Jana S. Boyd v. Alexander Davidovich

Opinion

Affirmed and Opinion Filed October 10, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00457-CV

JANA S. BOYD, Appellant V. ALEXANDER DAVIDOVICH, Appellee

On Appeal from the 470th Judicial District Court Collin County, Texas Trial Court Cause No. 470-50338-2023

MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Breedlove Opinion by Justice Breedlove This is an appeal from the trial court’s dismissal of appellant Jana S. Boyd’s

(“Wife”) suit for divorce against appellee Alexander Davidovich (“Husband”). In

two issues, Wife argues that the trial court erred in dismissing her suit because she

satisfied the residency and domicile requirements or, in the alternative, abatement

rather than dismissal was the appropriate remedy. 1 We conclude that the trial court

1 At oral argument, Wife’s counsel stated his intention to waive a third issue that was included in the brief; therefore, we do not address that issue in this opinion. See TEX. R. APP. P. 47.4. did not abuse its discretion in dismissing the suit. Accordingly, we affirm the trial

court’s judgment.

BACKGROUND

Prior to their marriage, Husband and Wife lived in Russia. In 2018, Husband

and Wife were married in California and returned to Russia to live. Then in

November 2020, Husband and Wife moved to Texas and signed a lease on a home

with a term that expired in May 2022. However, in March 2021, Husband received

an offer of employment from the Abu Dhabi Investment Authority. Therefore, in

June 2021, Husband moved to Abu Dhabi, U.A.E. From August 2021 through

August 2023, Husband was listed as a tenant on a contract for a condo in Abu Dhabi,

and both Husband and Wife were listed as occupants. Husband and Wife also

obtained ID cards and driver’s licenses in Abu Dhabi.

In January 2022, Husband and Wife purchased a home on York Lane in Collin

County, Texas. On December 5, 2022, the York Lane house flooded and became

uninhabitable. Husband and Wife disagree regarding whether they lived in the York

Lane residence between January and December 2022, however, the York Lane

address is listed on their 2021 and 2022 tax returns as their home address. On

December 6, 2022, Husband filed for divorce in Collin County asserting that he “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– On January 11, 2023, Husband nonsuited his lawsuit. Wife then filed a

petition for divorce in Collin County on January 17, 2023, pleading that she had been

a domiciliary of Texas for the preceding six-month period and a resident of Collin

County for the preceding ninety-day period. She also pleaded that the parties ceased

to live together as spouses on or about December 6, 2022.

On March 30, 2023, Husband filed a plea to the jurisdiction and motion to

dismiss, arguing that neither party was domiciled in Texas for the six months prior

to January 17, 2023, the date when Wife filed suit. In support of his plea to the

jurisdiction, Husband amended his answer and filed a sworn declaration to support

his assertion that neither party was domiciled in Texas.

Husband then filed for divorce in Abu Dhabi on January 24, 2023. On April

3, 2023, the case in Abu Dhabi was suspended pending the resolution of the case in

the United States.2

In this suit, on April 27, 2023, Wife filed her response to Husband’s motion

to dismiss, arguing that she had, in fact, been domiciled in Texas for the prior six

months. The trial court held a hearing on Husband’s motion on April 28, 2023. Both

Husband and Wife testified. The trial court signed an order dismissing the suit on

2 The parties notified the Court at oral argument that the Abu Dhabi court has since lifted the stay and that court finalized the parties’ divorce, but such is not reflected in the record before us. The Court expresses no opinion as to the impact of the Abu Dhabi divorce on the present case. –3– May 3, 2023, and filed findings of fact and conclusions of law on June 16, 2023. The

trial court made the following findings of fact relevant to this appeal:

1. The parties were married on or about November 19, 2018.

2. This suit was filed on or about January 17, 2023.

3. At the time of the filing of JANA S. BOYD’s Original Petition for Divorce, neither party had been a domiciliary of Texas for the preceding six-month period.

4. At the time of the filing of JANA S. BOYD’s Original Petition for Divorce, neither party had been a resident of Collin County for the preceding ninety day period.

5. Counsel for Petitioner and Respondent agreed for the First Amended Plea to the Jurisdiction and Motion to Dismiss and for Sanctions to be set before the Court at 9:00 a.m. on April 28, 2023 via Zoom.

6. The judge conducted the court proceeding from the 470th Judicial District Court located at 2100 Bloomdale Road, McKinney, Texas 75071. 7. Neither party objected to the court proceeding being conducted by Zoom.

The trial court also concluded that:

[t]his suit could not be maintained in Texas, because, at the time the suit was filed, neither party had been a domiciliary of Texas for the preceding six-month period and a resident of Collin County for the preceding ninety-day period. See Tex. Fam. Code § 6.301.

This appeal followed.

APPLICABLE LAW AND STANDARD OF REVIEW

Section 6.301 of the Texas Family Code provides that “[a] suit for divorce

may not be maintained in this state unless at the time the suit is filed either the

–4– petitioner or respondent has been: (1) a domiciliary of this state for the preceding

six-month period; and (2) a resident of the county in which the suit is filed for the

preceding 90–day period.” TEX. FAM. CODE ANN. § 6.301. This requirement is

analogous to jurisdiction in that it is mandatory and cannot be waived. In re Swart,

581 S.W.3d 844, 848 (Tex. App.—Dallas 2019, no pet.) (citing In re Milton, 420

S.W.3d 245, 247 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding)).

Questions of residency and domicile as qualifications for a divorce action are fact

issues to be determined by the trial court, and an appellate court will not disturb the

trial court’s determination absent an abuse of discretion. Id. “The mere fact that a

trial judge may decide a matter within his discretionary authority in a different

manner than an appellate judge in a similar circumstance does not demonstrate that

an abuse of discretion has occurred.” Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 242 (Tex. 1985).

DISCUSSION

Issue 1: Determination of Residency and Domicile

We first address whether the trial court abused its discretion in dismissing

Wife’s suit based on a failure to satisfy the residence and domicile requirements of

Texas Family Code § 6.301. Wife argues that the trial court based its ruling on the

erroneous belief that a person may be a resident of only one place at a time and that

the trial court considered the evidence of Wife’s residence in Abu Dhabi to exclude

the possibility of her simultaneously maintaining a second residence in Collin

–5– County. Husband does not dispute that a person may be a resident of more than one

place at one time; however he responds that Wife failed to establish that either party

met the residency or domiciliary requirements to maintain the divorce suit in Texas.

When determining a person’s domicile and residency, we look to where the

individual resides and is domiciled “at the time the suit is filed.” TEX. FAM. CODE

ANN. § 6.301; see also In re Milton, 420 S.W.3d 245, 252 (Tex. App.—Houston [1st

Dist.] 2013, no pet.) (“Residency must be established as of the date the suit for

divorce is filed; it is not enough that ninety days of residency will pass during the

pendency of the divorce proceeding”) (citing In re Rowe, 182 S.W.3d 424, 426 (Tex.

App.—Eastland 2005, orig. proceeding)). Wife filed suit on January 17, 2023. The

relevant time periods for this case under § 6.301 are:

Section 6.301 Start Date End Date Requirement

Must be a domiciliary of Texas for the preceding July 17, 2022 January 17, 2023 six months

Must be a resident of Collin County for the October 19, 2022 January 17, 2023 preceding ninety days

While the trial court may consider evidence of domicile and residence before and

after the applicable time period as circumstantial evidence to support the parties’

assertions regarding their residency and domicile during the statutorily required

period, only the parties’ residence and domicile during the statutory period counts

–6– toward satisfying the § 6.301 requirements. See State v. Wilson, 490 S.W.3d 610,

621 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (considering evidence prior to

and subsequent to the statutory period for residence as circumstantial evidence

supporting claim of residency during statutory period) (internal citations omitted).

The test for both residence and domicile typically involves an inquiry into a

person’s intent. Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005). To establish

Texas as a domicile, a person must live in Texas intending to make it his or her fixed

and permanent home. In re Swart, 581 S.W.3d at 849. For purposes of the Family

Code, being a “resident of the county in which suit is filed” means actual, physical,

continuous living in the county of suit by the party, for the specified 90-day period,

coupled with a good faith intent to make that county home. Alwazzan v. Alwazzan,

596 S.W.3d 789, 809–10 (Tex. App.—Houston [1st Dist.] 2018, pet. denied)

(internal citations omitted).

Although the trial court heard a wide array of evidence both preceding and

following the relevant statutory periods, the direct evidence regarding the parties’

domicile in Texas and residence in Collin County during the applicable periods is

limited to the following:

–7– Evidence of Domicile in Texas and/or Residency in Collin County

Time Period Husband Wife July 2022 Owned York Lane home and Owned York Lane home and (Relevant only maintained personal items in it maintained personal items in to Domicile) it Owned a vehicle and insured it in Texas Texas driver’s license

Texas driver’s license Returned to U.A.E. from the U.S.A. on July 7, 2022 August 2022 No new evidence during this No new evidence during this (Relevant only period period to Domicile) September 2022 Renewed Texas driver’s Left for the U.S.A. on (Relevant only license September 8, 2022, and to Domicile) returned to U.A.E. on September 30, 2022

Renewed Texas driver’s license October– No new evidence during this No new evidence during this November 2022 period period December 2022 York Lane home became York Lane home became uninhabitable uninhabitable

Filed for divorce in Collin Wife referred to York Lane County home as a “marital residence”

Wife described both parties as residents of Texas January 2023 No new evidence during this No new evidence during this period period

The trial court heard evidence that Husband and Wife had lived in Abu Dhabi

since June 2021. Both parties testified that the York Lane house owned by the parties

was not inhabitable as of December 5, 2022 and Wife provided no evidence that she

lived in Plano from that time until she filed suit. Husband testified that the parties –8– intended for the Plano home to be the couple’s retirement home, but that they never

lived there or made it their marital residence, despite Wife’s assertion to the contrary.

The exhibits admitted into evidence included copies of the parties’ Abu Dhabi

residency cards and drivers’ licenses and an official report showing Wife’s entries

and exits from Abu Dhabi during the statutory period. Wife’s residency card

specifically notes that it would become invalid if the bearer lived outside of the

U.A.E. for more than six months, and there is no evidence to suggest that occurred.

Husband’s evidence demonstrates the parties’ continued presence in Abu

Dhabi and their intent to remain there, which supports the trial court’s finding that

neither party met the residence or domicile requirements during the requisite period

of time, we conclude the trial court did not abuse its discretion. See in re Marriage

of Lai, 333 S.W.3d 645, 648 (Tex. App.—Dallas 2009, no pet.) (holding that the trial

court did not abuse its discretion in finding that the parties did not satisfy the

residence and domicile requirements when there was some evidence that the parties

did not live in Texas at the requisite time) (citing Stallworth, 201 S.W.3d at 345).

Although Wife asserts that she lived in Collin County during the statutory periods,

there are large gaps of time in which she has provided no evidence to support her

allegation of physical presence in Texas. While some of Wife’s evidence may

support her assertion that she resided with an intent to remain in Collin County,

Texas, the trial court did not abuse its discretion merely because it based its decision

–9– on Husband’s conflicting evidence. See RSR Corp. v. Siegmund, 309 S.W.3d 686,

709 (Tex. App.—Dallas 2010, no pet.). We overrule Wife’s first issue.

Issue 2: Abatement as the Proper Remedy

In her second issue, Wife argues that even if she did not satisfy the residence

and domicile requirements of § 6.301 at the time she filed suit, the trial court should

have abated the suit to allow her to cure the defect rather than dismissing the case.

Typically, when the residency requirements under § 6.301 have not been met,

the trial court may abate the suit so that the residency requirements can be met by

passage of time. Am. Motorists Ins. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001).

However, this Court concluded in In re Swart that where the trial court determines

that the record does not show that a party intends to move to Texas, the impediment

to the trial court’s going forward cannot be removed by mere passage of time, and

the suit should be dismissed. In re Swart, 581 S.W.3d at 850 (holding that where the

record demonstrated that a party had a travel visa to the United States, planned to

remain for a specific limited period of time, and had a residence as well as other

binding ties outside of the United States, the trial court did not abuse its discretion

in ordering dismissal rather than abatement) (citing Am. Motorists Ins., 63 S.W.3d

at 805).

Here, the trial court had evidence upon which to base a finding that neither of

the parties resided in Collin County at the time suit was filed, nor did they make any

moves to demonstrate their intent to do so between the time Wife filed for divorce

–10– in January 2023 and the time of the hearing on Husband’s First Amended Plea to the

Jurisdiction and Motion to Dismiss and for Sanctions in April 2023, more than 90

days later. Specifically, the trial court considered evidence of Husband’s long-term

work and living arrangements in Abu Dhabi, Wife’s continued presence in Abu

Dhabi and her steps to begin working in Abu Dhabi, and the lack of habitability of

the York Lane residence. The trial court also heard evidence that the York Lane

residence was purchased as a long-term retirement property rather than as a

residence for immediate living. The mere fact that the record contains conflicting

evidence on the parties’ intentions with regard to the York Lane property is

insufficient for this Court to reverse the trial court’s judgment. See RSR Corp., 309

S.W.3d at 709. Because the trial court could have found based on the record before

us that the evidence does not support a finding that either party currently lives in

Collin County or intends to do so for the requisite time in the future, the trial court

did not abuse its discretion in dismissing rather than abating the suit. See In re Swart,

581 S.W.3d at 850. We overrule Wife’s second issue.

CONCLUSION

We affirm the trial court’s judgment.

/Maricela Breedlove/ 230457f.p05 MARICELA BREEDLOVE JUSTICE

–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JANA S. BOYD, Appellant On Appeal from the 470th Judicial District Court, Collin County, Texas No. 05-23-00457-CV V. Trial Court Cause No. 470-50338- 2023. ALEXANDER DAVIDOVICH, Opinion delivered by Justice Appellee Breedlove. Justices Molberg and Pedersen, III participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee ALEXANDER DAVIDOVICH recover his costs of this appeal from appellant JANA S. BOYD.

Judgment entered this 10th day of October, 2024.

–12–