Jana S. Boyd v. Alexander Davidovich
Opinion
ACCEPTED
05-23-00457-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
3/11/2024 2:57 PM
RUBEN MORIN
CLERK
Case No.: 05-23-00457-CV
FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
In the Fifth Court of Appeals for the State 3/11/2024 2:57:05 PM Ruben Morin
Clerk
of Texas
JANA S. BOYD,
PETITIONER/APPELLANT
V.
ALEXANDER DAVIDOVICH,
RESPONDENT/APPELLEE
Appealed from the 470th District Court, Collin County, Texas in trial court cause number 470-50338-2023, the Honorable Brook Fulks presiding.
Appellant’s Reply Brief
Niles Illich Palmer Perlstein 15455 Dallas Parkway Oral Argument Requested.
Suite 540 Addison, Texas 75001 Direct: 972-204-5452 Facsimile: 214-922-9900 Email: Niles@palmerperlstein.com Counsel for Appellant
Contents
TABLE OF AUTHORITIES ............................................................................................ iii ARGUMENT .................................................................................................................5 APPELLEE’S STATEMENT OF FACTS .............................................................................5 FINDINGS OF FACT AND CONCLUSIONS OF LAW ..........................................................6 HUSBAND’S JUDICIAL ADMISSION...............................................................................7 HUSBAND AND WIFE SATISFIED THE RESIDENCY AND DOMICILE REQUIREMENTS FOR DIVORCE IN COLLIN COUNTY......................................................................................8 JURISDICTION OVER HUSBAND ...................................................................................9 THE TRIAL COURT SHOULD HAVE ABATED THE CASE NOT DISMISSED IT ...............10 PRAYER AND CONCLUSION .......................................................................................12 CERTIFICATE OF SERVICE ..........................................................................................12 CERTIFICATE OF COMPLIANCE ..................................................................................13
ii
TABLE OF AUTHORITIES
CASES
Am. Motorists Ins. v. Fodge, 63 S.W.3d 801 (Tex. 2001) .............................................................................. 11
Balbuena v. Balbuena ex rel. Balbuena, 2002 WL 31646678 (Tex. App.—Dallas Nov. 25, 2002, no pet.) .................... 8
In re Marriage of Lai, 333 S.W.3d 645 (Tex.App.–Dallas 2009, no pet.) ............................................. 9
In re Swart, 581 S.W.3d 844 (Tex. App.—Dallas 2019, no pet.) ........................................ 11
Thompson & Knight LLP v. Patriot Expl., LLC, 444 S.W.3d 157 (Tex. App.—Dallas 2014, no pet.) .......................................... 6
STATE RULES
Texas Appellate Court Procedure Rule 9.4 ............................................................................................................ 13
Texas Civil Procedure Rule 120a............................................................................................................ 9
iii
Case No.: 05-23-00457-CV
In the Fifth Court of Appeals for the State of Texas
JANA S. BOYD,
PETITIONER/APPELLANT
v.
ALEXANDER DAVIDOVICH,
RESPONDENT/APPELLEE.
To the Honorable Justices of the Fifth Court of Appeals:
Jana S. Boyd, Appellant, presents this reply brief.
ARGUMENT
APPELLEE’S STATEMENT OF FACTS Appellant and Appellee generally agree on the background facts.
Husband and Wife agree that their home flooded on December 5, 2022, and the next day Husband filed for divorce from Wife. 2 RR 32, 57, 238. Appellant’s brief, 20, Appellee’s brief, 14. The only dispute comes from footnote one in Appellee’s brief in which Husband contends he dropped the suit after “discussions with Husband elucidated that Husband was neither a resident nor domiciliary of Texas or Collin County.” Appellee’s brief, 14 n.1. Husband’s explanation for why he non-suited his divorce in Collin County is not supported by the record, and Husband therefore does not cite to the record to support his claim.
Husband also neglects to acknowledge that his current firm, a firm with a reputation for diligence and excellence, filed the petition on December 6, 2022, and claimed that “Petitioner has been a domiciliary of Texas for the preceding six-month period and a resident of this county for the preceding ninety-day period.” 2 RR 283, 286. Husband’s claim that he dismissed the suit after “discussions with Husband elucidated that Husband was neither a resident nor domiciliary of Texas or Collin County,” would have more merit had the petition been filed pro-se or by a firm that did not focus on family law. But the petition was filed by a firm that focuses on
family law. Accordingly, Husband’s effort to distance himself from his judicial confession in his petition from December 6, 2022, should not be persuasive.
FINDINGS OF FACT AND CONCLUSIONS OF LAW Appellee contends that Appellant should have directed his challenge to the findings of fact and conclusions of law instead of the judgment. Appellee’s brief, 20. But Appellant’s first issues are:
• The trial court erred in dismissing Appellant’s petition.
• The trial court erred by dismissing the case and not ordering an abatement.
And, • The trial court erred by admitting the record of flights into and out of the U.A.E. over objection.
Appellant’s brief, v-vii.
Appellee relies on Patriot Exploration, LLC. Appellee’s brief, 20. But Patriot is a legal sufficiency case—not a case based on the erroneous grant of a motion to dismiss. Thompson & Knight LLP v. Patriot Expl., LLC, 444 S.W.3d 157, 161-62 (Tex. App.—Dallas 2014, no pet.) (“In three issues, T & K contends there is no evidence of any prospective purchaser other than MexTex for an April 1, 2008 purchase and no evidence MexTex would have paid more in April than it actually paid in September; Scheig’s opinion on damages is based on invalid assumptions
and constitutes no evidence; and Scheig used the wrong date for a hypothetical sale because the Title Gap was cured in May rather than July 2008.”). Appellee also relies on Charger Services from El Paso. Appellee’s brief, 20. But Charger Services is essentially the same as Patriot.
Further, to claim that Appellant’s arguments do not attack the findings of fact and conclusions of law is disingenuous. Appellant’s first argument is that she met the requirements for residency and domicile to file for divorce in Collin County. Appellant’s brief, 25-58. Plainly this challenges the trial court’s finding of fact and conclusion of law that Appellant was not a resident and was not domiciled in Texas.
Accordingly, Appellee’s argument concerning the findings of fact and conclusions of law lacks merit.
HUSBAND’S JUDICIAL ADMISSION For Husband it is an inconvenient truth that he filed a petition with the trial court admitting to the residency and domicile requirements. Appellee’s brief, 22-28. Husband seeks to distance himself by claiming that the statement “[Husband] has been a domiciliary of Texas for the preceding six-month period and a resident of this county for the preceding ninety-day period” is merely a quasi-admission. ROA.283, 286. Appellee’s brief, 22.
Husband is, however, correct that counsel for Appellant did not object to the admission of evidence contrary to the judicially admitted fact. Balbuena v. Balbuena ex rel. Balbuena, No. 05-02-00459-CV, 2002 WL 31646678, at *2 (Tex. App.— Dallas Nov. 25, 2002, no pet.) (“Appellant did not object to the testimony controverting the purported judicial admissions made by the Balbuena children. Consequently, we conclude appellant waived his “judicial admission” argument.”).
HUSBAND AND WIFE SATISFIED THE RESIDENCY AND DOMICILE REQUIREMENTS FOR DIVORCE IN COLLIN COUNTY
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