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As a result of the international abduction prevention act that Teresa Lauderdale and Cathy Brown drafted and pushed through the Texas legislature, which was unanimously enacted into law, numerous families in Texas were able to use the law in court to protect their children from international abduction.  Several of those cases were appealed and the Appellate Courts held firm in protecting the children from international abduction, by utilizing the law, thereby creating important Case Law which will be of tremendous help to children needing protection into the future -- see below (note: H=husband; W=wife).

TEXAS CASE LAW:

  • In re Sigmar, 2008 Tex. App. LEXIS 8345 (Tex. App. – Waco November 5, 2008) (orig. proceeding) (Cause No. 10-08-328-CV) 
  • Boyo v. Boyo [196 S.W.3d 409 (Tex. App.--Beaumont 2006, no pet.) (discussed in 2006 Tex. Fam. L. Rptr. 115 (Aug.)].
  • Elmakiss v. Elmakiss, 2008 Tex. App. LEXIS 4195 (Tex. App. – Tyler, June 11, 2008) (Cause No. 12-06-405-CV)

 See written Opinions below.

 OTHER CASE LAW:

  • U.S. Supreme Court, No. 08-645, Abbott v. Abbott, Cert granted

     Previous Opinions

  1. Abbott v. Abbott, 495 F. Supp. 2d 635 (W.D. Tex. 2007).
  2. Abbott v. Abbott, 542 F.3d 1081 (C.A. 5, Sept. 16, 2008)

    Filings - Supreme Court Docket for Abbott v. Abbott, No. 08-645

OTHER LEGAL PROCEEDINGS: 

 Airline is sued after mother flees US with daughter

Divorced father says it ignored regulations

Didier Combe and his daughter, Chloe Combe-Rivas, who was taken to Mexico last March.

By Shelley Murphy, Globe Staff  |  January 30, 2007

In the midst of a divorce case last March, the mother of 2 1/2-year-old Chloe Combe-Rivas secretly boarded a Continental Airlines flight in Kansas City with her daughter, caught a connecting flight from Houston to Mexico, and never returned.

Yesterday, the young girl's distraught father, Didier Combe, 40, who recently moved to Ipswich, filed a federal lawsuit in Boston against Continental Airlines, accusing the carrier of negligence, breach of contract, and interference with custodial relations. The suit says Continental ignored its own regulations, which require a single parent traveling from the United States to Mexico with a minor child to provide a notarized letter from the other parent authorizing the trip.

"I just feel that they didn't protect my child the way it was supposed to be done," said Combe, who has made six trips to Mexico in a vain search for the brown-eyed, curly-haired daughter he hasn't seen since his former wife failed to return her from a visit. "I know that I have to try everything to get her back."

A spokeswoman for Continental Airlines, Julie King, said the company has not yet received a copy of the lawsuit and declined to comment.

Combe, a French native who came to the United States on a tennis scholarship in 1991 and became a citizen two years ago, said he and his former wife, Aline Rivas-Vera, were living in Kansas City, going through a divorce, and sharing 50-50 custody of their daughter when she fled last year.

"I brought Chloe to her Mom's for the day on March 14," said Combe. He has not seen her since. The next day, his estranged wife was supposed to return with the child, but didn't show up.

He said he later learned that Rivas-Vera, 27, who is a Mexican citizen, had boarded Continental Flight 2547 from Kansas City to Houston with their daughter, then caught Continental Flight 1524 to Mexico City.

A Missouri court granted Combe full custody of his daughter last year, and in June, his former wife was indicted by a federal grand jury in Missouri on an international parental kidnapping charge.

Lawyer Anthony Tarricone of Boston, who represents Combe, accused Continental Airlines of failing to protect Chloe Combe-Rivas and violating regulations that were specifically designed to prevent parental kidnapping.

Continental and other carriers flying to Mexico began requiring dual parental consent after the Mexican government enacted a law requiring single parents flying into that country with minor children to provide a notarized letter of consent from the other parent, or proof that they have sole custody of the child. Similar laws have been passed by other countries, according to lawyers.

Tarricone said he didn't know why Combe's former wife was able to board the flight with her daughter or whether she had provided forged documents.

"What we do know is he never signed a letter of consent and she was able to board a flight with Chloe," said Tarricone, adding that the fact that Chloe has a different last name than her mother should have "set off a red flag" with airline employees.

Tarricone said the suit may be the first of its kind filed against a commercial carrier.

Two years ago, a Connecticut jury ordered a Cincinnati-based charter jet company to pay $27 million to a Topsfield mother for failing to provide safeguards protecting children from abductions. In that case, Executive Jet Management had been chartered on short notice by a divorced father to fly him and his two young children to Egypt in 2002. The children were later taken to Cuba and then reunited with their mother after the intervention of President Fidel Castro.

Lawyer Barry S. Pollack of Boston, who represented the mother in that case, said, "A lot of time and effort goes into ensuring that some improper items are not brought on in your luggage. Airlines should take equally seriously the need to protect against children being abducted."

A settlement Order of Dismissal was issued in the case of Didier Combe v. Continental Airlines, Civil Action No. 07-10155-RCL, U.S. District Court, District of Massachusetts on November 24, 2008.

If you are aware of any other Case Law on international parental child abduction prevention, please let us  know and we will add it here.

Texas Appeals' Courts Opinions

 In re Sigmar, 2008 Tex. App. LEXIS 8345 (Tex. App. – Waco November 5, 2008) (orig. proceeding) (Cause No. 10-08-328-CV)

At H’s request, H and W obtained a “friendly” divorce in February 2007, naming them JMC of their only child and giving them equal visitation rights. Neither parent had a superior right to designate the child’s domicile. The decree gave W the house, a car and other miscellaneous personal property. H was awarded a separate residence, 3 cars, 3 boats, and all interest in several business entities. At the time they agreed not to tell the child about the divorce. The “friendly” divorce had been encouraged by H because he was involved in a variety of multi-million dollar lawsuits, both in the US and Mexico and further because he claimed that his life was in danger based on alleged threats from someone in Mexico. H visited the child on a periodic schedule. In early June, before leaving on a business trip, H told W he was seeing someone else and that he thought they should tell the child about the divorce and that he wanted to spend more time with the child. While he was gone, W filed a petition for bill of review and an application for a protective order. W also filed a motion to modify the decree and sought a TRO. After a temporary hearing the trial court appointed W as temporary SMC and gave H supervised possession only based on a finding that there was a risk of international abduction. The court further enjoined H from selling or liquidating assets pending an evidentiary hearing on W’s bill of review. H filed for mandamus.The court of appeals found that review of the injunction order by mandamus was inappropriate because interlocutory orders granting temporary injunctions are subject to appeal. As a result, only the custody portion of the order was decided. The COA noted that Texas was the first state to enact legislation aimed at international child abduction in May 2003. Because these statutes are only mentioned in one published decision, the COA used other publications and bill analysis to construe the Texas statues. TFC §153.503 permits the court to impose measures such as supervised visitation if a potential risk of international abduction is proven by credible evidence. TFC §153.501(b) lists 4 factors that the court shall consider in deciding whether to impose these measures: (1) policy considerations in TFC§153.001 and best interest; (2) risk of international abduction by a parent based on the factors outlined in TFC §153.202; (3) any obstacles to locating and recovering the child in a foreign country; and (4) the potential physical or emotional harm to the child if they are abducted to a foreign country. TFC §153.502(a) provides six abduction risk factors for the court to consider. Here the trial court found evidence in support of one risk factor and H argued that the statute required a finding of all six. The COA disagreed and held that evidence of only one is necessary before the court may proceed to consider the additional factors in subsections (b) and (c). The COA analyzed all of the evidence presented. The COA further noted that the trial court’s findings were supported by information obtained from outside sources such as the U.S. State Department website. The COA found that the trial court properly considered information regarding a foreign country’s compliance with the Hague Convention as well as their legal practices and processes by taking judicial notice of these legislative facts. The COA noted that the trial court is permitted to do this sua sponte, without prompting from either party. The COA determined that the evidence and judicially noticed information supported the trial court’s finding of a risk of international abduction. Further, the COA noted that the trial court properly considered state public policy and the child’s best interest and that there were no less restrictive means by which the child could be protected. Mandamus relief was denied.

http://www.hbafam.org/cases-1108.php

--- 

Texas Family Law Reporter, January 1, 2009: Prevention of International Abduction: Risk of Abduction Justified Supervised Visitation

The Waco Court of Appeals has upheld temporary orders prohibiting a father from having unsupervised visitation with his child on the ground that he posed a risk of international abduction. The court of appeals held that an affirmative finding on even one of the preliminary risk factors set out in Subsection (a) of Family Code Section 153.502 is all that is required to proceed to a consideration of the additional factors listed in Subsections (b) and (c). The court of appeals also held that facts regarding another country's compliance with the Hague Convention, or whether that country poses obstacles to the prompt return of an abducted child or poses a risk to the child's safety, are legislative facts of which a trial or appellate court may take judicial notice sua sponte [In re Sigmar, No. 10-08-00328-CV (Tex. App.--Waco 2008, orig. proceeding)].FactsThe parents and their child divided their time between Huntsville, where the mother was on the faculty of Sam Houston State University, and Lago Vista. The father, a naturalized citizen originally from Austria, had international business interests in the petroleum industry, and he traveled to Mexico regularly on business. The father was involved in several lawsuits in the United States and Mexico, with millions of dollars at stake. According to the mother's testimony, during the summer of 2007 he began receiving business-related threats, and in response he took a concealed weapons course and purchased weapons and ammunition. In November, he told the mother that his life was in danger. In December, the parents filed a ''friendly'' divorce petition, and a consent decree divided the property and appointed both parents as joint managing conservators with identical visitation rights.

In June 2008, the father informed the mother that he had started a relationship with another woman. He then left on a business trip to Mexico. When he returned, he was served with the mother's application for a protective order and petition for bill of review. The mother later filed a motion to modify the divorce decree, including a request for temporary orders and a temporary restraining order.

The trial court enjoined the father from selling, alienating, or liquidating any assets until an evidentiary hearing on the mother's bill of review. The trial court appointed the mother as the child's temporary sole managing conservator and the father as temporary possessory conservator. Finding that there was a threat to the child of international abduction by the father, the trial court ordered that the father not have possession of or access to the child without supervision.

The father sought a writ of mandamus compelling the trial court to set aside the temporary orders prohibiting him from (1) disposing of assets and (2) having unsupervised access to the child. The court of appeals denied the requested relief.

Disposition of Assets

The court of appeals stated that mandamus relief was not available with regard to the portion of the trial court's order enjoining the father from disposing of any assets until the hearing on the bill of review. That portion of the order was in the nature of a temporary injunction, and an interlocutory order granting a temporary injunction is appealable. Because the father had an adequate remedy by appeal, this portion of the order was not reviewable by mandamus, stated the court of appeals.

Supervised Visitation

The court of appeals stated that the trial court did not abuse its discretion by issuing temporary orders prohibiting the father from having unsupervised access to the child because of a potential risk for international abduction.

By way of background, the court of appeals explained that the Texas Legislature enacted statutes in 2003 aimed at preventing international parental abduction [see Tex. Fam. Code §§ 153.501-153.503]. In 2006, the Uniform Law Commissioners approved a Uniform Child Abuse Prevention Act (UCAPA). Because of the similarities between the Texas statutes and UCAPA, and because only one published decision had addressed the Texas statutes, the court of appeals stated that it would refer to materials construing the UCAPA as persuasive authority for construing the Texas statutes.

The court of appeals stated that Family Code Section 153.503 permits a trial court to impose an abduction prevention measure, such as supervised visitation, if the court finds it necessary because credible evidence has been presented that indicates a potential risk of international abduction. Family Code Section 153.501(b) provides four factors that a court must consider in determining whether to impose abduction prevention measures:  The public policies of Texas described by Family Code Section 153.001(a) and the consideration of the child's best interest under Family Code Section 153.002.
 
The risk of international abduction of the child by a parent, based on the court's evaluation of the risk factors described by Family Code Section 153.502.
 
Any obstacles to locating, recovering, and returning the child if the child is abducted to a foreign country.
 
The potential physical or psychological harm to the child if the child is abducted to a foreign country.

Subsection (a) Risk Factors:The risk factors set out in Section 153.502(a) are:  Whether the parent has taken, enticed away, kept, withheld, or concealed the child.
 
Whether the parent has threatened to do so.
 
Whether the parent lacks financial reason to stay in the U.S.
 
Whether the parent has recently engaged in planning activities that could facilitate the removal of the child from the U.S.
 
Whether the parent has a history of domestic violence.
 
Whether the parent has a criminal history or a history of violating court orders.

Subsection (b) Risk Factors: If, after considering the Subsection (a) factors, the court finds credible evidence of a risk of abduction, the court must also consider [Tex. Fam. Code § 153.502(b)]:  Whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction.
 
Whether the parent lacks strong ties to the U.S., regardless of whether the parent is a citizen or permanent resident of the U.S.

Subsection (c) Risk Factors: If the court finds credible evidence of a risk of abduction under Subsection (a), the court may also consider [Tex. Fam. Code § 153.502(c)]:  Whether the parent is undergoing a change in status with the U.S. Immigration and Naturalization Service (INS) that would adversely affect that parent's ability to legally remain in the U.S.
 
Whether INS has denied the parent's application for citizenship.
 
Whether the parent has forged or presented misleading or false evidence to obtain a visa, passport, or other identification card or has made any misrepresentation to the federal government.
 
Whether the foreign country to which the parent has ties presents legal or practical obstacles to the recovery and return of a child who is abducted to that country or poses a risk of harm to the child.

Analysis of Risk Factors:

Based on the fact that the father had sold an office building in Austin in April 2008, the trial court found that he had recently engaged in planning activities that could facilitate the child's removal by liquidating assets [see Tex. Fam. Code § 153.502(a)(4)(E)]. The father argued that the trial court heard evidence that would support an affirmative finding on only one of the six preliminary factors listed in Section 153.502(a), and disregarded evidence that negated an affirmative finding on the other five factors. Rejecting this argument, the court of appeals stated that an affirmative finding on only one of the preliminary factors, if supported by the evidence, is all that is required to constitute ''credible evidence of a risk of abduction'' and to justify proceeding to a consideration of the additional factors listed in Subsections (b) and (c). The court of appeals stated that, when the mother made a prima facie showing that the father had liquidated a substantial asset, the burden shifted to the father to produce evidence that the sale proceeds could not facilitate the removal of the child from the U.S.

The court of appeals stated that, because the evidence of the asset sale could be considered evidence of a risk of abduction, the trial court was then required to consider whether the father had strong familial, emotional, or cultural ties to another country or lacked strong ties to the U.S. [see Tex. Fam. Code § 153.502(b)]. In evaluating this factor, courts should consider evidence that the parent was raised in another country and has family support there, has a legal right to work in a foreign country, and has the ability to speak that foreign language, stated the court of appeals. In this regard, the mother testified that the father had cousins in Austria. In addition, there was ample evidence that the father made frequent trips to Mexico and spoke several foreign languages, including Spanish and German. This evidence supported the trial court's finding that the father had strong familial, emotional, or cultural ties to another country, stated the court of appeals.

The court of appeals stated that, because the trial court found credible evidence of a risk of abduction under Section 153.502(a), it could also consider evidence relevant to the factors listed in Section 153.502(c). The order included affirmative findings on several factors listed in Subsection (c), to the effect that Mexico presents legal or practical obstacles to the recovery and return of a child who is abducted to that country, or poses a risk of harm to the child. The only evidence offered to support those findings was the mother's generalized testimony that she would be ''just out of luck'' if the father took the child to a foreign country and, if she liquidated her assets, she ''may or may not'' be able to recover the child.

Nonetheless, stated the court of appeals, the majority of the affirmative findings under Subsection (c) appeared to be matters of legislative fact of which the trial court could have taken judicial notice sua sponte. The court of appeals stated that Texas Rule of Evidence 201 governs only judicial notice of adjudicative facts. Matters of legislative fact or of other non-adjudicative fact are subject to judicial notice but are not governed by Rule 201. Noting that there was a 23-day gap between the date of the hearing and the date the trial court signed the order, the court of appeals stated:


It is entirely plausible that Respondent conducted additional research sua sponte to find relevant information regarding Austria and Mexico. Assuming she did, it would have been helpful to the parties for her to advise them of the sources she relied on to make her findings... .

[F]acts regarding another country's compliance with the Hague Convention on the Civil Aspects of International Child Abduction, or whether that country poses obstacles to the prompt return of a child taken there or poses risks to the child's safety are legislative facts about which a trial or appellate court may take judicial notice without prompting by the parties.  Nevertheless, noted the court of appeals, the parties in such proceedings ''should be encouraged'' to offer evidence relevant to the practices and procedures of other nations.

Here, the trial court found that:  ''Austria and/or Mexico'' had no legal mechanisms for the immediate and effective enforcement of a child custody order.
 
''Austria and/or Mexico'' had local laws or practices that would (1) enable the father to prevent the mother from contacting the child without due cause; (2) restrict the mother from freely traveling to or exiting from the country because of gender, nationality, or religion; and (3) restrict the child's ability to legally leave the country when she reached the age of majority because of gender, nationality, or religion. With respect to Mexico in particular, the trial court found that: Mexico was a country for which the State Department had issued a travel warning to U.S. citizens.
 
Mexico posed a risk to the child's physical health and safety because of her specific circumstances and because of ''human rights violations committed against children, including child labor and lack of child abuse laws.'' The court of appeals stated that the information available on the U.S. State Department's website supported the trial court's findings concerning the obstacles and risks that could be posed if the father were to abduct the child to Mexico.

Child's Best Interest:

The court of appeals stated that a trial court is required to consider the child's best interest when deciding whether to impose abduction prevention measures [see Tex. Fam. Code § 153.501(b)(1)]. Here, the evidence supported the trial court's finding that the imposition of abduction prevention measures was in the child's best interest, stated the court of appeals. There was potential danger to the child if she were abducted to Mexico. In addition, the father was concerned about threats to the family and had recently added to his weapons collection. The father's business required him to travel extensively, with the result that the mother had borne primary responsibility for the child's nurture and care. The mother presented evidence that the father had acted with deception in seeking a divorce, as well as evidence that the father had recently urged the renewal of the child's passport and had pressed for the inclusion in the divorce decree of a provision granting him the right to accompany the child on all domestic and international travel.

Public Policy:

The court of appeals stated that a trial court must consider Texas's public policies when determining whether to order measures aimed at protecting a child against international abduction. It is Texas public policy to [Tex. Fam. Code § 153.001(a)]:  Assure that a child will have frequent and continuing contact with parents who have shown the ability to act in the child's best interest.
 
Provide a safe, stable, and nonviolent environment for the child.
 
Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. The court of appeals stated that these policies must be considered, but they are not the only factors that must be evaluated in determining whether to impose abduction prevention measures, and slavish adherence to these policies may not be warranted when other factors dictate that abduction prevention measures are necessary. Viewed in the light most favorable to the decision, the evidence supported a conclusion that the father here had not shown the ability to act in the child's best interest; the mother was presently better able to provide the child with a safe, stable, and nonviolent environment; and the trial court was encouraging both parents to share in the rights and duties of raising the child by allowing the father to have visitation rights, albeit with restrictions. Therefore, the trial court's order was consistent with the public policy of Texas as expressed in Section 153.001, stated the court of appeals.

Least Restrictive Means:The father argued that, even if some abduction prevention measure was warranted, the trial court should have considered the least restrictive means available. A comment to Section 8 of the UCAPA encourages courts to employ the least restrictive measures and conditions to maximize opportunities for continued parental contact while minimizing the opportunities for abduction. The court of appeals agreed in principle that a court should employ the least restrictive means available to prevent abduction so that parental rights are not unreasonably restricted. However, stated the court of appeals, Family Code Section 153.503, which sets out the available abduction prevention measures, is written more broadly than Section 8 of the UCAPA and thus vests a trial court with broad discretion in determining which preventive measures to impose. In addition, the comment to Section 8 of UCAPA notes that the most common, and one of the most effective, restrictions is supervised visitation until the court decides that the threat of abduction has passed. Accordingly, the trial court did not abuse its discretion by ordering supervised visitation as an abduction prevention measure under Section 153.503, stated the court of appeals.

Removal of Trial Judge

The father asked the court of appeals to replace the trial judge because she had stated in her findings that he was ''not credible'' and ''evasive'' and that she could not rely on him to tell the truth. The court of appeals stated that the father's complaint presented a potential ground for recusal under Texas Rule of Civil Procedure 18b. If the father filed a motion to recuse and it was denied, the denial could be reviewed for abuse of discretion on appeal from the final judgment. Because the father had an adequate legal remedy, he was not entitled to mandamus relief in connection with his efforts to have the trial judge removed from the case, stated the court of appeals.

Concurrence

Chief Justice Gray concurred, but would have denied the petition without an opinion. In a note, Chief Justice Gray stated that the review of a trial court's interim action is not a good time to explore and discuss a relatively new area of the law, primarily because the nature of the proceeding leaves the record less than fully developed. Justice Gray joined no part of the opinion and expressly disagreed with the discussions of the standard of review, the taking of judicial notice of another country's laws, and ''a tour of the State Department's web page on Mexico.''

Editor's Note: Family Code Sections 153.501, 153.502, and 153.503, the statutes addressing the prevention of international parental child abduction, were enacted in 2003. Since then, they have been the subject of only one other published opinion, Boyo v. Boyo [196 S.W.3d 409 (Tex. App.--Beaumont 2006, no pet.) (discussed in 2006 Tex. Fam. L. Rptr. 115 (Aug.)]. In Boyo, a father who provided independent consulting services to companies in Ghana and Nigeria, and typically spent at least half of each year in Nigeria, was enjoined from traveling internationally with his children because he posed risk of abducting children to that country.
 
See TEXAS FAMILY LAW PRACTICE AND PROCEDURE, Task B2.10; Task C6.09[3]; Task E5.05[2][b]. http://law.lexisnexis.com/webcenters/lexisone/Practice-Area-Resources/Texas-Family-Law-Reporter-January-1-2009-Prevention-of-International-Abduction-Risk-of-Abduction-Justified-Supervised-Visitation 

 

In TheCourt of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-05-233 CV____________________ ANDREW BOYO, ABNL, INC., AND ABNL, LTD., Appellants V. MARGARET BOYO, Appellee 
On Appeal from the 359th District CourtMontgomery County, TexasTrial Cause No. 02-08-05770 CV  

OPINION

Margaret Boyo filed a petition for divorce against Andrew Boyo. In the same petition, Margaret sued ABNL, Ltd., a foreign limited liability corporation established under Nigerian law, and ABNL, Inc., a Delaware corporation doing business in Texas. She alleged Andrew and the two companies fraudulently transferred funds and defrauded Margaret of her interest in community property. She alleged Andrew used the two companies to divert community assets in order to deprive her of a just and right division of the marital estate. Margaret attempted to serve ABNL, Ltd. through the Texas Secretary of State. The company did not file an answer and the trial court entered a default judgment against ABNL, Ltd. The trial court appointed Margaret and Andrew joint managing conservators of their two children, and ordered Andrew to pay child support and spousal maintenance to Margaret. The final decree granted the divorce, divided the marital estate, enjoined Andrew Boyo from removing the children from the continental United States, found the two companies were alter egos of Andrew, found Andrew conspired with the companies to deplete the community estate through fraudulent transfers, and awarded Margaret $1.25 million from Andrew and the two companies, jointly and severally. ABNL, Ltd. filed a restricted appeal claiming the trial court lacked jurisdiction to grant the default judgment because ABNL, Ltd. does not do business in Texas and does not have sufficient minimum contacts with the State. The company says it was not given notice of the claims against it and was denied due process of law. Andrew and ABNL, Inc. appealed the alter ego and fraud findings, and the $1.25 million award. Andrew also appealed the injunction. We affirm the injunction. We reverse the default judgment against ABNL, Ltd., and we reverse the $1.25 million judgment against Andrew and ABNL, Inc. The cause is remanded for further proceedings consistent with this opinion. The BackgroundAndrew and Margaret married in Nigeria in 1993, arrived in the United States in 1997, and moved to Montgomery County, Texas, in 1999. Prior to the marriage, Andrew owned and managed Andy Boyo Nigeria, Ltd. The company name was later changed to ABNL, Ltd. Andrew was the majority shareholder, chief executive officer, and managing director of ABNL, Ltd. According to Andrew, two other individuals and an "employee/management share" owned the remaining shares. In 1997, ABNL, Ltd. decided to incorporate ABNL, Inc. in Delaware to handle administrative matters in the United States for ABNL, Ltd. In 1998, sixty percent of the new corporation's shares were assigned to ABNL, Ltd., twenty percent to Andrew, fifteen percent to Peter Boyo, and five percent to Steve Oke. ABNL, Inc. contracted with ABNL, Ltd. to perform administrative services for ABNL, Ltd. from 1998 until 2003. In 1998, ABNL, Ltd. and Baker Hughes entered into a contract with Shell Petroleum Development Company to construct a barge in New Orleans for exploration work in Nigeria. Shell paid for the construction of the barge during 1999, 2000 and 2001. Andrew testified he individually guaranteed a loan for ABNL, Ltd. for 36 million naira (Nigerian currency) from Community Circular Bank in Nigeria in 1999. Andrew says he pledged his 800,000 shares in ABNL, Ltd. and real estate in Nigeria as security. He testified that in 2001, ABNL, Ltd. defaulted on the loan and Community Circular Bank foreclosed on his ownership interest in the corporation and on the real estate. ABNL, Ltd. contracted with Shell again in 2003 to build another barge but, according to Andrew, Shell cancelled this $34 million contract. Andrew testified that at the time of the execution of this contract, he no longer had any ownership interest in ABNL, Ltd. and was working for the company as a consultant. He says ABNL, Ltd. informed ABNL, Inc. in 2003 that ABNL, Ltd. would not renew the administrative services contract between the two entities. Andrew testified ABNL, Inc. is now defunct.Margaret filed for divorce in 2002. The Default Judgment Against ABNL, Ltd.ABNL, Ltd. claims the trial court lacked jurisdiction over the company because the company does not have sufficient minimum contacts with Texas. See Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 225-31 (Tex. 1991) ("Federal constitutional requirements of due process limit the power of the state to assert personal jurisdiction over a nonresident defendant[.])." ABNL, Ltd. argues the attempted exercise of jurisdiction by the trial court over the company denied the company due process of law. Margaret contends ABNL, Ltd. waived any jurisdictional challenge by failing to file a special appearance in the trial court. See, e.g., Lang v. Capital Res. Invs., I & II, L.L.C., 102 S.W.3d 861, 864 (Tex. App.--Dallas 2003, no pet.). ABNL, Ltd. responds it never received notice of the lawsuit because Margaret's service of process on the company through the Secretary of State was defective. We do not accept the argument that ABNL, Ltd. waived its jurisdictional challenge by not making a special appearance in the trial court before filing this restricted appeal. Due process requires that a party be given notice and an opportunity to present its objections. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85-87, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988). Rule 120a, which requires a special appearance be filed before any other pleading or motion, applies to proceedings in the trial court. See Tex. R. Civ. P. 2 (scope of rules); see Tex. R. Civ. P. 120a ("Every appearance, prior to judgment, not in compliance with this rule is a general appearance."). See generally Lang, 102 S.W.3d at 864 (Special appearance filed after a default judgment and before motion for new trial, preserved due order of pleading under the circumstances.). A restricted appeal is available to a party who did not participate in the trial court. See Tex. R. App. P. 30; see generally Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1977) (applying prior Rule 45). The procedure for a restricted appeal would serve little purpose if we require a party to show preservation of the challenge in the trial court before filing a restricted appeal. Furthermore, if notice is not given, a party may not learn of the suit until after the trial court loses jurisdiction over the case. See generally Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973) ("If the Secretary fails to forward the process, the defendant will probably not learn of the suit until long after the time for filing a motion for new trial."). To successfully attack a default judgment by restricted appeal, an appellant must (1) file notice of the appeal within six months of the date of judgment; (2) be a party to the suit; (3) not have participated at trial; (4) not have filed a timely postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal under Rule 26.1(a) of the Texas Rules of Appellate Procedure; and (5) show error apparent from the face of the record. Tex. R. App. P. 26.1(c), 30. See generally Norman Commc'ns, 955 S.W.2d at 270 (applying four requirements under prior Rule 45). ABNL, Ltd. satisfies the first four requirements. The issue presented is whether a lack of jurisdiction is apparent from the face of the record. See Dezso v. Harwood, 926 S.W.2d 371, 373 (Tex. App.--Austin 1996, writ denied). To obtain service on ABNL, Ltd., Margaret relied on section 17.044(b) of the Texas Civil Practice and Remedies Code, the long-arm statute which provides for service of process on a nonresident defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 17.044(b) (Vernon 1997). See also Tex. R. Civ. P. 108a; Comm'n of Contracts of the Gen. Executive Comm. of the Petroleum Workers Union of the Republic of Mex. v. Arriba, Ltd., 882 S.W.2d 576, 584 (Tex. App.--Houston [1st Dist.] 1994, no writ). Under that statute, the Secretary of State is "an agent for service of process on a nonresident who engages in business in this state, but does not maintain a regular place of business in this state or a designated agent for service of process, in any proceeding that arises out of the business done in this state and to which the nonresident is a party." Tex. Civ. Prac. & Rem. Code Ann. § 17.044(b). Section 17.045(a) provides that "[i]f the secretary of state is served with duplicate copies of process for a nonresident, the documents shall contain a statement of the name and address of the nonresident's home or home office and the secretary of state shall immediately mail a copy of the process to the nonresident at the address provided." Tex. Civ. Prac. & Rem. Code Ann. § 17.045(a) (Vernon Supp. 2005). If service is obtained through the Secretary of State pursuant to the statute, the Secretary of State's certificate of service, absent fraud or mistake, establishes service of process. Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 465 (Tex. 2004) (citing Capitol Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex. 1986)). Because this was a no-answer default judgment, the issue of minimum contacts was not actually litigated in the trial court. See generally Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199 (Tex. 1985)(distinguishing default judgments from non-default cases). To support a default judgment based on service under the long-arm statute, the record must show (1) the pleadings contain allegations that make the defendant amenable to process by the use of the long-arm statute, and (2) the defendant was, in fact, served in the manner required by the statute. Whitney, 500 S.W.2d at 95-96. In a restricted appeal of a default judgment, there are no presumptions of valid issuance, service, and return of citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). The record must affirmatively show at the time the court enters the default judgment an appearance by the defendant, proper service of citation on the defendant, or a written waiver of service by defendant. See Carmona v. Bunzl Distribution, 76 S.W.3d 566, 568 (Tex. App.--Corpus Christi 2002, no pet.). Margaret's petition directed that "[p]rocess should be served on Co-Respondent, ABNL, Limited, a foreign limited liability corporation established under the laws of the Federal Republic of Nigeria, having its registered address at 10 Norman Williams Street, Ikoyi, Lagos, State of Nigeria (doing business in the State of Texas), by and through the Secretary of State of Texas, P.O. Box 13697, Austin, Texas 78711-3697." The proof Margaret offers to establish service is a copy of the citation and petition and a copy of the Secretary of State's certificate. However, the certificate shows the Secretary of State received copies of the divorce citation and first amended original petition for divorce, but forwarded the copy to a Texas address: "Abnl, Limited; Andrew Boyo, An Officer And Agent; 1530 Lilac Mist Ln; Houston, TX 77038." This is the address listed in the pleading for ABNL, Inc., not ABNL, Ltd. (1) The certificate notes the process was returned bearing the notation "Unclaimed." The pleadings contain no allegations that the defendant does not maintain a regular place of business in Texas, and has not designated or maintained a resident agent for service of process in Texas. See Tex. Civ. Prac. & Rem. Code § 17.044(a)(1), (b); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). The pleadings assert generally that ABNL, Ltd. is the alter ego of Andrew Boyo, but these are not set out as jurisdictional allegations and Andrew is not identified in the pleading as an agent for service of process for ABNL, Ltd. The alter ego theory may be applied under appropriate circumstances to "fuse" entities for "minimum contacts" jurisdiction purposes. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 798-99 (Tex. 2002). But see also generally Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005)("[I]t is only the defendant's contacts with the forum that count[.]"). The theory may uphold service under appropriate circumstances. See Bland v. Kentucky Fried Chicken Corp., 338 F.Supp. 871 (S.D. Tex. 1971). Alter ego is not a service theory supported by the pleadings in this case, however. Margaret attempted service on the Secretary of State under section 17.044(b). For service of process on the Secretary of State under § 17.044(b) as Margaret attempted, the pleadings must state the foreign corporation does not maintain a regular place of business or a designated agent for service of process in Texas. See Tex. Civ. Prac. & Rem. Code § 17.044(b); McKanna, 388 S.W.2d at 929; Lozano v. Hayes Wheels Int'l, Inc., 933 S.W.2d 245, 247-48 (Tex. App.--Corpus Christi 1996, no writ); South Mill Mushrooms Sales v. Weenick, 851 S.W.2d 346, 350 (Tex. App.--Dallas 1993, writ denied). There is no pleading that the address to which the Secretary of State sent the copy of the citation and petition was ABNL, Ltd.'s home address or home office. See Tex. Civ. Prac. & Rem. Code Ann. § 17.045(a); Arriba, Ltd., 882 S.W.2d at 586. There is no indication the Secretary of State forwarded a copy of the petition to ABNL, Ltd. at the address Margaret provided as required by the statute, and we cannot presume those facts. See Capitol Brick, 722 S.W.2d at 401. The Secretary's failure to forward the process to the defendant establishes error on the face of the record. See Whitney, 500 S.W.2d at 95-96. The default judgment must be set aside. See id. at 97. ABNL, Ltd. asks that the case be dismissed for want of personal jurisdiction. However, the appropriate procedure under these circumstances is to set aside the default judgment and remand the case to the trial court for further proceedings. See Whitney, 500 S.W.2d at 97; McKanna, 388 S.W.2d at 930. In McKanna, the Court concluded as follows: McKanna, having now appeared to attack the judgment, is presumed to have entered her appearance to the term of the court at which the mandate shall be filed. Rule 123, Texas Rules of Civil Procedure. The judgments of the courts below are reversed, and the cause remanded to the District Court for a trial on the merits.  Id. Rule 123, cited by the Court, provides as follows: Where the judgment is reversed on appeal or writ of error for the want of service, or because of defective service of process, no new citation shall be issued or served, but the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed. (2)  Tex. R. Civ. P. 123. We are reversing and remanding this case because of want of service of process on the defendant, and Rule 123 provides no new citation need be issued or served on ABNL, Ltd., and the defendant's appearance will be presumed. Rule 120a provides in part as follows:Nothwithstanding the provisions of Rules 121, 122 and 123, a special appearance may be made by any party . . . for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State. Tex. R. Civ. P. 120a. A special appearance under Rule 120a does not contest service of process; a special appearance contests whether a defendant is amenable to process -- whether it has sufficient contacts with Texas to satisfy due process and the Texas long arm statute. See Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex. 1998); Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 226; Kawasaki Steel Corp., 699 S.W.2d at 201. Rule 120a anticipates the circumstances presented here and provides that a party may nevertheless file a special appearance on remand notwithstanding Rule 123. Generally, when there has been a denial of right to notice and an opportunity to be heard, the case must be considered anew and the party restored to the position it would have occupied had due process of law been accorded to the party in the first place. See Peralta, 485 U.S. at 87 (Only "wiping the slate clean" would restore the petitioner to where he was before due process was denied.); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) ("Only that would have wiped the slate clean."). When a party asks a court to set aside a judgment, that request is treated generally as a submission to the jurisdiction of the courts of this State. See Liberty Enters., Inc. v. Moore Transp. Co., 690 S.W.2d 570, 571-72 (Tex. 1985) (motion for new trial and agreeing to court's order reinstating suit were affirmative actions after default judgment entered which constituted a general appearance); Cates v. Pon, 663 S.W.2d 99, 102 (Tex. App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.) (held where default judgment entered against appellant and appellant appealed the default judgment, appellant submitted himself to the jurisdiction of the court). However, Rule 120a provides an exception under the circumstances of this case, when a no-answer default judgment is set aside on a restricted appeal because notice of the lawsuit was not provided by service of process. Rule 120a "wipes the slate clean" by permitting a special appearance when a no-answer default judgment is reversed in a restricted appeal for want of service.The "notwithstanding" clause of Rule 120a was not addressed in Liberty Enterprises, and the clause did not apply to the circumstances of that case. 690 S.W.2d at 571-72. In Liberty Enterprises, the Court held a defendant whose motion for new trial stated it was "ready to try the case when it is properly set for trial[,]" and who agreed to the trial court's order reinstating the cause of action, entered a general appearance despite having initially filed a special appearance after a default judgment. Id. The "notwithstanding" clause of Rule 120a does not reference the motion for new trial rule or any agreement by a party which submits the party to the jurisdiction of the court. McKanna did not address the "notwithstanding" clause of Rule 120a either. In McKanna, the defendant executed and delivered a note payable in Austin, Texas. See McKanna, 388 S.W.2d at 928. The parties agreed McKanna was doing business in Texas; the Supreme Court noted that "problem" -- the issue here -- was not before the Court. See id. at 929. The Supreme Court reversed the default judgment because service was obtained through the Secretary of State under the long-arm statute, and the pleadings included no assertion that the defendant did not maintain a place of regular business in Texas or a designated agent upon whom service could be made. See id. at 929-30. In McKanna, however, the possible applicability of Rule 120a was not mentioned, presumably because the parties agreed the defendant was doing business in Texas and the lawsuit arose out of a note payable in Austin, Texas. See id. at 929.In its brief to this Court, ABNL, Ltd. asks only that the default judgment be set aside and it be dismissed for lack of personal jurisdiction. We believe the arguments are consistent with the assertion that Texas courts do not have jurisdiction over the defendant or its property to enter a money judgment against it. Rule 120a permits the proper filing of a special appearance on remand under these circumstances notwithstanding Rule 123. (3) We reverse the default judgment and remand the claims against ABNL, Ltd. to the trial court for further proceedings consistent with this opinion.Fraud and Alter EgoAndrew and ABNL, Inc. argue the evidence is legally insufficient to support the trial court's fraud and alter ego findings. See generally City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal sufficiency standard of review). A corporation is a separate legal entity from its shareholders, officers, and directors. See Wynne v. Adcock Pipe and Supply, 761 S.W.2d 67, 68 (Tex. App.--San Antonio 1988, writ denied). In exceptional circumstances, however, a court may disregard the corporation's separate existence and hold an individual liable for what would otherwise be an obligation only of the corporation. See Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986), superseded in part by Tex. Bus. Corp. Act Ann. art. 2.21 (Vernon 2003). (4) This disregard generally is referred to as piercing the corporate veil. The alter ego doctrine is one theory used to pierce the corporate veil. Castleberry, 721 S.W.2d at 272. The theory may be applied if there is a unity between the corporation and the individual to the extent that the corporation's separateness has ceased, and holding only the corporation liable would be unjust. See id. Apart from the alter ego theory, however, the corporate veil may be pierced if the corporation is used for the purpose of fraud. See id. Courts occasionally reverse pierce, and under exceptional circumstances hold a corporation liable for the debts of a controlling shareholder who has used the corporation to hide assets. See Zahra Spiritual Trust v. United States, 910 F.2d 240, 243-44 (5th Cir. 1990). Reverse piercing is sometimes used to characterize as part of a community estate what would otherwise be a corporate asset. See generally Zisblatt v. Zisblatt, 693 S.W.2d 944, 952 (Tex. App.--Fort Worth 1985, writ dism'd). In the context of a divorce, the evidence must show not only that there is unity of the corporation and the spouse, but also that the spouse's improper use of the corporation has damaged the community estate, and the loss cannot be remedied by reimbursement. See Lifshutz v. Lifshutz, 61 S.W.3d 511, 516-18 (Tex. App.--San Antonio 2001, pet. denied). (5)A spouse who controls the other spouse's interest in community property owes a fiduciary duty to the other spouse and a presumption of constructive fraud arises if the property interest is disposed of without the other spouse's knowledge or consent. See In re Marriage of DeVine, 869 S.W.2d 415, 422 (Tex. App.--Amarillo 1993, writ denied); Jackson v. Smith, 703 S.W.2d 791, 795 (Tex. App.--Dallas 1985, no writ). The spouse who disposes of the community property without the knowledge or consent of the other has the burden of proof to show the fairness of the disposition of the community property. DeVine, 869 S.W.2d at 422. A claim of fraud on the community may be used to recover specific property or to obtain a greater share of the community estate on divorce. See Lucy v. Lucy, 162 S.W.3d 770, 777 (Tex. App.--El Paso 2005, no pet.). Although the claim may not be brought as an independent cause of action for damages against the spouse in a suit for divorce, the claim may be asserted for consideration in the court's just and right division of the community estate. See Schlueter v. Schlueter, 975 S.W.2d 584, 585-89 (Tex. 1998). (6) The court may award a money judgment against a spouse to achieve an equitable division of the community estate, but the amount of the judgment must be referable to a specific value of lost community property. See id. at 588. ("Because the amount of the judgment is directly referable to a specific value of lost community property, it will never exceed the total value of the community estate."). Texas courts have permitted the joinder in a divorce petition of a third party to whom a community asset was transferred. See Southwest Tex. Pathology Assocs., L.L.P. v. Roosth, 27 S.W.3d 204, 208 (Tex. App.--San Antonio 2000, pet. dism'd w.o.j.); Osuna v. Quintana, 993 S.W.2d 201, 205-11 (Tex. App.--Corpus Christi 1999, no pet.). Joining the third party permits adjudication of that party's ownership claim to the transferred asset. See In re Burgett, 23 S.W.3d 124, 127 (Tex. App.--Texarkana 2000, no pet.). ABNL, Inc. was incorporated in 1997 after Andrew and Margaret were married, and their ownership interest in the corporation is community property. See Tex. Fam. Code Ann. § 3.002 (Vernon 1998). Andrew testified ABNL, Inc. was incorporated for business expansion purposes and to manage money for ABNL, Ltd. for work performed for Shell Petroleum Development Company. He testified there were other shareholders of ABNL, Inc. and one of them, Peter Boyo, managed the day-to-day operations of the company. Andrew, on occasion, paid personal expenses out of ABNL, Inc.'s account. He testified these amounts were deducted from his salary. His testimony demonstrates ABNL, Inc.'s corporate bank accounts were kept separate from individual bank accounts; ABNL, Inc.'s assets were not intermingled with personal assets; the corporation filed its own tax returns; and its employees were employed by the corporation and not by Andrew. Funds were sometimes wired by Andrew to Margaret's bank account through an ABNL, Ltd. account. Margaret presented evidence Andrew commingled community estate funds with ABNL, Inc. funds. She testified Andrew, ABNL, Inc. and ABNL, Ltd. were one and the same. Margaret claims Andrew retained actual control of ABNL, Inc. and ABNL, Ltd. (7) Andrew says he lost control of ABNL, Ltd., the only client and the majority shareholder of ABNL, Inc., before the divorce. He transferred community estate assets to ABNL, Inc. and others, though he claims the transfers were for consideration. Margaret says Andrew violated his fiduciary duty to her by conspiring to defraud her of her interest in the community estate, and by fraudulently transferring assets, (8) specifically wire transfers from ABNL, Inc. accounts to third parties and vehicle transfers to ABNL, Inc. She testified Andrew, through ABNL, Inc., made several questionable transfers to Andrew's friends, relatives, and business associates. Andrew testified the transfers were either in the course of business or facilitated the exchange of naira for dollars.The fraud and alter ego findings indicate the trial court did not find Andrew's testimony credible and the judge believed Margaret's testimony. As the factfinder she was the sole judge of the credibility of the witnesses. See City of Keller, 168 S.W.3d at 819. Considering Margaret's testimony and the circumstantial evidence, there is more than a scintilla of evidence to support the trial court's alter ego and fraud findings as to Andrew and ABNL, Inc. $1.25 Million Money JudgmentAndrew contends the trial court erred in awarding Margaret $1.25 million against Andrew, ABNL, Ltd., and ABNL, Inc. He also argues the evidence is factually insufficient to support the findings of alter ego and fraudulent transfer of property. (9) ABNL, Inc. adopts Andrew's contention that the evidence is factually insufficient to support a finding of fraudulent transfer, and ABNL, Inc. also argues the evidence is factually insufficient to support the alter ego finding. The finding of fact by the trial court addressing the $1.25 million award states that "[i]n order to effect a just and right division of the marital estate of the parties, the Court has determined that it is necessary and appropriate to grant Margaret Boyo a judgment in the amount of $1,250,000 against Andrew Boyo, ABNL, Inc., and ABNL, Ltd., joint and severally." The trial court gave no other reason for the specific dollar amount of the money judgment.Margaret testified the community estate was approximately $230,000, not considering the ownership in, or assets of, the corporations. The ownership interest in ABNL, Inc. is awarded to Andrew in the judgment. The judgment divides specific property and debts, and awards certain of the transferred vehicles to Margaret. The judgment also includes an award of $95,000 to Margaret, which Andrew does not appeal, "[f]or the purpose of a just and right division of property made in this decree[.]" Any additional judgment against Andrew beyond $230,000 would not be "a division" of the community estate unless the ownership in or assets of the corporations are considered or there is evidence of other property fraudulently transferred. From the record, the basis for the $1.25 million judgment appears to be a calculation of a share of the profits from the purported $34 million contract with Shell, and the trial court's alter ego findings reverse-piercing the corporate veils of the two companies, specifically ABNL, Ltd. The damage amount is not tied to the transfer or loss of any other specific asset asserted to be part of the community estate. Andrew testified that Shell canceled the $34 million contract and that his interest in ABNL, Ltd. was lost to a bank. Margaret testified the contract is still performing and Andrew is still controlling both ABNL, Ltd. and ABNL, Inc. While her testimony provides more than a scintilla of evidence supporting the trial court's findings, she did not offer any other evidence in support of her testimony concerning the contract. The continued actual performance of the Shell contract, as well as Andrew's continued complete domination of the businesses, would seem to be issues capable of proof from sources other than Margaret, and from sources with greater personal knowledge. Regardless, the profits would be ABNL, Ltd.'s profits absent the alter ego findings. We have set aside the default judgment against ABNL, Ltd. and that company is entitled to litigate its claim to any asset or profits alleged to be community property. See In re Burgett, 23 S.W.3d at 27. (10) As to Andrew and ABNL, Inc., the evidence presented in this record is factually insufficient to support the amount of $1.25 million money judgment against Andrew as a division of community assets and against ABNL, Inc. for specific fraudulent transfers of community property. (11) A money judgment must be supported by factually sufficient evidence, and in this context must be referable to a specific value of lost community property. See Schleuter, 975 S.W.2d at 585-89. The trial court abused its discretion in dividing the estate. The InjunctionAndrew argues the trial court erred by banning him from traveling internationally with his children. He says the record lacks any evidence to support the trial court's decision. Texas Family Code section 153.501 provides that if credible evidence indicating a potential risk of international abduction of a child by a parent is presented, the court must determine whether to take measures prescribed in section 153.503. Tex. Fam. Code Ann. §§ 153.501(a), 153.503 (Vernon Supp. 2005). Among the factors the court must consider are the best interests of the child, the risk of abduction based on risk factors described by section 153.502, and any obstacles to recovering the child if abducted to a foreign country. See id. §§ 153.501(b), 153.502. In determining whether there is a risk of international abduction of a child by the child's parent, the court must consider evidence of, among other things, the parent's lack of "financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed," and a parent's history of violating court orders. See id. § 153.502(a). If the court is presented with this evidence, the court must also consider whether the parent has strong ties to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and whether the parent lacks strong ties to the United States. Id. § 153.502(b). If the court finds it necessary under section 153.501 to protect a child from international abduction by the parent, it may prohibit the parent from removing the child from the United States. Id. § 153.503(4)(A). In its findings of fact and conclusions of law applying section 153.502, the court found a potential risk of Andrew's international abduction of the children under section 153.501. To protect the children, the trial court restricted Andrew's access to the children's passports and prohibited him from removing the children from the continental United States. Margaret testified she is concerned that if Andrew travels to Nigeria with the children, they may not be returned to her. She testified she would not be able to afford actions necessary to return the children to the United States. Andrew argues there is no evidence of the risk of international abduction. There is evidence Andrew lacks financial reason to stay in the United States and has a history of violating the court's orders, both of which are factors the court considers in determining whether there is a risk of international abduction. See id. § 153.502(a)(3),(6). Section 153.502(a)(3) specifically states that when a court considers whether the parent lacks financial reason to stay in the United States, the evidence may include "evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed[.]" Andrew testified he was not employed currently by any entity but he provides independent consulting services to three companies located in Ghana and Nigeria. He testified he typically spends at least half of the year in Nigeria. The record also indicates the trial court previously held Andrew in contempt for failure to pay court-ordered child support, and found him in contempt of the second temporary child-support order at trial.Subsection (b) of section 153.502 requires the court consider (1) whether the parent has strong ties to another country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and (b) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States. Id. § 153.502(b). Pursuant to subsection (c), the court may also consider whether the foreign country to which the parent has ties presents obstacles to the return of an abducted child to the United States, has any legal mechanisms for enforcing Texas child possession or access orders, is a party to the Hague Convention on the Civil Aspects of International Child Abduction, or whether the child's health or safety would be endangered in the country because of specific circumstances relating to the child. Id. § 153.502(c)(4)(A),(B),(H),(J). Andrew testified he moved his family to the United States because his life was threatened, which he testified is "typical in our line of business." On this record, we cannot say the trial court abused its discretion in granting the injunction. ConclusionThe trial court's injunction is affirmed. The trial court erred in entering a default judgment against ABNL, Ltd. We set aside the default judgment. We hold the evidence is factually insufficient on this record to support the money judgment of $1.25 million against Andrew and ABNL, Inc., and grant their request for a new trial. The $1.25 million judgment is reversed. The cause is remanded for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.


_________________________________DAVID GAULTNEYJustice Submitted on March 3, 2006Opinion Delivered June 15, 2006 Before McKeithen, C.J., Gaultney and Kreger, JJ. 1. While it was disputed at trial whether Andrew continued to be in control of or had an ownership interest in ABNL, Ltd. at the time suit was filed, we look to the pleadings because this was a no-answer default judgment. Whitney, 500 S.W.2d at 95-96.2. The appeal by writ of error procedure has been repealed, and a restricted appeal has been substituted. See Tex. R. App. 30. Rule 30 provides in part as follows: "Restricted appeals replace writ of error appeals to the court of appeals. Statutes pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals." Therefore, we read "writ of error" in Rule 123 to mean "restricted appeal." 3. As we have discussed, Texas Rule of Civil Procedure 123 provides that no new service shall be issued or served when a judgment is reversed for want of service, and that the defendant "shall be presumed" to have entered an "appearance." See Tex. R. Civ. P. 123. Rule 123 is not rendered entirely inapplicable by the "notwithstanding" clause of Rule 120a. ABNL, Ltd. now has notice of the claims against it and will be before the trial court on remand. ABNL, Ltd. need not be served with new process in this case and will be presumed to have entered a general appearance if a special appearance is not properly filed. 4. The parties have not briefed and so we do not address the scope of article 2.21. See Texas-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 137 n.8 (Tex. App.--Texarkana 2000, no pet.); Menetti v. Chavers, 974 S.W.2d 168, 173-74 (Tex. App.--San Antonio 1998, no pet.) (noting that for all matters covered by art. 2.21, the corporate veil may not be pierced absent a showing of actual fraud). 5. The trial court made no express finding that reimbursement was an inadequate remedy. See Tex. Fam. Code Ann. § 3.408 (Vernon Supp. 2005). See also Jensen v. Jensen, 665 S.W.2d 107, 109-10 (Tex. 1984). However, appellants do not raise this issue on appeal. 6. The parties have not briefed and so we do not address the effect of Schlueter on a conspiracy claim against a third party. See, e.g., Mayes v. Stewart, 11 S.W.3d 440 (Tex. App.--Houston [14th Dist.] 2000, pet. denied). In Schleuter, the Supreme Court did not "reach the issue" of whether "separate or independent tort claims" against a third party "should also be abolished," because the third party did not make the argument. Schleuter, 975 S.W.2d at 590. 7. The domination of corporate affairs, even by a sole stockholder, will not alone justify ignoring the separate existence of the corporation. See Zisblatt v. Zisblatt, 693 S.W.2d 944, 950 (Tex. App.--Fort Worth 1985, writ dism'd). 8. There is also evidence Andrew failed to maintain mortgage payments on the parties' residence, resulting in a foreclosure and loss of the property. 9. See generally Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (factual sufficiency standard of review); see also Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (factual sufficiency standard of review). 10. Andrew and ABNL, Inc. do not specifically argue the claims are so intertwined with the claim against ABNL, Ltd. as to require a new trial, and generally an "appellate court cannot reverse a trial court's judgment absent properly assigned error." See Pat Baker Co., Inc., v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998). However, Andrew did assert the trial court committed reversible error when it awarded Margaret the $1.25 million judgment on the basis that the trial court mischaracterized separate property as community property, and based on the lack of evidence of alter ego and fraud. Here, the damage award can only be supported by piercing of the corporate veil as to ABNL, Ltd. We are to liberally construe points of error to fairly and equitably adjudicate the litigants' rights. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 863 (Tex. 2005). 11. We need not decide the factual sufficiency issue raised by Andrew and ABNL, Inc. on the alter ego and fraud findings, because a ruling in their favor would not afford them any greater relief than that ordered, a new trial, and a finding overruling the issues would not preclude a new trial because of the insufficiency of the evidence to support the money judgment.  http://www.9thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=8412 

 

Elmakiss v. Elmakiss, 2008 Tex. App. LEXIS 4195 (Tex. App. – Tyler, June 11, 2008) (Cause No. 12-06-405-CV)

H and W had one child. W filed for divorce and sought appointment as SMC of the child. She also pled for reimbursement. In his counter-petition H asked to be named JMC. The trial court ordered the exchange of sworn inventories and proposed parenting plans. W filed hers along with a proposed property division but H filing nothing. After a bench trial the court approved W’s parenting plan, appointed her SMC, gave H limited visitation, divided the property according to her proposal which included an award of reimbursement. Before the decree was signed, W also asked for an order suspending H’s visitation based on alleged threats he had made. In the decree the court made findings that the child was at risk for international abduction, ordered supervised visitation, terminated his telephone access to the child and ordered child support. H appealed.The court held that while W and her expert offered sufficient evidence that she paid community debts with separate funds, she failed to offer evidence that the debts were reimbursable in nature and therefore failed to carry her burden. H’s complaints regarding the remainder of the property division were overruled but interestingly the court of appeals did not reverse and remand the entire property division but instead reversed only that potion which disproportionately divided the sales proceeds of a residence in W’s favor to compensate her for the reimbursement claim. The COA analyzed the evidence and found that W overcame the presumption of JMC and that there was sufficient evidence to support the finding of an abduction risk and the restrictions imposed on H’s visitation. The COA also found no evidence supporting H’s income for purposes of establishing child support, reversing and remanding this portion of the order as well.http://www.hbafam.org/cases-0708.php 
 

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