Petition for Writ of Certiorari — Austin v. Dawson-Austin

FILED

BS § 59 0Cl | - 1%

No.

ape eS OF Te

In The

' Supreme Court of the United States

October Term, 1998

j

j

V Qupreme Court, U.S.

WILLIAM FRANKLIN AUSTIN,

Petitioner

v.

CYNTHIA LEE DAWSON-AUSTIN,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

PETITION FOR WRIT OF CERTIORARI

RICHARD R. ORSINGER

Counsel of Record

ATTORNEY AT LAW

1616 Tower Life Building

San Antonio, Texas 78205

Telephone: (210) 225-5567

Telefax: (210) 267-7777

Attorney for Petitioner

i

QUESTIONS PRESENTED

Question No. 1

Is the physical presence of real and personal property in a

state sufficient to give that state the jurisdiction to adjudicate

ownership rights in that property?

Question No. 2

Does the Fourteenth Amendment permit Texas to divide

property located within Texas upon divorce, even without

personal jurisdiction over the non-resident spouse?

Question No. 3

Does the Fourteenth Amendment permit the Texas divorce

court to declare the Texas spouse to be owner of shares of

stock he owned prior to marriage, even without personal

jurisdiction over the other spouse?

ij

PARTIES TO THE PROCEEDING

The parties to the proceeding in the Supreme Court of

Texas are those listed in the caption:

Petitioner

William Franklin Austin

5334 Harbor Town

Dallas, Texas 75287

Respondent

Cynthia Lee Dawson-Austin

70661 Oroville Circle

Rancho Mirage, California 92270

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................

PARTIES TO THE PROCEEDING .............

CS ie ta i ern ene

Question No. 1

Is the physical presence of real and personal

property in a state sufficient to give that state the

jurisdiction to adjudicate ownership rights in that

(a aghiraaadl phen pM i aan

Question No. 2

Does the Fourteenth Amendment permit Texas to

divide property located within Texas upon divorce,

even without personal jurisdiction over the non-

ie ree ak ct aen se bn'

Question No. 3

Does the Fourteenth Amendment permit the Texas

divorce court to declare the Texas spouse to be

owner of shares of stock he owned prior to mar-

riage, even without personal jurisdiction over the

GE cade bcuatceecectecs pccccecss

5

iV

CRs 60 ii caeietls t VR 15

SOM bin Foes 6 66 ETRE [separate volume]

Item 1 Final Decree of Divorce .............. A-1

Item 2 Trial Court’s Findings of Fact

and Conclusions of Law.............. A-99

Item 3 Court of Appeals’ Opinion............ A-159

Item 4 Texas Supreme Court’s Opinion ....... A-209

Item 5 Texas Supreme Court’s Judgment ...... A-240

Item 6 Clerk’s Letter regarding overruling of

rehearing in Texas Supreme Court...... A-242

Item 7 U.S. Constitution, Fourteenth

Amendment, Section 1 ............... A-244

aa Sud vaca ewe Dies ss <ekban A-245

TABLE OF AUTHORITIES

Page

CASES

Abernathy v. Abernathy, 482 S.E.2d 265 (Ga.

gs RE OA pr) ae 2 ah i ee ae 4,7

Burnham v. Superior Court of California, 495

Fs pe ee FOS OER ce SR. Cee. 3, 10, 13

Dawson-Austin v. Austin, 920 S.W.2d 776

(Tex. App. — Dallas 1996), rev’d, 968 S.W.2d

I a et a mialioin |

Dawson-Austin v. Austin, 968 S.W.2d 319

CT a a cw is 2. 7. is

Be Saas Db db bot cdccuccdcceecnses 4

International Shoe Co. v. Washington, 326 U.S.

PEE isos oma eta ie ea daws Cabche ne 5, 6, 10, 11, 13

Kulko v. Superior Court of California, 436 U.S.

SO RT Oa oa hin a Os eee ets Che cicesccceiectnekes 4

Panag ei Tia, OS TB. FIA GGT oie ete vacccasvecwes 5

Rush v. Savchuk, 444 U.S. 320 (1980) ..................02. )

Shaffer v. Heitner, 433 U.S. 186 (1977) ...2, 3, 6, 8, 9, 10, 11; 13

Williams v. North Carolina, 317 U.S. 287 (1942) ............ 4

CONSTITUTION AND STATUTES

U.S. CONSTITUTION, FOURTEENTH AMENDMENT,

SE OS wiic ec «oe bok ee eae ick seh ce dene l

ee Sia SPE ¢ cian nda be Urn oic cas caesar 1

OTHER AUTHORITIES

RESTATEMENT OF THE LAW (SECOND) CONFLICT

0 RE EAB ST KE ee ating Fy er 1]

RESTATEMENT OF THE Law (SECOND) CONFLICT

OP RI x bikin ce Cee Rs eon eva 03 1]

RESTATEMENT OF THE Law (SECOND) CONFLICT

OF RI Bo sical pra wp bs Beas ey AAR ET > bade oalan 12

RESTATEMENT OF THE Law (SECOND) CONFLICT

OP I ici ries sina sere aiken dN eine 680s bu 12

RESTATEMENT OF THE Law (SECOND) CONFLICT

et ee EE sch s WHEEL ea eee heh ik eeauckcks 13

l

CITATION OF OPINIONS BELOW

The opinion of the Supreme Court of Texas under review

is published at Dawson-Austin v. Austin, 968 S.W.2d 319

(Tex. 1990). A copy of the Opinion is included in the

Appendix to this Petition as Item 4, p. A-209.

The Court of Appeals opinion issued February 29, 1996,

is published at Dawson-Austin v. Austin, 920 S.W.2d 776

(Tex. App. — Dallas 1996), rev’d, 968 S.W.2d 319 (Tex.

1998). A copy of the Opinion is included in the Appendix to

this Petition as Item 3, p. A-159.

JURISDICTION

The judgment of the Supreme Court of Texas was issued

on February 13, 1998. Sze Appendix, Item 5, p. A-240. The

Clerk’s letter indicating that on July 3, 1998, the Supreme

Court of Texas overruled Petitioner’s Motion for Rehearing is

included in the Appendix as Item 6, p. A-242.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257.

CONSTITUTIONAL PROVISION INVOLVED

U.S. Constitution, Fourteenth Amendment, Sectica 1:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

2

deny to any person within its jurisdiction tle equal

protection of the laws.

[Appendix, Item 7, p. A-244]

STATEMENT OF THE CASE

In this divorce case, both spouses left their marital

domicile in Minnesota, with Husband (Petitioner William

Franklin Austin) moving to Texas and with Wife (respondent

Cynthia Lee Dawson-Austin) moving to California. Divorces

were filed in both states. Wife appeared generally in the Texas

divorce for all purposes, except division of property. [T. 39]

The Texas court divided the parties’ property, located in Texas

and various other states, and declared Husband to be the sole

owner of his Starkey Laboratories, Inc. stock, which was

owned by him prior to marriage and the situs of which was

Texas. The Texas Court of Appeals affirmed the trial court’s

ruling on Texas’ jurisdiction over Wife, 920 S.W.2d at 783,

and in all other respects. The Texas Supreme Court reversed,

holding that, under the Fourteenth Amendment to the

U.S. Constitution, Texas had no personal jurisdiction over

Wife, and that Husband’s Texas domicile and the presence of

real and personal property in Texas did not afford the Texas

court the power to divide those marital assets or even confirm

Husband’s premarital stock as his separate property. Dawson-

Austin v. Austin, 968 S.W.2d 319, 327 (Tex. 1998). Citing

Shaffer v. Heitner, 433 U.S. 186 (1977), the Texas Supreme

Court said:

In the present case, the location in Texas of property

that either is or is claimed to be part of the marital estate

does not supply the minimum contacts required for the

court to exercise jurisdiction over Dawson-Austin.

3

This holding was challenged by timely motion for rehearing,

which was overruled. The federal question has been timely

and properly raised.

REASONS CERTIORARI SHOULD BE GRANTED

This case will resolve a significant, continuing uncer-

tainty about in rem and quasi in rem jurisdiction, arising from

confusion about this Court’s ruling in Shaffer v. Heitner,

433 U.S. 186 (1977), and the impact of this Court’s decision

in Burnham vy. Superior Court of California, 495 U.S.

604 (1990). The issue is whether the mere presence _of

property in a State establishes a sufficient relationship be-

tween the owner of the property and the State to justify the

exercise of jurisdiction to adjudicate ownership rights in that

property, consistent with the Fourteenth Amendment to the

U.S. Constitution. The supreme courts of Texas and of Geor-

gia have ruled oppositely on this point, and granting certiorar

will resolve this important issue.

The constitutional question arises in this case from a

divorce where Husband and Wife live in different states. With

divorce and relocation being as prevalent as they are today,

state courts have been, and will continue to be, confronted

with the question of the constitutional limits for dividing

property upon divorce when spouses live in different states.

Granting certiorari also will resolve the constitutional

question for commercial cases whether a state can adjudicate

ownership rights to real and personal property located in-state,

when some owners are non-residents and have no other ties to

the state.

And granting certiorari also will resolve the constitu-

tional question for land title litigation — can the forum state

exercise jurisdiction when a non-resident acquires title to land

4

through bequest or purchase, but has no other ties to the state

where the land is located?

Long ago this Court held that a state can dissolve the

bonds of matrimony between a domiciliary and a non-resident

spouse, even without personal jurisdiction over the non-

resident spouse. Williams v. North Carolina, 317 U.S. 287

(1942). Williams left unresolved the jurisdictional basis for

litigating other aspects of divorce, such as alimony, child

support, and property division. In Estin v. Estin, 334 U.S. 541

(1948), this Court ruled that personal jurisdiction is required

to adjudicate a spouse’s alimony obligation. In Kulko v.

Superior Court of California, 436 U.S. 84 (1978), this Court

ruled that personal jurisdiction is required to impose a child

support obligation on a non-resident parent. This Court has

never determined what jurisdictional tie is required to divide

property on divorce.

In this case, the Supreme Court of Texas ruled that,

under the Fourteenth Amendment, the fact that one spouse is

domiciled in Texas, and that property is located in Texas, is

not enough to support dividing the Texas property in a Texas

divorce. The Supreme Court of Georgia has ruled the exact

opposite. Abernathy v. Abernathy, 482 S.E.2d 265 (Ga. 1997).

[Appendix, Item 8, p. A-245.] This Court should resolve the

dispute for the many Americans who find themselves in this

jurisdictional quandary when their marriages are breaking up.

The ruling will resolve the jurisdictional issue for commercial

and land title litigation, as well.

5

ARGUMENT

Question No. 1

[Restated]

Is the physical presence of real and per-

sonal property in a state sufficient to give

that state the jurisdiction to adjudicate

ownership rights in that property?

Question No. 2

[Restated]

Does the Fourteenth Amendment permit

Texas to divide property located within

Texas upon divorce, even without per-

sonal jurisdiction over the non-resident

spouse?

Question No. 3

[Restated]

Does the Fourteenth Amendment permit

the Texas divorce court to declare the

Texas spouse to be owner of shares of

stock he owned prior to marriage, even

without personal jurisdiction over the

other spouse?

Supreme Court Precedent

In Pennoyer v. Neff, 95 U.S. 714 (1877), this Court held

that a state could exercise jurisdiction over property within its

borders and determine the rights and interests of non-

residents. In International Shoe Co. v. Washington,

326 U.S. 310, 316 (1945), this Court held that a state could

exercise in personam jurisdiction over a non-resident defen-

6

dant, as long as the non-resident had certain minimum con-

tacts with the state such that maintenance of the suit does not

offend “traditional notions of fair play and substantial jus-

tice.” In Shaffer v. Heitner, 433 U.S. 186, 213 (1977), this

Court concluded that all assertions of state court jurisdiction

must be evaluated according to the standards set forth in

International Shoe. Thus, in Shaffer, this Court held that the

mere presence of property in a State does not establish a

sufficient relationship between the owner of the property and

the State so as to support the exercise of jurisdiction over an

unrelated cause of action. The Court noted, however, that

“when claims to the property itself are the source of the

underlying controversy between the plaintiff and the defen-

dant, it would be unusual for the State where the property is

located not to have jurisdiction.” 433 U.S. at 208.

Overview of the Case

In the present case, both parties abandoned their marital

domicile of Minnesota. Wife moved with some personal

property to California, while Husband moved with some

personal property to Texas. At the time of the Texas divorce,

the Texas court awarded various assets to Wife, including real

property in California, New Jersey, Oregon, and Florida.

[Final Decree of Divorce, T. 2285, Appendix, Item 1, p. A-14]

The Court awarded Husband various assets, including real

property in Minnesota, New Jersey, Oregon, Missouri, and

Texas. [Final Decree of Divorce, T. 2283, Appendix, Item 1,

p. A-12] The Texas court also awarded Husband furniture,

clothing, money in Texas banks, and other assets [Final

Decree of Divorce, T. 2284, Appendix, Item 1, p. A-13] The

Texas court also declared that Husband’s shares of stock in

Starkey Laboratories, Inc., which belonged to Husband prior

to marriage, were his separate property. [Final Decree of

Divorce, T. 2276, Appendix, Item 1, p. A-3] The Texas Court

7

found the situs of such shares to be in Texas. [Conclusion of

Law No. 4.a, T. 2340, Appendix, Item 2, p. A-107] On

appeal, the Texas Supreme Court reversed the property divi-

sion in its entirety, saying that “the location in Texas of

property that either is or is claimed to be part of the marital

estate does not supply the minimum contacts required for the

court to exercise jurisdiction over [Wife].”” Dawson-Austin v.

Austin, 968 S.W.2d 319, 327 (Tex. 1998).

Contradictory Ruling From Georgia Supreme Court

The Supreme Court of Georgia has ruled oppositely to

the Texas Supreme Court on this exact issue. In Abernathy v.

Abernathy, 482 S.E.2d 265 (Ga. 1997) [Appendix, Item 8,

p. A-245], the parties lived in Louisiana during their marriage.

Upon separation, the husband moved to Georgia and a year

later filed for divorce. The wife moved to dismiss, but the trial

court held that it had jurisdiction to divide property located

within the state. The Georgia Supreme Court affirmed this

decision saying:

A lack of personal jurisdiction does not prevent the

trial court from entering certain other judgments in rem.

Personal jurisdiction in Georgia may be required in order

to obtain a judgment which will personally bind a non-

resident defendant as to marital property located in

another forum . . . . However, notwithstanding a lack of

personal jurisdiction over the defendant in a divorce case,

a trial court can render a valid judgment in rem with

respect to the res of the property within its territory.

482 S.E.2d at 267

8

In considering an argument that the absent spouse did

not have personal direct contact with Georgia, the Georgia

Supreme Court replied:

The limited holding of Shaffer . . . is that the mere

presence of property in a state, standing alone, will not

constitute sufficient “minimum contacts” to support the

state’s exercise of its in rem jurisdiction, if the property

is unrelated to the underlying cause of action. Thus, the

“minimum contacts” standard does not foreclose the

exercise of state-court jurisdiction over a true in rem

action or a case wherein the plaintiff “is seeking to

secure a pre-existing claim in the subject property and to

extinguish or establish the nonexistence of similar inter-

ests of particular persons,” or “when claims to the

property itself are the source of the underlying contro-

versy between the plaintiff and the defendant.” ...

Obviously, a dispute between divorcing resident and

non-resident parties as to marital property located in

Georgia would constitute such a claim. In such a case,

there is more than the mere presence of property to

support the in rem jurisdiction of a Georgia court[.]

482 S.E.2d at 268. Two dissenting justices noted that the wife

never consented to the husband bringing marital property into

Georgia. 482 S.E.2d at 272. However, the majority recognized

that consent to bringing the property in-state is not a condition

for the state to have adjudicative power.

Controlling U.S. Supreme Court Precedent Examined

Shaffer v. Heitner. The Texas Supreme Court relied

upon a misinterpretation of Shaffer v. Heitner, 433 U.S. 186

(1977). In Shaffer, the owner of one share of Greyhound

Corp. stock filed a shareholder’s derivative suit in a Delaware

court, against 28 present and former officers of the corpora-

9

tion who were non-residents of Delaware. Jurisdiction was

premised on a legal fiction in Delaware law that all stock in a

Delaware corporation had its situs in Delaware. In actuality,

none of the shares “seized” for jurisdictional purposes were

situated in Delaware. Jd. at 192. The suit was for actions

occurring in Oregon that subjected the corporation to liability

for antitrust violations and for criminal contempt. Thus, the

issues in the suit were unrelated to the shares of stock which

formed the basis for Delaware’s jurisdiction. This Court held

that the fictional situs of the stock in Delaware did not provide

a sufficient basis for Delaware to exercise jurisdiction over

non-resident defendants on claims that were unrelated to the

stock. Jd. at 213. However, the Court observed:

[W]hen claims to the property itself are the source

of the underlying controversy between the plaintiff and

the defendant, it would be unusual for the State where

the property is located not to have jurisdiction.

Id. at 208.

Shaffer thus recognized the validity of a state exercising

jurisdiction to litigate a non-resident’s claims to property

located within the state — where the property is the subject

matter of the litigation or the litigation is related to the

property. This distinction — between claims that are related

to the in-state property and claims that are not related to the

in-state property — which was central to the reasoning in

Shaffer, was overlooked by the Texas Supreme Court.

The import of Shaffer was reconfirmed by the Court’s

words in the later case of Rush v. Savchuk, 444 U.S. 320

(1980), where the Court characterized Shaffer in the following

manner:

We held in Shaffer that the mere presence of property in

a State does not establish a sufficient relationship be-

tween the owner of the property and the State to support

10

the exercise of jurisdiction over an unrelated cause of

action. [Emphasis added.]

444 USS. at 328. The Court reaffirmed that the key to Shaffer

was that the litigation was unrelated to the property in the

State.

Burnham v. Superior Court. In the more recent family

law case of Burnham v. Superior Court of California,

495 U.S. 604 (1990), a New Jersey resident was served with

divorce papers while visiting his minor children in California.

The issue was whether personal service in-state was, in and of

itself, sufficient to support California’s exercise of jurisdic-

tion. In the lead Opinion, Justice Scalia noted that the

constitutional test of International Shoe Co. v. Washington,

326 U.S. 310 (1945), was whether the state’s exercise of

jurisdiction violated “traditional notions of fair play and

substantial justice.” Jd. at 609. He wrote that in Burnham, the

test was met because jurisdiction based upon in-state service

of process was “one of the continuing traditions of our legal

system.”” 495 U.S. at 619.

Justice Scalia rejected the argument that Shaffer requires

that jurisdiction arise from the non-resident’s activities in the

state. Specifically, he said:

It goes too far to say, as petitioner contends, that

Shaffer compels the conclusion that a State lacks juris-

diction over an individual unless the litigation arises out

of his activities in the State. Shaffer, like International

Shoe, involved jurisdiction over an absent defendant, and

it stands for nothing more than the proposition that, when

the “minimum contact” that is a substitute for physical

presence consists of property ownership, it must, like

other minimum contacts, be related to the litigation.

495 US. at 620.

1]

Because, in the present case, claims in Texas property are

the basis of the litigation, it is proper under both Shaffer and

Burnham for the Texas court to adjudicate the Austins’ rights

respecting realty and personalty located in Texas. As the

Court said in Shaffer:

[W]hen claims to the property itself are the source

of the underlying controversy between the plaintiff and —

the defendant, it would be unusual for the State where

the property is located not to have jurisdiction.

433 US. at 208.

Fair Play and Substantial Justice. Texas’ exercise of

jurisdiction to adjudicate rights in Texas property also is

squarely within /nternational Shoe Co.’s concept of “‘tradi-

tional notions of fair play and substantial justice.’’ The

American Law Institute’s Restatement of the Law reflects the

accepted norms of the American legal system, since it consti-

tutes a synthesis of stare decisis on a nationwide basis. This

case involves land in Texas, money in Texas banks, and

corporate shares located in Texas. Four different jurisdictional

principles recognized in the RESTATEMENT OF THE LAw

(SECOND) CONFLICT OF LAWS [RESTATEMENT] establish that

adjudicating spouses’ rights in property located in-state fits

traditional notions of fair play and substantial justice.

Land. Section 59 of the Restatement, entitled “Judicial

Jurisdiction Over Land,” provides:

A state has power to exercise judicial jurisdiction to

affect interests in land in the state although a person

owning or claiming these interests in land is not person-

ally subject to the judicial jurisdiction of the state.

RESTATEMENT § 59. The Restatement notes: “Authority in

support of this rule is imposing.”

12

Chattels. Restatement Section 60, entitled “Judicial

Jurisdiction Over Chattel,” provides:

A state has power to exercise judicial jurisdiction to

affect interests in a chattel in the state, which is not in the

course of transit in interstate or foreign commerce,

although a person owning or claiming an interest in the

chattel is not personally subject to the judicial jurisdic-

tion of the state.

RESTATEMENT § 60. Note that there is no requirement that

the non-resident litigant purposefully avail himself of the

privilege of owning property in Texas — a consideration the

Texas Supreme Court viewed as determinative. Dawson-

Austin v. Austin, 968 S.W.2d 319, 327 (Tex. 1998).

Intangible Things Embodied in a Document. Restate-

ment Section 63, entitled “Judicial Jurisdiction Over Intangi-

ble Thing Embodied in a Document,” provides:

A state has power to exercise judicial jurisdiction to

affect interests in an intangible thing embodied in a

document which is within the state.

RESTATEMENT § 63. The Restatement gives the example

where A signs a promissory note payable to B, under the law

of State X. C claims that B has transferred the note to C, and

brings an action to establish ownership of the note in Siate Y,

where the note is located. The Restatement provides that, even

when B is not personally subject to the jurisdiction of the

courts of State Y, State Y nonetheless has jurisdiction to

determine ownership rights in the note between B and C. The

Restatement cross-references to Section 64, which relates

specifically to corporate shares.

13

Shares in Corporation. Restatement Section 64, enti-

tled “Judicial Jurisdiction Over Shares in Corporation,”’ pro-

vides in part:

(2) A state has power to exercise judicial jurisdic-

tion to affect interests in a share certificate which is

within its territory.

RESTATEMENT § 64(2). This articulation of judicial power is

consistent with Shaffer’s prescription that “[w]hen claims to

the property itself are the source of the underlying controversy

between the plaintiff and the defendant, it would be unusual

for the State where the property is located not to have

jurisdiction.” Shaffer, 433 U.S. at 208. It is also consistent

with the prescription in Burnham, that “when the ‘minimum

contact’ that is a substitute for physical presence consists of

property ownership, it must, like other minimum contacts, be

related to the litigation.” Burnham, 495 U.S. at 620. And this

~ articulation of judicial power, resulting from the 17-year

effort of the American Law Institute to produce the Restate-

ment of Conflict of Laws 2nd (see Introduction, p. ix), is

consistent with the prescription in /nternational Shoe Co., that

the exercise of jurisdiction must fall within “traditional no-

tions of fair play and substantial justice.”” 326 U.S. at 316.

No Forum Shopping. Forum shopping is not a consid-

eration in this case. In this regard, the Trial Court made the

following finding [Conclusion of Law No. 4.a, T. 2340,

Appendix, Item 2, p. A-107], unchallenged by Wife:

100% ownership interest in Starkey Laboratories,

Inc. was and has been at all times the separate property

of WILLIAM FRANKLIN AUSTIN. The Court further

finds that the situs of the 60 shares of stock, representing

100% ownership of Starkey Laboratories, Inc., as evi-

denced by stock certificate number 1, has been at all

relevant times during the pendency of this case, in Dallas

14

County, Texas and this Court has jurisdiction to make a

final and permanent adjudication of its marital character

herein. The Court finds that the stock certificate evidenc-

ing the 60 shares of stock of Starkey Laboratories, Inc.

was not and has not at any relevant time been atypically

removed from any other jurisdiction, nor atypically

brought to this jurisdiction.

Wife Submitted to Other Texas Jurisdiction. This

case is unlike the usual commercial or tort litigation because

Wife challenged Texas’ jurisdiction only as to the property

division, but submitted to Texas’ jurisdiction for purposes of

marital dissolution, alimony, etc. [T. 39] Thus, Texas had

consensual, personal jurisdiction over Wife for a variety of

issues in the lawsuit. Wife’s voluntary presence before the

Texas court for these purposes enhances the due process

“fairness” of dividing property located in Texas.

Shifting the Cost of Litigation. Divorce litigation is

fundamentally unlike commercial or tort litigation, in that the

divorce court can make the plaintiff pay the defendant's

litigation costs, while the suit is pending. That happened in

this case. Husband paid more than $170,000.00 in interim

attorney’s fees and litigation expenses for Wife prior to trial,

and paid an additional $400,000.00 in attorney’s fees and

expenses to her lawyers after trial. [T. 163, 1660-61] Husband

paid for the cost of Wife to transport witnesses to testify at

trial. [Finding of Fact No. 6.z, T. 2338, Appendix, Item 2,

p. A-105] This shifting of the cost of litigation from the

defendant to the plaintiff makes the issue of “fair play” in

divorce cases profoundly different from commercial and tort

litigation.

Possibility of No Available Forum. This case is also

unusual because this is not a jurisdictional contest between a

spouse who moved and a spouse who remained at the marital

domicile. Here upon separation both parties left the historical

15

marital domicile, one moving to California and one moving to

Texas. Neither party remains domiciled in Minnesota. Some

assets are in California and some are in Texas. It makes better

sense to divide California assets in California and Texas assets

in Texas, than it does to send the parties back to a state where

no one lives, or if that state will not accept jurisdiction

because neither spouse is a domiciliary, then to tell the

spouses that no state can divide their property.

CONCLUSION

The Texas Supreme Court was wrong to conclude that

the Fourteenth Amendment prohibited the Texas court’s exer-

cise of jurisdiction over the real and personal property located

in Texas, or over stock owned by Petitioner prior to marriage.

For the foregoing reasons, Petitioner respectfully requests that

the Court issue a Writ of Certiorari to review the judgment of

the Supreme Court of Texas, and that the judgment of the

Texas Supreme Court, premised on a faulty view of the

Fourteenth Amendment and of this Court’s prior Opinions, be

reversed.

Respectfully submitted,

RICHARD R. ORSINGER

Counsel of Record

Attorney at Law

1616 Tower Life Building

San Antonio, Texas 78205

Telephone: (210) 225-5567

Telefax: (210) 267-7777

Attorney for Petitioner