webb v. Webb,461 S.W.2d 204 (Tex. Civ. App.-San Antonio 1970, no writ) (fact issue of whether appear-ance entered in Mexican divorce).

On rare occasion, a court may raise the domicile issue on its own motion. In Alton v.Alton, 207 F.2d 667 (3d Cir. 1953), a divorce granted by a forum in which neither party wasdomiciled was held to deny due process (to whom is unclear), notwithstanding the fact thatboth parties had appeared and neither had complained.

9. Texas extends divorce jurisdiction to long-term military personnel stationed in thestate. TEX. FAMILY CODE ANN. § 3.23 (1975). Attacks on similar statutes have been rejectedin state courts. Wallace v. Wallace, 320 P.2d 1020 (N.M. 1958); Wood v. Wood, 159 Tex. 350,


B. Divisible Divorce

If the spouses are domiciled in different states, courts ofeach state have jurisdiction over the marital status and cangrant an ex parte divorce. Each court may divide propertywithin its jurisdiction. Absent in personam jurisdiction overthe other spouse, neither court may enter orders binding onboth parties with respect to such matters as property outsideits jurisdiction, alimony, child support, awards of attorney'sfees, etc. These rules form the basis of divisible divorce."0 Ingeneral, all the aspects of a divorce are entitled to full faithand credit only when both spouses are subject to the divorcecourt's in personam jurisdiction.

Thus, personal jurisdiction over both parties is the touch-stone for effective resolution of all the issues arising upon di-vorce. Given the nature of today's society, the divisible divorceconcept and the resultant impotence of the courts involvedoften lead to hardship and inequity. This is particularly truein those states that allow a foreign ex parte divorce to cut offcertain rights."

C. Child Custody

On four separate occasions, the United States SupremeCourt has considered jurisdiction over child custody proceed-ings in an interstate context. The decisions have been far fromsatisfactory, being both obtuse and impractical. Specifically,in May v. Anderson" the Court held that if a court in one statedoes not have in personam jurisdiction over both parties, thecourts of another state are not constitutionally required to givea custody decree full faith and credit. Moreover, in a series ofcases beginning with People ex rel Halvey v. Halvey, '" the

320 S.W.2d 807 (1959). Military personnel have a choice of forums because they can also claima home state as their domicile. See TFX. FAMILY CODE ANN. § 3.22 (1974).

10. Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957); Estin v. Estin, 334 U.S. 541 (1948).11. Id.12. 345 U.S. 528 (1953). May v. Anderson has received unceasing criticism for over 20

years. Professor Clark's commentary is typical: "In short, the case ... is an aberration whichought to be overruled at the earliest opportunity." CLARK, supra note 1, at 326. See alsoGOODRICH, HORNBOOK ON CONFLICT OF LAWS, 273-74 (1964); Hazard, May v. Anderson: Preludeto Family Law Chaos, 45 VA. L. REV. 379 (1959).

13. 330 U.S. 610 (1947). In Halvey the Court held that New York could legitimately

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Court established only that full faith and credit does not re-quire a second state to accord greater weight to a sister state'sdecree than it would receive in the state of rendition. Becauseall states permit a custody decree to be modified under appro-priate changed circumstances, a decree may be similarlymodified in sister states." The application of this "rule,"however, varies considerably from forum to forum. Left basi-cally unanswered are crucial questions such as: What consti-tutes custody jurisdiction? Where and how may decrees bemodified? What is the practical effect, if any, of the full faithand credit clause upon foreign custody decrees? 5 The Su-preme Court's failure to deal effectively with the subject hasmade a significant contribution to the grand old Americantradition of child snatching by battling parents.

The current state of the law has been aptly summarizedin the Commissioners' Prefatory Note to the Uniform ChildCustody Jurisdiction Act:

[TIhousands of children are shifted from state tostate and from one family to another every year whiletheir parents or other persons battle over their custodyin the courts of several states. Children of separatedparents may live with their mother, for example, but

modify a Florida custody decree with "at least as much leeway to disregard the judgment, toqualify it, or to depart from it as does . . . [Florida]." Id. at 615.

In Kovacs v. Brewer, 356 U.S. 604 (1958), the Court avoided deciding whether a custodydecree falls within the ambit of the full faith and credit clause, holding that a valid decreecould be disregarded by the second forum if changed conditions subsequent to the originalaward justified modification.

Finally, in Ford v. Ford, 371 U.S. 187 (1962), the Court again avoided the issue, decidingthat an agreed-upon Virginia custody award, which was not conclusive in Virginia, did notbind the parties in a later disputed contest between the parties in South Carolina.

For extensive criticism of these cases, see, e.g., Ratner, Child Custody in a FederalSystem, 62 MIcH. L. REV. 795, 798-807 (1964); Bodenheimer, The Uniform Child CustodyJurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 VAND.L. REv. 1207, 1210-1216 (1969); Note, Ford v. Ford: Full Faith and Credit to Child CustodyDecrees?, 73 YALE L.J. 134 (1963).

14. New York ex rel. Halvey v. Halvey, 330 U.S. 610 (1947).In Halvey, Mr. Justice Douglas apparently approved the power of State B to "modify"

the original decree of State A. His approach seems to be conceptually incorrect. Technically.it would be much more logical to view the process as the entry of a separate and independentdecree based on present concurrent or exclusive jurisdiction.

15. See, e.g., CLARK, supra note 1, at 319-26; WEINTRAUB, supra note 1, at 194-99. TheTexas view is discussed at notes 56-63 infra and accompanying text.

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one day the father snatches them and brings them toanother state where he petitions a court to award himcustody while the mother starts custody proceedings. . . . When a decree has been rendered awarding cus-tody to one of the parties, this is by no means the endof the child's migrations. It is well known that thosewho lose a court battle over custody are often unwillingto accept the judgment of the court. They will removethe child in an unguarded moment or fail to return himafter a visit and will seek their luck in the court of adistant state where they hope to find-and often dofind-a more sympathetic ear for their plea for custody.The party deprived of the child may then resort to simi-lar tactics to recover the child and this "game" maycontinue for years ....

This unfortunate state of affairs has been aidedand facilitated rather than discouraged by the law.There is no statutory law in this area and the judiciallaw is so unsettled that it seems to offer nothing but a"quicksand foundation" to stand on . . . . There is nocertainty as to which state has jurisdiction when per-sons seeking custody of a child approach the courts ofseveral states simultaneously or successively. There isno certainty as to whether a custody decree rendered inone state is entitled to recognition and enforcement inanother; nor as to when one state may alter a custodydecree of a sister state. 6

D. Concurrent Development of the Long-Arm JurisdictionConcept

Although the Supreme Court has dealt with issues of per-sonal jurisdiction for nearly 100 years, its approval of the mod-ern development of the long-arm jurisdiction concept has been

16. UNIFORM CHILD CUSTODY JURISDICTION ACT, Commissioners' Prefatory Note (cita-tions omitted). Other useful discussions of the problem are found in Bodenheimer, The Rightsof Children and the Crisis of Custody Litigation: Modification of Custody In and Out of State,46 U. COLO. L. REV. 495 (1975); Hudak, Seize, Run, and Sue: The Ignominy of InterstateChild Custody Litigation in American Courts, 39 Mo. L. REV. 521 (1974).

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roughly concurrent with the evolution of the current rules re-garding divorce jurisdiction. 7 The extension of long-arm juris-diction by statutory enactment or by rules of civil procedurehas been uniformly welcomed. Texas joined the ranks of statesenacting long-arm statutes in 1959 with the passage of Article2031b of the Texas Civil Statutes. The basic Texas long-armstatute, however, is limited on its face, as are those of mostother states, to actions sounding in tort or contract;" it doesnot apply to family law cases."

In response to the limitations of general long-arm stat-utes, prior to 1975 at least 17 states attempted to mitigatesome of the problems inherent in divisible divorce and custodyjurisdiction. These attempts have taken a variety of forms: tenstates have enacted specific marital long-arm statutes orrules; four have specifically asserted personal jurisdiction tothe limits of the Constitution; and three have creatively con-strued broad, unspecific statutes or rules to that same effect.2 °

17. Serious erosion of Pennoyer v. Neff, 95 U.S. 714 (1877), is usually said to have begunwith International Shoe Co. v. Washington, 326 U.S. 310 (1945), decided the same year asWilliams II, 325 U.S. 226 (1945). In International Shoe, the Court approved the exercise ofpersonal jurisdiction wherever there are "sufficient contacts or ties with the state of the forumto make it reasonable and just according to our traditional conception of fair play andsubstantial justice to permit the state to enforce the obligations . . . incurred there." 326 U.S.at 320. This "sufficient contacts" requirement was later defined as requiring "some act bywhich the defendant purposefully avails itself of the privilege of conducting activities withinthe forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla,357 U.S. 235, 253 (1958).

18. See Products Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974); N.K.Parrish, Inc. v. Schirmscher, 516 S.W.2d 956 (Tex. Civ. App.-Amarillo 1974, no writ) (con-tracts); Reul v. Sahara Hotel, 372 F. Supp. 995 (S.D. Tex. 1974) (torts).

19. See Cohen v. Cohen, 187 N.Y.S.2d 394, 17 Misc. 2d 427 (Sup. Ct. 1959) (Texasdivorce); Anderson, Using Long-Arm Jurisdiction to Enforce Marital Obligations, 42 Miss.L.J. 183, 188 (1971).

20. The following are specific marital long-arm statute or rules of procedure enactedby ten states: IDAHO CODE ANN. § 5-514(e) (Supp. 1975); ILL. ANN. STAT. ch. 110, § 17(1)(e)(Smith-Hurd 1968); IND. ANN. STAT. Trial R. 4.4(A)(7) (1973); KAN. GEN. STAT. ANN. § 60-308(b)(6) (1964); NEv. REV. STAT. § 14.065(2)(e) (1973); N.M. STAT. ANN. § 21-3-16(a)(5)(Supp. 1975); N.Y. Civ. PRAC. § 302(b) (McKinney 1972); OHIo REV. CODE ANN. § 4.3(A)(8)

(Baldwin 1971); UTAH CODE ANN. § 78-27-24(6) (Supp. 1975); Wis. STAT. ANN. § 247.057(Supp. 1975).

Four states assert long-arm jurisdiction in all lawsuits "to the constitutional limits": CAL.CODE CIv. PRO. § 410.10 (West 1970); OKLA. STAT. ANN. tit. 12, § 1701.03(a)(7) (Supp. 1975);R.I. GEN. LAWs ANN. § 9-5-33 (1969); TENN. CODE ANN. § 20-235(f) (Supp. 1970).

More or less by judicial fiat, the courts of three states have construed the following


III. TRADITIONAL TEXAS VIEW OF JURISDICTION IN DOMESTIC

RELATIONS CASES

A. Introduction

Obviously, full faith and credit decisions of the UnitedStates Supreme Court bind Texas courts. Many questions,however, have not been dealt with by that final arbiter, andthe states have been left to find their own solutions. Thus, abrief review of pre-Family Code decisions on jurisdiction inTexas is in order. The vast majority of these decisions havecontinued validity under the Family Code.

B. Divorce Jurisdiction

1. Domiciled in Texas

a. Service in Texas

The vast majority of Texas divorces involve two residentdomiciliaries. If service of citation or an acceptable alternativetakes place within the state, Texas courts have full in per-sonam jurisdiction over both parties. This jurisdiction at-taches at the time of service and continues unabated until thefinal hearing.

Unfortunately, even when a Texas court has in personamjurisdiction over both spouses, there are jurisdictional limita-tions upon the court's power to settle all the issues potentiallyinvolved. For example, a long line of cases has held that acourt has no jurisdiction to award, partition, or dispose of realproperty (immovables) located in another state or otherwisedirectly affect title to such property.2' Thus, absent an agree-ment between the parties, some community property held by

general provisions in a manner which has converted them into broad long-arm assertions inmatrimonial lawsuits: ARIz. R. Civ. 4(e)(2) (1973); NEB. REV. STAT. § 25-536 (Supp. 1969);N.J. REV. STAT. § 4:4-4(a) (Supp. 1975). See Phillips v. Anchor Hocking Glass Corp., 100 Ariz.251, 413 P.2d 732 (1966); Stucky v. Stucky, 185 N.W.2d 656 (Neb. 1971); Wright v. Wright,114 N.J. Super. 439, 276 A.2d 878 (1971).

21. Fall v. Eastin, 215 U.S. 1 (1909); Clarke v. Clarke, 178 U.S. 186 (1900). The truthof the clich6 that the courts of the situs have exclusive jurisdiction to affect title to realty isnot without doubt. Professor Weintraub's excellent analysis logically demolishes the "situsmyth." WEINTRAUB, supra note 1, at 296-338. Unfortunately, when courts treat the propositionas true, it becomes true. See Deger v. Deger, 526 S.W.2d 272 (Tex. Civ. App.-Waco 1975,no writ).

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the spouses may remain in an undivided limbo. Courts morerecently have recognized that they may indirectly affect out-of-state real property by means of in personam decrees. Thus,a court using its contempt power may compel a party to con-vey the out-of-state realty. Further, more than one-half of thestates, including Texas, will recognize the extra-territorial ef-fect of a bilateral divorce judgment.22 In the leading Texascase, McElreath v. McElreath,23 the supreme court stated:"[A]s a matter of comity we will enforce the [in personam]equitable decrees of a sister state affecting Texas land so longas enforcement does not contravene an established publicpolicy in the State."24

b. Out-of-State Service

Domicile in Texas of a temporarily absent respondentsubjects him to personal jurisdiction in Texas even if he hasbeen served with process in another state.25 Obviously, an ab-sent respondent's alleged Texas domicile may be subject todispute. Because a claim of acquisition of a new domicile priorto service may be made in a subsequent collateral proceeding,potential conflict of laws questions are inherent in out-of-stateservice of an alleged Texas domiciliary.

22. See WEINTRAUB, supra note 1, at 183-87, 296-310, 338; Annot., 34 A.L.R.3d 962(1970); Note, Foreign Divorce and Texas Community Property, 28 BAYLOR L. REV. 425 (1976).

23. 162 Tex. 190, 345 S.W.2d 722 (1961).24. Id. at 733. McElreath was one of the first decisions on this point, apparently pre-

ceded only by Weesner v. Weesner, 168 Neb. 346, 95 N.W.2d 682 (1959). See Annot., 34A.L.R.3d 962 (1970).

Application of the principles of McElreath was inconclusively avoided in Estabrook v.Wise, 506 S.W.2d 248 (Tex. Civ. App.-Tyler), judgment set aside and cause dismissed asmoot, 519 S.W.2d 632 (Tex. 1974). There, the ex-wife alleged that valuable mineral rights inFlorida and Alabama were not divided in an earlier divorce. At trial the ex-husband's pleato jurisdiction was sustained on the basis that only the situs state could decide matters oftitle and disposition of real property. Relying on McElreath, the court of civil appeals reversedand remanded, holding that the suit was in personam because the ex-wife was seeking anequitable decree ordering the ex-husband to convey her "rightful interest." Unfortunately,the appeal was dismissed on motion of the parties who agreed to try the cause in the situsstate.

25. Milliken v. Meyer, 311 U.S. 457 (1940); McDonald v. Mabee, 243 U.S. 90 (1917);Fernandez v. Casey, 77 Tex. 452, 14 S.W. 149 (1890); Miller v. Cowell, 362 S.W.2d 345 (Tex.Civ. App.-Houston 1963, no writ); see TEx. R. Civ. P. 108.

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2. Respondent Domiciled in Another State, Submits toTexas Jurisdiction

An out-of-state party may choose to submit himself toTexas jurisdiction. The court's powers are then identical tothose that exist when both parties are Texans. An out-of-staterespondent usually subjects himself to Texas jurisdiction byfiling an answer although he may do so by actual or construc-tive appearance and perhaps by waiver.2" On rare occasion, anout-of-state respondent may be personally served with cita-tion in Texas. Personal jurisdiction attaches, provided theservice was not procured by fraud or made when the respon-dent had immunity from service.27

3. Respondent Domiciled in Another State, Does Not Sub-mit to Texas Jurisdiction

After an out-of-state respondent has been properly servedeither personally or by publication,2" a Texas court may granta divorce and divide the property located in Texas withoutinvoking long-arm jurisdiction. In addition, a Texas court maytake into account the property outside the state when it makesan ex parte division of Texas property,29 but it cannot dividecommunity property located outside the state or order therespondent to pay child support, petitioner's attorney's fees,or community debts without personal jurisdiction. This splitof powers between two states, both having power to grant a

26. No Texas cases are in point on whether a nonresident who signs a document pur-porting to waive citation and to enter a personal appearance subjects himself to personaljurisdiction. Several cases from other jurisdictions indicate that such an act does not createpersonal jurisdiction, but many of these involve divorce-mill decrees. E.g., Eaton v. Eaton,227 La. 992, 81 So. 2d 371 (1955); Day v. Day, 237 Md. 229, 205 A.2d 798 (1965); Guerieri v.Guerieri, 75 N.J. Super. 541, 183 A.2d 499 (1962); cf. D. H. Overmyer, Inc. v. Frick Co., 405U.S. 174 (1972) (cognovit note); Schlemm v. Schlemm, 31 N.J. 557, 158 A.2d 508 (1960)(appearance through attorney only).

27. The respondent is immune from Texas service when making a special appearance.TEX. R. Civ. P. 120a. See Brown v. Brown, 520 S.W.2d 571, 574-75 (Tex. Civ. App.-Houston[14th Dist.1 1975, no writ); 2 McDONALD, TEXAS CIVIL PRACTICE § 9.14, at 395 (1970).

28. TEX. R. Civ. P. 108-17; TEX. FAMILY CODE ANN. § 3.521 (Supp. 1975). Substitutedservice is inapplicable to a nonresident avoiding service.

29. Cain v. Cain, 451 S.W.2d 786 (Tex. Civ. App.-Austin 1970, writ ref'd n.r.e.);DeLaughter v. DeLaughter, 370 S.W.2d 207 (Tex. Civ. App.-Texarkana 1963, writ ref'dn.r.e.); Woodworth v. Woodworth, 277 S.W.2d 828 (Tex. Civ. App.-Beaumont 1955, nowrit); Grubbs v. Grubbs, 164 S.W.2d 216 (Tex. Civ. App.-San Antonio 1942, no writ).

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divorce, but neither possessing full power to adjudicate all ofthe issues, illustrates the difficulty of "divisible divorce."

A respondent who elects not to submit to Texas jurisdic-tion has two basic options available to him. First, he may donothing and permit the Texas court to exercise whatever juris-diction it possesses. Then, if the Texas court exceeds itspower, the respondent may collaterally attack the judgmentat the time enforcement is sought in the state of his residence.Second, the nonresident respondent may make a special ap-pearance to contest the court's jurisdiction. 0

4. The Peculiar Case of Service by Publication

If the whereabouts of a respondent are unknown, serviceby publication is appropriate. The extent of the court's juris-dictional power at the time of judgment is unclear. If therespondent is a Texas domiciliary or present in the state at thetime of publication, personal jurisdiction arguably attaches.The binding effect of the court's orders, if any, will not belearned until the respondent is finally located and his domi-ciliary status or presence is traced back to the time of publica-tion.

One recent case dealt with this issue. In Ex parteLimoges3 habeas corpus was granted after the obligor hadbeen jailed for failure to pay the child support ordered by adivorce granted after service by publication. The obligor testi-fied that he left the state upon separation and did not returnuntil after the divorce was granted. The court of civil appealsheld that the district court had jurisdiction to dissolve the

30. TEX. R. Civ. P. 120a; Roquemore v. Roquemore, 431 S.W.2d 595 (Tex. Civ.App.-Corpus Christi 1968, no writ); Simonsen v. Simonsen, 414 S.W.2d 54 (Tex. Civ.App.-Amarillo 1967, no writ); Risch v. Risch, 395 S.W.2d 709 (Tex. Civ. App.-Houston1965, writ dism'd), cert. denied, 386 U.S. 10 (1967). See Thode, In Personam Jurisdiction;Article 2031B, The Texas "Long Arm "Jurisdiction Statute; and the Appearance to ChallengeJurisdiction in Texas and Elsewhere, 42 TEXAS L. REV. 279 (1964); 2 McDONALD, TEXAS CIVIL

PRACTICE, § 9.05.3, at 373 (1969).Texas law regarding nonresident respondents is a trap for the unwary. Extreme care must

be exercised to insure the proper filing of a challenge to the jurisdiction by way of a rule 120amotion. E.g., Brown v. Brown, 520 S.W.2d 571 (Tex. CiV. App.-Houston [14th Dist.] 1975,no writ); Austin Rankin Corp. v. Cadillac Pool Corp., 421 S.W.2d 733 (Tex. Civ.App.-Beaumont 1967, no writ).

31. 526 S.W.2d 707 (Tex. Civ. App.-Austin 1975, no writ).

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marriage and award custody, but that it did not have thepower to enter a personal order binding on the relator who wasa nonresident, nondomiciliary at the time of publication.2

In theory at least, if the obligor resided somewhere inTexas at the time of service, the divorce court would have hadpersonal jurisdiction over him. It might seem manifestly un-fair for a court to hold an obligor of child support in contempt(and especially to jail him) for his failure to obey an order onlytheoretically in personam.3 In such a situation, not only isactual notice absent, but a realistic opportunity to receivenotice is missing. A finding of contempt in such circumstancesprobably would be viewed as violative of due process. Yet, infamily law cases sympathy for the obligor's plight is largelymisplaced. After all, he certainly knew that he deserted hisfamily and contributed nothing to the support of the children.

The most appropriate view for a court to take in publica-tion cases would find an order of child support binding uponthe obligor when he was subject to personal jurisdiction inTexas. A finding of contempt should not stand, however, if theobligor did not willfully disobey the support order. In mostcases, the failure to obey has not been contumacious becausethe terms of the order were unknown to the obligor. 4 Butunder certain facts, a finding of contempt seems warranted.

32. Id. at 708, citing Risch v. Risch, 395 S.W.2d 709 (Tex. Civ. App.-Houston 1965,writ dism'd), cert. denied, 386 U.S. 10 (1967); Woodworth v. Woodworth, 277 S.W.2d 828(Tex. Civ. App.-Beaumont 1955, no writ); Grubbs v. Grubbs, 164 S.W.2d 216 (Tex. Civ.App.-San Antonio 1942, no writ). Those cases all involved personal service on a nonresidentwhich, under the then-current law, did not establish in personam jurisdiction.

33. It is not entirely clear whether constructive notice by publication establishes per-sonal jurisdiction, but the weight of Texas authority seems to indicate that it does. See 2McDONALD, TEXAS CIVIL PRACTICE § 9.21.2, at 410-11 (1970), and cases cited therein. Admit-tedly, dicta to the contrary may be found. See Alvarez v. Alvarez, 476 S.W.2d 353, 355 (Tex.Civ. App.-Corpus Christi 1972, no writ). In all cases, judgments based on publication areinherently suspect. See Johnson, Citation by Publication: A Sham Upon Due Process, 36 TEX.B.J. 205 (1973).

34. Violation of an uncertain or indefinite court order will not justify a finding ofcontempt. Ex parte Slavin, 412 S.W.2d 43 (Tex. 1967); Ex parte Stroope, 524 S.W.2d 378(Tex. Civ. App-Dallas 1975, no writ); Ex parte Hart, 520 S.W.2d 952 (Tex. Civ.App.-Dallas 1975, no writ). Without some act of "contemptuous disobedience," a judgmentand confinement for contempt is void. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824,830 (1960). Without actual or constructive knowledge of the order, the respondent cannot beguilty of such an act.

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For example, if the obligor knew of the lawsuit but fled or wentinto hiding to avoid service, he was responsible for causingpublication citation. Contempt should lie when his where-abouts are discovered. Arguably, in all cases a court could findthat the obligor should have known child support was owedand that he should bear the risk of a support order beingissued without actual notice. From a due process perspective,however, in the unlikely event that incarceration seems appro-priate, prosecution under the Penal Code provision for crimi-nal nonsupport is more appropriate than contempt proceed-ings.35

Even if the contempt remedy is unavailable, the questionof whether citation by publication confers personal jurisdic-tion is not wholly abstract. If the order was in personam, thepast due child support arrearages are vested and absolute andmay be reduced to a money judgment." The arrearage mayalso be incorporated in a prospective order increasing the peri-odic payments on a catch-up basis.37

Limoges was decided before the effective date of the newlong-arm statutes. These statutes often will make the obligor'swhereabouts at the time of citation by publication irrelevant.Personal jurisdiction over the obligor will ordinarily be presentby virtue of the long-arm statute irrespective of his residence.Thus, the risk of incurring a binding order for child support,at least insofar as it is reducible to judgment, will be allocatedto the deserting parent.

C. Child Custody and Support Jurisdiction

The jurisdictional problems inherent in divisible divorceare also encountered with regard to child custody. Prior to the

35. TEX. PENAL CODE ANN. § 25.05 (1975); see Sampson, Texas Equal Rights Amend-ment and the Family Code: Litigation Ahead, Texas Family Code Symposium, TEX. TECHL. REV. 631, 641-42 (1974). Section 25.05 clearly establishes as an offense the default by apotential obligor of child support. The penal provision is preferable from a constitutionalviewpoint because the procedural protections available to the obligor are wholly lacking incontempt proceedings. Criminal non-support, however, has not proven to be a very useful toolin support enforcement.

36. TEX. FAMILY CODE ANN. § 14.09(c) (Supp. 1975); Harrison v. Cox, 524 S.W.2d 387(Tex. Civ. App.-Fort Worth 1975, writ ref'd n.r.e.).

37. Menner v. Ranford, 487 S.W.2d 698 (Tex. 1972).

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effective date of the Family Code, it was consistently held thata Texas court had jurisdiction to make a child custody deter-mination only if the child was either domiciled in Texas orphysically present in the state. The third traditional Americanbasis for custody jurisdiction, personal jurisdiction over bothparents," was rejected by implication and without substantialdiscussion in Ex parte Birmingham.9 Of course, Texas juris-diction is also limited by the May v. Anderson rule that eventhough custody may be awarded if the children are domiciledor present in Texas, the decree need not be accorded full faithand credit if a respondent was not subject to Texas personaljurisdiction."' This disability is what the parent-child long-arm statute is designed to correct to the maximum extentpossible.

Finally, although a Texas court may lack jurisdiction tosettle all issues of custody, or conservatorship as it is calledin Texas, a petitioner has never been wholly without remedy.The petitioner may always travel to the state of respondent'sdomicile to litigate unresolved questions of custody or sup-port. More frequently, a mother-custodian of children mayassert the obligation of the father to support his children byresort to the Uniform Reciprocal Enforcement of Support Act

38. See, e.g., Sampsell v. Superior Court, 32 Cal. 2d 763, 197 P.2d 739, 749 (1948);Hawkins v. Hawkins, 504 P.2d 709, 713-14 (Ore. 1972); LEFLAR, supra note 1, at 586-87 (1968);RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 79 (1971).

Section 3 of the Uniform Child Custody Jurisdiction Act reaches an essentially identicalresult by a different route. Jurisdiction to decide custody is allocated to the "home state" ofthe child and is retained by that state for a period of 6 months after the child has left,provided the absence is "because of his removal or retention by a person claiming custody orfor other reasons, and a parent or person acting as parent continues to live in this State .. "Uniform Child Custody Jurisdiction Act § 3. Although the Uniform Act does not directlypurport to assert personal jurisdiction over the absent parent, section 12 provides that adecision binds the parent if he has received proper notice of the suit under section 5. Id. at110.

39. 150 Tex. 595, 244 S.W.2d 977 (1952). In Birmingham the father was domiciled inArkansas and had physical custody of the children. In addition, he had been awarded custodyin an Arkansas divorce, although apparently the mother was not personally bound by thatdecision. He was apprehended while visiting in Texas and jailed for contempt when he refusedto obey and order to deliver custody to the mother. The supreme court held that the contemptorder exceeded the power of the court-jurisdiction over both parents did not confer jurisdic-tion over child custody.

40. 345 U.S. 528 (1953); Spitzmiller v. Spitzmiller, 429 S.W.2d 557 (Tex. Civ.App.-Houston, 1968).

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(URESA)." Both of these remedies, however, are inconven-ient, to say the least, and often unavailable as a practicalmatter. Travel to the foreign state may be impossible. Resortto URESA is sometimes only theoretically possible becauseprosecuting officers in some states are less than diligent inpursuing delinquent obligors.

D. Response to Foreign Divorce Decrees

Texas courts have had little occasion to deal with theissues created by foreign divorce decrees because divorce inTexas was available virtually upon demand42 long before thegrounds officially were labeled "no fault. 4 3 Thus, Texas resi-dents have seldom felt compelled to seek a migratory divorce.In general, however, when called upon to render a decisionregarding foreign divorce decrees, the Texas Supreme Court'sperformance has been exemplary;" the McElreath decision isillustrative of its progressive attitude.

Other decisions represent a middle ground wholly consis-tent with the basic United States Supreme Court decisions.Generally, Texas courts have appropriately allowed collateralattack upon divorce decrees based on allegedly spurious juris-diction. 5 Similarly, if the attacker participated in the foreign

41. TEX. FAMILY CODE ANN. §§ 21.01, et seq. (1975); see BROCKELBANK, UNIFORM RECIP-ROCAL ENFORCEMENT OF SUPPORT ACT (1971).

42. The Texas Civil Judicial Council reports district court statistics each year. The 1962

Report was the first to note divorces granted and denied as follows:Divorces tried with Jury

(a ) G ra n ted ... .. .. ... ..... .. .. .. .. .. ...... .... . ...... ... ...8 0(b ) D e n ied . .. ............. ... ................... ......... 18

Divorces tried without Jury(a ) G ra n ted ...... ............................................ 36 ,058(b ) D enied ..... ...... .... ..... . . . . 113

While there is no way to tell how many of the 19,055 divorces dismissed in 1962 weredropped for fear of losing, an educated guess would be virtually none were. Of the cases tried,less than 0.4 percent were denied. 34 TEX. CIv. JUD. COUNCIL ANN. REP. 59 (1962). Admittedly,the 1973 statistics do demonstrate that divorces were more easily obtained; only 23 divorceswere denied out of 68,634 tried; only one in five rather than one in three of the cases on the

docket were dismissed. 45 TEX. CIv. JUD. COUNCIL ANN. REP. 170 (1973). While these statisticsreflect some differences, they are rather clearly de minimus.

43. TEX. FAMILY CODE ANN. § 3.01 (1975).

44. See notes 21-24 supra and accompanying text.

45. Callicoatte v. Callicoatte, 324 S.W.2d 81 (Tex. Civ. App.-Waco 1959, writ ref'dn.r.e.).

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litigation, he has been estopped from subsequently attackingthe decree.4"

On the other hand, Texas courts have occasionally goneto absurd lengths to defer to foreign decrees. In Burleson v.Burleson47 the court refused to allow a collateral attack uponthe allegedly spurious domicile supporting a divorce-mill de-cree. The court based its decision on its interpretation of Ne-vada rules of civil procedure. Such deference not only goes wellbeyond the requirements of full faith and credit, but may infact be a denial of due process.48

With regard to foreign alimony decrees, Texas courts haveonly grudgingly complied with the minimum requirements offull faith and credit. Historically, Texas courts have extendedfull faith and credit to foreign alimony decrees in two situa-tions: first, when a supplemental judgment has been renderedby the other state for alimony arrearages, even if prior to thatjudgment the alimony was subject to retroactive modifica-tion;49 second, when by the law of the foreign state the install-ments become vested and absolute upon coming due, althoughthe burden of proving foreign law is placed on the claimant. 0

This latter requirement is not oppressive because of the rela-tive ease of such proof.'

Alimony arrearages will not be enforced if they may be

46. E.g., Moody v. Moody, 465 S.W.2d 836 (Tex. Civ. App.-Corpus Christi 1971, writref'd n.r.e.), cert. denied, 405 U.S. 990 (1972).

47. 419 S.W.2d 412 (Tex. Civ. App.-Houston [14th Dist.] 1967, no writ).48. The Burleson decison has been roundly criticized elsewhere. See Thomas, Conflict

of Laws, Annual Survey of Texas Law, 23 Sw. L.J. 159, 165-69 (1969).49. This result constitutes the minimum compliance with the U.S. Constitution. Sis-

tare v. Sistare, 218 U.S. 1 (1910); Lynde v. Lynde, 181 U.S. 183 (1901). Texas must and doeshonor foreign judgments for alimony arrearages. Rumpf v. Rumpf, 150 Tex. 475, 242 S.W.2d416 (1951); Gard v. Gard, 150 Tex. 347, 241 S.W.2d 618 (1951); see Comment, Enforcementof Foreign Alimony Decrees in Texas: A Survey and Analysis, 38 TEXAs L. REV. 82 (1959);Annot., 6 A.L.R.2d 1277 (1949); cf. Annot., 52 A.L.R.3d 156 (1973).

50. E.g., Moody v. Moody, 465 S.W.2d 836 (Tex. Civ. App.-Corpus Christi 1971, writref'd n.r.e.), cert. denied, 405 U.S. 990 (1972); Quinn v. Quinn, 216 S.W.2d 1001 (Tex. Civ.App.-Fort Worth 1948, writ ref'd n.r.e.).

This rule was most recently confirmed in Worrel v. Worrel, 526 S.W.2d 736 (Tex. Civ.App.-Corpus Christi 1975, no writ). There petitioner proved that under Virginia law alimonypayments are vested, absolute, and unmodifiable when a divorce decree incorporates, withoutobjection, the provisions of a previously existing contractual agreement between the husbandand wife.

51. TEX. R. Civ. P. 184a provides for judicial notice of the law of other states.

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modified retroactively in the original state even if a modifica-tion has not taken place.52 Payment of future alimony install-ments will not be ordered although such an order would beconsistent with the most logical construction of full faith andcredit. 3 This inequitable situation has long been statutorilyconfirmed in the Texas version of URESA in a provision whichis neither uniform nor reciprocal. 4 The fact that this inevita-bly leads to multiplicity of litigation at best, and to eventual,complete frustration of the foreign decree at worst, has thusfar been ignored. Of course, the long-standing Texas hostilityto permanent alimony55 may explain this reluctance to deferto foreign decrees.

E. Response to Foreign Child Custody and Support Awards

At one time it was widely accepted that a modifiabledecree of child custody was not necessarily entitled to fullfaith and credit. As of 1975 a majority of states apparentlyhold to the contrary.-" The Texas Supreme Court was an earlyand increasingly faithful adherent to the latter view. 7

52. Under Sistare v. Sistare, 218 U.S. 1 (1910), such decrees need not be accorded full

faith and credit. Nonetheless, a court may enforce such alimony payments, taking into

account the potential to modify retroactively. Shulman v. Miller, 191 F. Supp. 418 (E.D. Wis.

1961); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 109 (1971). The value of taking this

approach has been persuasively stated by many commentators. See Reese, Full Faith and

Credit to Foreign Equity Decrees, 42 IOWA L. REV. 183 (1957); Comment, Enforcement of

Foreign Alimony Decrees in Texas: A Survey and Analysis, 38 TEXAS L. REV. 82 (1959); cf.WEINTRAUB, supra note 1, at 187-88.

53. E.g., Light v. Light, 12 Ill. 2d 502, 147 N.E.2d 34 (1957) (Schaefer, J.); Weldy v.

Weldy, 74 N.D. 165, 20 N.W.2d 583 (1945).Other states have recognized alimony decrees on the basis of comity. E.g., Hendrix v.

Hendrix, 160 Conn. 98, 273 A.2d 890 (1970); Hill v. Hill, 153 W. Va. 392, 168 S.E.2d 803

(1969). In Worthley v. Worthley, 44 Cal. 2d 465, 283 P.2d 19 (1955), a New Jersey separate

maintenance decree was established as a California decree. See Comment, Enforcement of

Foreign Alimony Decrees in Texas: A Survey and Analysis, 38 TEXAS L. REV. 82 (1959).

54. TEX. FAMILY CODE ANN. § 21.21 (1975) (codifying Tex. Laws 1965, ch. 679, § 7, at

1563). See also UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT § 7 (1968 act).

55. McElreath v. McElreath, 162 Tex. 190, 228, 345 S.W.2d 722, 747 (1961); Cun-

ningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931). It was not until 1967 that

contractual alimony agreed upon by the parties was held to be enforceable, Francis v. Francis,

412 S.W.2d 29 (Tex. 1967); see McKnight, Commentary on Title 1, Texas Family CodeSymposium, 5 TEX. TECH L. REV. 281, 341-43 (1974).

56. O'Malley v. O'Malley, 338 A.2d 149 (Me. 1975), citing, inter alia, Miller v. Miller,

158 Conn. 217, 258 A.2d 89, cert. denied, 396 U.S. 940 (1969). See also Annot., 35 A.L.R.3d

520, 540 (1971).57. E.g., Goldstein v. Salkey, 131 Tex. 139, 112 S.W.2d 165 (1938) (res judicata

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Nominal lip-service to full faith and credit, however, isgenerally only the first step in according foreign custody de-crees full recognition. As Professor Russell J. Weintraub hasstated:

The question of whether full faith and credit isowed to custody awards, however, is largely academic.Even if full faith and credit is due, the custody awardcan be modified in the original forum. No state is re-quired to give the award more faith and credit than itwould receive where rendered. In all states, custodyjudgments can be modified in the light of changes incircumstances ....

Thus, any court that wishes to modify a sister-statecustody decree can do so without raising grave constitu-tional issues. The new forum can, in good faith, makea finding that a substantial alteration in the situationof the parties requires an amendment to the sister statedecree. Or the second state can accomplish this resultby making a perfunctory finding of changed circum-stances. Even in this latter case, it would be difficult,if not impossible, for the losing party to demonstratethat full faith and credit even if owed, has been de-nied.5"

In this regard, the Texas Supreme Court has stated and re-stated that a finding of "material change of circumstances"sufficient to warrant the modification of a foreign custodydecree must be supported by compelling evidence.59 Thatcourt will not permit lower courts to make the type of perfunc-tory finding described by Professor Weintraub. After consider-

and FFC as of time of decree). See also Meucci v. Meucci, 457 S.W.2d 48 (Tex. 1970);Knowles v. Grimes, 437 S.W.2d 816 (Tex. 1969); Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.1966); cf. Rodgers v. Williamson, 489 S.W.2d 558 (Tex. 1973).

58. WEINTRAUB, supra note 1, at 196-97.59. In the cases cited at note 57 supra, the court obviously became impatient with the

lower courts' refusals to follow its views. This is most clearly evident in Meucci v. Meucci,457 S.W.2d 48 (Tex. 1970), in which the court merely stated: "The decision of the court ofcivil appeals is in conflict with the opinion of this court in Bukovich .. " The court notonly reversed and rendered, but it directed the trial court to issue a warrant to the sheriff torestore the children to the custodian under an Illinois decree. Finally, the court refused toallow the filing of a motion for rehearing. Id. at 49.

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able backsliding, it appears that the days of "hometown deci-sions" are over in Texas, 0 at least for the most part.'

In a notable recent case a court of civil appeals took anextra step to defer to a foreign court. Although jurisdictionclearly existed over the children who were present in Texas,the court refused to exercise its power because a Louisianacourt had previously acquired jurisdiction over both parentsin a divorce suit.6 2

Historically, Texas' recognition of foreign orders of peri-odic child support payments has tracked the rules regardingalimony installments. That is, if the law of the foreign statedeclares that the child support payments are vested and abso-lute as they fall due, full faith is compelled. 3 On the otherhand, to be enforceable in Texas, past due child support in-stallments must have been reduced to judgment if the install-ments are retroactively modifiable by the law of the foreignstate.64 The burden to prove the arrearages falls upon peti-tioner or enforcement will be denied. 5 The fact that a Texascourt could enforce modifiable orders on a comity basis hasbeen ignored. 6

60. In each of the recent leading cases, the court was forced to reverse a court of civilappeals decision. Meucci v. Meucci, 457 S.W.2d 48 (Tex. 1970); Knowles v. Grimes, 437S.W.2d 816 (Tex. 1969); Bukovich v. Bukovich, 399 S.W.2d 528 (Tex. 1966). Today, summaryenforcement of foreign decrees seems to be the general rule. See, e.g., Russell v. McMurtrey,526 S.W.2d 270 (Tex. Civ. App.-Beaumont 1975, no writ); Seaberg v. Brogunier, 515 S.W.2d398 (Tex. Civ. App.-Waco 1974, writ ref'd n.r.e.).

61. On occasion, of course, trial courts and courts of civil appeals may render hometowndecisions. If no appeal is taken, the decision stands. For example, Dohrmann v. Chandler,435 S.W.2d 232 (Tex. Civ. App.-Corpus Christi 1968, no writ), affirmed a change of custodyeven though only 2 months had elapsed after the original North Dakota decree and the legalcustodian (father) had never secured custody. More recently, at least two reported cases havea hometown aura. Clayton v. Newton, 524 S.W.2d 368 (Tex. Civ. App.-Fort Worth 1975, nowrit); Hollis v. Hollis, 508 S.W.2d 197 (Tex. Civ. App.-Amarillo 1974, no writ). These arediscussed in length in the text accompanying notes 209-24 infra.

62. Hinds v. Hinds, 491 S.W.2d 448 (Tex. Civ. App.-San Antonio 1973, no writ). Thecourt mistakenly stated that it did not have jurisdiction, In fact, it actually applied "anenlightened use of forum non conveniens." Baade, Conflicts of Laws, Annual Survey of TexasLaw, 28 Sw. L.J. 166, 238-39.

63. Gard v. Gard, 150 Tex. 347, 241 S.W.2d 618 (1951).64. Fox v. Fox, 526 S.W.2d 180 (Tex. Civ. App.-Dallas 1975, no writ); Brazeal v.

Renner, 493 S.W.2d 541 (Tex. Civ. App.-Dallas 1973, no writ); Moore v. Bramlett, 415S.W.2d 526 (Tex. Civ. App.-Austin 1967, writ ref'd n.r.e.).

65. Id. but see Sistare v. Sistare, 218 U.S. 1 (1910).66. See notes 49-54 supra and accompanying text.


Resort to URESA 7 to obtain a valid Texas order for sup-port will reduce the problem. 8 More vigorous use of its provi-sion for registration of foreign judgments, which then will havethe "same effect and may be enforced as if originally enteredin the court of this state,"69 might further mitigate child sup-port enforcement problems.

IV. THE JURISDICTIONAL IMPACT OF THE FAMILY CODE BEFORE

THE 1975 AMENDMENTS

Prior to the developments in 1975, the enactment of theTexas Family Code had only a limited impact upon the Texasview of jurisdiction. In fact, both Titles 1 and 2 were relativelysilent on the subject.

A. Divorce

The focus of Title 1, Chapter 3, Subchapter B, entitled"Jurisdiction and Venue, Residence Qualifications", isprimarily on durational residency requirements. 0 Such re-quirements have long been held not to be jurisdictional. De-viation from the terms of the statutes does not void a divorcejudgment and thus subject it to collateral attack.7 Durationalresidency requirements are not wholly without jurisdictionalcharacteristics, however, particularly when, as in sections3.21, 3.22, and 3.24, they relate to the state's power to adjudi-cate marital status founded on domicile.72 In marked contrastto these standard domiciliary requirements, section 3.23 pro-vides divorce jurisdiction over military personnel not pre-viously residents of Texas (and not necessarily domiciled in

67. Tax. FAMILY CODE ANN. §§ 21.01-21.66 (1975).68. Bjorgo v. Bjorgo, 402 S.W.2d 143 (Tex. 1966); Strader v. Strader, 517 S.W.2d 905

(Tex. Civ. App.-Waco 1974, no writ); Westphal v. Palmer, 480 S.W.2d 277 (Tex. Civ.App.-Houston [14th Dist.] 1972, no writ).

69. TEX. FAMILY CODE ANN. § 21.66 (1975) see 44 TEXAS L. REV. 812 (1966).70. TEX. FAMILY CODE ANN. §§ 3.21-3.25 (1975).71. Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953); Aucutt v. Aucutt, 122 Tex.

518, 62 S.W.2d 77 (1933); Nowell v. Nowell, 408 S.W.2d 550 (Tex. Civ. App-Dallas 1966,writ dism'd w.o.j.), cert. denied, 389 U.S. 847 (1967).

72. Sosna v. Iowa, 419 U.S. 393 (1975). Under some sections, e.g., §§ 3.21-3.23, Texaslaw requires county durational residency as well, but this is not uniform, e.g., §§ 3.24 and3.25 do not. This requirement has been upheld. LeFebvre v. LeFebvre, 510 S.W.2d 29 (Tex.Civ. App.-Beaumont 1974, no writ).

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Texas) if they meet specific durational residency require-ments.73 This provision, however, did not alter prior law.

The only other jurisdictional statement in the originalTitle 1 is made in section 3.25, which grants power to annulor declare void not only the marriages of domiciliaries, butalso any marriage which took place in Texas irrespective of theparties' domicile. This section does not provide for durationalresidency prior to bringing suit. It seems extremely dubious intheory, but has little practical significance.74

B. Child Custody and Support

Although the word "jurisdiction" appears in several sec-tions of Title 2, the Family Code makes no attempt to definethe term or to establish the bases of original jurisdiction in asuit affecting the parent-child relationship. This is not unu-sual. Only a very few states have attempted to spell out theprerequisites of custody jurisdiction.7" Those states that havedone so generally claim jurisdiction if any one of the threerecognized bases is present: domicile of the child, physicalpresence of the child, or jurisdiction over the contesting par-ents.76

The enactment of Title 2 in 1973 strengthened the alreadypositive Texas response to foreign custody decrees. By impli-cation at least, the 1-year cooling off period for custody litiga-tion required by section 14.08 is applicable to foreign custody

73. Authorities cited note 9 supra.74. There seem to be no cases anywhere on the question of whether domicile is a

prerequisite for annulment. In the absence of durational residency, in theory a spouse seekingannulment could assert domicile immediately upon arriving in Texas with an intent to re-main or could admit domicile elsewhere if the marriage took place in Texas. If Texas annul-ments were routinely granted, migratory annulment in the state would almost be as conven-ient as (and somewhat safer than) the Juarez divorces formerly in vogue. In fact, the groundsfor annulment in Texas are rather narrow, and the state has never been an "annulment mill."

75. E.g., N.C. GEN. STAT. § 50-13.5(c)(2) (Supp. 1975); WIs. STAT. ANN. § 247.05 (Supp.1975). The Uniform Child Custody Jurisdiction Act also contains detailed provisions onjurisdiction. UNIFORM CHILD CUSTODY JURISDICTION ACT § 3. At present, seven states haveenacted the UCCJA. See 9 Uniform Laws Ann. 26 (Supp. 1976) and 1 Famil. Rep. 2463 (1975).

76. E.g., North Carolina does not claim that jurisdiction over the parents is a sufficientbasis to decide custody. N.C. GEN. STAT. § 50-13.5(c)(2) (Supp. 1975). The Uniform Act statesthat physical presence, without more, is an inadequate basis for jurisdiction unless an emer-gency exists or no other state has a better claim. UNIFORM CHILD CUSTODY JURISDICTION ACT §

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orders.77 Its application becomes clearer upon reading section14.10 which provides that habeas corpus shall be ordered anda cross-action for modification shall be disregarded if a cus-tody order was entered "by a court of another state or nation"which had jurisdiction over the parties, provided the child hasbeen within the state for less than 12 months immediatelypreceding the filing of the petition for the writ.7" Writs of ha-beas corpus filed by persons entitled to legal custody by virtueof a foreign order were summarily enforced in several recentappellate decisions.79

As noted above, Texas courts have not enforced moneyjudgments for child support arrearages unless the arrearageshave been reduced to judgment or are absolute and vested asdue. 0 This reluctance probably stemmed from the unavaila-bility of such a remedy under Texas law.8 Title 2 significantlychanged Texas law regarding child support payments in twoways. First, under section 14.08(c) child support paymentsbecome vested and absolute as they fall due and may be modi-fied only prospectively; second, section 14.09(c) provides thatchild support arrearages may be reduced to judgment andenforced as other "judgments for debts." In a recent case the

77. Neither the original nor the 1975 amendment version of TEX. FAMILY CODE ANN. §

14.08 (1975) directly speaks to foreign custody orders. Arguably, these orders could be ex-cluded because the statute refers to orders of "conservatorship," a term unique to Texas.Clearly, the intent of the draftsmen was to include foreign orders. Professor Eugene Smith'sknowledgeable comments on the original version of Title 2 cite Bukovich v. Bukovich, 399S.W.2d 528 (Tex. 1966), and Meucci v. Meucci, 457 S.W.2d 48 (Tex. 1970), as primaryauthority for the statute, and both of these cases involved foreign custody decrees. Smith,Commentary on Title 2, Family Code Symposium, 5 TEX. TECH L. REV. 389, 432-34 (1974)[hereinafter cited as Smith].

78. Section 14.10 states this somewhat more awkwardly, phrasing the proposition in thenegative. As is common in the Family Code, the converse of the statutory language can onlybe implied.

79. In re Kamont, 537 S.W.2d 86 (Tex. Civ. App.-Amarillo 1976); Lehmann v. Leh-mann, 537 S.W.2d 131 (Tex. Civ. App.-Fort Worth 1976); Follak v. Brown, 530 S.W.2d 882(Tex. Civ. App.-Beaumont 1975, writ refd n.r.e); Seaberg v. Brogunier, 515 S.W.2d 398(Tex. Civ. App.-Waco 1974, writ ref'd n.r.e.); cf. Standley v. Stewart, S.W.2d __, 19Tex. Supp. Ct. J. 368 (June 30, 1976).

80. See notes 63-69 supra and accompanying text.81. Ex parte Hooks, 415 S.W.2d 166, 168 (Tex. 1967); Stanton, The Development and

Present Status of the Establishment, Modification and Enforcement of Child Support inTexas, 34 TEX. B.J. 325 (1971).

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statute was applied retroactively to arrearages accrued before1974.2

These provisions should alter the result of some cases inwhich child support arrearages are sought. It is "black letter"law that if foreign law is not proven, a court shall presume itto be the same as Texas law. 3 In so doing, the burden to provethat the child support order is retroactively modifiable underthe law of the Original jurisdiction should be shifted to theobligor."4 Further, even if the original state permits retroactivemodification of child support orders, a fascinating alternativeremedy may be possible. The Texas URESA provides thatregistration of a foreign decree has the effect of converting theforeign order into a Texas order ab initio s5 If this conversionis permissible under due process standards, the arrearages ofa registered decree would be absolute and vested under Texaslaw even though retroactively modifiable in the original state.To reduce the horrendous record of unenforced child supportdecrees,"6 courts should liberally construe this remedial aspectof the new Family Code. An obligor who ignores his duty ofchild support and makes life difficult for the pursuing obligeeby presenting a moving target deserves little sympathy. 7

82. Harrison v. Cox, 524 S.W.2d 387 (Tex. Civ. App.-Fort Worth 1975, writ ref'dn.r.e.).

83. Commonwealth of Mass. v. Davis, 140 Tex, 398, 168 S.W.2d 216 (1942): Clayton v.Newton, 524 S.W.2d 368 (Tex. Civ. App.-Fort Worth 1975, no writ).

84. Baade, Conflicts of Law, Annual Survey of Texas Law, 28 Sw. L.J. 166, 236 (1974).1 agree that this should be the result. Professor Baade notes that while this is an improvementover prior law, it is "hardly satisfactory. Runaway fathers are not in need of special protectionby the American federal system."

85. TEx. FAMILY CODE ANN. §§ 21.61-21.66 (1975).86. Support orders are notorious for being dishonored; apparently in the vast majority

of cases there is only partial or no compliance. See Weitzman, Legal Regulation of Marriage:

Tradition and Change, 62 CAL. L. REV. 1169, 1195-97 (1974); Eckhardt, Deviance. Visibility

and Legal Action: The Duty to Support, 15 Soc. PROBLEM 470 (passim) (1968). Other studiesconfirm this. In fiscal 1969-70, less than 15 percent of absent parents contributed to thesupport of their children who received funds under the Aid to Families with DependentChildren program even though the majority were capable of doing so. Zumbrum & Parslow,Absent Parent Child Support: The California Experience, 8 FAM. L.Q. 329, 331 (1974).

87. For an egregious recent example of this a parent's failure to pay child support, seeStrader v. Strader, 517 S.W.2d 905 (Tex. Civ. App.-Waco 1974, no writ). The defaultingfather paid nothing in child support for 2 years, although his average income was nearly

$15,000 per month during a significant period, and even higher than that at times. The obligeewas only able to obtain another court order in the reported case (other suits were on file).

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V. LONG ARM JURISDICTION UNDER THE 1975 FAMILY CODE

A. Introduction

The first 6 months of 1975 saw Texas move to the fore-front in matters of family law long arm jurisdiction. The firstimportant step was taken in Mitchim v. Mitchimj in whichthe Texas Supreme Court determined that Texas courts mustrecognize the assertion of a marital long arm by another stateif the requisite minimum contacts existed between that stateand the Texas respondent. The second major step, partially inresponse to Mitchim, was taken by the 64th Legislature. Titles1 and 2 of the Texas Family Code were amended to providelong arm jurisdiction in appropriate cases. Finally, the TexasSupreme Court amended rule 108 of the Texas Rules of CivilProcedure in a manner which may partially duplicate theFamily Code long arm statutes.

B. The Mitchim Decision and Its Progeny

1. Mitchim v. Mitchim

Mr. and Mrs. Mitchim were married in 1949 and took upresidence in Arizona in 1966. In January 1971 the parties sepa-rated, and Mr. Mitchim moved permanently to Ozona, Texas.After a brief visit to Texas in April 1971, Mrs. Mitchim re-turned to Arizona and filed suit there for divorce in June 1971.Mr. Mitchim was personally served with process in Texasshortly thereafter, but he made no answer or appearance. Adivorce was granted by the Arizona court in March 1972. Thedecree awarded Mrs. Mitchim alimony of $950 per month,court costs, and attorney's fees. In November 1972 Mrs.Mitchim obtained an Arizona judgment for unpaid alimonyarrearages of over $5,000. She attempted to enforce that judg-ment and the prior divorce judgment for costs and attorney'sfees in Texas, alleging that the judgments were entitled to full

88. 518 S.W.2d 362 (1975), reversing and remanding 509 S.W.2d 720 (Tex. Civ.App.-Austin 1974). For extended discussion of the Mitchim case, see McKnight. FamilyLaw, Annual Survey of Texas Law, 30 Sw. L.J. 71-72, 29 Sw. L.J. 67, 74, 103-04 (1974);Thomas, Conflict o Laws, 30 Sw. L.J. 275-77, 29 Sw. L.J. 244, 249-52 (1974); Comment, StateCourt Jurisdiction: The Long-Arm Reaches Domestic Relations Cases, 6 TEX. TECH L. REV.

1021 (1975).

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faith and credit. This claim was rejected by the trial court andthe court of civil appeals.

In reversing the lower courts,"9 the Texas Supreme Courtrelied on several decisions that recognized the assertion ofmarital long arm jurisdiction. It quoted the following rationalewith approval:

". [I]t seems to us that the minimum contacts con-cept of in personam jurisdiction is peculiarly suited tomatrimonial support cases. If such contacts are in factpresent in the particular case before the court, then theextension of in personam jurisdiction beyond the bor-ders of the forum state may prove to be a sensible stepin solving some of the hardships arising from familyseparation. Courts must know by this time that strictapplication of the Pennoyer rule to family support caseshas encouraged migratory divorce by offering a shieldto a spouse wishing to avoid financial responsibility.The state of the matrimonial domicile has a deep inter-est in its citizens and a legitimate purpose in takingsteps to preclude their impoverishment. Accordingly, itis our opinion that in personam jurisdiction may beacquired over a nonresident defendant in a divorce ac-tion by extraterritorial personal service of process if (1)a statute of the support ordering state has authorizedthe acquisition of such jurisdiction in that manner, and(2) there exist sufficient contacts between the defen-dant and the forum relevant to the cause of action tosatisfy 'traditional notions of fair play and substantialjustice'.""'

2. Application of Mitchim

Less than 6 months after the Mitchim decision was ren-dered, it was strictly followed in the interesting case of Fox v.Fox. " The Dallas Court of Civil Appeals reversed the trial

89. The court found that both the facts and the construction of the crucial Arizona Ruleof Civil Procedure were insufficiently developed below to permit rendering judgment for Mrs.Mitchim. 518 S.W.2d at 367.

90. Id. at 365-66.91. 526 S.W.2d 180 (Tex. Civ. App.-Dallas 1975, no writ).

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court's refusal to extend full faith and credit to New Jerseyjudgments for accrued and unpaid alimony, attorney's fees,and court costs. Fox did not expand the law but merely ap-plied it. The decision is nonetheless important for its instruc-tive value to practitioners.92 Moreover, the recognition of acreative assertion of long arm jurisdiction by New Jersey hasimportant implications with regard to the use of the Texasmarital long arm statute. The factual background, as statedby the court, is relevant:

"The parties were married . . .[in] 1955, in NewJersey, and lived together in that state until they sepa-rated in 1967. In . . . 1968, they signed a separationagreement providing that defendant would pay childsupport . . . .When this agreement was signed, theparties resided in New Jersey. In January 1969, the de-fendant moved to Texas and became a resident of thisstate. Approximately two years after defendant becamea Texas resident, plaintiff initiated divorce proceedingsin New Jersey. Service was obtained upon the defen-dant in Texas by having him served with citation ....The defendant made no appearance in the New Jerseydivorce action. A divorce judgment was rendered April22, 1971 which incorporated the identical terms of theseparation agreement of . . . 1968. The defendantfailed to pay the alimony and in 1973 plaintiff filed amotion for judgment . . . for alleged unpaid alimonyS. .and for an unpaid attorney's fee award [and]unpaid court costs from the divorce action . . . .In thisaction service was had upon the defendant by certifiedmail, return receipt requested. Defendant signed thereceipt, but made no appearance, and plaintiff wasgranted a default judgment for alimony arrearages onSeptember 4, 1973.

On October 24, 1973, plaintiff initiated [an] ac-

92. The Texas attorneys for Mrs. Fox touched every base. A lawyer with a similar casewould be well-advised to follow their example.

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tion in a Texas district court to enforce [the New Jerseyjudgment] .... ."In determining whether the New Jersey judgments were

entitled to full faith and credit, the court was required todecide whether New Jersey law authorized the acquisition ofpersonal jurisdiction over Mr. Fox in the manner of serviceemployed and whether the ex-husband's contacts with thatstate satisfied the requirements of due process.

The first question was answered affirmatively; the mostrecent New Jersey decision had held that personal service ofprocess outside the state is sufficient to establish in personamjurisdiction. 4 New Jersey is the final arbiter of its law.

The second question was also answered affirmatively,based on the following comparison with the Mitchim facts:

"In Mitchim, Arizona was the marital domicile ofthe parties from 1966 until the husband moved to Texasin 1971. The parties owned a home in Arizona and aftermoving to Texas the husband continued to make mort-gage payments on the home. The suit for divorce wasfiled less than six months after the husband left Ari-zona. Here New Jersey was the matrimonial domicile ofthe parties from 1955 until 1967; the parties executed aseparation and property settlement agreement [there]in 1968; and after moving to Texas in 1969, the defen-dant has sent child support payments to plaintiff ....Plaintiff is still domiciled in New Jersey [which had]a strong interest in providing for her support . . . . Weconclude, therefore, that the New Jersey court in 1971had in personam jurisdiction over the defendant

''95

93. 526 S.W.2d at 182.94. Wright v. Wright, 114 N.J. Super. 439, 276 A.2d 878 (1971); accord, Egbert v.

Egbert, 125 N.J. Super. 171, 309 A.2d 746 (1973).The New Jersey holding in Wright was extremely creative, to say the least. Wright held

that because the personal service rule, which is similar to TEX. R. Cv. P. 106, did notspecifically require service wihin the state, the general language was sufficient to establishlong arm jurisdiction by judicial fiat. The court acknowledged as authority to the contraryKase v. Kase, 18 N.J. Super. 12, 86 A.2d 587 (App. Div. 1952), and admitted that no specificstatute or rule supported its holding. In effect, the court found that if minimum contactsexist, anything goes.

95. 526 S.W.2d at 183.

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With the possible exception of the child support payments inFox as compared to the mortgage payments in Mitchim, Ari-zona's contacts in Mitchim were stronger than those of NewJersey in Fox. For example, the court was not at all troubledby the fact that more time had passed in Fox than had passedin Mitchim before action was taken in the foreign state.

C. Enactment of Long Arm Statutes

1. Introduction

As it was aptly stated in the Mitchim opinion, the asser-tion of a long arm enlarges the protection of Texas familiesagainst those who seek to avoid their obligations by fleeing orremaining outside of Texas when family difficulties lead tolitigation.96 The public, too, benefits from the use of a long armstatute. When support obligations are more readily enforce-able, public support of some and perhaps many Texas citi-zens may no longer be necessary.97 Further, experiencedemonstrates that adequate legal service is indispensable inmatrimonial cases. To the extent personal judgments by aTexas court for child support, support arrearages, and reason-able attorney's fees, are enforceable in other states, Texaspractitioners may be encouraged to accept cases otherwisedependent on publicly financed legal aid services.

Probably the most important goal of the long arm statutesis to increase the extraterritorial recognition of Texas custodydeterminations, at least in those states which meaningfullyaccord such decrees full faith and credit or rigorously apply

96. The major cases in point, some of which are cited in Mitchim, are: Hawes v. Hawes,130 Il1. App. 2d 546, 263 N.E.2d 625 (1970); Mueller v. Mueller, 287 N.E.2d 886 (Ind. 1972);Scott v. Hall, 203 Kan. 331, 454 P.2d 449 (1969); Mizner v. Mizner, 84 Nev. 268, 439 P.2d679 (1968); Dillon v. Dillon, 46 Wis.2d 659, 176 N.W.2d 362 (1970). These cases are examinedin depth in Comment, State Court Jurisdiction: The Long-Arm Reaches Domestic RelationsCases, 6 TEX. TECH L. REV. 1021 (1975). See generally, Note, Long-Arm Jurisdiction inAlimony and Custody Cases, 73 COLUM. L. REV. 289 (1973); Anderson, Using Long-ArmJurisdiction to Enforce Marital Obligations, 42 Miss. L.J. 183 (1971); Comment, The Juris-diction of Texas Courts in Interstate Child Custody Disputes: A Functional Approach, 54TEX. L. REV. 1008 (1976).

97. Unrestrained enthusiasm over the potential for improving collection of child sup-port by means of the long arm is not warranted. See note 86 supra. Nonetheless, enforceabilityof support orders is strengthened to some degree by the long arm statutes. In this area, smallsteps are worth taking.

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the "unclean hands" doctrine. An argument with considerableemotional appeal also is prompted by the Mitchim decision.If Texas courts must give in personam effect to sister-statejudgments against Texans in "appropriate cases growing outof domestic difficulties," it is equitable that Texas judgmentsbe given the same effect in other states.

2. Legislative History

The amendments to the Family Code originally proposedin 1975 by the State Bar of Texas" did not contain long armprovisions. After Mitchim had been decided, Professor EugeneL. Smith of the Texas Tech School of Law (now of the Univer-sity of Houston College of Law), and Professor Hans W. Baadeand I of the University of Texas School of Law, met to discussthe issue. We agreed that domestic relations long arm statuteswere long overdue and that the time for their enactment wasespecially propitious. We decided to attempt to add long armprovisions to the bar-sponsored bill, although it was too latefor official sanction for this proposal. We notified the FamilyLaw Section of our intent; it was clear that our efforts wouldnot generate opposition.

Professor Baade, Professor Russell Weintraub of the Uni-versity of Texas School of Law, and I drafted the statutes inthe form which was subsequently enacted. The proposed stat-utes were accepted by the legislative sponsors, Representa-tives Felix McDonald and Lynn Nabers and Senators KentHance and Don Adams.

Representative Robert Maloney of Dallas, chairman ofthe Family Law Subcommittee of the House Judiciary Com-mittee, agreed to incorporate the provisions in a committeesubstitute bill and shepherded them through the legislativeprocess. Mr. Maloney's advocacy proved to be a crucial ele-ment in their passage. 9 After the long arm provisions had beenincorporated in the major legislation, the focus shifted to the

98. See Adams, Proposed Revisions of the Family Code, 37 TEX. B.J. 1159 (1974).99. Chief responsibility for examination of the Title I and 2 amendments was allocated

to the Family Code Subcommittee of the House Judiciary Committee: Chairman Maloneyand Members Melchor Chavez, Woody Denson, Paul Moreno, and David Stubbeman workedincredibly hard, long hours on the legislation. The attention to the Family Code bills.

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bar-sponsored bills. For the most part, the long arm provisionswere a noncontroversial part of a larger, more debated pack-age. 'o"

The amendments to Title 1 or the Family Code passedrelatively easily.' 0 ' The Title 2 amendments ran into consider-able opposition and were not finally passed until the last dayof the 64th Session.'0 2

D. The Marital Long Arm

1. The Statute

Section 3.26, Title 1, Texas Family Code, the marital longarm statute enacted by the 64th Legislature, reads as follows:

Sec. 3.26. Acquiring Jurisdiction over Nonresident(a) If the petitioner is a resident or a domiciliary

of this state at the commencement of a suit for divorce,annulment, or to declare a marriage void, the court mayexercise personal jurisdiction over the respondent, orthe respondent's personal representative, although therespondent is not a resident or a domiciliary of thisstate if:

(1) this state is the last state in which mari-tal cohabitation between petitioner and the res-pondent occurred and the suit is commencedwithin two years after the date on which cohabita-tion ended; or

100. There was a very short debate on the marital long arm statute in the House ofRepresentatives on Second Reading of H.B. 276, the Title 1 Amendments. In the atmosphereof floor debate, a subject of this complexity is extremely difficult to explain effectively. Onemember at the back microphone wondered aloud if the provision "was on the cutting edge ofthe law, or merely shooting in the dark." Unfortunately, the answer was: "The latter." Thismisstep did not effect passage, however. Thereafter, the long arm provisions were not debatedon either floor.

101. H.B. 276 was enacted as Tex. Laws 1975, ch. 254, at 619, on May 20, 1975.102. H.B. 201 was enacted as Tex. Laws 1975, ch. 476, at 1253, on June 2, 1975.Notwithstanding the sanguine view of Raggio & Rasor, From Dream to Reality-How to

Get A New Code on the Books, 8 FAM. L.Q. 105 (1974), many legislators harbor considerableresidual hostility toward the Family Code. In the final analysis the amendments were enactedon faith, based upon reliable assurances that the Code would be markedly improved.

In addition to the sponsors and committees, other key figures in the legislative processwere Ken Kramer, Chairman of the Family Law section of the Bar Association, and the Bar'slobbyist, Greg Hooser.

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(2) notwithstanding Subdivision (1) above,there is any basis consistent with the constitutionof this state or the United States for the exercise ofthe personal jurisdiction.

(b) A court acquiring jurisdiction under this sec-tion also acquires jurisdiction in a suit affecting theparent-child relation if Section 11.051 of this code isapplicable.Basically, the statute asserts two separate, distinct bases

for in personam jurisdiction over nonresident respondents insuits for divorce, annulment, or to declare a marriage void.One is very specific, and the other is extremely broad.

2. Specific Provision for Long Arm Jurisdiction-Section3.26(a)(1)

The first subsection is designed to apply to the vast ma-jority of cases. If Texas is the last state of marital cohabita-tion, and if the suit is filed within 2 years after the cohabita-tion ended, the minimum contacts necessary for Texas to ex-ercise long arm jurisdiction over the respondent are present.Typically, the spouses have resided in Texas as man and wife.After the parties have separated and one has left the state,timely assertion of personal jurisdiction over the absentspouse is appropriate.

In addition, the statute asserts jurisdiction over a nonresi-dent respondent's "personal representative," which includesguardians, executors, and administrators. 3 In predictablyrare instances, this assertion will prove to be vital in prosecut-ing or completing a lawsuit. For example, if an absent spousehas been declared incompetent in another state, jurisdictionover his -guardian may be required to enforce a division ofproperty ordered by a divorce decree. 104 In other situations,enforcement of property rights against the estate of a deceasedex-spouse will be facilitated if the executor or administrator

103. The term was borrowed from TEX. PROB. CODE ANN. § 3(aa) (Supp. 1975).104. See generally, Fratcher, Powers and Duties of Guardians of Property, 45 IOWA L.

REv. 264, 291-320 (1960).

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is bound by the Texas decree. 05 This situation may arise if theex-spouse has died after a judgment has become final, butbefore its terms have been executed.0 6

The internal statute of limitations provision is ratherunusual. This fact may be demonstrated by reference to otherstatutes. The Kansas statute was the first marital long arm,and it has served as the model for almost all the others."17

Statutes in effect in Kansas, Indiana, Nevada, Ohio, and NewMexico provide for personal jurisdiction if the respondent pre-viously has been "[1living in the marital relationship withinthe state notwithstanding subsequent departure from thestate, as to all obligations arising for alimony, child support,property settlements . . . if the other party to the maritalrelationship continues to reside in the state."' ' s If these stat-utes are literally applied, they would subject the absentspouse to personal jurisdiction forever.

Another formulation of a marital long arm is in force inIdaho, Illinois, and Utah, and is even broader. Under thisversion, a person assertedly submits to jurisdiction upon"[t]he maintenance within [the] state of matrimonial domi-cile at the time of the commission of any act giving rise to thecause of action for divorce or separate maintenance. ' ' ""

Such open-ended claims of jurisdiction, theoretically un-limited, seem manifestly unfair."0 The minimum contacts

105. Cf. Fields v. Michael, 205 P.2d 402 (Calif. Dist. Ct. App. 1949) (suit by widow ofW.C. Fields against his estate to recover her interest in lifetime gifts of community property

made by her late husband).106. A divorce action, being purely personal in nature, abates absolutely upon the death

of a spouse before entry of judgment. Dunn v. Dunn, 439 S.W.2d 830 (Tex. 1969). But if thedecree is final, id.; Blain v. Broussard, 99 S.W.2d 993 (Tex. Civ. App.-Beaumont 1936, no

writ), jurisdiction over the personal representative will permit the division of property to becompleted and thus will avoid multiple litigation.

A suit to declare a marriage void is not abated by the death of a party. See TEX. FAMILY

CODE ANN. § 2.24 (1975). Annulment actions are abated by statute following the death ofeither party. TEX. FAMILY CODE ANN. § 2.47 (1975).

107. Four states have copied the Kansas statute virtually word-for-word: Indiana, Ne-

vada, New Mexico, and Ohio. Three others have statutes modeled after it: Idaho, Illinois,and Utah. The statutes of three other states, New York, Oklahoma, and Wisconsin, arevariations on this theme; Wisconsin's is the most distinctive. See note 20 supra, for officialcitations.

108. E.g., KAN. GEN. STAT. ANN. § 60-308(b)(6) (1964).

109. E.g., IDAHO CODE ANN. § 5-514(e) (Supp. 1975).

110. WIs. STAT. ANN. § 247.057 (Supp. 1975) and N.Y. CIv. PRAC. § 302(b) (Supp. 1975)

appear to be the only statutes which avoid open-ended assertion of jurisdiction.

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necessary to support personal jurisdiction surely are eroded bypassage of time. The Texas statute builds in due process pro-tection by establishing a point past which the contacts arepresumed not to exist,"' subject to the exceptions discussedbelow.

Further, the two formulations quoted above may reachopposite results in cases where the parties once resided in thestate, left and resided elsewhere as man and wife, and subse-quently one of the spouses returned to the state. Although theKansas statute arguably could be construed to apply to a re-turning spouse who continues to reside in the state at the timeof filing suit, such an interpretation is rather strained. Moreprobably a court would construe the language to mean "hascontinuously resided.""' 2 If that is what was intended, how-ever, the statute should so state in plain English."3 On theother hand, the Idaho version is subject to an interpretationthat an "act" took place in the state leading to a divorce"cause of action" irrespective of intervening marital domi-ciles. Given the popularity of "no-fault" divorce, such a claimtakes on metaphysical overtones. The general requirementthat Texas be the last state of marital domicile should alle-viate this problem, subject again to the exceptions discussedbelow.

111. Only Wisconsin has an internal statute of limitations. Wis. STAT. ANN. § 247.057(Supp. 1975) provides:

"[Tlhe court has jurisdiction to grant such relief if:(1) The defendant resided in this state in marital relationship with the plaintifffor not less than six consecutive months within the six years next preceding thecommencement of the action;(2) after the defendant left the state the plaintiff continued to reside in thisstate ....The drafters of the Texas marital long arm believe that 6 years is much too long to justify

a claim of in personam jurisdiction. We may have been more conservative than necessary. InFox v. Fox, 526 S.W.2d 180 (Tex. Civ. App.-Dallas 1975, no writ), "[aIpproximately twoyears after defendant became a Texas resident, plaintiff initiated divorce proceedings in NewJersey." Id. at 182. The court did not mention that the passage of time might erode juris-diction of the New Jersey courts.

112. A recent student comment in this publication assumed this construction of theKansas statute. Comment, State Court Jurisdiction: The Long-Arm Reaches Domestic Rela-tions Cases, 6 TEx. TECH L. REV. 1021, 1039-44 (1975).

113. It is not difficult for a statute to do so. See, e.g., Wis. STAT. ANN. § 262.05 (Supp.1975), which states: "... and after the defendant left the state the plaintiff continued toreside in this state. This version still is not perfect; the formulation in the text isclearer.

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The draftsmen gave serious consideration to including, asa precondition to suit under section 3.26, a requirement of"has continuously resided in Texas" during the 2-year periodafter cohabitation ends. This approach was finally rejected." 4

Hypothetically, the spouses could separate and leave Texasfor different states. Within 2 years, one spouse could return,re-establish domicile, meet the residency requirements, andfile for divorce. Whether long arm jurisdiction should apply insuch a situation is a close question. The intended answer ofthe draftsmen is "yes." First, such situations will seldomarise, and when they do good reason will probably exist forTexas to act. Second, and more important, Texas will be theonly state with a reasonable nexus to both parties, and thuswill be the only state able to avoid the oppressive doctrine ofdivisible divorce.

Hypothetical situations could arguably result in inappro-priate application of the Texas statute. Fortunately, the con-stitutional law overtones of all long arms should prevent this.For example, a couple married in another state might come toTexas for a honeymoon on Padre Island. Shortly after arriving,they might decide that a mistake has been made and separate.If one of the spouses were to remain in Texas, he could assertthat Texas was the last state of marital cohabitation and that,therefore, the absent spouse was subject to Texas long armjurisdiction. In such a situation, a court should construe theterm "marital cohabitation" in a manner consistent withother Texas law. For example, the cohabitation element of acommon law marriage generally requires a permanent place ofabode." 5 Similarly, assertion of long arm jurisdiction in theabove example should be rejected by a legal conclusion that atemporary vacation stay does not fall within a reasonable defi-nition of the term "marital cohabitation" as intended by thestatute.

114. See Comment, State Court Jurisdiction: The Long-Arm Reaches Domestic Rela-tions Cases, 6 TEX. TEcH L. REV. 1021, 1039-44 (1975), for an extended discussion of theproblems inherent in such a restriction.

115. Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361 (1960); Grigsby v. Reib, 105 Tex.597, 153 S.W. 1124 (1913); see Comment, Common-Law Marriage in Texas, 21 Sw. L.J. 647,652 (1967).

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Such minor, and primarily hypothetical, problems ofconstruing the specific provision of the marital long armshould not blur or detract from its principal virtues. It maybe simply and easily applied to the vast majority of cases.Further, because the specific provision was conservativelydrafted in a deliberate attempt to avoid the murky perimetersof constitutional due process, extensive appellate litigationshould be eliminated.3. Broad Provision for the Assertion of Maximum Long Arm

Jurisdiction-Section 3. 26(a)(2)-

Section 3.26(a)(2) asserts long arm jurisdiction to the lim-its of the constitution." 6 The specific limitations of subsection(a)(1) will be inapplicable when the court finds that, in partic-ular fact circumstances, personal jurisdiction over the respon-dent is constitutionally permissible because the respondentcommitted acts which establish the requisite minimum con-tacts supporting such a claim. For example, a husband mayhave taken a job outside the state and continued to supporthis wife and family, assuring them that he would return uponthe termination of employment. Sometime later he might de-cide not to return."7 If more than 2 years have passed after"cohabitation ended," reliance upon the broad provision ofthe marital long arm is called for,"' provided suit is filed bythe remaining spouse within a reasonable time after learningthat the absent spouse intends not to return. Long arm juris-diction may be claimed because cohabitation ended only in avery literal sense for reasons other than an agreed terminationof the marital relationship. Similar situations might arise if

116. Some states use such a provision as the entire long arm, e.g., California, Okla-homa, Rhode Island, and Tennessee. See note 20 supra, for official citations.

117. Under traditional theory, a person's domicile of choice is altered when he is physi-cally present in a new jurisdiction concurrently with an unqualified intent to make that placehis new domicile. WEINTRAUB, supra note 1, at 9. The problems of applying this theory arelegion. Id. at 8-38.

118. Stucky v. Stucky, 185 N.W.2d 656 (Neb. 1971), reached this conclusion on similarfacts, albeit through artful construction and over a strong dissent. The defendant had beenabsent from Nebraska for over 41/2 years. During this time, however, he had provided for hisNebraska family. The opinion may also be interpreted as holding that the defendant's domi-cile was in Nebraska at the time of service.

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the absence from the state was caused by military or otherpublic service or because of incarceration in a federal prison.It may be reasonable to apply subsection (a)(2) to some ofthese cases.

Subsection (a)(2) might apply when the parties have beenseparated for over 2 years but the nonresident spouse has leftthe state only recently. The specific 2-year time limitation ofsubsection (a)(1) was deliberately stated to begin at the timeof separation, not at the time of departure from Texas. Undersome conceivable factual circumstances, however, the datewhen one spouse leaves Texas may be highly relevant. Forexample, the parties may have maintained some portion of themarital relationship, such as spousal support for the wife, dur-ing an extended period of separation. If the departing spouseterminates this support upon leaving the state, jurisdictionmay be claimed under subsection (a)(2).

A more difficult problem is presented if the parties havebeen separated for over 2 years and neither took action duringthat time either to continue any part of the marital relation-ship or to dissolve it. Whether it is reasonable in such a situa-tion to terminate immediately the availability of personal ju-risdiction when one spouse leaves the state is a close question.In my opinion, it is unfair to allow a spouse to sleep on hisrights for years and then spring a personal jurisdiction trapafter the other spouse has departed. Some will argue, however,that jurisdiction may be asserted if action is taken within "areasonable time." This position has some merit if judicial con-struction of the statute recognizes that the nexus with thestate can and will be eventually destroyed by the passage oftime.

The broad claim of jurisdiction may also lie when Texasis technically not the last state of marital cohabitation. Forexample, long-term residents may leave Texas and separateshortly thereafter. If one spouse immediately returns to thestate, Texas courts should be allowed to claim jurisdictionover the other spouse." 9 In an analogous situation, a couple

119. Cf. Hines v. Clendenning, 465 P.2d 460 (Okla. 1970). In Hines the parties weremarried in Oklahoma, went to undergraduate school there, and returned there to go to

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may move to Washington, D.C., because one spouse has ac-cepted temporary employment with the federal government.Although they might reside in Washington as husband andwife, in such cases the parties often maintain significant con-tacts with their home state. If one spouse were to return"home" within a reasonable time, the court should concludethat the conduct of the parties did not break the Texasnexus.120 Cases such as these are better left to individual deter-minations based on the particular facts.

The most perplexing problems presented by the broadjurisdictional claim of subsection (a)(2) undoubtedly will beencountered when the nonresident spouse has never set foot inTexas. Obviously the statute is not intended to assert jurisdic-tion over an absent spouse merely on the basis of the presenceof one spouse in Texas; the absent spouse must have addi-tional contacts with the state. Although personal jurisdictionbased solely on the presence of one spouse has been pro-posed, 2' such an assertion surely strains long arm jurisdictionpast the due process breaking point.

Just as surely, however, a nonresident spouse may haveengaged in conduct which clearly establishes the minimumcontacts necessary to support personal jurisdiction. For exam-ple, suppose a married couple domiciled elsewhere decides toseparate. One of the spouses might engage in one or more ofthe following acts: instruct the other spouse to "go to Texas";furnish an airline ticket to accomplish this; promise to providespousal support if the Texas trip is undertaken; actually pro-vide such support after the departing spouse takes up resi-

medical school. Although they last lived together in California while the husband was in theAir Force, they continued to vote in Oklahoma elections. The wife returned to the state on avisit and was informed by the husband not to return to his bed and board. The court foundminimum contacts based on its interpretation of a statute essentially identical to section3.26(a)(2), apparently assuming that the husband was a nonresident defendant.

120. Dillon v. Dillon, 176 N.W.2d 362 (Wis. 1970); cf. Hines v. Clendenning, 465 P.2d460 (Okla. 1970). This hypothetical alternatively suggests that the parties continued to bedomiciled in Texas. The U.S. Supreme Court has singled out Washington, D.C., for specialtreatment. District of Columbia v. Murphy, 314 U.S. 441 (1941). If Texas did continue to bethe domicile of the spouses, TEX. FAMILY CODE ANN. § 3.22 (1975) applies, and the use of thelong arm is unnecessary.

121. See Seidelson, Interest Analysis and Divorce Actions, 21 BUFFALO L. REV. 315

(1972).

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dence in Texas. Determining the point along this continuumat which Texas jurisdiction may legitimately attach is a sub-ject for reasonable debate. The most liberal position is thatany of the acts described will support personal jurisdiction. 22

The most conservative view would be to require at least all ofthe acts described above before allowing a jurisdictionalclaim.

This last example illustrates the inherent tension betweenthe specific and the broad provisions of the statute. The rela-tionship of these provisions is admittedly somewhat ambigu-ous and ultimately can only be resolved by judicial construc-tion. In lieu of authoritative court decisions, the relativelysubtle distinctions between two possible interpretations of thestatute should be examined.

It is clear that subsection (a)(2) is a desirable statementof principle reflecting an appropriate state interest, i.e., theassertion of personal jurisdiction to the constitutional limitsof due process. Further, it is manifest that the broad assertionis a separate, independent claim of jurisdiction, as demon-strated by the use of the term "notwithstanding [the specificprovision]." What may be debated is whether the due processstandards contained in the specific provision establish guide-lines for interpretation of the broad provision.

Professors Weintraub and Baade, two of the statute'soriginal draftsmen, assert that subsection (a)(2) is wholly in-dependent of subsection (a)(1). They maintain that the onlypurpose of the specific subsection is to facilitate applicationof long arm jurisdiction in relatively simple cases, but thatsubsection (a)(1) in no way serves to limit the sweep of subsec-tion (a)(2). In effect, potential litigants and their attorneys areon notice that Texas has decided to extend personal jurisdic-tion to its maximum.

I believe, however, that the due process standards ofsubsection (a)(2) should be determined by making referenceto subsection (a)(1). Standing alone, the broad subsection is

122. Note that the parent-child long arm statute specifically provides that such conductprovides long arm jurisdiction. TEX. FAMILY CODE ANN. § 11.051(2) (Supp. 1975).

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a massive delegation of power; it vests almost complete discre-tion in the courts without providing guidance for its applica-tion. "'23 It does not provide attorneys and potential litigantswith adequate notice regarding the acts which may subject anonresident to personal jurisdiction. Predicting the legal effectof conduct is both hazardous and abnormally subject to posthoc determinations. While such problems are intrinsic in alllong arm statutes, their impact is magnified when the policystatement of "maximum jurisdiction" is the only referencepoint.

Interpreting subsection (a)(2) with reference to subsec-tion (a)(1) mitigates most of these problems. Legal advice andplans for individual conduct may be based on the specificprovision. Although courts may render individualized deter-minations that certain conduct not covered by the specificprovision supplies minimum contact, they will do so onlyrarely and only for compelling reasons.

The distinction between these two approaches is best il-lustrated by returning to a previous example. Suppose a di-vorce is filed by a life-long Texan 5 years after marital cohabi-tation ended and one spouse left the state. Further, assumethat during this period there was no contact between the par-ties. Resolution of whether the broad assertion of personaljurisdiction should apply in this situation may well dependupon the manner in which the question is posed. ProfessorsWeintraub and Baade would ask: "Given these facts, is itconstitutionally permissible, i.e., fair and reasonable, to assertin personam jurisdiction over the absent spouse?" I would askthe same basic question, but would add, ". . . consideringthat assertion of personal jurisdiction within 2 years has beenlegislatively determined to be consistent with due process?" Inthis instance, I would conclude that a claim of in personamjurisdiction is impermissible.

In sum, the due process boundaries for family law longarm jurisdiction are not yet fully defined. As courts are asked

123. See Anderson, Using Long-Arm Jurisdiction to Enforce Marital Obligations, 42Miss. L.J. 183, 186-88 (1971).

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to supply the answers to these issues, their attention shouldbe directed to the very real distinctions that exist between thepersonal context of this litigation and the commercial contextin which most prior long arm decisions have been rendered. Inthe business context, for example, the sale of a single insur-ance policy by mail in a state supplies jurisdiction over theseller.'24 The financial and geographical oppression of beingforced to defend a lawsuit in a distant forum or of being boundby a default judgment may be regarded as a cost of doingbusiness. The purchase of an insurance policy by mail by anindividual does not, however, subject the buyer to personaljurisdiction in a suit filed in the corporate seller's forum. 12 5

The unreasonableness of jurisdiction over the nonresident isshown not only by the inconvenience to the buyer and thepracticality of his inability to defend, but also by the fact thathe does not regularly engage in such interstate transactions forpecuniary gain. Thus, what is a fair and reasonable due pro-cess for a business may be unconstitutional if applied to a layperson.

The application of these principles to family law litigationis appropriate. Divorce cases obviously are noncommercial innature. This fact has a direct, vital impact upon the properinterpretation of the meaning of due process. A more signifi-cant nexus with the forum should be required in personal liti-gation than that required to support commercial litigation.The reach of the long arm should be considerably greater inthe latter type of litigation. The levels of due process, whichdiffer depending on the parties, the issues, and the interestsinvolved, must be carefully considered by courts before theyassert jurisdiction in any given case.

Finally, brief mention should be made of section 3.26(b).This section is a cross-reference to the parent-child long arm.It does not provide additional substantive rights. It was in-tended to indicate that the two statutes provide separate anddistinct claims.

124. McGee v. International Life Ins. Co., 355 U.S. 220 (1957).125. See WEINTRAUB, supra note 1, at 125-29.

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E. The Parent-Child Long Arm

1. The Statute

The separate, independent cause of action for suits affect-ing the parent-child relationship requires a complementarylong arm statute. In fact, a long arm specifically related tochild custody and support is always warranted. 2 ' Section11.051, Title 2, Texas Family Code, reads as follows:

Sec. 11.051. Acquiring Jurisdiction over Non-resident

In a suit affecting the parent-child relationship,the court may exercise personal jurisdiction over a per-son on whom service of citation is required or over theperson's personal representative, although the person isnot a resident or domiciliary of this state, if:

(1) the child was conceived in this state andthe person on whom service is required is a parentor an alleged or probable father of the child;

(2) the child resides in this state, as definedby Section 11.04 of this code, as a result of the actsor directives or with the approval of the person onwhom service is required;

(3) the person on whom service is requiredhas resided with the child in this state; or

(4) notwithstanding Subdivisions (1), (2), or(3) above, there is any basis consistent with theconstitutions of this state or the United States forthe exercise of the personal jurisdiction.

No state has a statute comparable to section 11.051. Per-sonal jurisdiction may be exercised over a person upon whomservice is required in a parent-child suit given the presence of

126. The long arm statutes of Kansas and of the seven states which use the Kansasstatute as a model, see notes 20 & 107-109 supra and accompanying text, are limited to"actions of divorce and separate maintenance." Child custody and support issues raised asintegral elements of a divorce suit are no doubt covered by those statutes. But actionsinvolving only the parent-child relationship apparently do not invoke long arm jurisdictionunless the statutes are given a strained construction. Cf. Hawes v. Hawes, 263 N.E.2d 625(Ill. Dist. Ct. 1970). Creative expansion of long arm jurisdiction is not unknown. E.g., Stuckyv. Stucky, 185 N.W.2d 656 (Neb. 1971); Wright v. Wright, 276 A.2d 878 (N.J. Super. Ct. Ch.1971).

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one of three specific fact situations. In addition, jurisdictionmay be broadly exercised provided the state and federal con-stitutions are not offended.

2. Conception of Child in State

Subsection 1 provides that conception of a child in Texassupplies personal jurisdiction over an absent parent or proba-ble father. The fact situation contemplated is flight fromTexas by a husband, or more likely, a putative or allegedfather to avoid a paternity suit. 27

Several states have asserted jurisdiction over absent fa-thers. Three states have done so on the artificial basis thatconception of an illegitimate child, followed by flight and re-fusal to support, falls within a broad definition of "tortiousact" and thus subjects the fleeing parent to a general longarm. '2 Two other states avoid the tort approach and merelyhold that the minimum contacts test is satisfied.'29 Con-versely, some states have rejected such an expanded jurisdic-tional claim, primarily by picking holes in the artificial defini-tion of "tortious act." 30 In the two instances in which the issuehas been litigated, state courts have given full faith and creditto foreign support orders for illegitimate children based onlong arm jurisdiction in paternity suits.' Subsection 1 avoidsthe "tortious act" tangle by simply specifying that conceptionof a child in the state is sufficient contact to warrant assertionof a long arm.

127. TEX. FAMILY CODE ANN. Ch. 13. See Eugene Smith Commentary to Family CodeAmendments in this volume; Comment, 13 HOUSTON L. REV. 41 (1976).

128. Poindexter v. Willis, 231 N.E.2d 1 (Ill. Ct. App. 1967); see Poindexter v. Willis,256 N.E.2d 254 (Ohio Ct. C.P. 1970) (full faith to Ill. decision); Minnesota ex rel. Nelson v.Nelson, 216 N.W.2d 140 (Minn. 1974); Gentry v. Davis, 512 S.W.2d 4 (Tenn. 1974).

129. Bebeau v. Berger, 529 P.2d 234 (Ariz. Ct. App. 1975) (enforcing unreported Wis-consin decision); Backora v. Balkin, 485 P.2d 292 (Ariz. Ct. App. 1971); Neill v. Ridner, 286N.E.2d 427 (Ind. Ct. App. 1972).

In Neill the court stated that the act complained of did not have to be a tort at commonlaw. The public policy underlying the paternity act is very strong.

130. A.R.B. v. G.L.P., 180 Colo. 439, 507 P.2d 468 (1973); cf. Inkelas v. Inkelas, 58 Misc.2d 340, 295 N.Y.S.2d 350 (Sup. Ct. 1968) (failure to support legitimate child); cf. State exrel. Poole v. Dorroh, 532 P.2d 794 (Ore. 1975) (petition did not allege intercourse in forum orfailure to support).

131. Bebeau v. Berger, 529 P.2d 234 (Ariz. Ct. App. 1974) (Wis. decree); Poindexter v.Willis, 256 N.E.2d 254 (Ohio Ct. C.P. 1970) (Ill. decree).

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The statute does not require both conception and birth inTexas. The birthplace may have little or no relationship to theresponsibility of the most likely respondent, i.e., an allegedputative father. Expectant mothers of illegitimate childrenoften leave home for reasons of privacy. Therefore, the birthof a child outside the state will not impede filing a paternitysuit if conception took place in Texas and the alleged fathersubsequently fled the state. Venue in such cases is specificallyprovided in the county of the mother's residence.32

If read literally, subsection 1 could result in an inappro-priate assertion of long arm jurisdiction. For example, a hon-eymooning couple might conceive a child in Texas and returnto their state of domicile. On its face, the statute applies ifeither one of the parents returns to Texas with the child. Un-fortunately, there is no simple method to draft the statute toexclude this possibility from nominal coverage without unduecomplications or inadvertent elimination of cases to which thelong arm should apply. A court should refuse to apply the longarm on due process grounds if presented with these facts, thatis, if the acts of the absent parent other than conception failto establish a proper nexus with Texas. More important, an-other court has a vastly superior interest, and forum shoppingshould be refused on forum non conveniens grounds.

3. Child Present in State with Approval or Because of Actsor Directives of Nonresident

Subsection 2 is an unparalleled, but constitutionally per-missible, assertion of jurisdiction. If the respondent has com-mitted, directed, or approved an act which has resulted in thepresence of the child in Texas, long arm jurisdiction applies.Therefore, a parent who places a child on an airplane in Chi-cago and sends him to live with Texas grandparents for anextended or indefinite period subjects himself to the long arm.Judicial restraint will be required if an attempt is made to

132. TEX. FAMILY CODE ANN. § 13.41(a) (1975). This section, in contrast to section 11.04regarding venue in typical parent-child suits, provides that venue in paternity actions lies inthe county of residence of the alleged father. If jurisdiction is asserted under section 11.051,however, venue is in the mother's county of residence.

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abuse the provision, e.g., personal jurisdiction is claimed whena child is present for an intended short vacation. In such acase, jurisdiction should be declined again on the basis thatanother forum is better equipped to decide the issue. The mostrelevant evidence will be found in the child's home state.

Similarly, mere approval by one parent of the other's tak-ing the child to Texas subjects the approving parent to thelong arm. In this situation particularly, a question of fact islikely to arise. A court should carefully scrutinize the testi-mony, which probably will be one-sided, before finding thatapproval or directives to take the child to Texas existed. Un-less the courts give careful attention to this testimony, thepotential for successful collateral attack of a jurisdictionalfinding is great.

4. Respondent Resided with the Child in State

Subsection 3 provides that a respondent who has residedwith the child in the state is subject to the long arm. Thissection differs markedly from the marital long arm becauseTexas need not be the last state of parent-child residence.Because of the vital state interest in child custody and supportmatters, this provision was written in the broadest possibleterms. Reliance is placed upon the courts to limit this asser-tion of jurisdiction to cases complying with the requirementsof due process.

During the drafting process, I argued that the statuteshould contain a limitation of "last state of parent-child resi-dence" but I was outvoted by the other draftsmen. I continueto be troubled by the broad sweep of the language which argu-ably asserts jurisdiction in virtual perpetuity, i.e., up to 18years and beyond.' Jurisdiction over a parent who resided inTexas with a child 10 years ago, continued the family relation-ship in another state, and did not actively participate in thechild's return to Texas seems unwarranted. In my opinion,under such facts the nexus with Texas has been broken and

133. Tax. FAMILY CODE ANN. § 14.05 (1975). A parent's support obligation normally endswhen a child reaches 18; however, if the child is unable to support himself and requirescontinuous care and supervision, the obligation may extend for an indefinite period. Id.

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the required minimum contacts are not present.'3 4 But inmany situations a long-term residence in Texas with the child,even if Texas is not the last place of such a relationship, maybe sufficient to claim jurisdiction.

5. Jurisdiction to the Limits of Due Process

Subsection 4 asserts the broadest possible claim for longarm jurisdiction and provides great flexibility for the courts torender individualized judgments. If the specific subsections donot literally apply, this subsection may if the respondent'scourse of conduct has supplied sufficient contact with Texasto support personal jurisdiction. This section complementsthe similar provision, section 3.26(a)(2), in the marital longarm.

6. The Absence of an Internal Statute of Limitations

In contrast to the marital long arm, the parent-child stat-ute does not contain an internal statute of limitations. A par-ent has a continuing duty to support his child until the childis 18 years of age.'35 Because of the state's strong interest infacilitating the enforcement of this obligation, a time limita-tion upon filing suit is inappropriate. A caveat is required,however. Although a parent-child suit may be brought at anytime, an involuntary paternity action must be filed before thechild is 1 year old or the suit is barred. 3

1 If this constitution-ally dubious requirement is valid,'3 7 paternity actions which

134. Cf Inkelas v. Inkelas, 58 Misc. 2d 340, 295 N.Y.S.2d 350 (Sup. Ct. 1968); Baumv. Baum, 62 Misc. 305, 307 N.Y.S.2d 305 (Sup. Ct. 1970). These New York decisions refusedto construe the state's long arm statute to extend jurisdiction to cover fathers who failed tosupport their children after leaving the state. The courts reasoned that to construe the longarm in such a way would result in perpetual in personam jurisdiction. This result is whatthe Texas statute seeks to accomplish in parent-child suits. I believe this is wholly appropri-ate unless another state has a greater interest.

135. TEX. FAMILY CODE ANN. §§ 4.02, 14.05 (1975).136. TEX. FAMILY CODE ANN. § 13.01 (Supp. 1975).137. The one-year limitation on paternity suits probably cannot withstand an attack

based on the fourteenth amendment. Legitimate children are entitled to support from theirparents until they reach 18, and a suit to enforce this right may be brought at any time beforethe child reaches that age. To limit the right of illegitimates to seek support as the newpaternity action in section 13.01 appears to conflict with Gomez v. Perez, 409 U.S. 535 (1973).See Smith, Illegitimate Children and Their Fathers: Some Problems with Title 2, TexasFamily Code Symposium, 5 TEX. TECH L. REV. 613 (1974). However, Cessna v. Montgomery,

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seek to claim long arm jurisdiction under section 11.051(a)(1)must be timely filed.

F. Partial Personal Jurisdiction

In some situations perhaps only one of the specific provi-sions in the two Family Code long arm statutes will literallyapply. One such instance may occur when one parent lives inTexas with a child of the marriage at the direction of the otherparent, but the married couple has never cohabited in thestate. In that case, the parent-child long arm applies, but thespecific provision of the marital long arm does not. Whetherthe catch-all provision of the marital statute, section3.26(a)(2), or rule 108 can be used remains for court interpre-tation in individual cases. The presence of personal jurisdic-tion over a nonresident respondent regarding one issue shouldaffect the determination of the reasonableness of assertingsimilar jurisdiction over all issues involved. Rule 120a of theTexas Rules of Civil Procedure governing special appearance,however, seems to contemplate such partial personal jurisdic-tion; 3 ' thus, the question is difficult. Another more remotepossibility is that the marital long arm might apply, but thatnone of the specific provisions of the parent-child long arm areapplicable.'39

344 N.E.2d 447 (11. 1976), held that a two-year statute of limitations for paternity suits isvalid, reversing a lower court opinion to the contrary, 329 N.E.2d 861 (Ill. App. 1975). Thecourt further found that an alleged father could be estopped from asserting the limitationsstatute in certain circumstances.

Other courts have held that an illegitimate child's right to support cannot be waived orabrogated by the acts of his mother. Walker v. Walker, 266 So. 2d 385 (Fla. Dist. Ct. App.1972); Kaur v. Singh Chawla, 522 P.2d 1198 (Wash. Ct. App. 1974). Although under Texaslaw an independent suit for support may be filed on behalf of the child, Charvis v. Charvis,529 S.W.2d 814 (Tex. Civ. App.-Tyler 1975, no writ), the constitutional issue will be impos-sible to avoid if suit to determine the child's paternity has not been filed before he reachesage one.

138. TEx. R. Civ. P. 120a provides for a special appearance for the".. entire proceed-ing or . . any severable claim involved .. "

139. Under the traditional Texas rule, jurisdiction over both parents does not necessar-ily support jurisdiction over a child. Ex parte Birmingham, 150 Tex. 595, 244 S.W.2d 977(1952). Cf., Nelson v. District Court, 527 P.2d 811 (Colo. 1974) (Uniform Child CustodyJurisdiction Act).

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G. Child Absent from Texas

Doubtlessly, the most troubling situation found inparent-child actions arises when the parents have lived inTexas as a family and one spouse leaves the state with thechildren. Under pre-Family Code law, if the child continuedto be "domiciled" in Texas, whatever that means in this con-text, it was well settled that a Texas court had power to decidethe issue of custody."" Thus, if a parent and the child wereabsent from the state, jurisdiction allegedly depended on the"child's domicile." To speak of a child's domicile in such situ-ations borders on the absurd. Domicile is a difficult conceptto apply to adults.'' When an attempt is made to apply it toa child, the theory breaks down completely. According to theclassic definition, a departing parent acquires a new domicileno later than the time he arrives at the place he intends tomake a permanent home.'42 But what of the accompanyingchild? The traditional Anglo-American rule that a child takesthe domicile of his father no longer is even arguably valid.'43

Absent a prior judicial determination, the parent who hasactual custody of the child normally chooses the child'sdomicile. If this rule were to be literally applied, however,once a fleeing parent arrived at his "new domicile" with thechild, the state from which they fled would be divested of

140. E.g., Vogel v. Vogel, 405 S.W.2d 87 (Tex. Civ. App.-San Antonio 1966, no writ);DeLaughter v. DeLaughter, 370 S.W.2d 207 (Tex. Civ. App.-Texarkana 1963, writ ref'dn.r.e.).

Section 3 of the Uniform Child Custody Jurisdiction Act provides that a court hasjurisdiction if the forum was the ". . . child's home state within 6 months before commence-ment of the proceeding. under certain conditions. UNIFORM CHILD CUSTODY JURISDICTION

ACT § 3 (1968 act).141. The exceptions, qualifications, and inconsistencies of application of the rules of

domicile have been the subject of considerable comment. See, e.g. WEINTRAUB, supra note 1,

at 8-39; STRUMBERG, supra note 1, 16-50; Weintraub, An Inquiry Into the Utility of "Domicile"as a Concept in Conflicts Analysis, 63 MIcH. L. REV. 961 (1965).

142. WEINTRAUB, supra note 1, at 8-13; STUMBERG, supra note 1, at 16-30.143. STUMBERG, supra note 1, at 41-43. Even the minimal vestiges of this proposition

remaining, e.g., TEX. PROB. CODE ANN. § 109 (Supp. 1975), which states that the father isthe natural guardian of a child if both parents live together, surely fall under the Texas EqualRights Amendment. TEX. CONST. art. I, § 3a. Moreover, TEX. FAMILY CODE ANN. § 12.04(Supp. 1975) provides that each parent has equal rights and duties with respect to the child.For extensive discussion of the issue as it was treated by Texas law 30 years ago, see Peacockv. Bradshaw, 194 S.W.2d 551, 554-55 (Tex. 1946).

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jurisdiction over the child. In at least some circumstancessuch a result would be unwarranted. In sum, the "child's dom-icile" is a dead-end for legal analysis. One must look elsewherefor resolution of the jurisdictional problems arising when thechild has been taken from the state by a parent.

Clearly, the new long arm asserts personal jurisdictionover the absent parent, but the Family Code does not speakdirectly to the question of original jurisdiction to adjudicateconservatorship. The issue is alluded to in section 11.05(a)which states in part: "[W]hen a court acquires jurisdictionof a suit affecting the parent-child relationship, that courtretains continuing jurisdiction of all matters provided forunder this subtitle in connection with the child . . . ." Thisprovision is not dispositive of the issue, however, because con-tinuing jurisdiction is dependent upon the acquisition of origi-nal jurisdiction. Reference to the parent-child long arm doesnot necessarily provide an answer either, because it is directedat acquiring jurisdiction over a nonresident with an interest inthe child. The child himself is not normally a party and is notentitled to service. 144

Under prior law, Texas recognized only two of the threestandard American bases for jurisdiction over child custodyproceedings, domicile of the child and the child's physicalpresence in the state. The issue remains whether the FamilyCode has added the third traditional basis, personal jurisdic-tion over the parties (parents) of the controversy."' Becauseno specific section in the Code provides an answer, the natureof a "suit affecting the parent-child relationship" must beexamined. In contrast to pre-Family Code days, Title 2 pro-vides Texas courts with plenary power to determine conserva-torship under any and all circumstances. The overriding pur-pose of this grant of power is to provide for complete resolutionof conservatorship in a single action. As noted before, resolu-

144. TEX. FAMILY CODE ANN. § 11.09 (Supp. 1975). A child may bring suit pursuant to

section 11.03, and may be represented by a guardian or attorney ad litem, normally at thediscretion of the court pursuant to section 11.10. It would be possible to join an absent childas a party and to serve him, but this procedure seems patently ridiculous.

145. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 79 (1971); see notes 38 & 75-76 supra

and accompanying text.

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tion of jurisdictional issues is accomplished primarily byjudge-made law, not by statute. Thus, the Code providesample opportunity for Texas courts to expand the bases ofjurisdiction.

If it is assumed that the Family Code supports the thirdbasis for jurisdiction in these cases, the fact remains that thepower to adjudicate does not necessarily carry with it thepower to compel enforcement of court orders. Therefore, theactual holding in Ex parte Birmingham4 ' would seem to re-main valid even though its underlying rationale has been mo-dified by the Code. That is, a Texas court does not have powerto order the return of a child residing outside the state even ifthe parent with actual custody is subject to the personal juris-diction of that court (or as in Birmingham, to jail him forcontempt for failure to obey such an order). A Texas award ofconservatorship is within a court's jurisdiction to adjudicate,but it may be enforced only by a court of the state in whichthe child resides. If the award was made with in personamjurisdiction over the absent parent, however, that parent isbound to the extent custody decrees are recognized in theother state. Ultimately, the effect of the Texas determinationdepends upon the other state's view of full faith and credit toforeign custody orders, principles of estoppel and res judicata,and the validity of the Texas assertion of personal jurisdiction.

If Texas courts have jurisdiction to decide conservator-ship when they have jurisdiction over the parents, their asser-tion of the power should not be automatic. Finding jurisdic-tion in a conservatorship case is only the first step in a com-plex process that involves a balancing of many interests. Evenif a court has legitimate jurisdiction, it should usually refrainfrom deciding conservatorship if the child and one of the par-ents no longer reside in the state.

146. 150 Tex. 595, 244 S.W.2d 977 (1952). It is important to remember that Birminghamwas decided during a period in which the Texas Supreme Court was attempting to control"hometown" decision-making by trial and appellate courts. In the principle case, it is clearthat the lower courts acted without analyzing the best interests of the children. Properconsideration was not given to the question of which forum was best equipped to decide theissue, i.e., Arkansas where the children had resided for some period of time.

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In determining whether to assert or decline jurisdiction,the factual context is crucial. Of course, if the absent parentleft the state with the child after service of process in an ongo-ing lawsuit, whatever the reason for departure may have been,restraint has never been warranted.147 Similarly, flight by along-term resident in contemplation of an expected custodybattle either just before or just after suit was filed, but beforeservice was accomplished, strongly supports a Texas decision.Flight to avoid jurisdiction cannot be tolerated under any cir-cumstances. Moreover, in these situations the "home state"almost certainly is best equipped to decide the issue.

On the other hand, if the parent and child have left Texasfor a good reason, e.g., new employment, health, or a mutu-ally agreed upon separation, and if the departing parent wasunaware of a potential custody battle, caution in the assertionof jurisdiction is required. The difficulty, of course, is that ina one-sided presentation of evidence the court is unlikely tobe made aware of these factors. Further complicating thesituation is the problem of determining the length of timeafter the departure during which a Texas court should decidethe issue.

Establishing workable rules for situations involving suchcomplex variables is extremely difficult. This task has beenattempted by the Uniform Child Custody Jurisdiction Actwith mixed results. Because of its legal defects"' and an in-trinsic naivete,' the Act should not be adopted in its presentform. On the other hand, much of its basic philosophy has

147. Removal of the child from the jurisdiction, by flight or for good reason, afterpersonal jurisdiction has attached has never divested a court of jurisdiction. Davis v. Sprag-gins, 449 S.W.2d 80 (Tex. Civ. App.-Amarillo 1969, writ refd n.r.e.); Cavallaro v. Cavallaro,241 S.W.2d 247 (Tex. Civ. App.-Galveston 1951, no writ). Although removal of the childdid not affect the decision of the court, the final outcomes are unreported. The second statemay have had its later, more authoritative say.

148. For example, the Uniform Act does not contain a long arm statute. It attempts bylegislative fiat to compel interstate recognition of custody decrees in all cases, therebydisregarding the constitutionally grounded decision of May v. Anderson, 345 U.S. 528 (1953).See UNIFORM CHILD CUSTODY JURISDICTION ACT § 13 (1968 act). It is preferrable to avoid theMay rule by extending personal jurisdiction over absent parents, i.e., the Texas approach.See, WEINTRAUB, supra note 1, at 133.

149. The proper functioning of the Act is excessively dependent on the good faith of trialcourts in competing states. See UNIFORM CHILD CUSTODY JURISDICTION ACT § 14, Commis-sioners' Note (1968 act); Hudak, The Plight of the Interstate Child in American Courts, 9AKRON L. REV. 257, 296-97 (1975).

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great merit which should be considered by the courts. Theworthwhile principles of the Act may be applied, even withoutthe enactment of the statute."'

Illustrative of the defects of the Act is its total reliance on"home state" dominance in both the initial and future deter-minations of custody.' Basically the Act establishes the fol-lowing criteria for the assertion of original jurisdiction and forsubsequent modification: (1) the state either is or was thechild's "home state," provided the suit is commenced within6 months after the child's departure and the departure waswith a parent or other claimant of custody and the other par-ent remained behind; (2) the state has a significant connectionwith the child and his parents, or at least one contestant, andsubstantial evidence is available; (3) the child is physicallypresent in the state; or (4) no other state has jurisdiction, orjurisdiction has been declined because the "home state" isbest equipped to decide the issue.'52 Thus, the Act establishespreferential priority for the alleged "home state" for a periodof 6 months irrespective of the factual background of the case.The Commissioners Note following the provision explains:

A 6-month period has been selected in order tohave a definite and certain test which is at the sametime based on a reasonable assumption of fact ....

Most American children are integrated into anAmerican community after living there six months;consequently this period of residence would seem to

150. In re Giblin, 232 N.W.2d 214, 221 (Minn. 1975), specifically held that "the princi-ples and appropriate provisions of the Uniform . . . Act should be applied" even though theAct was not state law.

151. Ratner, Child Custody in A Federal System, 62 MICH. L. REV. 795, 815-20 (1964).The provisions of the Act are explained in Bodenheimer, The Rights of Children and theCrisis in Custody Litigation: Modification of Custody In and Out of State, 46 U. CoLo. L.REV. 495, 501-06 (1975); Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legis-lative Remedy for Children Caught in the Conflict of Laws, 22 VAND. L. REV. 1207 (1969).

152. UNIFORM CHIL CUSTODY JURISDICTION ACT § 3 (1968 act). Section 3(b) states that"physical presence in the state of a child, or of the child and one of the contestants, is notalone sufficient to confer jurisdiction .. " Presence in a non-home state must be accompa-nied by facts of abandonment, a need for emergency protection, or a refusal of the home stateto act.

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provide a reasonable criterion for identifying the estab-lished home.'53

Under the Act, identification of the appropriate forum isvirtually dispositive of the jurisdictional issue. States enactingit will be required to recognize out-of-state custody decreesand to refuse to modify such awards except in specified andlimited circumstances.' 4 The "6-month" rule is mitigatedslightly by the Act's provision concerning a forum non conven-iens.'55 In one-sided cases, however, the "6-month" rule andthe "significant connection" rule are likely to provide insuffi-cient protection to a parent who left the state with the childin good faith without intent to avoid jurisdiction. Althoughbalancing the interests involved is undoubtedly difficult, thechoice made by the Act to prefer convenience for the parentwho remained behind may often be inappropriate. When theabsent parent fled with the child to hamper litigation, theresult appears just. The Act, however, seems to accord toolittle importance to a very common fact situation, i.e., a par-ent who leaves a state with a child for a good reason and withthe approval (at least implied) of the remaining parent. Theremaining parent in this situation has a tactical advantageand may attempt to "hometown" the absent party. To forcethe actual custodian to return to litigate or risk loss of custodyin an ex parte hearing will often be oppressive.

There are no insurmountable problems in determiningconservatorship and ordering support provided the absent cus-todial parent prevails. A minor problem may arise, however,in determining the proper level of support. Evidence of theneeds of the absent child is likely to be in short supply. Con-sideration of the noncustodian's ability to pay, the other clas-sic factor, may receive "hometown" treatment. The net resultis that the amount of support ordered may be considerablylower than it would be in a contested case. If the trial courtsgive careful attention to support orders in such cases,'5' they

153. Id. Commissioner's Note, quoting Ratner, Child Custody in a Federal System, 62MicH. L. REV. 795, 818 (1964).

154. Id. §§ 13-14.155. Id. § 7.156. Compare Friedman v. Friedman, 521 S.W.2d Ill (Tex. Civ. App.-Houston [14th

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can eliminate excessively low orders.' 57 Trial courts should at-tempt not to deviate from some reasonable standard of sup-port level established by earlier decisions.' Great concernover this problem is unwarranted, however, because the childsupport orders probably will not be obeyed irrespective of theperiodic amount established.' 5 Although it is somewhat unu-sual to order support payments when the obligee and childreside outside the state, under present and former law suchorders are clearly within the power of the court.""

Dramatically different problems arise if the "home state"awards managing conservatorship to the remaining parent.The basic difficulty is that although the court has the powerto decree, it has no power to enforce. Thus, absent self-help,the Texas resident who prevails over the absent actual cus-todian must travel to another state and attempt to have theaward enforced. As mentioned earlier, it is an open questionwhether an award of custody is ever entitled to full faith andcredit. Moreover, many states only pay nominal lip service tosuch awards and readily find a "change in circumstances."''Thus, a countervailing "hometown" decision may result.

In sum, jurisdiction to decide custody is bifurcated, andthe state in which the absent parent and child reside hasconcurrent jurisdiction over the issue.'62 With two states hav-

Dist.] 1975, no writ), with Brooks v. Brooks, 480 S.W.2d 463 (Tex. Civ. App.- Eastland 1972,no writ); and Lynde v. Lynde, 492 S.W.2d 641 (Tex. Civ. App.-San Antonio 1973, no writ).

157. There can be no realistic hope that routine, uncontested divorce and parent-childsuits will ever receive "careful attention" at the trial court level. Only a law professor couldever suggest in print that this would be possible.

158. Supposedly, the application of an arbitrary formula in deciding an ordinary levelof support is forbidden. Barlow v. Barlow, 282 S.W.2d 429 (Tex. Civ. App.-El Paso 1955,no writ). Every practicing lawyer knows better. See Thomas, A Practical View of ChildSupport and Its Collection, 35 TEX. B.J. 791 (1972).

159. See note 86 supra.160. TEX. FAMILY CODE ANN. § 14.05; Simonsen v. Simonsen, 414 S.W.2d 54, (Tex. Civ.

App.-Amarillo 1967, no writ).161. See notes 56-62 supra and accompanying text.162. The principle of concurrent jurisdiction is best explained in Ferreira v. Ferreira, 9

Cal. 3d 824, 512 P.2d 304, 109 Cal. Rptr. 80 (1973). Section 3(b) of the Uniform Child CustodyJurisdiction Act, 9 Uniform Laws Ann. at 107 (1973), rejects at least a part of this theory.Ironically, California has enacted the Uniform Act. See Comment, The Uniform Child Cus-tod' Jurisdiction Act and the Continuing Importance of Ferreira v. Ferreira, 62 CAL. L. REV.365 (1974), for a complete discussion of the impact of the Uniform Act on Ferreira. The

212 [Vol. 8:159


ing jurisdiction, a hopeless muddle may arise.' 3 In such situa-tions, the court with the power to enforce the decree almostinvariably wins the argument.' 4 To add irony, if a foreignstate were to adopt the provisions of the Texas long arm, italso would have personal jurisdiction over the parent remain-ing in Texas if the child had left with the approval or at thedirection of that parent. Thus, in some situations, two statescould conceivably have complete personal jurisdiction overboth parents. More likely, however, the absent parent willhave taken the child without the approval of the remainingparent, and the foreign state has jurisdiction only over thatparent and the child. To complete the circle, if the Texasparent seeks to enforce a decree in that state, personal juris-diction over him will attach. This could be followed by a per-functory finding of changed circumstances, and the effect ofthe Texas decree will be nullified.

Finally, the location of proper venue presents a furthercomplication in the process of asserting long arm jurisdictionwhen a parent and the child are absent from the state. Section11.04(3) provides: "A child resides in the county where itsparent is living except that . . . if the parents of the child donot reside in the same county . . . the child resides in thecounty where the parent having care and control of the childresides." In a suit affecting the parent-child relationship, per-haps an unusual plea of privilege lies for the absent parent,to wit, no proper venue in Texas. If the parent-child suit isjoined with a divorce, however, proper venue is probably avail-able because divorce venue controls. 165

Uniform Act recognizes that two states may have jurisdiction, UNIFORM CHILD CUSTODY JURIS-

DICTION ACT § 3, Commissioner's Note (1968 act), but states "it will not be exercised in bothstates." This statement probably represents a hope rather than an accurate prediction of theprobabilities.

163. See Mills v. Howard, 228 S.W.2d 906 (Tex. Civ. App.-Amarillo 1950, no writ), inwhich similar actions were pending in both Texas and New Mexico. The court held that theTexas suit should not be dismissed and that it did not have to be abated. As a matter ofcomity, however, the court in which a second action is instituted could stay the proceedingsuntil the prior action is determined, or at least for a reasonable time.

164. In Bukovich v. Bukovich, 399 S.W.2d 528 (Tex. 1966), the noncustodian parentprevailed. The final say, however, was had by another court which reversed the Texas deter-mination. People ex rel. Bukovich, 39 I1. 2d 76, 233 N.E.2d 382 (1968).

165. TEX. FAMILY CODE ANN. §§ 3.55, 11.04-11.06 (1975).

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During the drafting process, consideration was given tocoupling the parent-child long arm with a requirement of pro-per venue. This idea was finally rejected because it arguablywould convert venue into a jurisdictional prerequisite. Mixingthe two concepts is generally inappropriate. Moreover, thisapproach might have unduly limited court actions because aTexas court probably should decide the custody of an absentchild in certain situations, e.g., those in which the parent fledwith the child in contemplation of a court fight.

To summarize, if the child has left the state in the com-pany of a parent (even without approval of the other parent),assertion of jurisdiction should be cautious. Such situationscry for intelligible rules to guide in the application of theforum non conveniens doctrine."' In any event, final resolu-tion of disputes is beyond the control of a Texas court. Alsoinevitably, further litigation will ensue absent self-help. An-other state will ultimately determine the issue.

H. Procedure

The Family Code long arm statutes are wholly indepen-dent of the general long arm statute, article 2031b. Proceduresestablished by that statute, e.g., service of process upon theSecretary of State for forwarding to a nonresident by certifiedmail, are wholly inapplicable. All divorce and parent-childsuits require personal service of citation or an acceptable sub-stitute. Service in suits against nonresidents must be given inthe same form required for residents according to rule 108.

A specific plea of long arm jurisdiction should be made ina petition; conservative practice dictates this procedure. Fur-ther, the mere recitation of "due service" in a judgmentclearly will not be conclusive." 7 If an assertion of long arm

166. The forum non conveniens doctrine has been recognized in Texas for many yearsbut it has been applied only sparingly. Van Winkle-Hooker Co. v. Wright, 448 S.W.2d 824,827 (Tex. Civ. App.-Dallas 1969, no writ). The supreme court has expressly refused toexplain the extent to which the "doctrine is recognized." Flaiz v. Moore, 359 S.W.2d 872 (Tex.1962). See Comment, Forum Non Conveniens: The Need for Legislation in Texas, 54 TEX.L. REv. 737 (1976). Section 7 of the Uniform Child Custody Jurisdiction Act takes a realisticapproach under the heading "inconvenient forum."

167. Whitney v. L. & L. Realty Corp., 500 S.W.2d 94 (Tex. 1973); Flynt v. City ofKingsville, 125 Tex. 510, 82 S.W.2d 934 (1935).

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jurisdiction is to be made, the record must accurately reflectits basis."" If it does not, the judgment may be defective andsubject to collateral attack when enforcement is sought. Acareful practitioner will prove the long arm basis and insurethat the judgment makes an unassailable finding of jurisdic-tion.

I. Retroactive Effect

The new long arm statute does not speak directly to itsretroactive effect. The original transition section of the FamilyCode provided that the new law controlled all actions filedafter January 1, 1974; all suits then pending except if notfeasible or fair; and all modifications of orders, judgments, ordecrees entered prior to that date."9 The 1975 amendmentsdid not contain a transition provision; by analogy the sameterms should be applicable. In sum, the new long arm statutesshould apply to all future cases and to situations in which therequisite minimum contacts were established prior to Septem-ber 1, 1975, unless such application would constitute a denialof due process. This view is supported by Harrison v. Cox' 7"which recently confirmed the retroactivity of the new remedyprovided in section 14.09(c) for obtaining money judgmentsfor child support arrearages.

Retroactivity of general long arm statutes has been liti-gated on numerous occasions in Texas and elsewhere. 7' Theresolution of the issue seems to be dependent on the type ofstatute involved. Implied consent statutes are based on thetheory that certain acts or transactions constitute the consentof a nonresident to the appointment of a local officer as hisagent for receipt of service of process. Such statutes generallyhave been held not retroactive because "consent" cannot sooperate. 72 On the other hand, statutes which simply providethat specific acts or transactions are the basis of jurisdiction

168. Whitney v. L. & L. Realty Corp., 500 S.W.2d 94 (Tex. 1973); Flynt v. City ofKingsville, 125 Tex. 510, 82 S.W.2d 934 (1935).

169. Tex. Laws 1973, ch, 543, § 4, at 1459.170. 524 S.W.2d 387 (Tex. Civ. App.-Fort Worth 1975, writ ref'd n.r.e.).171. Annot., 19 A.L.R.2d 138 (1968).172. Id. at 141-42.

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have been labeled "procedural." These statutes operate re-trospectively in the absence of a statutory provision or courtrule to the contrary. The Texas general long arm has been heldto be of this latter type;' obviously so are the Family Codelong arms.

This conclusion is conditioned by the requirement of dueprocess. Under certain circumstances a court may shrink fromliterally applying the statutes, e.g., to a parent who desertedhis children in Texas 10 years ago. Given the importance ofthe policies underlying the statutes, however, the courts mayfind that the continuing duty of support owed by the parentovercomes questions of time and space insofar as contact withTexas is concerned. Admittedly, the final decision on retroac-tivity lies not with Texas courts, but with courts in otherstates called upon to extend full faith and credit to a retroac-tive judgment, subject to review by the United States Su-preme Court.

J. The Effect of Amended Rule 108

By order of the Texas Supreme Court on July 22, 1975,amendments to the Texas Rules of Civil Procedure wereadopted, including the following:

Rule 108. Defendant Without StateWhere the defendant is absent from the State, or

is a nonresident of the State, the form of notice to suchdefendant of the institution of the suit shall be the sameas prescribed for citation to a resident defendant; andsuch notice may be served by any disinterested personcompetent to make oath of the fact in the same manneras provided in Rule 106 hereof . . . . A defendantserved with such notice shall be required to appear andanswer in the same manner and time and under thesame penalties as if he had been personally served witha citation within this State to the full extent that hemay be required to appear and answer under the Con-

173. Muchard v. Berenson, 307 F.2d 368 (5th Cir. 1962), cert. denied, 971 U.S. 982(1963) (construing Art. 2031(b)); Roberts v. Hodges, 401 S.W.2d 332, 335 (Tex. Civ.App.-Amarillo 1966, writ ref'd n.r.e.) (Oklahoma statute).

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stitution of the United States in an action either in remor in personam.

Change by amendment effective January 1, 1976: The words after

"State" in the last sentence are new. Its purpose is to permit acquisition ofin personam jurisdiction to the constitutional limits.

Rule 108 appears to extend long arm jurisdiction beyondthe Texas general long arm statute, article 2031b, and to adoptan approach similar to the provisions of the Family Code stat-utes. It might be argued that rule 108 renders the Family Codeprovisions redundant. The rule must be construed, however,with reference to due process requirements for which the spe-cific Family Code provisions provide reasonable guidelines.Further, in Family Code cases the pertinent long arm statutesshould control.

Professor Hans Baade has suggested that rule 108 createsa difficult problem. The rule-making power of the supremecourt may be used only for the establishment of rules "notinconsistent with the laws of this state."'74 The scope of Texaslong arm jurisdiction has been determined by legislative en-actment, constrained by due process limitations but certainlynot mandated by the fourteenth amendment. Thus, the legis-lature may repeal or restrict the statutes currently in effect atany time. Professor Baade argues that for the court to actunder its rule-making authority in an area covered by legisla-tion is not only undesirable, but is violative of the Texas Con-stitution.

75

Rule 108 provides that personal service is an alternativemode to service upon the Secretary of State, the exclusivemode of service under article 2031b.'76 The rule arguably dero-gates from the statute although it is a marked improvement.Further, the rule is not limited to suits in contract or tort orunder the Family Code. Thus, the rule may impermissiblyexpand jurisdiction over the potential subject matter and en-

174. TEX. CONST. art. V, § 25.175. Professor Baade submitted an opinion to this effect to the Texas Supreme Court

prior to the promulgation of rule 108. A condensed version of his views appeared in Lettersto the Editor, 38 TEX. B.J. 988 (1975). This is a subject on which reasonable men may differ;Professor Weintraub favors the change in the rule.

176. Whitney v. L. & L. Realty Corp., 500 S.W.2d 94 (Tex. 1973).

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TEXAS TECH LA W REVIEW

cumber the power of the legislature to amend long arm stat-utes.

Although Professor Baade raises serious questions, Idoubt that the Texas Supreme Court will find its own rule tobe unconstitutional. Of course, the rule may be construed asan enabling provision for existing long arm statutes. Such aconstruction would be strained, however, particularly giventhe fact that the exclusive mode of service provided by thegeneral long arm statute has clearly been expanded.

VI. CONTINUING JURISDICTION OVER CONSERVATORSHIP

DECREES: THE EXTRATERRITORIAL IMPACT

A. Introduction

In the context of most litigation, the concept of "continu-ing jurisdiction" over the parties after final judgment is totallyforeign. In domestic relations matters, however, once jurisdic-tion has been obtained over the parties and over at least partof the subject matter, it may continue indefinitely. The recog-nition of continuing jurisdiction is necessary because divorceand parent-child litigants usually retain rights and duties to-ward one another long after the initial "final hearing.' 7 7 Po-tential future litigation basically falls within two broad cate-gories: suits to enforce the terms of an original decree, e.g., toenforce visitation or to compel child support payments; andsuits to modify an original decree, e.g., to change custody orto reduce or to increase support. The non-final nature of de-crees affecting the parent-child relationship is a deeply in-grained and probably inviolate element of such litigation.

One aspect of "continuing jurisdiction" is solely of con-cern to the state originally entering the decree, to wit, the useof continuing jurisdiction to allocate venue for subsequent,intrastate litigation. Before the enactment of Title 2, the doc-trine in Texas was primarily limited to enforcement or modifi-cation of child support orders. 78 Another type of periodic pay-

177. WEINTRAUB, supra note 1, at 187-88, 194-96.178. Tex. Laws 1935, ch. 39, §§ 1-3, at 111; Ex parte Mullins, 414 S.W.2d 455 (Tex.

1967); Ex parte Webb, 153 Tex. 234, 266 S.W.2d 855 (1954).

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ments arising out of divorce cases, contractual alimony, doesnot strictly involve continuing jurisdiction under Texas law.'

The enactment of section 11.05 expanded the concept ofcontinuing jurisdiction to cover decrees of conservatorship.This section obviously was intended to reduce intrastatevenue problems and to eliminate advantages obtained bychild-snatching parents under former law.8 0 In this regard, theCode establishes a workable, sensible scheme (once an attor-ney is able to understand the complex procedure).'"

Continuing jurisdiction has another aspect, somewhatmore subtle and considerably more important. Whenever onestate recognizes and enforces a foreign judgment for alimony,it acknowledges the original state's continuing power to bindthe parties to a present judgment.8 2 Similarly, those courtswhich accord full faith and credit to foreign custody modifica-tions are deferring to the concept. In sum, continuing jurisdic-tion involves the power to render binding judgments over anonresident respondent based on original in personam juris-diction and the recognition by other states of an assertion ofthat power.

Texas has long acknowledged the power of the originalforeign court to retain control over alimony obligations stem-

179. Contractual alimony as approved in Francis v. Francis, 412 S.W.2d 29 (Tex. 1967),is discussed at notes 49-55 supra and accompanying text. Subsequent suits for breach ofcontract do not, strictly speaking, involve a court's continuing jurisdiction. In re Nunnally,506 F.2d 1024 (5th Cir. 1975); Nordstrom v. Nordstrom, 515 S.W.2d 14 (Tex. Civ.App.-Waco 1974, writ ref'd n.r.e.). Similarly, an action to enforce a continuing division ofproperty, such as one providing for periodic receipt of retirement benefits which have beendivided upon divorce, does not literally involve the concept. See Ex parte Sutherland, 515S.W.2d 137 (Tex. Civ. App.-Texarkana 1974, writ dism'd); Marshall v. Marshall, 511S.W.2d 72 (Tex. Civ. App.-Houston [1st Dist.] 1974, no writ).

180. Before the enactment of the Family Code, venue matters were a tangled mess.Actions for enforcement or modification of support were in the sole jurisdiction of the originalcourt. An action for change of custody was a new, independent suit, and venue was in thecounty of the custodian's residence. Actions concerning the change of visitation rights weresimilarly siutated. Finally, a child-snatching parent could sit and wait for the custodian tofile a writ of habeas corpus; this act had the effect of placing venue in the county of thenoncustodian. See Smith, supra note 75, at 396-99, 435-36 (1974).

181. See Smith, supra note 77, at 396-402.182. Aldrich v. Aldrich, 378 U.S. 540 (1964); Griffin v. Griffin, 327 U.S. 220 (1946);

Barber v. Barber, 323 U.S. 77 (1944); Sistare v. Sistare, 218 U.S. 1 (1910). See notes 49-54supra and accompanying text.

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ming from divorce decrees, ' as indeed it must by reason ofthe full faith and credit clause. Only slim precedent exists,however, to support the assertion by Texas courts of extrater-ritorial continuing jurisdiction in matters related solely to is-sues arising subsequent to divorce decrees." 4

The balance of this article deals with the recognition andpotential assertion by Texas courts of continuing jurisdictionunder section 11.05 of the Family Code in matters of childcustody and support. Before the approaches Texas may takein construing section 11.05 with regard to the external applica-tion of continuing jurisdiction are examined, the authoritiesregarding the recognition of other states' continuing claimsshould be reviewed.

To date the United States Supreme Court has providedalmost no guidance on the matter of continuing jurisdiction.The original and still operative statement by the Court regard-ing subsequent modifications of custody decrees serves to raisemore questions than it answers. In the Halvey decision, theCourt stated: "[W]hat Florida [the original court] could doin modifying the decrees, New York may do . . . . [I]t isclear that the State of the forum has at least as much leewayto disregard the judgment, to qualify it, or to depart from itas does the State where it was rendered."' 85 In this statementthe Court focused entirely upon the authority of the secondstate to modify the decree, thereby recognizing at least thataspect of the concurrent jurisdiction doctrine.' s It left unan-

183. See notes 49-55 supra and accompanying text.184. Such problems can conceivably arise in the future. For example, a breach of a

contractual alimony agreement where the periodic payments are specifically payable in Texasarguably is a matter for continuing jurisdiction, although perhaps a long arm theory wouldbe preferable. Similarly, a suit to enforce a property division, e.g., divided retirement bene-fits, could involve an assertion of continuing jurisdiction if the respondent-constructive trus-tee resides in another state. Cf. Ex parte Sutherland, 515 S.W.2d 137 (Tex. Civ.App.-Texarkana 1974, writ dism'd); Marshall v. Marshall, 511 S.W.2d 72 (Tex. Civ.App.-Houston fist Dist.I 1974, no writ).

185. New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614-15 (1947) (emphasis added).186. The doctrine that two states may have concurrent jurisdiction to decide the cus-

tody of a particular child is derived from Justice Traynor's influential opinion in Sampsell v.Superior Court, 32 Cal. 2d 763, 197 P.2d 739 (1948). This view has been adopted by theRestatement. RESTATEMENT (SECOND) OF CONFLICT OF LAWS, Reporter's Notes § 79, at 240(1971).

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swered questions, such as: the nature of Florida's jurisdiction,if any, over the child; whether New York had greater powerthan Florida to modify, i.e., "at least as much," or whetherNew York might accord the original decree greater weightthan it would have received in Florida; and the effect of thesubsequent modification on the original decree in Florida.

To illustrate the complexities involved in the assertionand recognition of continuing jurisdiction, assume the follow-ing: A custody determination has been made in State Aawarding custody of a child to one parent. The law of State Aprovides that custody decrees have no res judicata effect; thatevidence concerning parental fitness as it affects a child's bestinterest discovered after the original decree is freely admissi-ble; and that a change of custody may be granted after a denovo redetermination of best interests.'7

Now assume the custodial parent moves to Texas. Doesthis voluntary act affect the noncustodian's rights? Texas lawcreates very substantial impediments to a change of custody;e.g., section 14.08 imposes a 1-year "super burden" in modifi-cation of custody actions." In two recent cases, "automatic"habeas corpus was granted in favor of the person who hadobtained custody by a decree of another state.' 9 It is unclearwhether this result would have been affected if foreign law hadbeen proven.'9 Arguably, if a foreign custody award is morereadily modifiable than a Texas decree, and if foreign law isproven, the foreign standard should control. The SupremeCourt, however, has never held that this result is compelled.In Halvey it was assumed the forum state would apply its ownlaw.

187. The burden of proof necessary to support a change of custody varies considerablyfrom state to state. For example, some courts have permitted introduction of newly discoveredevidence which predated the initial hearing but was unknown at that time, e.g., Warren v.Warren, 191 N.W.2d 659 (Iowa 1971). The Texas rule is that the original determination isres judicata as of that date, e.g., Epperson v. Berry, 466 S.W.2d 24 (Tex. Civ. App.-Houston[1st Dist.] 1971, no writ).

188. See text accompanying notes 193-224 infra.189. Russell v. McMurtrey, 526 S.W.2d 270 (Tex. Civ. App.-Beaumont 1975, writ ref'd

n.r.e.); Seaburg v. Brogunier, 515 S.W.2d 398 (Tex. Civ. App.-Waco 1974, writ ref'd n.r.e.).190. Id. Neither case referred to the law of the original jurisdiction, which apparently

was not pled. See TEX. R. Civ. P. 184a.

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In the converse of the example above, a Texas managingconservator moving to State A might have a preemptive ad-vantage in litigation in that state if he takes with him theentire integrated Texas decree, including the restrictions onmodification."' On the other hand, if State A law applies, thesemisanctity of the Texas award of conservatorship is mean-ingless.

Additional problems would arise if State A subsequentlydecides to modify its original decree. The issues presentedconcerning the reception Texas should accord this decree areentirely different from those presented when the modificationis sought in Texas.'92 In the succeeding sections, the readermust bear in mind the distinctions between an action to en-force an original decree and an action to modify that order,and in addition, the distinctions between and the issues posedregarding the assertion of continuing jurisdiction and the rec-ognition by another state of such an assertion.

B. Texas Case Law on the Recognition of ContinuingCustody and Support Jurisdiction of Foreign Courts

1. In General

Texas courts have dealt directly with assertions of con-tinuing jurisdiction by other states only on relatively rare oc-casions. The issue is often perceived as squarely presentedonly when the original court has taken action subsequent toits initial decree and a Texas court is asked to ratify or enforcethe modification. In reality, the continuing jurisdiction of theoriginal forum is present and implicitly recognized in anoblique, indirect manner whenever a foreign custody decree isaccorded full faith and credit. Thus, examination of the fullfaith cases divulges much about the concept in Texas juris-prudence.

191. One well-known commentator has argued this result is compelled by full faith andcredit. Bodenheimer, The Rights of Children and the Crisis of Custody Litigation: Modifica-tion of Custody In and Out of State, 46 U. COLO. L. REV. 495, 500-01 (1975).

192. See Mr. Justice Frankfurter's dissent in Kovacs v. Brewer, 356 U.S. 604, 609-16(1958).

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2. Full Faith and Credit to Original Decrees: No Welcomefor Child-Snatchers

The Texas Supreme Court has often held that full faithand credit must be accorded foreign custody orders.' Thus,a child-snatching parent should expect a hostile receptionhere. The Family Code has significantly strengthened this pol-icy. It generally. authorizes the summary granting of a writ ofhabeas corpus to the legal custodian if the child has been inTexas less than 12 months and no immediate danger to thechild will result.'94 The Code also provides that motions torelitigate the foreign custody determination made within thefirst year of the child's presence in Texas generally are to bedisregarded. 9 5 This 1-year rule obviously is based on an unar-ticulated idea that the passage of time has a bearing on whichforum is better equipped to decide the child's best interests.Also implicit in these provisions is the notion that a legalcustodian who has delayed affirmative action for an extendedtime has created a legitimate suspicion about his interest inthe child.

Under the Family Code, habeas corpus should be grantedeven if a substantial question exists over which of the contest-ing parents should ultimately prevail. Seaburg v.Brougunier96 illustrates the application of this premise. InSeaburg the trial court restored the child to the legal cus-todian after a jury had determined a change of custody wasin the child's best interest. The court reversed the jury ver-dict 97 after originally ignoring the statutory mandate to disre-gard cross-petitions for a change of custody in a habeas corpusproceeding. Although this action amounted to a compounding

193. See notes 57-62 supra and accompanying text.194. TEx. FAMILY CODE ANN. § 14.10(b) (1975); In re Kamont, 537 S.W.2d 86 (Tex. Civ.

App.-Amarillo 1976); Lehmann v. Lehmann, 537 S.W.2d 131 (Tex. Civ. App.-Fort Worth

1976); Seaburg v. Brougunier, 515 S.W.2d 398 (Tex. Civ. App.-Waco 1974, writ ref'd n.r.e.);Russell v. McMurtrey, 526 S.W.2d 270 (Tex. Civ. App.-Beaumont 1975, writ ref'd n.r.e.);

cf. Standley v. Stewart, __ S.W.2d -, 19 Tex. Sup. Ct. J. 368 (June 30, 1976).195. Id.196. 515 S.W.2d 398 (Tex. Civ. App.-Waco 1974, writ ref'd n.r.e.).197. Id. at 399. The trial court had entered a judgment n.o.v. The Waco Court of

Appeals did not mention section 11.13 which purports to restrict such a procedure. See Smith,supra note 77, at 409.

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of procedural defects, the appellate court affirmed the lowercourt's judgment.

The facts in Seaburg cast considerable doubt on the out-come of the case if the best interests of the child are regardedas paramount. 8 The dignity of the original court's order ap-pears to have been upheld in preference to a careful considera-tion of the child's best interests. For this reason some mightcriticize the decision. But in the larger scheme, perhaps it ismore important to insure that child-snatchers do not find a"hometown haven" in Texas. This broader policy does notnecessarily injure the child permanently. The losing parentcould and should have litigated the issue in the original forum,and indeed he may still do so. 199

Russell v. McMurtrey0 ° provides another illustration.This case was much simpler even though a Colorado court hadreached a result probably objectionable in Texas. In a bilat-eral Colorado divorce, custody of one child was awarded to themother and that of another to the father.2"' This split custodyhad been agreed to previously, and the mother failed to con-vince the Texas court that the agreement had been the resultof duress and undue influence.'" Thirteen days after the di-vorce became final the father obtained summary enforcementof the decree in Texas.

As this article went to press, in Standley v. Stewart"3 theTexas Supreme Court confirmed the summary nature of ha-beas corpus when sought by a legal custodian. Although

198. The father obtained custody when the mother voluntarily surrendered the childto him. He removed the child to Texas without notice and attempted to keep the child'swhereabouts a secret from the mother. 515 S.W.2d at 399.

199. Id. at 400.200. 526 S.W.2d 270 (Tex. Civ. App.-Beaumont 1975, writ ref'd n.r.e.).201. Id. at 271. As a general rule, Texas courts have disapproved of custody orders

which separate siblings (split custody). See, e.g., Autry v. Autry, 350 S.W.2d 233 (Tex. Civ.App.-El Paso 1961, writ dism'd). For strong and convincing reasons, however, such ordershave been sustained. See, e.g., Alexander v. Alexander, 309 S.W.2d 886 (Tex. Civ. App.-Amarillo 1958, no writ); Beadles v. Beadles, 251 S.W.2d 178 (Tex. Civ. App.-Texarkana1952, no writ). See also Annot., 98 A.L.R.2d 926 (1964).

202. 526 S.W.2d at 271.203. __ S.W.2d -_, 19 Tex. Sup. Ct. J. 368 (June 30, 1976); see Comment, Child

Custody Modification and the Family Code, 27 BAYLOR L. REV. 725 (1975); Smith, TexasFamily Code Symposium, 5 Tax. TECH L. REV. 435-36 (1974).

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Standley involved an intrastate decree and was not a childsnatching situation, it is instructive nonetheless. There a 15year old child had voluntarily moved to the noncustodial par-ent's home who thereafter filed for a modification. The legalcustodian parent responded with a writ of habeas corpus. TheSupreme Court stated it was error for the trial court to jointhe two pending actions in a single hearing, absent danger tothe child. In short, the habeas should have been granted to thecustodian and the modification heard at a subsequent timewith the attendent procedural protections observed. In con-text the habeas procedure may be seen as primarily a delayingaction; ultimately the dispute will be settled by a trial on themerits of the pending motion to modify.

3. Recognition of Foreign Modifications Based on "Continu-ing Jurisdiction"

Although according an original decree full faith and creditcan cause troublesome problems, they pale in contrast to theissues presented when the original court has purportedlymodified a decree based on its alleged continuing jurisdiction.The enforcing court can have confidence in its decision onlyif the modification was the result of contested litigation, or if,at a minimum, an opportunity to contest was afforded anddeclined by the custodian.0 4

The picture emerging from Texas cases in which modifi-cations of custody have been made by foreign courts in one-sided proceedings is somewhat murky. Only two pre-Codecases seem to have dealt with the issue. In Dowden v.Fischer2111 an unchallenged Nevada divorce awarded custody ofthe children to the father who then moved to Texas. The fol-lowing year in the same court the mother sought and receiveda change of custody. The father had been given notice of thehearing by mail, but he neither answered nor appeared. Thefather then filed suit in Texas claiming the modification was

204. The leading Texas case, Bukovich v. Bukovich, 399 S.W.2d 528 (Tex. 1966), ap-pears to have been of the latter type. The custodian had notice of the proposed modificationand waived her opportunity to defend.

205. 338 S.W.2d 534, (Tex. Civ. App.-Waco 1960, no writ).

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void because the notice was improper. The trial court foundin favor of the father, but the court of civil appeals reversedthat judgment and remanded the case. The appellate courtheld that the domicile of the father and children in Texas wasimmaterial and that personal service was not required. Be-cause the parties had appeared in Nevada originally, the Ne-vada court was found to have had continuing jurisdictionunder the law of that state. The Nevada judgment changingcustody was held to be presumptively valid and entitled to fullfaith and credit. The court of appeals did not mention the one-sided nature of the Nevada decision or discuss the facts sup-porting the modification. The ultimate outcome of the case,however, is not reported; on remand, the parties were to beallowed to file amended pleadings. Presumably, under thethen existing law the father could have sought to provechanged conditions since the time of the Nevada modifica-tion. 6

Another case to the same effect is Bull v. Wilson. 2°11 The

mother had received custody of the child in an Illinois divorce.Thereafter, the mother voluntarily surrendered the child tothe father and moved to Texas. Still later, she returned toIllinois, got the child, and returned to Texas. The father ap-plied to the original Illinois court for a change of custody. Themother was served with nonresident notice, but she did notappear or answer. After the Illinois court entered an orderchanging custody to the father, he filed for a writ of habeascorpus in a Texas court. The trial court held that Illinois hadno jurisdiction over Texas domiciliaries. The court of civilappeals reversed, holding that Illinois had continuing jurisdic-tion and that the decree was entitled to full faith and credit.Again, the issue of changed conditions subsequent to the mod-ification was remanded for trial.118

Since the passage of Title 2, Texas courts have had fewopportunities to analyze the concept of the continuing juris-

206. Id. at 538.207. 362 S.W.2d 662 (Tex. Civ. App.-San Antonio 1962, no writ).208. Id. at 664.

226 [Vol. 8:159


diction of the original forum. In Clayton v. Newton"9 an at-tempt by another state to assert continuing jurisdiction re-ceived a hostile reception in Texas and with good reason. AnOklahoma court had personal jurisdiction over all parties inthe original action, a 1971 divorce. The legal custodian, thematernal grandmother, and the children moved to Texas in1974. Approximately 5 months later a change of custody wassought by the father, and the Oklahoma court rendered a "de-fault judgment" in his favor.21 The kindest thing that may besaid about this modification decree is that it was made inreckless disregard of the children's best interests. The Okla-homa court clearly failed in its duty to protect their interestswhen it changed the long-term custody (31/2 years) of threechildren on one-sided, insufficient evidence relating to theirwelfare. Thus, the Texas court's refusal to recognize the Okla-homa modification protected the interests of the children. TheTexas court complicated matters in Clayton, however, byholding in the alternative that the foreign decree was proce-durally defective. Because Oklahoma law was not proven, itwas presumed to be identical to Texas law. The court heldthat the Oklahoma decision was not enforceable because legalnotice of the hearing, under Texas law, had not been given tothe custodian.2"'

The major import of Clayton, however, lies in its implica-tion that the assertion of foreign continuing jurisdiction mightnot be recognized by Texas courts. Despite its assumption andapplication of Texas law, the court inexplicably failed to men-tion section 11.05 and the possibility of the Oklahoma court'scontinuing jurisdiction. Rather, it merely cited the paradigmpre-Family Code decision, Ex parte Birmingham, 212 for theproposition that the Oklahoma court lacked jurisdiction be-cause the children were neither domiciled nor physically pres-ent in that state at the time of the modified decree. NeitherBull nor Dowden was cited. In a later case, another court of

209. 524 S.W.2d 368 (Tex. Civ. App.-Ft. Worth 1975, no writ).210. Id. at 370.211. Id. at 371-72.

212. 150 Tex. 595, 244 S.W.2d 977 (1952).

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civil appeals also failed to mention that the continuing juris-diction of other states is presumed to be identical to that ofTexas in the absence of proof of foreign law."' This difficultissue apparently will be ignored if possible.

The first decision under the Family Code regarding thecontinuing jurisdiction of a foreign court was Follak v.Brown.2' There the court faced the issue directly and heldthat an assertion of continuing jurisdiction in a modificationcontext must be accorded full faith and credit. Of even greaterimportance is the fact that this holding of extraterritorial ef-fect was based on section 11.05 because foreign law was notproved .1

5

Although Clayton may be subject to criticism for avoidingthe question, the three cases basing their decisions on continu-ing jurisdiction, Dowden, Bull, and Follak, are far more vul-nerable to attack. Each apparently failed to perceive the dis-tinction between an original adjudication and a subsequentmodification adverse to an absent, nonresident, legal cus-todian granted in a wholly ex parte proceeding. While effortsto prevent hometown decisions may be laudable, they serve nogood purpose if the deference shown foreign decrees is exces-sive and is given without analysis of the factual context inwhich the modification occurred.

Two appellate decisions promulgated as this article wentto press suggest that problems of construction will continue.

213. DeGroot v. Hall, 526 S.W.2d 696, 698 (Tex. Civ. App.-Waco 1975, writ ref'dn.r.e.). Parenthetically, it seems obvious that the termination in DeGroot was not bindingupon the nonresident father under a May v. Anderson analysis, at least at the trial courtstage. Although the father had been personally served in New Jersey, he almost certainly hadno contact with Texas sufficient to establish in personam jurisdiction over him. However,when he challenged the trial court determination by moving to vacate the Texas judgmentand subsequently by applying for a writ of error, he probably submitted to the jurisdiction.

214. 530 S.W.2d 882 (Tex. Civ. App.-Beaumont 1975, writ ref'd n.r.e.). In a bilateralSouth Carolina divorce, the father was awarded custody in October 1972. The mother soughta change in custody in June 1973. The father, then residing in Texas, received notice byregistered mail but took no action. In September 1973, the South Carolina court entered anorder changing custody. Shortly thereafter, the mother surreptitiously seized the child fromhis school. By this time the father had moved to New Orleans. In December 1974, the father"resnatched" the child from South Carolina and returned to Texas.

215. Justice Keith concurred in this result, stating that he believed the continuingjurisdiction concept was only peripherally involved and that section 11.05 had no bearing onthe decision. Id. at 885.

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In Lehmann v. Lehmann,21" the mother was awarded custodyof the children in a Minnesota decree in February, 1975. Underthe decree she was not allowed to remove the children from thestate without court approval. However, in May, 1975, shemoved to Texas with the children. In July, 1975, the fatherpetitioned for a modification. The mother attempted to con-test the continuing jurisdiction of the Minnesota court bymaking a special appearance. Her motion was overruled andshe was afforded additional time to appear personally. Shedeclined this opportunity, however, and attempted to attackcollaterally the decision on jurisdiction when the fatherbrought a habeas in Texas. Because she had her day in courton the jurisdictional issue, the Texas court declined to allowrelitigation and granted the writ.

Although Lehmann was correctly decided on its facts, theimplications of the reported analysis are disturbing. First,there is no indication of whether the Minnesota court consid-ered the constitutional propriety of restricting the custodian'sright to travel.217 Second, the foreign modification certainlyraises a suspicion that the decree was punitive in nature."' Itis clear that the decision was entered on one-sided evidenceregarding the children's interests. Finally, there is no reportof whether it was possible, economically or otherwise, for themother to relitigate the custody issue a thousand miles ormore from her new home. Thus, the question of whether themodification comported with true due process, discussed atlength infra, remains unanswered. But for the fact that thespecial appearance by the mother was overruled, whichgranted her the one allowable opportunity to litigate jurisdic-tion, the case would arguably be subject to the same criticismsvoiced above regarding Follak, Bull, and Dowden.

The other case, In the Interest of Kamont, 1 was a some-what more typical situation. The noncustodian mother peti-tioned a Texas court for a modification during a summertime

216. 537 S.W.2d 131 (Tex. Civ. App.-Fort Worth, 1976).217. See footnotes 245-46 infra, and accompanying text.218. See footnotes 229-30 infra, and accompanying text.219. 537 S.W.2d 86 (Tex. Civ. App.-Amarillo 1976, no writ).

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visitation of the child. The court treated the custodian father'sanswer as a writ of habeas corpus and granted possession tohim. His legal custody was based upon a prior Florida modifi-cation in which the mother had fully participated. What isunsettling about the case, however, is that apparently theFlorida modification stemmed from very similar self-helpundertaken by the father two years earlier. Nonetheless, this"grab, run, and relitigate" pattern must be ended sometime;the Texas court properly fulfilled this function.

The intractable difficulties of applying the continuingjurisdiction concept in a practical, realistic manner is furtherillustrated by a recent, pre-Code case. In Hollis v. Hollis220 afather with a valid foreign order for extended visitation rightsfound himself playing Russian roulette with an automatic pis-tol when he came to Texas to enforce that order. The partieshad divorced in Florida in November 1972, and "reasonable"visitation had been awarded the father. The decree providedthat if the children resided more than 300 miles from theirformer home in Pensacola, visitation would be specifically setat 6 weeks in the summer and a week at Christmas. In Febru-ary 1973 the mother and children moved to Lubbock. Ob-viously, the father was concerned about his visitation rightsbecause in May 1973 he sought a Texas decree that wouldaccord his visitation order 221 full faith and credit.

The father received a good deal less than the full faith herequested. The Florida-ordered visitation was postponed foran entire year, at which time it was reduced to 2 weeks peryear. During the several months that had passed since theentry of the divorce decree, the trial court in Texas found thatthere had been-surprise!-a change of circumstances.222 Dur-

220. 508 S.W.2d 179 (Tex. Civ. App.-Amarillo 1974, no writ).221. Id. at 181.222. Id. The facts found by the trial court to support the "changed circumstances" were

of the typical one-sided, ephemeral type often found in custody cases. Apparently on themother's unsupported testimony, that court stated:

[In the 6 months] since the children had been removed to Lubbock away from theinfluence of the father's constant appearance and talking with the children with theurging upon them of not having to obey their mother, the children have becomemore quiet, not so nervous, are easier to discipline, and their general condition of

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ing most of the period, the father had had little, if any, oppor-tunity to visit his children.

The fact that the Florida court might continue to assertjurisdiction in the case was considered to be a factor mitigat-ing against the father's claim. The court stated that thechanged conditions included "the pendency in the Floridacourt of a petition filed by appellant for complete custody ofthe children . *... "223 Further, although it recognized theFlorida court's original jurisdiction over child support, theTexas court assumed concurrent jurisdiction over that subjectand ordered an increase. 2 4 The father, by seeking enforcementof the visitation provision, had subjected himself to Texasjurisdiction.

In short, the effect of a recent decision rendered by thecourt best-equipped to balance all the factors and located atthe home of all parties concerned was dramatically altered bya Texas court. It will probably be some time before that mis-guided Floridian comes to Texas with another court decree tobe enforced. Crude justice might require that a Texan whorequests aid from a Florida court receive less than a warmwelcome.

This brief review of Texas cases discloses fatal flaws in theconcept of extraterritorial continuing jurisdiction. It is not just"they"-Oklahoma, South Carolina, Nevada, and Illinois-who are likely to enter hometown decisions that may ignorethe interests of children who are the subjects of domesticrelations litigation. Texas courts, too, are capable of bias forlocals. The enforcement of those biased decisions, particu-larly when done in an unanalytic manner, completes the circleof possible injustice to the children involved.

health, well being and education has greatly improved, and the new environmenthas been to the best interest and welfare of each of the children.

Some of these assertions might have been true. On its face, however, the statement smacksof the standard hometown approach which has so plagued custody litigation.

223. Id. at 181.224. Id. at 182-84.

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C. The Uniform Child Custody Jurisdiction Act: ContinuingJurisdiction Supreme (in Theory)

The excessive deference to foreign ex parte modificationsof custody demonstrated by the majority of Texas cases dis-cussed in the preceding section is quite similar to the approachadopted by the Uniform Child Custody Jurisdiction Act(UCCJA). Continuing jurisdiction is placed on a pedestal, andlittle consideration is given to the untrustworthiness of trialcourts, the requirement of due process, or the practical reali-ties involved. Because of this similarity, a brief examinationof the UCCJA system of according the original court domi-nance over modifications should be undertaken.

As a general rule the Act specifies that the original courtis the only appropriate court for all future modifications, andthat no other court has concurrent jurisdiction to decide cus-tody issues.2 5 The Commissioners' Note explains:

In order to achieve greater stability of custody arrange-ments and avoid forum shopping, [the Act] . . . de-clares that other states will defer to the continuingjurisdiction of the court of another state as long as thatstate has jurisdiction under the standards of this Act.In other words, all petitions for modifications are to beaddressed to the prior state if that state has sufficientcontact with the case . . . . The fact that the court had

225. The continuing jurisdiction system of the UCCJA is established in several sectionsof the Act which work together. Section 3 sets forth the bases of original and modificationjurisdiction. See notes 148-55 supra. Section 13 requires a sister state to recognize and enforceboth an initial and a modified custody decree of a foreign court which has assumed jurisdic-tion under the provisions of the Act or has issued it under similar standards. In short, itrequires that full faith and credit be given a valid out-of-state decree if due process require-ments of notice and opportunity to be heard have been met. UNIFORM CHILD CUSTODY JURISDIC-TION ACT § 13 (1968 act). Finally, section 14 abolishes the theory of concurrent jurisdiction.A sister state may not modify a custody decree unless the original state no longer has jurisdic-tion or has declined to assume it. The continuing jurisdiction of a court over custody issuesremains in effect as long as the requisite jurisdictional standards of the Act are met, whichin effect means as long as one of the parties to the original suit continues to reside in thestate.

See generally Bodenheimer, The Uniform Child Custody Jurisdiction Act: A LegislativeRemedy for Children Caught in the Conflict of Laws, 22 VAND. L. REV. 1207 (1969); Comment,The Uniform Child Custody Jurisdiction Act and the Continuing Importance of Ferreira v.Ferreira, 62 CALIF. L. REV. 365 (1974).

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previously considered the case may be one factor favor-ing its continued jurisdiction. If, however, all the per-sons involved have moved away or the contact with thestate has otherwise become slight, modification juris-diction would shift elsewhere .... 126

The UCCJA arguably may provide a partial solution tothe dilemma of the interstate child, but it does so only if themany procedural protections incorporated therein are strictlyfollowed. The safeguards to prevent one-sided, hometown de-cisions include provision for: (1) actual notice to absent par-ties and an opportunity for them to be heard, (2) payment oftravel expenses of the out-of-state party when appropriate, (3)taking testimony in another state, (4) hearings and studies inanother state, (5) rendering assistance to courts of otherstates, and (6) preservation and use of documents from otherstates.2 7 Theoretically, the Act could eliminate the vacuum ofessential information which almost inevitably exists regardingthe welfare of the child caught up in interstate litigation. 2-8

Unfortunately, the Act contains major defects with regardto its continuing jurisdiction scheme. First, the original courtis not required to follow the discretionary procedural safe-guards, and may ignore one or all of those provisions. Second,the failure to safeguard the interests of an absent party andthe absent child does not affect the court's power to decide thecase. Third, the Act ignores the expense of gathering togetherin a single forum all the parties, documents, reports, etc.Thus, it either is designed for the rich, who usually are ableto protect themselves, or is incredibly obtuse about economicsand taxes. Fourth, the Act presupposes a level of cooperationbetween states-and with foreign countries-found nowhereelse in human endeavor.

Finally, and perhaps most critically, the Act presumes agood faith on the part of the original court that to date hasbeen unwarranted. On this point, the Commissioners offer thefollowing vague hope for more reasoned decisions:

226. UNIFORM CHILD CUSTODY JURISDICTION ACT § 14, Commissioner's Note (1968).227. Id. at §§ 4, 5, 11, 18-21.228. Id. at § 19.

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Respect for the continuing jurisdiction of anotherstate under this section will serve the purposes of thisAct only if the prior court will assume a correspondingobligation to make no changes in the existing custodyarrangement which are not required for the good of thechild. If the court overturns its own decree in order todiscipline a mother or father, with whom the child hadlived for years, for failure to comply with an order of thecourt, the objective of greater stability of custody de-crees is not achieved. 229

Unfortunately, examples of punitive decrees and hometowndecisions may be readily discovered in most, if not all,states .231

Even though the continuing jurisdiction scheme estab-lished by the UCCJA has these theoretical defects, it is stillreasonable to ask, "But does it work?" The Uniform Act is inforce in approximately seven states, most of which have en-acted it within the past two years.23' While it is somewhatearly to judge, the Act appears to function very poorly withregard to issues of continuing jurisdiction. Although only a fewcases have been decided under the Act, several of these disre-garded the continuing jurisdiction of the original court anddecided custody independently.2 2

229. Id. at § 14, Commissioner's Note; see Bodenheimer, Rights of Children and theCrisis in Custody Litigation: Modification of Custody In and Out of State, 46 U. COLO. L.REV. 495, 503-08 (1975).

230. In the most famous U.S. case, the court originally granted custody to the mother.After 5 years of continuous life with the mother, the child's custody was awarded to the fatherby the same court for the sole reason that the mother, who had moved to another state uponremarriage, had not lived up to the visitation requirements of the decree. See Berlin v. Berlin,239 Md. 52, 210 A.2d 380 (1965); Berlin v. Berlin, 21 N.Y.2d 371, 235 N.E.2d 109, 288N.Y.S.2d 44 (1967), cert. denied, 393 U.S. 840 (1968).

Arguably, a recent Texas case ordered a change of custody for punitive reasons. InGunther v. Gunther, 478 S.W.2d 821 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ ref'dn.r.e.), the legal custodian father hid himself and the children from the mother to deny hervisitation. He even tried to convince the mother that he had removed the children to Ger-many. In changing custody to the mother, the court stated that the father's wrongful conduct"should not influence our decision [on custody] .... It is possible, however, that suchaction . . . might bear on his fitness as a custodian." Id. at 828.

231. Calif., Colo., Hawaii, Md., N. Dak., Ore., and Wyo. See 9 UNIFORM LAWs ANN. 26(Supp. 1976); 1 Fam. L. Rep. 2463 (1975).

232. Of the seven cases decided under the Act, four seem to disregard its provisions.Wheeler v. District Court, 526 P.2d 658 (Colo. 1974); Nelson v. District Court, 527 P.2d 1092

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There can be no doubt that the goals of the UCCJA arepraiseworthy; everyone desires an end to the "snatch and run"system of determining child custody. It is also beyond ques-tion that the proclivities of courts to enter capricious and arbi-trary "hometown decisions" are at the root of the problem.Until every judge in the several states shakes the notion thata custody decision may be satisfactorily rendered "only byme" and that a child may live happily "only in this state," thepresent chaos will continue.

The overriding dominance to determine custody modifi-cations allocated to the original court by the Act does noteliminate the potential for hometowning. The continuing ju-risdiction scheme, coupled with the elimination of concurrentjurisdiction, merely limits the authority to abuse power to oneforum. The answer to the problem is not found in the UniformAct in its present form. Its continuing jurisdiction provisionsmay only make matters worse. The defects of the concept ofextraterritorial continuing jurisdiction illustrated by theUCCJA should be carefully considered by Texas courts whenthey are called upon to assert claims of such jurisdiction overabsent parties or to recognize the claims made by other states.

D. The Assertion of Continuing Jurisdiction and CommonSense: Restraint Required

1. In General

In his excellent treatise Professor Weintraub discusses theassertion of continuing jurisdiction over an absent custodialparent:

It is unwise . . . for a court that had jurisdictionto make the original custody award to invoke its con-tinuing custody jurisdiction in order to modify that de-cree if, in the interim, the residence of the child and one

(Colo. Ct. App. 1975); Giddings v. Giddings, 228 N.W.2d 915 (N.D. 1975); Brooks v. Brooks,530 P.2d 547 (Ore. Ct. App. 1975). Three cases followed its terms. Fry v. Ball 544 P.2d 402(Colo. 1975); In re custody of Glass, 537 P.2d 1092 (Colo. Ct. App. 1975); Gatchell v. Rice,517 P.2d 1198 (Ore. Ct. App. 1974). Of these three, GatcheU deferred to what appears to havebeen a punitive modification by the foreign court and thus compounded the injury to thecustodian and the child.

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or more parents has been changed for so substantial aperiod of time that the court no longer is a convenientforum for the informed determination of what is in thechild's best interests. The invoking of continuing cus-tody jurisdiction under such circumstances is not onlyunwise, but also it is likely to be futile if the parent, whohad previously been awarded custody, and the child,now reside outside the forum, and the child is not physi-cally in the forum. It is improbable that the new homeof the parent with whom the child is living will recog-nize a custody modification adverse to that parent un-less the new domicile finds, on the basis of its indepen-dent investigation that this modification is for thechild's welfare. A number of courts, therefore, havequite sensibly held that continuing custody jurisdictionends when the parent to whom custody has beenawarded moves with the child to another state.233

My only quibble with Professor Weintraub is that he under-states the case by labeling judicial action in such circumstan-ces as merely "unwise." In such situations, judicial restrainthas generally been the Texas rule,234 but this restraint hasstemmed from a perceived lack of jurisdiction based on thewholly artificial doctrine of "the child's domicile. 2 35 An ident-ical result may be achieved on a sounder, more logical basis.

2. Time Period after Departure for Exercise of ContinuingJurisdiction

Professor Weintraub urges judicial restraint when theabsent parent and child have resided elsewhere for "sosubstantial a period of time" that the original court becomesan inconvenient or incompetent forum. If this is to be the rule,it is necessary to determine what generally constitutes a "sub-stantial time." Here the Family Code is mildly helpful, albeitonly by implication; two sections seem to bear on the question.

233. WEINTRAUB, supra note 1, at 195-96.234. Ex parte Birmingham, 150 Tex. 595, 244 S.W.2d 977 (1952); see notes 38-39 supra

and accompanying text.235. See, notes 140-47 supra and accompanying text.

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First, section 14.10 states that a foreign custody decree en-tered with personal jurisdiction over both parents or any otherparty shall be summarily enforced by habeas corpus if thechild has been in Texas less than 12 months, absent extraordi-nary circumstances.236 This provision seems to require recogni-tion of a foreign state's continuing jurisdiction for at least oneyear after the child has arrived in Texas. The inference to bedrawn from it is that continuing jurisdiction may be similarlyexercised by Texas for at least one year after a child has leftthe state-a tit for tat approach.237

More persuasive guidance for defining a time limitationupon the exercise of continuing jurisdiction would seem to befound in section 11.06. In an intrastate context, a mandatorytransfer of the jurisdiction established in the original court isrequired if the child has principally resided in another countyfor six months or more. 3 While a Texas court obviously lacksauthority to make an interstate transfer, the provision is mostrelevant. Section 11.06 should be construed as establishing apresumptive six-month limitation upon the exercise of juris-diction by Texas courts after the child has left the state. Thistime period, by coincidence or design, is identical to the spe-cific period set forth in the Uniform Child Custody Jurisdic-tion Act for assertion of original jurisdiction.239

3. Convenient, Competent Forum

Professor Weintraub further argues for judicial restraintwhen the original state "no longer is a convenient forum" todecide the issue competently. While this is a sound statementof general principle, it provides little guidance for decisionmaking. Moreover, it does not serve to restrict the potential

236. TEX. FAMILY CODE ANN. §§ 14.10(a)-(c) (1975). See cases cited supra note 194.Russell v. McMurtrey, 526 S.W.2d 270 (Tex. Civ. App.-Beaumont 1975, writ ref'd n.r.e.);Seaberg v. Brogunier, 515 S.W.2d 398 (Tex. Civ. App.-Waco 1974, writ ref'd n.r.e.).

237. The period of "one year" appears several places in the Code. Arguably the 1-yearhiatus imposed on conservatorship litigation by sections 14.08(d)-(e) is vaguely relevant. Infact, a direct analogy is inappropriate because the hiatus period begins to run at the time oforiginal decree; it does not even remotely relate to departure from the state.

238. TEX. FAMILY CODE ANN. §§ 11.06(a)-(b) (1975). See, Smith, supra note 77, at400-01.


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for "hometown decisions." Asking a court to decide whetherit is qualified to make an "informed decision" will nearly al-ways elicit an affirmative answer. The long, dreadful historyof ill-advised, uninformed, and just-plain-biased decisions,however, provides ample proof that hometown courts are notalways so qualified.

When the legal custodian has left the state with the child,the terms "convenient and competent" with regard to thatstate may well be mutually exclusive. Assuming speedy ac-tion, perhaps the recent home state of the child will usuallybe a competent forum, but this will be so only if all the avail-able evidence is presented. Thus, because the presentation ofevidence may depend on the convenience of the forum, to alarge degree "competence" is dependent upon convenience.Here, theory breaks down when confronted with reality. Theabsent custodian will seldom, if ever, find that a return to hisformer home state to defend a motion to modify conservator-ship is convenient. Given an absent custodian, determiningthe proper "convenient" forum is relatively simple. When thecontestants live in different states, one of them must necessar-ily be inconvenienced. The party who lost when the issue wasinitially decided should bear the burden of traveling to an-other state if he wishes to relitigate the matter.

Unfortunately, in dealing with this subject, the truth of"Murphey's Law"-nothing works-becomes all too clear.The focus of the problem shifts to the fact that the appropriate"convenient" forum may be less competent to decide the issuethan the original home state because much or all of the mostrelevant evidence will not be available. This is most likely ifthe modification is sought immediately after departure. Note,however, in practice the original home state probably hasmuch less competence than the UCCJA presumes. If the ex-pense and oppression of litigation in the original forum out-weigh the custodian's fear of losing, the original forum willdecide a modification on only the one-sided evidence pre-sented by the movant.

In situations in which modification of a custody decree issought by a losing party against an absent custodian, conveni-ence and competence often do not exist in a single forum.

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Because competence is so speculative, the objective fact ofconvenience for the legal custodian should control in almostall instances.

E. Family Code Implications for Asserting ExtraterritorialContinuing Jurisdiction

1. Managing Conservator Absent from State

a. Modification of Managing Conservatorship

With regard to the assertion of original jurisdiction, Iurged that after the actual custodian has left the state Texascourts generally should decline to decide conservatorship.Adoption of such a rule is even more vital and rational whena modification of the managing conservatorship of the absentparty is sought. The potential for abuse with resultant harmto the best interests of the children is obvious. Courts must becareful not to be overwhelmed by motions for modificationbased on wild or hysterical charges of misconduct lodgedagainst an absent managing conservator.

The Family Code impliedly supports a conclusion thatthe burden of travel to a distant place to seek a modificationshould be borne by the noncustodial parent. Section 14.08places a severe burden of proof upon a party challenging theoriginal decree of conservatorship:

(c) After a hearing, the court may modify anorder or portion of a decree that:

(1) designates a managing conservator if thecircumstances of the child or parent have so mate-rially and substantially changed since the entry ofthe order or decree to be modified that the reten-tion of the present managing conservator would beinjurious to the welfare of the child and that theappointment of the new managing conservatorwould be a positive improvement for thechild. . ..

The statute provides an even more stringent test during thefirst year after the initial determination:

(d) If the motion is filed for the purpose of chang-ing the designation of the managing conservator and isfiled within one year after the date of issuance of theorder or decree to be modified, there shall be attached

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to the motion an affidavit executed by the person mak-ing the motion. The affidavit must contain at least oneof the following allegations along with the supportivefacts:

(1) that the child's present environment mayendanger his physical health or significantly im-pair his emotional development ....

These stringent restrictions upon modification of conservator-ship are consistent with the trend in modern thought whichgives great weight to the stability of custody determinations. 4

A few situations, however, may not warrant restraint. ATexas court should exercise its continuing jurisdiction if thefactual background clearly indicates that the departure of cus-todian and child was a result of a pending motion to modify.Obviously, if a managing conservator has received notice of amotion to modify, his subsequent flight cannot be permittedto affect the exercise of jurisdiction.241 Similarly, if it is clearlyshown that a managing conservator knew of such a motion andthat he deliberately left to avoid receipt of notice, restraint isnot warranted; constructive notice should suffice to supportthe exercise of continuing jurisdiction.

In rare instances, a managing conservatorship may havebeen awarded on a trial basis with a review scheduled for thefuture, perhaps at some indefinite time. A Texas court couldexercise continuing jurisdiction on the theory that the recipi-ent of a trial conservatorship consented to a future redetermi-nation. On the other hand, although all conservatorships arearguably conditional, a permanent conservatorship not re-stricted by a stated trial period is clearly distinguishable fromone in which a reopening is scheduled.

The preceding examples illustrate situations in which"extraordinary circumstances" would justify the exercise ofextraterritorial jurisdiction. The courts may discover others. Alikely candidate is presented in cases where the nonresident

240. See GOLDSTEIN, FREUD & SOLNIT, BEYOND THE BEST INTERESTS OF THE CHILD (1973),the most important publication on the subject in the past decade. The model statute sug-gested by the authors provides for a final, unconditional placement after which a courtspecifically does not retain continuing jurisdiction. Id. at 101.

241. See note 147 supra and accompanying text.

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19761 LONG ARM JURISDICTION

managing conservator has died. A number of pre-Family Codecases held that custody in such a case automatically vested inthe surviving parent."' Although this result is facile, it oftencompletely ignores the best interests of the child involved. Ifthe child has integrated into the conservator's new family, itmay be in the child's interest to remain with the step-parent.243 Usually the foreign state will insist on independentlydetermining the child's best interests in any event. It willprobably do so without reference to the full faith and creditclause; under May v. Anderson the nonresident step-parentmay not be personally bound by a Texas decree.244

Texas courts may also find "extraordinary circumstan-ces" warranting exercise of continuing jurisdiction if an ordernot to move from the county or state without prior court ap-proval has been violated.245 The violation may be viewed as anaffront to the court's dignity and may cause an overreaction.Recently such orders seem to be infrequent, which is just aswell considering their dubious constitutionality.24

242. E.g., Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551 (1946); Guillot v. Gentle,467 S.W.2d 521 (Tex. Civ. App.-Eastland 1971, writ ref'd n.r.e.); Thrash v. Cochran, 360S.W.2d 587 (Tex. Civ. App.-San Antonio 1962, no writ).

243. The classic U.S. case concerned with a controversy between a step-parent and anatural parent is Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962), noted in 73 YALE L.J. 151(1963). In this case the step-father retained custody after the death of the child's mothersolely on the best interests test. In numerous reported Texas cases a non-parent has prevailedover a fit parent. E.g., Knowles v. Grimes, 437 S.W.2d 816 (Tex. 1969); Mumma v. Aguirre,364 S.W.2d 220 (Tex. 1963); In re Barrera, 531 S.W.2d 908 (Tex. Civ. App.-Amarillo 1975,no writ).

244. 345 U.S. 528 (1953). In many situations, the parent-child long arm, section 11.051,cannot conceivably apply to a nonresident step-parent who has had no connection with Texas.Literally, the surviving step-parent may not even be entitled to notice, although he certainlyhas an interest in the child. Compare TEX. FAMILY CODE ANN. § 11.09 (1975), with TEX. FAMILY

CODE ANN. § 14.08(b) (1975). In other situations, an extremely broad reading of section 11.051might be urged by the surviving parent. For example, the step-parent and custodial parentmay have "resided with the child in this state" some time in the past. If so, the statuteliterally applies, but whether a jurisdictional claim would be recognized elsewhere is proble-matical.

245. E.g., Ex Parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1961); Lasater v. Bagley, 217S.W.2d 687 (Tex. Civ. App.-Eastland 1949, writ ref'd n.r.e.).

246. See Note, Restrictions on a Parent's Right to Travel in Child Custody Cases:Possible Constitutional Questions, 6 U.C.D.L. REV. 181 (1973). The last reported Texasdecision seems to be Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1961); cf. Lehmann v.Lehmann, 537 S.W.2d 131 (Tex. Civ. App.-Fort Worth 1976). Most of the major U.S.Supreme Court "right to travel" decisions have been decided after Rhodes. E.g., Memorial


b. Modification of the Rights and Duties of the Posses-sory Conservator

A motion may be filed in the court of continuing jurisdic-tion by a resident possessory conservator to enforce or modifyhis rights or duties vis-a-vis a nonresident managing conserva-tor and the child. One possible basis for such a motion wouldbe to increase or enforce decreed access to the child, still re-ferred to as visitation by most lawyers and judges. The confus-ing prior Texas law of visitation has been reviewed elsewhereat length. 47 For our purposes, suffice it to say that Texascourts, on rare occasion, have ordered interstate visitation,but the cases in which they have done so have involved therights of noncustodians residing in other states.248 In anyevent, modifying or attempting to enforce visitation againstan absent managing conservator is subject to many of thesame qualifications outlined above. That is, the Texas courtmay decree, but it cannot enforce. The enforcement may beeffected only by a court in the foreign state. Only if a Texascourt takes great umbrage regarding an alleged interferencewith visitation and enters a punitive decree will the situationbecome critical.249

A resident possessory conservator may also seek to changehis position in relation to a nonresident managing conservatorand the child by a motion to modify his support paymentsdownward. This situation poses quite different problems.Long before the current codification of continuing jurisdiction,Texas courts consistently held that the divorce court had ex-

Hospital v. Maricopa County, 415 U.S. 250 (1974); Dunn v. Blumstein, 405 U.S. 330 (1972);Shapiro v. Thompson, 394 U.S. 618 (1969); but see Sosna v. Iowa, 419 U.S. 393 (1975).

247. See, e.g., Smith, Family Law Survey, 22 Sw. L.J. 115, 117-23 (1968); Hamilton,Some Domestic Relations Problems Connected with Children, 33 TEX. B.J. 283 (1970); Gault,Statutory Grandchild Visitation, 5 ST. MARY'S L.J. 474 (1973).

248. E.g., Leithold v. Plass, 413 S.W.2d 698 (Tex. 1967), and Schwartz v. Jacob, 394S.W.2d 15 (Tex. Civ. App.-Houston 1965, writ refd n.r.e.) granted interstate visitation. Inre Johnson, 494 S.W.2d 943 (Tex. Civ. App.-Amarillo 1973, no writ) denied interstate visita-tion. See Hueak, Plight of the Interstate Child, 9 AKRON L. REv. 257, 275-89 (1975).

249. Berlin v. Berlin, 239 Md. 52, 210 A.2d 380 (1965); cf. Gunther v. Gunther, 478S.W.2d 821 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). The foreign courtis unlikely to accede to a punitive decree. Berlin v. Berlin, 21 N.Y.2d 371, 235 N.E.2d 109(1967).

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clusive continuing jurisdiction to modify, alter, or enforcechild support obligations.250 Doubtlessly, this rule continuesbasically to be followed today.2 '" Thus, it appears that a Texascourt may reduce the support ordered for an out-of-statechild,25 2 and that order is fully enforceable in this state. If theobligor obeys the new order, contempt will not lie. The absentobligee can do little to complain effectively.253

If the motion to reduce support is based upon a greatlydiminished ability to pay by the obligor,154 the exercise of juris-diction seems appropriate. The forum of the obligor is bestequipped to make such a determination. If the motion is basedon decreased needs of the child, however, a court should useextreme care in determining whether it should exercise juris-diction.25' Again, the potential for abuse in an ex parte deci-sion relying on one-sided evidence is significant.

2. Possessory Conservator Absent from State

The exercise of continuing jurisdiction over an absentmanaging conservator is particularly subject to abuse. If thenoncustodial parent has left Texas and the managing conserv-ator and child remain, the problems are far less complex. Is-sues of modification of conservatorship or access to the child

250. E.g., Ex parte Mullins, 414 S.W.2d 455 (Tex. 1967); Ex parte Goldsmith, 155 Tex.605, 290 S.W.2d 502 (1956).

251. Under the Family Code, this power to modify or enforce support orders by con-tempt apparently may be transferred from the divorce court to another district court undercertain circumstances. TEX. FAMILY CODE ANN. § 11.06 (1975). This remains to be tested.

252. No case has squarely held that the original divorce court may modify its originalchild support order based on its continuing jurisdiction when the obligee is a nonresident ofTexas. Only two reported cases apparently have dealt with the issue. Kline v. Weaver, 348S.W.2d 379 (Tex. Civ. App.-San Antonio 1961, no writ); Garbark v. Sieber, 344 S.W.2d 911(Tex. Civ. App.-Amarillo 1961, no writ). Both were decided before the advent of the specialappearance provided in TEX. R. Civ. P. 120a. By contesting the jurisdiction, the nonresidentobligees were deemed to have made a general appearance. Therefore, the issue of continuingjurisdiction was moot. See Thode, In Personam Jurisdiction; Article 2031b, The Texas "LongArm" Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas andElsewhere, 42 TEXAS L. REV. 279, 292-97 (1964).

253. Institution of an independent URESA action in the foreign state might result in areconsideration of the question by a Texas court, most probably the same court which orderedthe reduction.

254. E.g., In re Whittington, 521 S.W.2d 121 (Tex. Civ. App.-Beaumont 1975, nowrit); Anderson v. Anderson, 503 S.W.2d 124 (Tex. Civ. App.-Corpus Christi 1973, no writ).


19761


usually will not arise; if they do, resolution is relatively simplebecause a Texas court will be able to enforce its orders.

Continuing disputes are possible, however, usually in-volving periodic child support payments. Typically, such adispute will concern an attempt to increase the support orderagainst the absent obligor or to obtain a judgment for arrear-ages. At present, reported cases regarding a motion to increasethe child support payments of an absent obligor are very rare.In Texas, research uncovers only one such instance, Davi v.Davi,2"

1 a 1970 case. Motions for increased support may beparticularly useful for future enforcement in states which per-mit registration of foreign support orders under the UniformReciprocal Enforcement of Support Act.257 Because the evi-dence introduced to support such motions will probably beone-sided, extreme caution in rendering a judgment should beexercised by the original court. Because the obligor will findit either very inconvenient or impossible to defend, potentialfor abuse exists.

The vehicle for enforcing support orders through judg-ments for arrearages was added by the Family Code in 1973.258When this procedure is used as an alternative to contemptproceedings against an absent obligor, the potential for over-reaching is less significant. After proper notice and hearing,2 59

a money judgment may be entered against the absent obligoron the basis of the continuing personal jurisdiction established

256. 456 S.W.2d 238 (Tex. Civ. App.-Texarkana 1970, writ dism'd w.o.j.).257. E.g., TEX. FAMILY CODE ANN. §§ 21.61-21.66 (1975). Although all 50 states and 4

territories have enacted one of the several versions of the reciprocal support acts, it appearsthat 17 of these do not provide for registry of foreign support orders. UNIFORM RECIPROCAL

ENFORCEMENT OF SUPPORT ACT §§ 35-40 (1968 act); UNIFORM RECIPROCAL ENFORCEMENT OF

SUPPORT ACT §§ 34-40 (1958 Act).258. TEX. FAMILY CODE ANN. § 14.09(c) (1975).259. TEX. R. Civ. P. 21(a), providing for certified mail notice of hearing, applies. The

motion for judgment of child support arrearages should be filed under the original cause ofaction. The required time for notice of hearing is probably covered by the 10-day rule of TEX.

R. Civ. P. 308A, rather than the 30(plus) days required in TEX. FAMILY CODE ANN. § 14.08(b)(1975). This is not entirely clear because rule 308A speaks only to contempt. On the otherhand, a judgment for arrearages cannot be said to be a modification of the original order. Inshort, the question is not specifically covered by the Code or the rules. In any event, the trialcourt should require a petitioner to give reasonable notice when the obligor resides outside ofTexas.

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in the original suit. Because child support payments are abso-lute and vested upon coming due,"' there is no defense in asuit for arrearages other than payment.2"' If execution of thejudgment is contemplated outside of Texas, reducing the ar-rearages to judgment is actually not necessary because a judg-ment may be obtained and executed upon for arrearages in theforeign state."2

F. Forum Non Conveniens: Self-Imposed Restraint

In Texas the status of the forum non conveniens doctrineis unsettled." 3 This is unfortunate because intelligible rules onthe subject would clarify some of the issues involved in thepotential exercise of continuing jurisdiction over conservator-ships. The possibility of an abusive or harrassing motion formodification, coupled with the ever-present danger of an un-wise decision based on an ex parte hearing, creates a greaterneed for caution than exists in virtually any other legal dis-pute.

Historically the doctrine has been a judicially imposedlimitation upon adjudication.6 4 Essentially, a court shouldpractice restraint when a court in another state is in a betterposition to determine the custody issue6 ' and to enforce its

260. TEX. FAMILY CODE ANN. § 14.08(c) (1975).261. Inability to pay is a defense only in a contempt proceeding. Smith, supra note 77,

at 434-35.262. See Aldrich v. Aldrich, 378 U.S. 540 (1964); Griffin v. Griffin, 327 U.S. 220 (1946);

Barber v. Barber, 323 U.S. 77 (1944); Sistare v. Sistare, 218 U.S. 1 (1910); notes 49-55 supraand accompanying text.

263. See note 166 supra.264. See WEINTRAUB, supra note 1, at 154-60; RESTATEMENT (SECOND) OF CONFLICT OF

LAWS § 84 (1971). Some states have codified the doctrine. E.g., CALIF. CIV. PROC. CODE §410.30 (1973); see Comment, The Uniform Child Custody Jurisdiction Act and the Continu-ing Importance of Ferreira v. Ferreira, 62 CALIF. L. REV. 365, 391-405 (1974).

265. A Kentucky trial judge recently summarized the proper view as well as it can bedone:

It is . . . appropriate . . . to comment upon the jurisdiction of this Court and onthe Doctrine of Forum Non Conveniens. This Court, of course, has jurisdictionunder the continuing jurisdiction rule. [citation omitted] In this case the only realcontact that this Court has with the parties arises out of the previous proceedingsin this Court. . . . [Tihe right to control infants should be exercised only when astate has acquired a recognizable parens patriae interest in the child predicatedupon bona fide residence or domicile. The domicile of the . . . children and theirresidence is in [another state. Thatl . . . Court has every advantage over this

1976]


decision. In custody matters, Texas courts can and shouldconsider the principles regarding an inconvenient forum enun-ciated in the Uniform Child Custody Jurisdiction Act beforeasserting continuing jurisdiction over absent conservators.The UCCJA supplies an excellent model. 6

G. The Due Process Perspective: Constitutionally Mandated

Restraint

1. In General

"Due process" is the central theme of jurisdiction to adju-dicate. On this subject, Professor Weintraub's treatise on con-flicts provides definitional assistance:

A somewhat tautological definition of jurisdiction toadjudicate for United States courts would run as fol-lows: a court has judicial jurisdiction if it may, withoutviolating due process of law, make an adjudicationbinding parties personally or determining the rights ofpersons in property. If a court acts beyond the scope ofits constitutionally circumscribed jurisdiction, its adju-dication is a violation of due process. The judgment isinvalid in the state in which rendered and no courtsitting in a sister state is either required or permittedto give the invalid judgment full faith and credit ....

Defining constitutional jurisdiction to adjudicatein terms of due process has the safety of tautology, butis not very helpful in understanding what the due pro-cess limitations are. A further step in exposition is totranslate "due process" into a core concept that per-vades the area of judicial jurisdiction. This core conceptmight be described as "reasonableness." Another suchgeneral term might be "fairness" . . . . To be more

Court in being able to enlist the help of neighbors, doctors, teachers and otherpersons who are familiar with the living conditions of the children in makingany further determinations of what is best for them.

Quoted in Edrington v. Fitzgerald, 514 S.W.2d 712, 714 (Ark. 1974). But see Edrington v.Edrington, 459 S.W.2d 141 (Ky. Ct. App. 1970).

266. UNIFORM CHILD CUSTODY JURISDICTION ACT § 7, Commissioner's Note (1968 act);See also Comment, Forum Non Conteniens: The Need for Legislation in Texas, 54 TEXAS L.REV. 737 (1976).

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specific we must turn to the case law that has been builtupon the due process foundation. In viewing the caselaw, however, it is important to remember that we areseeing part of a continuing process of constitutional in-terpretation that attempts to make the answers to thebasic problem of when a court has jurisdiction to adju-dicate responsive to modern social realities ....

As a tool for case analysis, it is useful to divide thedue process jurisdictional standard into two parts: no-tice and nexus. First, a judgment binding a party per-sonally. . . can be made only if there has been an effortthat is reasonable under the circumstances to give theperson affected notice of the proceedings and an oppor-tunity to be heard. Second, the adjudicating court musthave some contact with the person being bound . . .that makes it reasonable for the court to bind the per-son by its decision .... 161

Current due process standards to be applied to assertionsof original jurisdiction may be identified through reference tothe vast number of cases and comments on the subject."'Identification of the relevant criteria of due process for theassertion of continuing jurisdiction, however, is much moredifficult. In fact, little direct authority exists on the matterbecause, in general, the principles have not been discussed.For example, a number of courts have concluded, in effect,that the original forum's continuing jurisdiction to modify acustody decree ends when the custodian and child leave thestate."9 A majority of courts apparently have taken a contraryview.270 Seldom, if ever, do the cases analyze the exercise ofcontinuing jurisdiction in terms of due process. Those thatreject the assertion usually rely on such outmoded concepts asthe "child's domicile"; 7 ' those that accept the concept are

267. WEINTRAUB, supra note 1, at 69, 71.268. See, e.g., the hundreds of cases and articles cited in Annot., 24 A.L.R.3d 532 (1969)

(torts), and in Annot., 23 A.L.R.2d 551 (1969) (contracts).269. E.g., Graton v. Graton, 537 P.2d 31 (Ariz. Ct. App. 1975); Edrington v. Fitzgerald,

514 S.W.2d 712 (Ark. 1974); Hines v. Hines, 418 S.W.2d 253 (Tenn. 1965).270. See WEINTRAUB, supra note 1 at 195-96, quoted in text accompanying note 233

supra; notes 225-29 supra and accompanying text.271. See cases cited note 269 supra.

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even less sophisticated and, in effect, decide in an arbitrary,conclusory fashion that "continuing jurisdiction exists be-cause it exists, period, end." '272 The time for examining whatis "reasonable and fair" in the assertion of continuing jurisdic-tion is long overdue.

2. Distinguishing Initial and Modifying Decrees of Conserva-torship: Original Nexus Insufficient by Itself

Assertions of original jurisdiction in conservatorship casesinvolve issues of overriding importance to the forum state. Avital need exists to award custody and establish the exact dutyof support. Therefore, it is reasonable and fair for the forumto decide these questions if some minimum nexus exists be-tween the state and a nonresident party. For the most part,no satisfactory alternative to deciding the case is available.Once an initial determination has been made, however, thiscritical pressure has been relieved. Due process requires thatjurisdiction over a subsequent action concerning conservator-ship cannot be supported solely on the basis that personaljurisdiction, which may have been based on slender contact atbest, once existed. Why? Because it is neither fair nor reasona-ble to require a nonresident custodian to relitigate the sameissue in the original forum after a semipermanent decision hasbeen rendered.

This conclusion is based primarily upon practical reali-ties. Too often a motion to modify has been filed for oppressiveor harrassing purposes, and in any event the potential for suchuse is always present. Courts should not ignore the fact thatan absent legal custodian of a child will be inconvenienced atbest, and may be victimized at worst, by a biased hometowndecision if he is forced to relitigate in the original state. Simi-larly, a nonresident support obligor faces the unenviable di-lemma of either going to the trouble and expense of defendinga modification motion in a distant forum or risking the issu-ance of an ex parte default decree based on wholly one-sidedevidence.

272. E.g., Follak v. Brown, 530 S.W.2d 882 (Tex. Civ. App.-Beaumont 1975, no writ);Dowden v. Fischer, 338 S.W.2d 534 (Tex. Civ. App.-Waco 1960, no writ).

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In determining whether due process standards have beenmet, both the nonresident's current nexus with the originalforum and the nature and factual context of the controversymust be considered. The continuing jurisdiction concept as-sumes, without analytical thought, that personal jurisdictiononce established may remain in force in perpetuity. This as-sumption can be true, however, only if the factual circumstan-ces and legal implications involved in a subsequent action areidentical, or nearly identical, to those that originally sup-ported the initial decree. But this is almost never the case. Forone thing, the pressing need to resolve custody and support nolonger exists. For another, at least in those cases in which thelegal custodian and child have departed, the original forum'soverriding interest in protecting the child has eroded, and itsinterest is shared with another state. It may be persuasivelyargued that this interest is wholly secondary to that of thestate in which the child resides. At best the original forum'sinterest is abstract and theoretical, and at worst it is officiousand meddling. 73

Most important, the circumstances and implications of,and the criteria to be used for, decision making in a subse-quent proceeding are substantively distinguishable from thosepertaining in the original determination. For example, ini-tially conservatorship contestants usually stand on an equalfooting. Texas law accords parents equal rights and responsi-bilities:274 both parents have what might be labeled an "equal,undivided, inchoate interest" in the custody and support oftheir children; the former advantage granted to mothers hasbeen specifically eliminated. 75 This equality of claims by com-peting parents does not obtain after the original decree ofconservatorship. After the rights and duties of each parent

273. This is a matter of opinion. For the contrary view, see UNIFORM CHILD CUSTODYJURISDICTION ACT § 14, Commissioner's Note (1968 act); Ratner, Child Custody in a FederalSystem, 62 MicH. L. REV. 795, 820-22 (1964).

274. TEX. FAMILY CODE ANN. § 12.04 (1975).

275. TEX. FAMILY CODE ANN. § 14.01(b) (1975). The result is doubtless compelled byTEX. CONST. art. I, § 3a (the Equal Rights Amendment). See Comment, 54 TEXAS L. REV.590, 597-602 (1967); Comment, 11 Hous. L. REV. 136, 158 (1973); Comment, 15 S. TEX. L.J.111, 123 (1974).

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have been fixed, continuation of the original determination ispresumptively in the child's best interest and that determina-tion will be altered only for compelling reasons.2716 In short,modification of a conservatorship is based on criteria com-pletely different from those which formed the basis for theoriginal decree.277

From the due process perspective it must be determinedwhether it is "reasonable and fair" subsequently to deprive aperson of a "choate right" by using as a foundation a nexuswith the forum which no longer exists in fact, and which wasestablished under different circumstances, justified by differ-ent reasons for different purposes, and decided under differentcriteria. Viewed in these terms, it seems clear that exercise ofalleged continuing jurisdiction based solely on a once-presentnexus, eroded and then lost through space and time, is neitherreasonable nor fair if undertaken on an ex parte basis. Toexercise extraterritorial jurisdiction in such a manner consti-tutes a denial of due process.

Where does this argument lead? It seems clear that cer-tain ex parte assertions of continuing jurisdiction over an ab-sent party are more than "unwise" as Professor Weintraubstates. In particular circumstances such assertions may beunconstitutional under the fourteenth amendment. The con-verse is also true. The recognition of another state's claim ofcontinuing jurisdiction may also be a denial of due process ifa subsequent modification did not give due regard to an ap-propriate standard of "reasonableness." Flat rules relating tothe exercise of continuing jurisdiction cannot be formulated.Cases must be decided on an individual basis.

The foregoing discussion is not intended to imply thatthe assertion or recognition of continuing jurisdiction is an apriori violation of due process. Quite the contrary is true. Asindicated earlier, sufficient justification for the application ofthat concept is often found in particular fact circumstances.

276. E.g., TEX. FAMILY CODE ANN. § 14.08 (1975); see GOLDSTEIN, FREUD, & SOLNIT,

BEYOND THE BEST INTERESTS OF THE CHILD (1973) (passim).277. TEX. FAMILY CODE ANN. § 14.08 (1975); see notes 236-43 supra and accompanying

text.

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The basic, underlying validity of the continuing claim pres-ents a due process question to be measured in traditionalterms, much as a long arm is judged. That is, does the courthave a reasonable nexus with the nonresident in order to sup-port an in personam decree? Because a conservatorship in-volves continuing rights and duties, the answer in many casesmay be affirmative. But when a significant time has passedand there has been a great separation in space, a findingshould be made that the original nexus has completely eroded.

Finding that a court has "a reason to decide" a case,however, does not answer all of the issues necessary to a deter-mination of whether a decision comports with due process.Thus, the emphasis must shift to determining whether themanner and method of the assertion or recognition of continu-ing jurisdiction have been fair and reasonable.

3. Notice and Opportunity to be Heard

In evaluating jurisdiction to adjudicate, traditional dueprocess analysis requires a finding of "notice of the proceed-ings and an opportunity to be heard." The two elements havebeen joined so often and for so long that some may assume asingle test is involved. In fact, in many situations this may bethe case.27 In regard to continuing jurisdiction over child cus-tody this has been true. However, courts are becoming increas-ingly aware that these elements often are distinct and mustbe evaluated separately.279

It is an obvious truism that a legal custodian or conserva-tor of a child is entitled to notice of a motion to modify cus-tody, both by operation of federal constitutional standards 0

278. For example, several recent due process opinions by the U.S. Supreme Court weredirected at the necessity of notice and the character of this notice prior to judicial or otherstate action. North Georgia Finishing, Inc. v. Di-Chem, Inc., 95 S. Ct. 719 (1975); Fuentes v.Shevin, 407 U.S. 67 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). Theability and opportunity of the defendants to be heard effectively seems to have been pre-sumed.

On the other hand, when the rights of a parent and his children are involved, the Courthas evidenced more concern about the practicalities of the opportunity to be heard. In Stanleyv. Illinois, 405 U.S. 645 (1972), weighty presumptions against an illegitimate father werestruck down on procedural due process grounds.

279. Cf. Armstrong v. Manzo, 380 U.S. 545 (1965).280. Id.

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and by statute."' Some debate may arise over what consti-tutes a reasonable type of notice, i.e., personal, mailed, orsome other type."2 In any event, receipt of a legally acceptableform of notice" ' merely serves to initiate a procedural dueprocess inquiry.

A critical due process issue remains: if the respondent nolonger resides in the forum, may personal notice of a motionto modify be equated with "an opportunity to be heard"? Inthis context, the respondent is presented with "an opportun-ity" only to expend time, energy, and money to travel to an-other state to defend what may be regarded by him as a whollyspurious motion. In this context, whether such a procedure is"fair and reasonable" depends on whether the motion formodification is decided by the court on the best availableevidence or in an ex parte proceeding.

To measure the procedural due process of an exercise ofcontinuing jurisdiction, reference may again be made to theUniform Child Custody Jurisdiction Act. Although the Act isnot couched in due process terms, it establishes adequate pro-cedural safeguards, which include provisions for: (1) requiringanother party to pay to the clerk of the court the travel andother necessary expenses of a party residing outside the stateif this is just and proper under the circumstances;" (2) takingtestimony in another state from a party, the child, or wit-nesses, by deposition or otherwise;" 5 and (3) requesting a courtof another state to hold a hearing to adduce evidence, to orderproduction of evidence, to have a social study made, etc.2"

Asserting that the specific procedures of the Act are con-

281. See, e.g., TEX. FAMILY CODE ANN. §§ 11.09, 14.08(b) (1975).282. TEX. FAMILY CODE ANN. § 11.09 (1975) was heretofore unusual under Texas law

because it permits a petition to be served by certified mail. TEX. R. Civ. P. 106 now authorizesservice by mail in certain instances. Notice of subsequent action is similarly treated, but thishad a parallel in the earlier procedure, TEX. R. Civ. P. 21a.

283. In Clayton v. Newton, 524 S.W.2d 368, 371-72 (Tex. Civ. App.-Fort Worth 1975,no writ), actual notice by telephone of a motion to change custody was held to be insufficientnotice to support a "default judgment."

284. UNIFORM CHILD CUSTODY JURISDICTION ACT § 11(c) (1968 Act); UNIFORM CHILD CUS-

TODY JURISDICTION ACT § 15(b) (1968 act), which provides for similar financial relief in child-snatching cases.

285. UNIFORM CHILD CUSTODY JURISDICTION ACT § 18 (1968 act).286. Id. at § 19.

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stitutionally mandated may be somewhat radical, but aslightly less bold proposition may be advanced. If an affirma-tive showing is made that the original court, in deciding amotion for modification under its continuing jurisdiction,undertook in good faith to comply with these procedural safe-guards, due process has been satisfied. But if the determina-tion was made ex parte in what amounted to a vacuum ofinformation, the decision is highly suspect at a minimum. Ifthe procedural deficiencies amount to a denial of proceduraldue process, the modification is void. In such an instance, ithas absolutely no claim to full faith and credit in any otherstate, and it may be collaterally attacked anywhere includingin the forum state. While the presumption of a foreign judg-ment's validity remains viable,287 this presumption may berebutted by a showing that the absent respondent was notaccorded an opportunity to be heard which conformed to therealities of interstate custody litigation.2 88

VII. CONCLUSION

The enactment of the Family Code was an ambitious andrelatively successful project. Many of the former irregularities,abuses, and inconsistencies that existed in domestic relationscases have disappeared. Great progress has been made in re-solving jurisdictional issues, particularly with the enactmentof the long arm statutes in 1975. Of course, by no stretch ofthe imagination does the Family Code eliminate the problemsof interstate divorce and custody. Whenever two or morestates are involved, litigation is immeasurably and unavoida-bly more complex. Nonetheless, the Code represents a majorstep toward bringing some order to chaos. Although the longarm statutes will not be a panacea for conflict of laws prob-

287. E.g., Rumpf v. Rumpf, 150 Tex. 475, 242 S.W.2d 416, 419 (1951); Dowden v.Fischer, 338 S.W.2d 534, 536 (Tex. Civ. App.-Waco 1960, no writ).

288. The leading case relating to procedural due process and the opportunity to beheard is Goldberg v. Kelly, 397 U.S. 254 (1970). There the Court outlined certain minimumstandards for a "fair hearing" in welfare determinations. Due process is wholly contextual,varying from situation to situation depending on the interests involved. See Mathews v.Eldridge, 44 U.S.L.W. 4224 (1976). Greater elaboration on this complex issue must be leftfor another article.

1976]

254 TEXAS TECH LAW REVIEW [Vol. 8:159

lems, they will facilitate the interstate enforcement of per-sonal judgments in matters of child support and arrearages,attorney's fees, division of out-of-state personalty, etc. In ad-dition, they may promote greater respect in many states for aTexas award of managing conservatorship.

In the post-war period, Texas has been a leader in pro-gressive, enlightened treatment of conflict of laws issues. Thetask is not complete, however. Experience teaches that asser-tions of long arm jurisdiction should be accompanied by arealistic, well-developed doctrine of forum non conveniens.High priority to the development of such a doctrine should begiven by the legislature or the courts. Further, serious issuesrelating to the assertion or recognition of "continuing jurisdic-tion" remain to be resolved.

jurisdiction in divorce and conservatorship suits

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