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NO. 06-0129

In the Supreme Court of Texas

In re: SUZANNE C. SAPERSTEIN, Relator.

REAL PARTY IN INTEREST'S RESPONSE TO SUZANNE C. SAPERSTEIN'S BRIEF ON THE MERITS

Stephen D. Susman State Bar No. 19521000 Harry P. Susman State Bar No. 24008875 SUSMAN GODFREY LLP 1000 Louisiana, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Telecopier: (713) 654-6666 Harry L. Tindall State Bar No. 20053000 Angela G. Pence State Bar No. 00794920 TINDALL & FOSTER, P.C. 1300 Post Oak Blvd., Suite 1550 Houston, Texas 77056-3081 Telephone: (713) 622-8733 Telecopier: (713) 622-8744

Lynne Liberato State Bar No. 00000075 Alene Ross Levy State Bar No. 12260550 Katharine D. David State Bar No. 24045749 HAYNES AND BOONE, LLP 1221 McKinney, Suite 2100 Houston, Texas 77010-2007 Telephone: (713) 547-2000 Telecopier: (713) 547-2600 John J. Sampson State Bar No. 17560500 727 E. Dean Keeton Street Austin, Texas 78705 Telephone: (512) 232-1267 Telecopier: (512) 471-6988

COUNSEL FOR REAL PARTY IN INTEREST, DAVID I. SAPERSTEIN

TABLE OF CONTENTS TABLE OF CONTENTS ..................................................................................................... i TABLE OF AUTHORITIES..............................................................................................iii RECORD CITES...............................................................................................................vii STATEMENT OF THE CASE ........................................................................................viii RESPONSE TO STATEMENT OF JURISDICTION........................................................ x STATEMENT OF FACTS.................................................................................................. 1 SUMMARY OF THE ARGUMENT.................................................................................. 7 ARGUMENT AND AUTHORITIES ................................................................................. 8 I. Standard of Review .................................................................................................. 8 A. B. II. The trial court did not abuse its discretion .................................................... 8 Suzanne has an adequate remedy by appeal.................................................. 9

The Texas court has continuing, exclusive jurisdiction over spousal support .................................................................................................................... 11 A. B. C. D. E. UIFSA's provision on "Simultaneous Proceedings" does not apply ............................................................................................................ 11 The existence of parallel proceedings does not violate Section 159.204 ........................................................................................................ 14 Because Section 159.204 does not apply, the Texas court has jurisdiction under the "first-filed" rule........................................................ 14 This Court cannot grant the only relief appropriate in these circumstances .............................................................................................. 16 Even if Section 159.204 were relevant, it would not deprive the Texas court of jurisdiction........................................................................... 17 1. Suzanne's jurisdictional challenge was unsuccessful ...................... 19

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2. F. G.

Suzanne cannot establish the relevance of the "home state" provision to any issues before the Texas court ...................... 19

Under UIFSA, child support and spousal support are distinctly separate and may be determined separately ................................................ 21 Spousal support is inextricably intertwined with the division of marital property, not child support, and therefore should be decided by the Texas court ..................................................................... 24

IV.

The benefits of mandamus relief, if any, do not outweigh the detriments............. 25

CONCLUSION AND PRAYER....................................................................................... 27 CERTIFICATE OF SERVICE.......................................................................................... 29

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TABLE OF AUTHORITIES CASES Abor v. Black, 695 S.W.2d 564 (Tex. 1985) ................................................................................. x, 8, 9, 11 Alexander v. Alexander, 982 S.W.2d 116 (Tex. App.Houston [1st Dist.] 1998, no pet.)..................................... 25 AVCO Corp. v. Interstate Southwest, Ltd., 145 S.W.3d 257 (Tex. App.Houston [14th Dist.] 2004, no pet.) .................................. 17 Baird v. Harris, 778 S.W.2d 147 (Tex. App.Dallas 1989, orig. proceeding)............................................ x Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954 (Tex. 1990) ............................................................................................... 9 Board of Ins. Comm'rs v. Guardian Life Ins. Co., 180 S.W.2d 906 (Tex. 1944) ............................................................................................. 23 Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304 (Tex. 1994) ............................................................................................... 8 Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926) .................................................................................... 14 Cooper v. Cooper, 176 S.W.3d 62 (Tex. App.Houston [1st Dist.] 2004, no pet.)....................................... 25 Curtis v. Gibbs, 511 S.W.2d 263 (Tex. 1974) ....................................................................................... 14, 16 Dancy v. Daggett, 815 S.W.2d 548 (Tex. 1991) ............................................................................................. 11 Gannon v. Payne, 706 S.W.2d 304 (Tex. 1986) ....................................................................................... 16, 17

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In re Barnes, 127 S.W.3d 843 (Tex. App.San Antonio 2003, orig. proceeding)................................ 10 In re Marriage of Combs, 958 S.W.2d 848 (Tex. App.Amarillo 1997, no pet.)..................................................... 25 In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding) ..................................................... 8, 10, 25 In re SWEPI, L.P., 85 S.W.3d 800 (Tex. 2002) ............................................................................................... 16 In re U.S. Silica Co., 157 S.W.3d 434 (Tex. 2005) ............................................................................................. 16 In re United Supermarkets, Inc., 36 S.W.3d 619 (Tex. App.Amarillo 2000, orig. proceeding).......................................... 9 Interest of J.M.C.A., V.C.R, M.R. and R.R., 31 S.W.3d 692 (Tex. App.Houston [1st Dist.] 2000, no pet.)....................................... 23 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) ............................................................................................... 8 McAlister v. McAlister, 75 S.W.3d 481 (Tex. App.San Antonio 2002, pet. denied)............................................. 8 P & S Corp. v. Park, No. 14-05-00115-CV, 2006 WL 1168804 (Tex. App.Houston [14th Dist.] May 4, 2006, no pet. h.) (mem. op.).................................................................................... 9 Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001) ................................................................................................. 8 Prostok v. Browning, 112 S.W.3d 876 (Tex. App.Dallas 2003), aff'd in part and rev'd in part on other grounds, 165 S.W.3d 336 (Tex. 2005).................................................................. 9 Sistare v. Sistare, 218 U.S. 1 (1910) .............................................................................................................. 17 Trueheart v. Trueheart, 2003 WL 22176626 (Tex. App.Houston [14th Dist.] 2003, no pet.) (mem. op.) ...24, 25

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Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ............................................................................................... 8 Weekley v. Weekley, 604 N.W.2d 19 (S.D. 1999)............................................................................................... 22 White v. Dep't of Family & Protective Servs., 2005 WL 174546 (Tex. App.Houston [1st Dist.] 2005, no pet. h.) (mem. op.)............ 23 Witwer v. Witwer, No. CH98-882-01, 2001 WL 282751 (Va. Ct. App. March 6, 2001) ............................... 23 STATUTES AND RULES U.S. CONST., art. IV, § 1 .................................................................................................... 16 TEX. FAM. CODE § 6.308 ............................................................................................... 5, 14 TEX. FAM. CODE § 8.052 ................................................................................................... 24 TEX. FAM. CODE § 154.126 ............................................................................................... 25 TEX. FAM. CODE § 156.401 ............................................................................................... 25 TEX. FAM. CODE § 156.402 ............................................................................................... 25 TEX. FAM. CODE § 159.102 ......................................................................................... 13, 23 TEX. FAM. CODE § 159.104 ............................................................................................... 13 TEX. FAM. CODE § 159.201 ................................................................................................. 2 TEX. FAM. CODE § 159.204 ........................................................................................passim TEX. FAM. CODE § 159.205 ............................................................................................... 21 TEX. FAM. CODE § 159.207 ............................................................................................... 21 TEX. FAM. CODE § 159.211 ........................................................................................passim TEX. FAM. CODE § 159.601 ......................................................................................... 21, 22 TEX. FAM. CODE § 159.609 ............................................................................................... 22

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CAL. FAM. CODE § 4903 .................................................................................................... 13 CAL. FAM. CODE § 4908 .......................................................................................4, 9, 12, 15 CAL. FAM. CODE § 4909(f) ................................................................................................ 15 TEX. R. APP. P. 33.1(a)(1)(A) .............................................................................................. 9 SECONDARY SOURCE Uniform Interstate Family Support Act (1996), 32 FAM. L. Q. 385.............................................................................................................. 20

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RECORD CITES David will cite the record as follows: Suzanne's Mandamus Record: David's Supplemental Mandamus Record: Suzanne's Mandamus Petition in this Court: Suzanne's Brief on the Merits Suzanne's Appendix to her Brief on the Merits David's Appendix to his Response on the Merits MR:Tab__. Supp.MR[Vol]:Tab___. Mand. Pet. at __. SS Brief at __. SS Tab ___. DS Tab ___.

CITES TO FAMILY CODES All citations to the Texas Family Code are to Sampson & Tindall, Texas Family Code, Annotated, (15th ed. 2005) and the comments included therein. Cited sections of the Texas Family Code are attached at DS Tab A. Cited sections of the California Family Code are attached at DS Tab B.

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STATEMENT OF THE CASE Nature of the proceedings: The underlying proceeding concerns a petition for divorce. On July 19, 2005, David Saperstein, Real Party in Interest in this mandamus proceeding, filed a petition for divorce in Texas. MR:Tab A. David asked the court to dissolve the parties' marriage and divide the marital estate in accordance with the parties' post-nuptial agreement. On August 11, 2005, Relator, Suzanne Saperstein, filed a similar petition in California. The next day, she filed a special appearance in Texas challenging Texas' jurisdiction over her person. MR:Tab B. She also filed a plea in abatement asking the Texas trial court to abate its proceedings until the California court determined whether it should enter support orders. MR:Tab D. The plea in abatement did not challenge the trial court's subject matter jurisdiction over spousal support or the marital estate. Suzanne did not request dismissal. Respondent is the Honorable Lisa Millard, Judge of the 310th Judicial District Court of Harris County, Texas. Suzanne complains that Judge Millard denied her plea in abatement, but the record reflects that Judge Millard granted the plea. MR:Tabs F, G. The California and Texas courts determined that the California court would adjudicate child support and the Texas court would assume jurisdiction over spousal support. MR:Tab K at 10; Supp.MR3:Tab 16. After the Texas court entered an order in keeping with that decision, Suzanne sought mandamus in the court of appeals. Her prayer for relief asked the court to: grant this petition for writ of mandamus, vacate the portion of the trial court's order assuming exclusive jurisdiction over spousal support, and direct the trial court to enter an

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Respondent:

Action complained of:

order granting Suzanne's plea in abatement on all family support issues. Court of Appeals' Ruling: On February 6, 2006, Justice Charles Seymore, joined by Justice Harvey Hudson, denied Suzanne's petition for writ of mandamus stating, "Relator has not established that she is entitled to mandamus relief." SS Tab 11. Justice Kem Frost would have conditionally granted the petition. On February 17, 2006, Suzanne filed her mandamus petition in this Court. Suzanne's Emergency Motion For Stay: While Suzanne's mandamus petition has been pending, proceedings in the trial court have continued. After six previous resettings, the trial court scheduled a hearing on temporary orders for March 28, 2006. On March 24, Suzanne asked this Court for an emergency stay of the hearing. This Court declined to intervene, and the hearing went forward. On May 8, 2006 the trial court signed temporary orders, including an order for spousal support. SS Tab 17.

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RESPONSE TO STATEMENT OF JURISDICTION This Court should decline to exercise its mandamus jurisdiction in this case of first impression. The purpose of mandamus is to execute, not adjudicate. Baird v. Harris, 778 S.W.2d 147, 148 (Tex. App.--Dallas 1989, orig. proceeding). Where the law is unsettled, mandamus will not issue. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). The Court should not abandon the orderly process through which our laws are made. In addition, this case is not important to the jurisprudence of the state. The unique circumstances of the parties in this case ­ enormous wealth, Suzanne's dual residency, a post-nuptial agreement, and a virtually total separation between the "home state" of the children and the parties' marital estate ­ are highly unlikely to recur. Because the statutory provisions in question must be construed in light of the facts and circumstances of the case, the Court's construction of this uniform statute could unfairly skew its future application in more ordinary cases.

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NO. 06-0129

In the Supreme Court of Texas

In re: SUZANNE C. SAPERSTEIN, Relator.

REAL PARTY IN INTEREST'S RESPONSE TO SUZANNE C. SAPERSTEIN'S BRIEF ON THE MERITS TO THE HONORABLE SUPREME COURT OF TEXAS: David I. Saperstein respectfully files this Response to Suzanne C. Saperstein's Brief on the Merits. STATEMENT OF FACTS David and Suzanne Saperstein have been married 20 years. MR:Tab C;

Supp.MR1:Tab 1. They have three children: Jonathan (18), Alexis (17), and Stefanie (15). MR:Tab A at ¶ 10. The children have lived in California since 1996. MR:Tab C at ¶ 4. David Saperstein maintains his residency in Houston, Texas, where all of his business interests are headquartered. Supp.MR2:Tab 10 at 126, 133-35. David was CEO of a major public company located in Houston until 1999, and he currently works in Houston city government. Supp.MR2:Tab 10 at 126, 133-35. All of David and

Suzanne's property is held in a trust that was formed under and is governed by Texas law. Supp.MR2:Tab 6; Supp.MR2:Tab 10 at 137-38. Although she lives in California, Suzanne Saperstein has maintained all indicia of Texas residency. She holds a Texas driver's license, not a California driver's license; she is registered to vote in Texas, not in California; she files federal tax returns with a Texas address and California "Non-Resident" returns; and she maintains her bank account in Texas. Supp.MR1:Tabs 2-4; Supp.MR2:Tabs 5-9.1 David filed for divorce on July 19, 2005. MR:Tab A. In his petition, David asked the Texas court to divide the marital estate in accordance with the parties' post-nuptial agreement and determine his child support obligation. MR:Tab A at 3. David has since agreed that the California court should adjudicate child support. SS Tab 18 at p. 3. The character of David and Suzanne's property is determined by a post-nuptial agreement that the parties entered into after five years of marriage to address Suzanne's concerns about their 1986 pre-nuptial agreement. Supp.MR1:Tab 1; Supp.MR2:Tab 10 at 148-49. In their negotiation of the post-nuptial agreement, both Suzanne and David were represented by attorneys. Suzanne was represented by Baker Botts, the law firm that represents her in this proceeding. David was represented by Andrews Kurth. The

Contrary to Suzanne's contention, her Texas residency is not "completely irrelevant to the jurisdictional issue before this Court." SS Brief at 2, n. 3. Rather the Texas court's jurisdiction to divide the marital estate and decide spousal support issues is premised on its personal jurisdiction over the parties. UIFSA Prefatory Note ("Under UIFSA, the only tribunal that can modify a support order is one having continuing, exclusive jurisdiction over the support issue. As an initial matter, this is the tribunal that first acquires personal and subject matter jurisdiction over the parties and the support obligation."). In addition, David was authorized under UIFSA to file a support proceeding in the state of his spouse's residency. TEX. FAM. CODE § 159.201, comment. Because Suzanne has maintained her Texas residency, David's filing in Texas was proper.

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post-nuptial agreement, formed under Texas law, provides that "[t]he laws of the State of Texas shall apply to and control this Agreement and the interpretation hereof and other matters concerning marital property not specifically covered herein." Supp.MR1:Tab 1 at p. 4, ¶ M. On August 11, 2005, after she had been served in the Texas proceeding, Suzanne filed a petition for divorce in California. On August 12, 2005, she filed a special appearance in Texas. MR:Tab B. Without disclosing the existence of the parties' postnuptial agreement, Suzanne asked the California court to award her custody of the children, divide the marital estate, and determine David's child and spousal support obligations. Mand. Pet. at 2.2 On September 14, 2005, Suzanne filed a plea in abatement in the Texas court. MR:Tab D. The plea in abatement did not challenge the Texas court's subject matter jurisdiction over support matters or its power to divide the marital estate. Rather than seeking dismissal, it merely asked the Texas court to "abate" its proceedings until the California court "has determined whether support orders should be entered in that state." MR:Tab D.3

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Suzanne states that the California court "denied David's attempt to gain temporary custody of the children." SS Brief at 5, n. 5. This statement is misleading. The California court awarded temporary custody of one of the couple's two minor children to David and awarded custody of the other minor child to Suzanne. Eighteen-year old Jonathan, the only other child of the marriage, also lives with David. By seeking abatement only until the occurrence of a specific event and failing to challenge the Texas trial court's jurisdiction to divide the marital estate, Suzanne effectively conceded that the Texas court has jurisdiction over the property division. This concession is significant. Under Texas law, an award of spousal support generally is made in conjunction with the court's division of property. Thus, Suzanne's admission that the Texas court has jurisdiction to divide the marital estate is an admission that it also has jurisdiction to address spousal support.

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On September 21, 2005, the Texas trial court denied Suzanne's special appearance and entered an order covering payment of the parties' interim expenses. MR:Tab F; Supp.MR3:Tab 15. Then, on September 27, 2005, the Texas court granted Suzanne's plea in abatement and scheduled a call with the California court to determine that court's jurisdictional intentions. MR:Tabs G, J. On October 27, 2005, after receiving briefing from both parties, the Texas court held a telephone conference with the judge of the California court. MR:Tab K; see TEX. FAM. CODE § 159.204, comment (the one-order system established by UIFSA "requires cooperation between, and deference by, sister-state tribunals to avoid the issuance of competing support orders"); CAL. FAM. CODE § 4908, comment (same). See DS Tabs A, B. After discussing the virtually identical Texas and California statues at issue, the courts determined that the California court would adjudicate child support and the Texas court would adjudicate spousal support. MR:Tab K at 10. Commissioner Beckloff entered an order that the "Courts agree that Texas will adjudicate the issue of spousal support." See MR:Tab G; Supp.MR3:16. On November 2, 2005, the Texas court

confirmed its agreement and entered the order Suzanne complains of here. That order demonstrates that the relief Suzanne requested in her plea in abatement was granted: The Honorable Lisa A. Millard and the Honorable Mitchell L. Beckloff then discussed which State should assume exclusive jurisdiction over spousal support. After conferring, Honorable Mitchell L. Beckloff [California trial court commissioner] indicated he would defer jurisdiction on the issue of spousal support to Texas and Honorable Lisa A. Millard agreed to accept exclusive jurisdiction over the issue of spousal support.

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IT IS THEREFORE ORDERED that the 310th Judicial District Court of Houston, Harris County, Texas assumes exclusive jurisdiction over spousal support in the above numbered and entitled lawsuit. MR:Tab O. Both orders are consistent with the Texas Family Code, which authorizes a court to exercise "partial jurisdiction" over "those portions of the suit over which it has authority." TEX. FAM. CODE § 6.308. DS Tab A.4 After Judge Millard declined to reconsider her ruling, Suzanne unsuccessfully sought mandamus. The Fourteenth Court of Appeals denied her petition on February 6, 2006. SS Tab 11. Suzanne also filed a petition for writ of mandate in the California Court of Appeal, asking that court to order the California trial court to set aside its October 27, 2005 order ceding jurisdiction over spousal support to the Texas court. Supp.MR3:Tab 14. On January 26, 2006, the California Court of Appeal issued a Notice of Intention to Grant Peremptory Writ, offering the lower court an opportunity to "conduct further proceedings...to determine, under applicable law, whether it would decide the issue of spousal support." SS Tab 7.

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§ 6.308 Exercising Partial Jurisdiction (a) A court in which a suit for dissolution of a marriage is filed may exercise its jurisdiction over those portions of the suit for which it has authority. (b) The court's authority to resolve the issues in controversy between the parties may be restricted because the court lacks: (1) the required personal jurisdiction over a nonresident party in a suit for dissolution of the marriage; (2) the required jurisdiction under Chapter 152 [UCCJEA]; or (3) the required jurisdiction under Chapter 159 [UIFSA].

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Suzanne filed her mandamus petition in this court on February 17, 2006. On March 13, she filed a motion for continuance (her fourth) of the Texas hearing on temporary orders that had been set (for the seventh time) on March 28, March 29 and April 4. On March 20, the trial court granted Suzanne's motion in part. The court ruled that the hearing would begin on March 28 but would be recessed on March 29 so that Suzanne could attend a horse show. The hearing would resume in April. On March 24, 2006, Suzanne asked this Court for an emergency stay of the court's March 28 hearing on temporary orders. This Court declined to intervene, and the trial court exercised its jurisdiction over spousal support when it convened the hearing on March 28 with the presentation of David's case. As ordered, the hearing was recessed on March 29 and resumed on April 17. On May 8, 2006, after hearing evidence and argument from both parties, the Texas court signed Temporary Orders addressing, among other things, spousal support. SS Tab 17. Meanwhile, in the California case, Commissioner Beckloff was reassigned, and Judge Shaller took over the case. On March 20, Judge Shaller held a status conference. Then, on April 3 ­ while the Texas court's hearing on temporary orders was in recess ­ Commissioner Beckloff issued a ruling that California would take jurisdiction over spousal support. SS Tab 13 at p. 5. But the California court took no action on spousal support until after the Texas Court signed its order on May 8. SS Tab 18. On May 19, despite David's request that the California honor the Texas order, the California court issued a competing spousal support order. SS Tab 18.

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SUMMARY OF THE ARGUMENT Once the Texas and California courts conferred, as directed by UIFSA, and assured there would be no competing support orders, UIFSA's section 159.204 ceased to apply and jurisdiction over spousal support vested in the Texas court. When the Texas court issued its temporary orders its continuing, exclusive jurisdiction over spousal support was further confirmed. The California court's subsequent violation of UIFSA through the issuance of a competing order has no effect on Texas's jurisdiction. Suzanne's argument that the Texas court is violating the statute is wrong. First, UIFSA's provision on simultaneous proceedings does not apply in this case. And the existence of parallel proceedings does not violate UIFSA or the Texas Family Code, which explicitly recognize a court's authority to hear portions of a suit for dissolution of a marriage. Moreover, the "first-filed" doctrine dictates that the California court should defer to the Texas court, not the other way around. Finally, there is no risk of final conflicting judgments because the Texas court's temporary orders are protected under UIFSA's continuing, exclusive jurisdiction provision, and once that court enters a final judgment, the principles of comity and full faith and credit dictate that the other court must respect that adjudication. UIFSA, the Texas Family Code, the first-filed doctrine, and the principles of comity and full faith and credit establish the Texas court's jurisdiction and demonstrate the validity of its actions. Mandamus should be denied.

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ARGUMENT AND AUTHORITIES I. Standard of Review Mandamus is an extraordinary remedy that is available only upon a showing that (1) the trial court clearly abused its discretion and (2) the complaining party has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion when there is no basis in reason or law for its order. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). Appeal is inadequate when a party is in "real danger of losing its substantial rights." Prudential, 148 S.W.3d at 141 (citing Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001)); Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992). As this Court recently held, mandamus is reserved for the review of "significant rulings in exceptional cases." Prudential, 148 S.W.3d at 136. It is not appropriate for incidental, interlocutory rulings, such as the ruling challenged here. Id.; Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). A. The trial court did not abuse its discretion.

The trial court did not abuse its discretion because it granted the relief that Suzanne requested. See McAlister v. McAlister, 75 S.W.3d 481, 486 (Tex. App.--San Antonio 2002, pet. denied) (appellate court's role is to review trial court's ruling on plea in abatement at the time the ruling was made). In her plea in abatement, Suzanne requested only that the trial court "abate the above entitled suit until the Superior Court of Los Angeles County, California has determined whether support orders should be entered in that state." MR:Tab D. That request, which followed UIFSA'a guidelines, implicitly

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recognized the two courts' concurrent jurisdiction and correctly acknowledged that the Texas court and the California court had the discretion to determine the extent of their respective jurisdiction. MR:Tab D; see TEX. FAM. CODE § 159.204, comment (noting that UIFSA "requires cooperation between sister-state tribunals to avoid the issuance of competing support orders," and "[d]epending on the circumstances, one or the other of two tribunals considering the same support obligation should decide to defer to the other."); CAL. FAM. CODE § 4908, comment (same). DS Tabs A, B.5 The trial court abated the case and conferred with the California court, just as Suzanne requested and UIFSA required. It did not abuse its discretion. B. Suzanne has an adequate remedy by appeal.

Suzanne agrees that a trial court's denial of a plea in abatement is appealable. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 954 (Tex. 1990) (mandamus will not issue to supervise or correct a trial court's incidental rulings, including a plea in abatement); Abor, 695 S.W.2d at 566-67 (expressly recognizing that a ruling on a plea in

Suzanne's plea in abatement, filed September 14, 2005, did not challenge the Texas court's jurisdiction. Rather, it asked the trial court to abate only temporarily ­ that is, until another event occurred. However, Suzanne's prayer for relief in this Court seeks permanent relief, comparable to dismissal. Suzanne argues that she included a challenge to the court's jurisdiction in a "memorandum of law" filed on October 24, 2005 in support of her plea in abatement. However, the relief Suzanne is entitled to is limited by that requested in her plea in abatement. See P & S Corp. v. Park, No. 14-05-00115-CV, 2006 WL 1168804 (Tex. App.--Houston [14th Dist.] May 4, 2006, no pet. h.) (mem. op.) (appellate court would not grant relief that was discussed in party's brief but was not requested in any motion); Prostok v. Browning, 112 S.W.3d 876, 923 at n.57 (Tex. App.--Dallas 2003), aff'd in part and rev'd in part on other grounds, 165 S.W.3d 336 (Tex. 2005) (court of appeals could not grant prayer for relief in appellant's brief because the prayer was not supported by a motion requesting the same relief from the trial court). See also TEX. R. APP. P. 33.1(a)(1)(A) (as a prerequisite to presenting a complaint on appeal, the appellant must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint); In re United Supermarkets, Inc., 36 S.W.3d 619, 622 (Tex. App.--Amarillo 2000, orig. proceeding) (appellate court's review is circumscribed by the request presented to the trial court). The trial court granted the relief Suzanne prayed for.

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abatement is appealable); see also Prudential, 148 S.W.3d at 136. Suzanne states no valid basis for an exception to this rule. Suzanne notes that this Court has issued mandamus when trial courts enter conflicting orders. SS Brief at 22. But those cases, involving two Texas courts, do not apply. Here, a California court has issued an order that conflicts with an earlier order by the Texas court. Under UIFSA's presumption that the first order is the valid order, it is the California court that should be restrained from interfering with the Texas court's jurisdiction. However, this Court's mandamus jurisdiction does not extend so far.

Rather, this Court should protect the Texas court's proper exercise of its jurisdiction by denying Suzanne's petition for mandamus. Suzanne next claims that mandamus is proper because the Texas court's order is void under section 159.204. SS Brief at 23. But section 159.204 does not apply. See supra at pp. 11-14. The Texas court acted within its jurisdiction and its order is not void. Suzanne also attempts to rely on the exception that has warranted mandamus relief in some child custody cases. See SS Brief at 25-26. Because of the special interests involved in custody cases, Texas courts have held that mandamus may be proper to review the trial court's orders in such matters. See In re Barnes, 127 S.W.3d 843, 846 (Tex. App.--San Antonio 2003, orig. proceeding) (emphasis added). This case involves no custody questions and no such "special interests." Suzanne's cases concerning the non-appealability of temporary orders also are inapposite. See SS Brief at 25-26. The order at issue here is not the temporary orders but

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the trial court's alleged denial of Suzanne's plea in abatement. The court's incidental ruling on Suzanne's plea in abatement is appealable. See Abor, 695 S.W.2d at 564.6 Finally, Suzanne has admitted that an appeal not only is adequate, it is inevitable. In her reply brief in the court of appeals, Suzanne declared: "Due to the massive size of the parties' estate, one party will inevitably appeal the final judgment with respect to some aspect of spousal support." She also acknowledged that the appellate court could consider jurisdictional issues if raised on appeal. Appellate Court Reply at 8. II. The Texas court has continuing, exclusive jurisdiction over spousal support. A. UIFSA's provision on "Simultaneous Proceedings" does not apply.

Suzanne complains that the Texas court abused its discretion because it violated UIFSA's prohibition on "simultaneous proceedings." TEX. FAM. CODE § 159.204. § 159.204. Simultaneous Proceedings (b) A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state if: (1) the petition or comparable pleading in the other state is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state; (2) the contesting party timely challenges the exercise of jurisdiction in this state; and (3) if relevant, the other state is the home state of the child.

Moreover, all but one of Suzanne's cases concerning temporary orders involve child custody issues. Suzanne cites Dancy v. Daggett, 815 S.W.2d 548 (Tex. 1991) for the proposition that mandamus is appropriate to vacate a temporary spousal support order. SS Brief at 26. But spousal support was irrelevant to the Court's holding. The only basis for this Court's exercise of its mandamus jurisdiction in Dancy was the trial court's refusal to continue the hearing on temporary orders until such time as the husband's counsel was available, which effectively violated the husband's right to representation. Id. at 549.

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TEX. FAM. CODE § 159.204 (emphasis added). DS Tab A.7 Section 159.204 applies to determine jurisdiction as between two or more courts when simultaneous proceedings create the possibility of competing support orders. The statute is designed to resolve any jurisdictional conflict at the beginning of the case. See TEX. FAM. CODE § 159.204(b) (imposing time limit on the filing of a "simultaneous proceeding"). Suzanne triggered the application of section 159.204(b) when she filed her petition for divorce in California. Once the Texas court became aware of the simultaneous proceedings in California, it held a conference with the California court, as requested by Suzanne and directed by UIFSA. MR:Tab K; TEX. FAM. CODE § 159.204, comment (encouraging "cooperation between, and deference by, sister-state tribunals in order to avoid the issuance of competing support orders" and suggesting that the tribunals "take an active role in seeking out information about support proceedings in other States concerning the same child."). DS Tab A. During this conference, the California court decided to defer to Texas on spousal support, which it had the discretion to do. See CAL. FAM. CODE § 4908(a) (a tribunal of this state may exercise jurisdiction...); CAL. FAM. CODE § 4908, comment ("Depending on the circumstances, one or the other of two tribunals considering the same support obligation should decide to defer to the other."). DS Tab B.

7

The reference to a "timely" challenge indicates that the provision refers to personal, not subject matter, jurisdiction.

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With the courts' decision that the California court would address child support and the Texas court would address spousal support, the potential for competing orders ceased to exist and section 159.204 ceased to apply. Therefore, the Texas court properly

proceeded to enter temporary orders, including an order for spousal support. The Texas court's entry of temporary orders confirmed its continuing, exclusive jurisdiction over spousal support. TEX. FAM. CODE § 159.211 ("A tribunal of this state issuing a spousal support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation."); TEX. FAM. CODE § 159.102(23) ("`Support order' means a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse..."). DS Tab A. The California court's subsequent entry of a competing spousal support order is not authorized by any UIFSA provision, including section 159.204. Commissioner

Beckloff's purely prospective ­ and untimely ­ declaration that California "will hear and determine" spousal support issues infringed upon the Texas court's jurisdiction and unilaterally disregarded UIFSA's admonition that courts must avoid the issuance of competing orders. That action was improper.8

UIFSA clearly prohibited the California court from proceeding with spousal support issues after the Texas court entered its temporary orders addressing, among other things, spousal support. TEX. FAM. CODE § 159.104, comment ("Under UIFSA, a state may not permit a party to proceed to obtain a second support order; rather, in further litigation the tribunal must apply the Act's provisions for enforcement of an existing order and limit modifications to the strict standards of UIFSA"); CAL. FAM. CODE § 4903 (same). See DS Tabs A, B. David is appealing the California court's spousal support ruling to the California Supreme Court on these and other grounds. In the interim, the California court's improper

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B.

The existence of parallel proceedings does not violate Section 159.204.

Section 159.204 applies to determine jurisdiction as between two or more courts when simultaneous proceedings create the possibility of competing support orders. However, while UIFSA seeks to avoid competing support orders, it does not prohibit simultaneous or parallel proceedings that will not result in competing orders, and the Texas Family Code recognizes the possibility of such proceedings. TEX. FAM. CODE § 6.308. The California and Texas courts recognized, under the unusual circumstances of this case, that parallel proceedings on child support, spousal support and property division made sense. In addition, parallel proceedings are assured in this case because the Texas court has continuing, exclusive jurisdiction over the division of the marital estate. Suzanne recognizes as much and has never challenged the court's jurisdiction. The mere existence of these parallel proceedings does not run afoul of UIFSA and does not warrant mandamus relief. C. Because Section 159.204 does not apply, the Texas court has jurisdiction under the "first-filed" rule.

As a general rule, the court in which a suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974) (orig. proceeding); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926).

exercise of jurisdiction over spousal support has no effect on the Texas court's jurisdiction to address spousal support issues.

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UIFSA recognizes the first-filed rule. See UIFSA Prefatory Note ("Under UIFSA, the only tribunal that can modify a support order is one having continuing, exclusive jurisdiction over the support issue. As an initial matter, this is the tribunal that first acquires personal and subject matter jurisdiction over the parties and the support obligation."). The rule is also recognized in California. See MR:Tab K (California commissioner recognized that, under the first-filed rule, David would "prevail," and Texas would handle spousal support if it was determined, as it later was, that both Texas and California have jurisdiction over the parties); TEX. FAM. CODE § 159.204, comment (recognizing that "first filing" will continue to control when the child's "home state" is irrelevant); CAL. FAM. CODE § 4908, comment (same). DS Tabs A, B. Section 159.204 provides for a narrowly limited exception to the first-filed rule. But section 159.204 does not apply to this case. Therefore, the Texas court, as the first court to acquire personal and subject matter jurisdiction over the parties and the support obligation, is the court of first-filing. And as the first court to enter a spousal support order under UIFSA, the Texas court has continuing, exclusive jurisdiction over spousal support. See TEX. FAM. CODE § 159.211(a) ("A tribunal of this state issuing a spousal support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation."); CAL. FAM. CODE § 4909(f) (same). DS Tabs A, B. Under both the first-filed rule and UIFSA's provision for continuing, exclusive jurisdiction, the California court is required to respect the Texas court's temporary orders.

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D.

This Court cannot grant the only relief appropriate in these circumstances.

As demonstrated by Suzanne's case citations, this Court will grant mandamus relief when a second Texas court interferes with the jurisdiction of a court of first filing. In re SWEPI, L.P., 85 S.W.3d 800, 809 (Tex. 2002) (orig. proceeding); Curtis, 511 S.W.2d at 267 (if second court attempts to interfere with the first court's action, supreme court has the power to act by mandamus or other appropriate writ to settle the conflict of jurisdictions); see also, e.g., In re U.S. Silica Co., 157 S.W.3d 434 (Tex. 2005) (orig. proceeding) (directing courts with later-filed cases to vacate orders that interfered with the court having first-filed jurisdiction). Here, however, a California court is interfering with the Texas court's first-filed jurisdiction. Although this Court's mandamus jurisdiction does not reach so far as to direct the California court to cease its interference, the Court may, and indeed it must, protect the Texas court's first-filed jurisdiction. To that end, the Court should deny Suzanne's mandamus petition and clear the way, once and for all, for the Texas court to protect its own jurisdiction by proceeding to final judgment. In re SWEPI, L.P., 85 S.W.3d at 809. Should the California Supreme Court refuse to respect Texas' first-filed, continuing, exclusive jurisdiction, the issue ultimately will be resolved under the "full faith and credit clause" of the United States Constitution. See U.S. CONST., art. IV, § 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.") See also Gannon v. Payne, 706 S.W.2d 304,

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307 (Tex. 1986) ("Once a final judgment is reached in one of the actions, the second forum is usually obliged to respect the prior adjudication under the rules regarding the enforcement of foreign judgments."); AVCO Corp. v. Interstate Southwest, Ltd., 145 S.W.3d 257, 264, n. 9 (Tex. App.--Houston [14th Dist.] 2004, no pet.) ("Once a final judgment is reached in one of the actions, principles of full faith and credit, comity, issue preclusion, and claim preclusion dictate that the second forum is obligated to respect the prior adjudication, so that even if both proceedings continue there should be only one judgment recognized in both forums."). In Sistare v. Sistare, the United States Supreme Court applied the full faith and credit clause in a spousal support case, holding that an alimony decree of one state is within the full faith and credit clause and must be recognized by the courts of another state. Sistare v. Sistare, 218 U.S. 1 (1910). In light of this Constitutional safeguard, Texas courts specifically recognize the right of two courts to proceed on the same or similar issues until one has reached judgment. "Even if both proceedings continue, there should be only one judgment recognized in both forums." See Gannon, 706 S.W.2d at 307. Thus, even if both proceedings continue here, ultimately only one judgment will be recognized in both forums. Mandamus is not warranted. E. Even if Section 159.204 were relevant, it would not deprive the Texas court of jurisdiction.

Section 159.204 is based on a presumption that favors the first-filed rule and comes into play to resolve jurisdictional conflicts under very limited circumstances. Because the Texas and California courts agreed to avoid competing support orders,

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section 159.204 does not apply. However, if it did apply, it would not change the result in this case. § 159.204. Simultaneous Proceedings (b) A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state only if: (1) the petition or comparable pleading in the other state is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state; (2) the contesting party timely challenges the exercise of jurisdiction in this state; and (3) if relevant, the other state is the home state of the child. TEX. FAM. CODE § 159.204(b) (emphasis added). DS Tab A. The conjunction "and" in subsection (b)(2) indicates that a litigant attempting to deprive the first-filed court of jurisdiction must satisfy all three factors. Thus, properly construed, section 159.204(b) provides that the court of first-filing may exercise jurisdiction over spousal support unless the non-resident spouse (1) files a comparable pleading in another state before the time for filing an answer to the petition in this state expires; (2) challenges the Texas court's jurisdiction; and (3) demonstrates that the home state of the child is relevant. TEX. FAM. CODE § 159.204(b). If the home state is not relevant or there is no home state, "first filing" controls. TEX. FAM. CODE § 159.204, comment. DS Tab A. Here, Suzanne satisfied the first condition in 159.204(b)(1) by timely filing her petition in California, but she failed to successfully challenge jurisdiction in the Texas

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court as required by 159.204(b)(2).9 Moreover, Suzanne did not, and cannot, establish the relevance of the children's home state to the issue of spousal support as required by Section 159.204(b)(3). 1. Suzanne's jurisdictional challenge was unsuccessful.

Recognizing the potential effect of her failure to successfully challenge jurisdiction, Suzanne argues that the mere filing of her special appearance was sufficient to defeat the first-filed rule and automatically required transfer of the case to California. SS Brief at 16. But if that argument were correct, any respondent could unilaterally defeat the jurisdiction of one court in favor of another simply by filing a challenge ­ even a frivolous challenge ­ to personal or subject matter jurisdiction. Once filed, the

challenge would mandate transfer even without the first-filed court's ruling on its merits or the second court's determination of its jurisdiction. Surely the drafters did not intend to allow a party unilaterally to obtain the transfer of a first-filed case to another court, regardless of either court's jurisdiction. 2. Suzanne cannot establish the relevance of the "home state" provision to any issues before the Texas court.

In any event and without regard for her jurisdictional argument, Suzanne's inability to establish the relevance of the children's home state precludes the application of section 159.204. The child's "home state" is deemed "relevant" to the issue of child support because that forum is presumed to have the most significant relationship with the

The parties dispute whether the jurisdictional challenge required in § 159.204(b)(2) must be successful. In light of the other factors that render 159.204 inapplicable, the Court need not resolve that dispute. Still, David will discuss the question in this Response.

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child. Uniform Interstate Family Support Act (1996), 32 FAM. L. Q. 385, 430, n.80 (child's "home state" tends to have the strongest contacts with the child). DS Tab C. However, no such relationship is presumed to exist between the child's home state and the issue of spousal support. See Uniform Interstate Family Support Act (1996), 32 FAM. L. Q. at 430, n.78 (explaining that the qualifying phrase "if relevant" in section 204(b)(3) was intended to carve out two types of cases from the application of section 159.204: (i) child support cases in which the child does not have a home state and (ii) spousal support cases). DS Tab C. Under the unique facts of this case, the absence of such a presumption makes sense. The inapplicability of the "home state" rule to the issue of spousal support is even more obvious when, as here, a state other than the children's home state has a highly significant relationship to the division of the parties' marital estate. All of David's business interests are headquartered in Houston; the parties' marital property is held in a Texas trust that was formed and is administered under Texas law; and the parties' postnuptial agreement requires the application of Texas law to any division of their marital property, which also implicates spousal support. Supp.MR1:Tab 1; Supp.MR2:Tab 6. These facts and circumstances render the children's "home state" relationship with California irrelevant to the issues before the Texas court. Because Suzanne cannot satisfy the requirements under section 159.204, that section does not apply and the "first-filed" rule establishes the Texas court's jurisdiction.

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F.

Under UIFSA, child support and spousal support are distinctly separate and may be determined separately.

According to Suzanne, the order that the California court would adjudicate child support and Texas would decide spousal support is an abuse of discretion because the two issues are "inseparable" and must be addressed by one court. But UIFSA does not support Suzanne's argument that "a single court" in "one state" must issue "one support order" covering "all support issues within a family." SS Brief at 9-15.10 Rather, section 159.204 provides a mechanism to avoid the conflict of jurisdiction that may arise when "simultaneous proceedings" concerning child support are pending in different jurisdictions. See TEX. FAM. CODE § 159.204, comment (requiring cooperation between, and deference by, sister-state tribunals to seek out information about support proceedings in other States concerning the same child in order to avoid the issuance of competing support orders). See also, e.g., TEX. FAM. CODE § 159.205, comment

(continuing, exclusive jurisdiction "is fundamental to the one-child-support-order-at-a time principle of UIFSA"); TEX. FAM. CODE § 159.601, comment ("Under the one-order system of UIFSA, ... [i]f more than one child-support order exists, section 159.207 is designed to resolve the conflict...."); TEX. FAM. CODE 159.207, comment ("the most dramatic founding principle of UIFSA was to establish a system whereby the multiple

Suzanne's citations to NCCUSL, Untitled Document 5 (1992) (SS Tab 19), Uniform Law Locator 2 (1996) (SS Tab 20); and Maurice A Hartnett, III, The Uniform Interstate Family Support Act, Del. Lawyer 51, 53 (1993) (SS Tab 21) are not authoritative. One is admittedly an "untitled document" that contains a single ­ uncontested ­ reference to spousal support: "UIFSA is not just confined to child support awards. It can be used, also, to enforce spousal support awards." The single page from a "Law Locator" contains some unknown person's one-sentence summary of the purpose of several uniform statutes, including the now-amended 1992 and 1996 versions of UIFSA. And the cited portion of Mr. Hartnett's article does not refer to "all family support issues" but instead refers to the "obligor parent" thus indicating its application to child support.

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child support orders created by URESA and RURESA could be reconciled in the transition from a world with multiple child-support orders to a one-order-at-a-time world."). DS Tab A. Moreover, UIFSA repeatedly treats child support and spousal support differently. See TEX. FAM. CODE § 159.211, comment ("An order for spousal support is treated differently than an order for child support."). While a spousal support order can be enforced wherever the obligor is found, the order cannot be modified by any court other than the court that issued it. TEX. FAM. CODE § 159.211(b), (c). In contrast, under UIFSA's Chapter 6, a child support order issued by the child's home state may be registered for enforcement and/or modification in another state. TEX. FAM. CODE §§ 159.601, 159.609.11 DS Tab A. Nothing in UIFSA precludes one court from determining child support while another determines spousal support. In fact, courts, including California courts, have found the separate treatment of child and spousal support to be proper. See, e.g., Weekley v. Weekley, 604 N.W.2d 19 (S.D. 1999) (finding that parties' agreement to split child support and spousal support issues was covered by UIFSA and affirming child support order entered by California court and spousal support order entered by South Dakota

This distinction further highlights the flaw in Suzanne's argument that child support and spousal support must be decided by the same court. Even if a child support order and a spousal support order are issued by the same court, jurisdiction to enforce and/or modify the child support order could be transferred to another state, while the issuing court must retain exclusive control over the order for spousal support. Thus, the two allegedly inseparable orders ultimately can be separated ­ to be enforced and even modified by separate courts. Suzanne's argument that child and spousal support orders are inseparable is without merit.

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court); Witwer v. Witwer, No. CH98-882-01, 2001 WL 282751, *1 (Va. Ct. App. March 6, 2001) (Virginia court could adjudicate issues related to the custody and support of one child; California court could adjudicate issues relate to the custody and support of the other minor child; and California had exclusive jurisdiction over spousal support). UIFSA's treatment of child support and spousal support as divisible elements is further demonstrated by the plain language of the statute. Section 159.102 provides not one but three definitions that clarify the separate nature of support orders. See TEX. FAM. CODE § 159.102(2) (DS Tab A) (defining "child support order" as "a support order for a child...."); (20) (defining "spousal support order" as "a support order for a spouse or former spouse...."); (23) (defining "support order" as an order "for the benefit of a child, a spouse or a former spouse"). In addition, the use of the disjunctive "or" in subsection (23) ("support order" means an order "for the benefit of a child, a spouse or a former spouse") demonstrates that the items are separate, divisible elements. Board of Ins. Comm'rs v. Guardian Life Ins. Co., 180 S.W.2d 906, 908 (Tex. 1944); In the Interest of J.M.C.A., V.C.R, M.R. AND R.R., 31 S.W.3d 692, 696 (Tex. App.--Houston [1st Dist.] 2000, no pet.); White v. Dep't of Family Protective Servs., 2005 WL 174546 *3 (Tex. App.--Houston [1st Dist.] 2005, no pet. h.) (mem. op.); see also Section II.B. at p. 16, supra. If the orders were inseparable and had to be considered together, as Suzanne argues, these three separate definitions would be superfluous.12

If the elliptical sentence structure is expanded, the separate nature of the components becomes even more obvious. Repeating the disjunctive "or," the statute refers to an "order for the benefit of a child, or a spouse or a former spouse." Had the drafters intended that child and spousal support must be considered

12

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G.

Spousal support is inextricably intertwined with the division of marital property, not child support, and therefore should be decided by the Texas court.

Suzanne's unsupported argument that spousal support and child support are inextricably intertwined ignores UIFSA's separate treatment of the two issues as well as the close relationship between spousal support and the division of marital property. Because of that close relationship, spousal support is covered by the parties' post-nuptial agreement and should be decided by the Texas court in conjunction with its division of the marital estate. While spousal support is not property, per se, spousal support is closely related to and dependent on Texas' "just and right" division of marital property. The Texas Family Code instructs that in making an award of spousal support the court: shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including: (1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding and that spouse's ability to meet the spouse's needs independently .... TEX. FAM. CODE § 8.052.13 DS Tab A. The close connection between spousal support and the marital property division is borne out by numerous cases. See, e.g., Trueheart v. Trueheart, 2003 WL 22176626 *3together, the provision necessarily would read: an "order for the benefit of a child and a spouse or a former spouse." There is only one mention of child support in section 8.052. See TEX. FAM. CODE § 8.052(5) (one factor in determining the nature, amount, duration, and manner of payment of a spousal maintenance is "the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance."). DS Tab A.

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4 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (mem. op.) (court considered lack of liquidity of community assets awarded to Wife in affirming award of spousal support); Alexander v. Alexander, 982 S.W.2d 116, 119 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (spousal support award based on insufficiency of marital property award); see also Cooper v. Cooper, 176 S.W.3d 62, 65 (Tex. App.--Houston [1st Dist.] 2004, no pet.). The interdependence between an award of spousal support and the division of marital property is clearly demonstrated by the effect of a reversal of the spousal support award. See, e.g., In re Marriage of Combs, 958 S.W.2d 848, 851 (Tex. App.Amarillo 1997, no pet.) Because "the factors to be considered in both the marital property division and the award of spousal maintenance are inextricably intertwined," the court in Combs held that its reversal of the trial court's spousal support award required it to remand the entire case for "a new `just and right' division of the marital estate because the [spousal support] award may have affected the trial court's division of the marital estate." Id. at 851.14 IV. The benefits of mandamus relief, if any, do not outweigh the detriments. Suzanne alleges that the benefits of granting her petition "clearly outweigh any detriments." SS Brief at 8. See Prudential, 148 S.W.3d at 136-37. However, the only "benefits" she predicts are (1) expediting interstate proceedings involving child or

In addition, unlike child support orders, spousal support orders may involve choice of law problems when a court in one state seeks to divide property in another state. See TEX. FAM. CODE § 159.211, comment. And while child support is often modified because of a post-divorce improvement in the obligor's financial circumstances, spousal support orders generally are fixed at the time of the property division and are unaffected by the obligor's post-divorce success. See TEX. FAM. CODE §§ 154.126, 156.401, 156.402. DS Tab A.

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spousal support and (2) discouraging "the kind of forum shopping in which David has clearly engaged in an attempt to deprive Suzanne of the spousal support to which she is entitled under California law." Neither "benefit" will be achieved here. First, the separate consideration of spousal support by the Texas court will serve judicial economy because the Texas court is better suited to consider spousal support issues than the California court. The complexity of the parties' estate and application of their post-nuptial agreement will require the construction and application of complicated Texas trust, commercial and property law. Texas family courts routinely decide such issues in their division of marital property and related spousal support awards under Texas law. But addressing such complicated issues of Texas law will place an

unnecessary burden on the California court and ­ under Suzanne's argument that spousal support and child support are inextricably intertwined ­ will delay its resolution of child support issues as well. Suzanne's claim that David is "forum shopping" also is without merit. Rather, it is Suzanne, not David who has engaged in "forum shopping." David filed his divorce petition first and asked the court to divide the community estate "[s]ubject to the marital property agreements signed by the parties." MR:Tab A at 3. Suzanne then filed her California petition and, without disclosing the parties' post-nuptial agreement, asked the California court to determine spousal support. Suzanne's current claim to spousal

support "to which she is entitled under California law" is even more shocking when considered in light of her past availment of the advantages of her Texas residency. See Supp.MR1:Tabs 2-4 (Suzanne's Texas driver's license, Suzanne's Texas voter's

26

registration card, the Saperstein's federal income tax forms listing Texas as their residence); Supp.MR2:Tab 5 (the Saperstein's California nonresident tax forms listing Texas as their residence and asserting that no California state income tax is owed). The "benefits" of mandamus asserted by Suzanne are illusory and do not support her bid for mandamus relief. Accordingly, Suzanne's petition for writ of mandamus should be denied. CONCLUSION AND PRAYER For all of the foregoing reasons, David respectfully requests that Suzanne's Petition for Writ of Mandamus be denied.

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Respectfully submitted,

HAYNES AND BOONE, LLP

Lynne Liberato State Bar No. 00000075 Alene Ross Levy State Bar No. 12260550 Katharine D. David State Bar No. 24045749 1221 McKinney Street, Suite 2100 Houston, Texas 77010-2007 Telephone: (713) 547-2000 Telecopier: (713) 547-2600 Stephen D. Susman State Bar No. 19521000 Harry P. Susman State Bar No. 24008875 SUSMAN GODFREY LLP 1000 Louisiana Street, Suite 5100 Houston, Texas 77002-5012 Telephone: (713) 651-9366 Telecopier: (713) 654-6666 Harry L. Tindall State Bar No. 20053000 Angela G. Pence State Bar No. 00794920 TINDALL & FOSTER, P.C. 1300 Post Oak Blvd., Suite 1550 Houston, Texas 77056-3081 Telephone: (713) 622-8733 Telecopier: (713) 622-8744 John J. Sampson State Bar No. 17560500 727 E. Dean Keeton Street Austin, Texas 78705 Telephone: (512) 232-1267 Telecopier: (512) 471-6988 COUNSEL FOR REAL PARTY IN INTEREST, DAVID I. SAPERSTEIN

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of Real Party in Interest's Response to Suzanne C. Saperstein's Brief on the Merits has been served on Respondent and the following counsel of record in accordance with the Texas Rules of Appellate Procedure on this 30th day of June, 2006: Counsel for Relator, Suzanne C. Saperstein: Thomas R. Phillips BAKER BOTTS LLP 1500 San Jacinto Center 98 San Jacinto Boulevard Austin, Texas 78701 Via Hand Delivery Macey Reasoner Stokes Aaron Streett BAKER BOTTS LLP One Shell Plaza 910 Louisiana Street Houston, Texas 77002 Via Hand Delivery Joel D. Siegal HELLRING LINDEMAN GOLDSTEIN & SIEGAL, L.L.P. One Gateway Center, 8th Floor Newark, New Jersey 07102 Via Federal Express Respondent: Honorable Lisa A. Millard 310th Judicial District Court 1115 Congress, 3rd Floor Houston, Texas 77002 Via Hand Delivery Alene Ross Levy

H-619081.1

Donn C. Fullenweider Linda A. Hinds THE FULLENWEIDER FIRM 4256 San Felipe, Suite 1400 Houston, Texas 77027 Via Hand Delivery Thomas Oldham UNIV. OF HOUSTON LAW CENTER 100 Law Center Houston, Texas 77024 Via Hand Delivery

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