Nicholas J. Bonacci v. Myriam Barragan Bonacci

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
NICHOLAS J. BONACCI, §
No. 08-11-00255-CV
Appellant, §
Appeal from the
v. §
388th District Court
§
MYRIAM BARRAGAN BONACCI, of El Paso County, Texas
§
Appellee. (TC# 2010CM3807)
§
OPINION
On June 7, 2010, Appellee, Myriam Barragan Bonacci, filed a petition for divorce seeking
to dissolve her marriage to Appellant, Nicholas J. Bonacci. On June 8, 2011, the parties signed
and entered into a binding mediated settlement agreement regarding the dissolution of their
marriage under Texas Family Code section 6.602. TEX. FAM. CODE ANN. § 6.602 (West 2006).
The trial court thereafter entered a final decree of divorce on August 2, 2011. Appellant presents
five issues for our consideration.
BACKGROUND
After Appellee filed her original petition for divorce in El Paso County, Appellant filed a
plea in abatement in which he asserted that he had previously filed a petition for divorce in
Montgomery County, Texas on May 19, 2010.
On August 3, 2010, Appellant filed a counter-petition for divorce in the 388th District
Court of El Paso County. The parties executed a Rule-11 agreement that was filed with the clerk
of the court on September 9, 2010, which expressly states that “Venue will remain in El Paso
County for the finalization of the divorce.” In his “Motion to Enter Agreement & Final
Determination of Venue Order,” Appellant sought the entry of a formal order regarding the
Rule-11 agreement.
On April 15, 2011, the trial court held a dismissal hearing at which Appellee’s counsel, Mr.
Pine, informed the trial court that Appellant did not want to abandon his suit in Montgomery
County and Appellee did not want her suit in El Paso dismissed. The trial court explained that it
wanted the option of reading the file and stated that if it determined it was without jurisdiction over
the suit, it would issue an order of dismissal in ten days. The trial court did not issue a dismissal
order. On April 28, 2011, Appellant filed a pro se “Respondent’s Brief Summary for Dismissal”
asserting that he had appeared before the 418th District Court of Montgomery County on April 25,
2011, to request a continuance of those proceedings, and complained that Appellee’s attorney had
failed to prepare an order and “enter” the Rule-11 venue agreement.
Thereafter, Appellant executed a binding, mediated settlement agreement that was signed
by the parties, their attorneys, and the mediator, and filed with the 388th District Court in El Paso.
The mediated settlement agreement expressly sets forth in bold, underlined, and capitalized text
that the agreement is binding and not subject to revocation, and that either party is entitled to
judgment on the agreement.
On June 15, 2011, the court held a docket call at which Appellant appeared without
counsel. Appellant informed the trial court that he was “pro se today,” and that his counsel was
“aware of the fact that I’m here, but I’m still shown as attorney of record on file. . . . I’m shown as
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pro se currently now.” In response to the trial court’s request for clarification, Appellant
explained, “Ms. Strathman represented me the other day, last week in a mediation, and I’m
currently here today because she’s on vacation. . . . [O]nce we get to the matter of how to go to a
final hearing, I’m going to address some of the outstanding issues. . . . I entered another motion
which . . . concerns activities that take place post-mediation . . . .” Mr. Pine noted that he did not
believe Ms. Strathmann knew that any pending issues needed to be mediated and that the court’s
file should contain a mediated summary, and further explained that he was present for the purpose
of obtaining a setting for “an uncontested final” hearing. The trial court noted the importance of
having Ms. Strathmann and Appellee present and set the case for a status hearing to be held July
12, 2011.
On June 30, 2011, an “uncontested hearing” was conducted. Appellee, Mr. Pine, and Ms.
Strathmann were present but Appellant was not. Mr. Pine explained to the trial court that the only
matter that needed to be placed on the record was jurisdictional testimony from Appellee, and that
he had submitted a proposed decree to Ms. Strathmann to review with Appellant. Ms. Strathmann
advised the trial court that neither she nor Appellant were aware that a hearing had been set and
noted that Appellant would react adversely to a hearing occurring without him having notice of it.
Mr. Pine reminded the court of the prior hearing at which Appellant, in Ms. Strathmann’s absence,
had filed a pro se motion and had at that time been provided notice of the instant proceeding. Ms.
Strathmann requested two weeks to review the decree with Appellant and agreed that a full
settlement had been reached. The trial court was informed that a settlement agreement signed by
both parties and their counsel was on file. The trial court proceeded to hear Appellee’s
jurisdiction testimony and set July 11, 2011, as the date for submission of the case on the mediated
settlement agreement.
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At the hearing on July 11, 2011, Appellant complained that he was not notified of the
earlier uncontested hearing conducted on June 30, 2011, at which Appellee testified regarding the
marriage. The trial court vacated the June 30, 2011, hearing and asked Appellant if he would like
the trial court to rehear the jurisdictional elements of the divorce proceedings, to which Appellant
answered, “That really makes no difference to me[, but] if it please this Court, we can do that.”
Appellee then testified to the jurisdictional elements, that she had been a domiciliary of Texas for a
six-month period and had been a resident of El Paso County for a ninety-day period prior to the
time she filed for divorce. Appellant, who acted in a pro se capacity at the hearing, did not
address or contest jurisdiction in his counter-petition for divorce, asked Appellee no questions
regarding jurisdiction, registered no objection with the trial court regarding jurisdiction or
Appellee’s testimony, did not assert that the trial court lacked jurisdiction, and presented no
evidence demonstrating that the El Paso trial court was without jurisdiction or that any other court
had dominant jurisdiction.
On July 29, 2011, Appellant filed a motion to dismiss the divorce proceedings “in favor of
the pending suit in the 418th District Court [of] Montgomery County[,]” and prayed that the trial
court “yield dominant jurisdiction to the 418th District Court[.]” On August 2, 2011, the trial
court entered a final decree of divorce and expressly found that it was vested with jurisdiction of
the case and the parties.
DISCUSSION
Appendix
We note that Appellant has appended to his brief documents that are not a part of the record
on appeal. Because they have not been formally included in the record on appeal, we cannot and
do not consider Appellant’s appended documents. See $5,420.00 U.S. Currency v. State, 311
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S.W.3d 582, 583 (Tex.App. – El Paso 2010, no pet.); Burke v. Ins. Auto. Auctions, 169 S.W.3d
771, 775 (Tex.App. – Dallas 2005, pet. denied); Green v. Kaposta, 152 S.W.3d 839, 841
(Tex.App. – Dallas 2005, no pet.); see Adams v. Reynolds Tile and Flooring, Inc., 120 S.W.3d 417,
423 (Tex.App. – Houston [14th Dist.] 2003, no pet.) (the attachment of documents as appendices
to briefs does not constitute formal inclusion of those documents in the record on appeal); see also
Omohundro v. Ramirez-Justus, 392 S.W.3d 218, 221 (Tex.App. – El Paso 2012, pet. denied);
Jackson v. Citibank (South Dakota), N.A., 345 S.W.3d 214, 214 (Tex.App. – Dallas 2011, no pet.)
(citation to a brief’s appendix fails to satisfy the rules requiring citation to the record on appeal as
required by Rule 38.1 of the Rules of Appellate Procedure).
Dominant Jurisdiction
In Issue Two, Appellant contends the trial court was without jurisdiction to enter the final
divorce decree on Appellee’s petition for divorce filed in El Paso County because Appellant had
first filed for divorce in Montgomery County. “As a rule, when cases involving the same subject
matter are brought in different courts, the court with the first-filed case has dominant jurisdiction
and should proceed, and the other cases should abate.” Perry v. Del Rio, 66 S.W.3d 239, 252
(Tex. 2001); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974) (“The general common law rule in
Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of
other coordinate courts.”), citing Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926).
However, “the mere physical filing of the petition is insufficient to deprive a court in which the
same suit is subsequently filed of active jurisdiction.” See Clawson v. Millard, 934 S.W.2d 899,
900 (Tex.App. – Houston [1st Dist.] 1996, no writ). The concept of dominant jurisdiction is only
applicable if venue is proper in the county in which the suit was first filed. Gonzalez v. Reliant
Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005).
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The dominant jurisdiction rule is subject to three exceptions and the abatement
requirement is inapplicable when: (1) a party’s conduct estops him or her from asserting prior
active jurisdiction; (2) persons to be joined if feasible or the power to bring them before the court is
lacking; or (3) intent to prosecute the first lawsuit is lacking. See White v. Rupard, 788 S.W.2d
175, 178-79 (Tex.App. – Houston [14th Dist.] 1990, writ denied). Upon hearing a plea in
abatement, if the second court determines that an exception to dominant jurisdiction applies, it is
permitted to assume dominant jurisdiction. See Clawson, 934 S.W.2d at 901.
In his plea in abatement, Appellant asserted that he first filed for divorce in Montgomery
County and sought abatement of Appellee’s suit for divorce “until the prior filed suit is heard and
any controversies concerning residency and jurisdiction are resolved.” Appellant contends on
appeal that a plea-in-abatement hearing was held on August 3, 2010, wherein an “Associate Court
made no specific finding, but [first stated that] ‘both’ courts had jurisdiction and later [indicated]
that perhaps neither [court] had [jurisdiction].” Although the court’s docket sheet reflects that a
“Plea & Abatement” hearing was set for August 3, 2010, no record of such proceeding has been
made a part of the record on appeal. We observe that the record on appeal contains no evidence
that Appellee was timely served or ever served with citation in the Montgomery County action.
On appeal, Appellant asserts that Appellee mistakenly filed suit in the 388th District Court
of El Paso County under the mistaken belief that Appellant was not entitled to file suit under the
domiciliary requirements set forth in the Texas Family Code. We find no evidence of this in the
record, and Appellant fails to direct us to any portion of the record showing that he presented to the
trial court any evidence supporting this argument.
Appellant’s conduct throughout the trial proceedings is contrary to the complaints he now
raises on appeal. Despite filing a plea in abatement, Appellant subsequently filed his
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counter-petition for divorce in the 388th District Court. Appellant also executed a Rule-11
agreement agreeing that venue for the divorce would be in El Paso County, participated in
mediation, and executed a binding, irrevocable mediated settlement agreement that was filed with
the 388th District Court. Moreover, by filing his cross-petition for divorce, wherein he prayed
that the 388th District Court would grant him a divorce and other relief, Appellant submitted
himself to the El Paso trial court’s jurisdiction. See Cavallaro v. Cavallaro, 241 S.W.2d 247, 249
(Tex.Civ.App. – Galveston 1951, no writ) (where husband who first filed for divorce in one county
subsequently filed a cross action for divorce on his behalf and against his wife in second county
where she had instituted a divorce action, and husband appeared and contested the same in the
second court, husband fully submitted himself to the jurisdiction of the second court and could not
be heard to complain), citing Harris v. Harris, 190 S.W.2d 489, 489-90 (Tex.Civ.App. –
Galveston 1945, no writ). Appellant expressly noted to the trial court that he had filed his petition
for divorce in Montgomery County but had agreed to assist Appellee by “coming to this Court.”
Here, because Appellant’s conduct estops him from asserting prior active jurisdiction, the
dominant jurisdiction rule does not afford Appellant the relief he seeks. See White, 788 S.W.2d at
178-79. We conclude the 388th District Court of El Paso County had jurisdiction over Appellee’s
divorce action and Appellant’s cross-action. Id. Issue Two is overruled.
In Issue One, Appellant contends the trial court reversibly erred by failing to “prove up”
the divorce. 1 Appellee provided testimony on the jurisdictional elements and Appellant
registered no objection with the trial court regarding Appellee’s testimony, and presented no
contrary evidence. TEX. R. APP. P. 33.1 (to preserve error for appellate review, a party must
timely register a complaint with the court and obtain the trial court’s ruling or object to the trial
1
“Prove up” is a term commonly used to refer to a proceeding in which jurisdictional testimony is presented to
finalize an uncontested divorce.
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court’s refusal to rule thereon). Appellant also complains that the trial court erroneously denied
him a pre-decree contested hearing regarding Appellee’s non-compliance with the mediated
settlement agreement. Appellant acknowledges, however, that the trial court explained to him
that she was without authority to enforce the terms of the mediated settlement agreement until after
the entry of a decree of divorce, which had not yet occurred, and Appellant fails to direct us to any
authority demonstrating that the trial court was required to grant him a contested hearing regarding
Appellee’s failure to comply with the mediated settlement agreement in advance of the trial court’s
entry of the divorce decree. Issue One is overruled.
In Issue Three, Appellant asserts his trial counsel was incompetent and facilitated a gross
miscarriage of justice, and that the trial court clearly abused its discretion by denying Appellant his
right to counsel. Appellant contends that he was “sold out” and that the 388th District Court
became aware of “the conflict” and “wittingly denied [Appellant] access to legal counsel” after
permitting Ms. Strathmann to withdraw. Appellant’s complaints arise in regard to the earlier
“uncontested hearing” conducted on June 30, 2011, from which Appellant was absent and which
the trial court later vacated.
At the final July 11, 2011, hearing the trial court noted Appellant’s attorney’s absence.
Appellant unequivocally stated that he had been a pro se litigant “since the beginning of [the]
suit,” and that Ms. Strathmann was “merely assisting” him in the mediation. Appellant
maintained that he was continuing to represent himself in a pro se capacity and asked the court to
permit him to proceed during the hearing without counsel.
Ms. Strathmann arrived shortly thereafter, and the trial court granted her leave to file an
oral motion to withdraw as counsel and required that she file a written motion the following day.
Appellant stated under oath that he did not object to Ms. Strathmann’s motion to withdraw, which
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the trial court granted. Appellant voiced complaints about Appellee’s counsel and informed the
trial court that he was “considering other counsel.” However, Appellant never filed an objection
with the trial court asserting that he was being denied counsel and never pressed the trial court to
rule on any objection regarding a purported denial of counsel. Accordingly, because Appellant
failed to preserve error regarding his denial-of-counsel complaint, Issue Three is overruled. See
TEX. R. APP. P. 33.1.
Appellant’s fourth issue is multifarious. Appellant complains that the trial court clearly
and prejudicially misapplied the law when it failed to act on his motions and carry out its
ministerial duties, thereby inflicting great harm to his due process rights, and that its failure to
gather and maintain a record imperiled his rights, and calls into question the legitimacy of the
proceedings below. Appellant neither specifies the motions on which the trial court failed to act
nor provides citation to the record demonstrating that he presented the motion to the court and
sought a ruling and objected to the ruling or to the court’s failure to rule thereon. See TEX. R. APP.
P. 33.1.
Appellant complains that he was not notified of the June 30, 2011, hearing and that he was
not provided a record thereof. The record of the June 30, 2011, hearing is part of the record on
appeal. As we previously noted, the court vacated the June 30, 2011, proceeding conducted in
Appellant’s absence. Appellant also complains that no record was made of a pre-trial hearing in
January 2011, but presents nothing in the record or in a bill of review for our consideration
regarding this complaint. See TEX. R. APP. P. 33.1.
Appellant again raises in the midst of his fourth issue complaints regarding jurisdiction as
well as an assertion that the trial court failed to abide by Canon 3B(8) of the Judicial Canon of
Ethics. We have determined that Appellant, by his conduct, availed himself of the 388th District
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Court’s jurisdiction and note that the June 30, 2011, hearing of which he complains was vacated.
Issue Four is overruled.
In Issue Five, Appellant complains that the El Paso County Commission effectively denied
him due process because of its “unreasonable and capricious dismissal of two-thirds of the justices
in the 388th District Court[.]” As this complaint was not before the trial court, Issue Five is
overruled.
In his reply brief, Appellant presents an “Ad hoc Reply Germane to Appellee’s Request for
Attorney’s Fees,” and argues that Appellee is not entitled to attorney fees for failure of
presentment. We do not find in our review of Appellee’s brief any argument or prayer regarding
attorney’s fees. TEX. R. APP. P. 38.3 (appellant may file a reply brief addressing any matter in the
appellee’s brief). To the contrary, Appellee has prayed that we affirm the trial court’s judgment
in its entirety and that all costs associated with this appeal be taxed against Appellant. We
therefore do not address Appellant’s contention regarding attorney’s fees.
CONCLUSION
The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
December 27, 2013
Before Rivera, J., Antcliff, J., and Chew, C.J. (Senior Judge)
Antcliff, J., not participating
Chew, C.J. (Senior Judge), sitting by assignment
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