iv. the issuing tribunal has stayed the orders pending appeal and/or those orders are not final as to the ownership rights regarding the subject Texas property while the divorce between the parties remains unfinished in Switzerland. Scott also requested an accounting for rents received by Monika for the Dallas property.
Under section 159.607 of UIFSA, Scott bore the burden of proving the defenses he asserted to registration of the Swiss orders. See Tex. Fam. Code Ann. § 159.607(a). We conclude Scott did not establish that the orders had been “vacated, suspended, or modified by a later order, ” or that “ the issuing tribunal has stayed the order pending appeal.” See id., § 159.607(a)(3), (4). Although it is undisputed that the liquidation of the Dallas property was deferred by the Swiss court, the court’s reason for doing so was to allow its orders regarding custody, visitation, and support for the children to become final without further delay. The court stated that the divorce was not dependent upon the liquidation of the parties’ property, and that some liquidation issues would be “reserved for later, ” “ in order to put a faster end to the spousal conflict of the ARNELL spouses, in the predominant interest of their three children according to the pressing recommendations of the psychological expert.”[7] And UIFSA does not require that a support order be final to be registered. The definition of “support order” expressly includes orders that are “temporary, final, or subject to modification.” Id., § 159.102(23).
Under UIFSA, Swiss law governs “the nature, extent, amount, and duration of current payments” under a registered support order, as well as the computation and payment of arrearages, the accrual of interest on the arrearages, and the existence and satisfaction of other obligations under the support order. Tex. Fam. Code Ann. § 159.604(a). Texas law applies regarding enforcement and collection of arrearages. Id., § 159.604(c). Scott argues that under Swiss law, the Swiss courts have “continuing and exclusive jurisdiction” regarding ownership and division of the Dallas property. He argues that the trial court had “no jurisdiction to usurp the Swiss Tribunal’s jurisdiction over that pending question in the parties’ Geneva divorce proceeding.”
In support of a motion for summary judgment, Scott offered a statement[8] by his Swiss attorney, Philippe Ehrenstrom, regarding the Swiss proceedings and applicable Swiss law. After the trial court denied Scott’s motion for summary judgment, Scott filed a “renewed request for the court to take judicial notice of foreign law, ” citing Ehrenstrom’s statement “ setting forth and briefing relevant foreign law of the jurisdiction of the tribunal issuing the orders which are the subject of the relief sought by Petitioner herein.”
Ehrenstrom’s statement explained that the parties were married “under the Marital Property regime of ‘Separation of Property’ under Swiss law.” Ehrenstrom stated that the Separation of Property regime was governed by articles 247–251 of the Swiss Civil Code. In paragraphs 6 and 7 of his statement, Ehrenstrom first stated that marital property regimes “are dissolved at the time of divorce and liquidated, ” and that “ the dissolution and liquidation of a Marital Property regime is to take place within the jurisdiction of the court which has ruled upon the divorce.” But in the next paragraphs, he explained that it was a matter of debate under Swiss law “whether the specific Marital Property regime of ‘Separation of Property’ has to be liquidated after its dissolution by divorce.” Because Swiss law already provides that each spouse manages his or her own property and is responsible for his or her own debts under a separation of property regime, some Swiss authorities have argued that liquidation is not necessary. But Ehrenstrom cited authorities for the proposition that liquidation is required, because spouses will have acquired property, debts, contractual arrangements, and other obligations during the marriage that require allocation, reimbursement, or other disposition at the time of divorce.[9]
Ehrenstrom then explained that the Swiss court granting the Arnells’ divorce reserved the liquidation of the marital property regime “until later.” He opined that “[r]ights, debts, claims, etc. arising from the marriage between Roland Scott Arnell and Monika Arnell have therefore not been comprehensively settled by the Swiss court which ruled over the divorce, even if said divorce judgment does not explicitly rule on the issue of the co-ownership of the [Dallas property] or on if and how such property is to be divided.” He concluded that “the full and exact measure of each spouse[s] rights, claims, debts, etc. (if any) arising from the liquidation of the Marital Property regime of “Separation of Property” has not been properly determined or settled by a Swiss court of law.”
Ehrenstrom’s explanation of Swiss law, however, does not establish either of the statutory defenses Scott sought to prove. Although the Swiss court may later determine ownership and division of the Dallas property, the deferral of that decision does not in any way vacate, suspend, modify, or stay Scott’s child and spousal support obligations. See Tex. Fam. Code Ann. § 159.607(a) (listing defenses). In fact, the Swiss court explicitly deferred a disposition of the parties’ property so that the support obligations and other rulings for the benefit of the children could commence without further delay. As the Civil Chamber of the Court of Justice opinion stated, “Otherwise and above all, the predominant interests of the Arnell children requires to put an end to the current procedure as quickly as possible, whatever the financial interests cited by the parties may be.” Order, June 20, 2003.[10] An examination of the five orders submitted to the trial court for registration reveals careful and exhaustive consideration by the Swiss courts over a period of years all of the parties’ contentions and concerns regarding custody, visitation, and support of the children. Registration of these orders for enforcement furthers the Swiss courts’ resolution of these issues.
Under subsection (c) of section 159.607, the trial court “shall issue an order confirming the order” if the “contesting party does not establish a defense under subsection (a) to the validity or enforcement of the order.” Tex. Fam. Code Ann. § 159.607(c) (emphasis added). We conclude that the trial court was required to register the Swiss orders because Scott did not prove the defenses he asserted. Id. The trial court did not err in registering the orders.
Scott also complains that the trial court usurped the jurisdiction of the Swiss courts by enforcing the Swiss support orders. As noted above, Texas law applies to issues of enforcement and collection. Tex. Fam. Code Ann. § 159.604(c) (“A responding tribunal in this state shall apply the procedures and remedies of this state to enforce current support and collect arrearages and interest due on a support order of another state registered in this state.”); see also Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (West 2008) (collection of judgment through court proceeding), and In re C.H.C., 290 S.W.3d 929, 931 (Tex. App.—Dallas 2009, no pet.) (discussing application of turnover statute). But Scott does not complain of any procedural error in the application of the Texas turnover statute. Rather, his complaint is that a Texas court decided the division of the Dallas property when the Swiss courts had exclusive jurisdiction to do so.
As discussed above, it is undisputed that the Swiss courts “reserve[d] the liquidation of the couple’s assets belonging to Monika and Roland Scott ARNELL” including the Dallas property, “for later, ” and there is nothing in the record showing that the Swiss courts have made any disposition of the Dallas property. And only the Swiss courts may modify the support orders. See Tex. Fam. Code Ann. §§ 159.205; 159.603(c). But the trial court’s order does not in any way modify the support obligations set forth in the Swiss orders. Instead, it enforces those obligations as determined by the Swiss courts. [11]
UIFSA provides that a Texas court must “recognize and enforce” a registered support order if the issuing tribunal had jurisdiction. Tex. Fam. Code Ann. § 159.603(c) (Texas court “shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction”) (emphasis added). In addition, a Texas court may “order an obligor to comply with a support order and specify the amount and the manner of compliance.” Tex. Fam. Code Ann. § 159.305(b) (2); see Kendall v. Kendall, 340 S.W.3d 483, 510 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (when enforcing obligation in New York judgment under UIFSA, Texas court could order lump sum payment). We conclude that the trial court had jurisdiction under UIFSA to register and enforce the Swiss support orders. We overrule Scott’s first issue.
Admission of Affidavit
Scott’s second and third issues complain about the affidavit Monika submitted with her petition to register and enforce the Swiss orders. In his second issue, Scott argues that the admission of the affidavit into evidence constituted harmful error. We review the trial court’s rulings on the admission or exclusion of evidence for abuse of discretion. Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 626 (Tex. App.—Dallas 2004, pet. denied). A trial court abuses its discretion when it acts without regard to any guiding rules or principles. Id. A reviewing court will not reverse an erroneous ruling on the exclusion of evidence unless the ruling probably caused the rendition of an improper judgment. Id. We make this determination by an examination of the entire record. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995).
UIFSA includes special rules of evidence and procedure. See Tex. Fam. Code Ann. § 159.316. UIFSA expressly provides that “the physical presence of a nonresident party who is an individual in a tribunal in this state is not required for the establishment, enforcement, or modification of a support order . . . .” Tex. Fam. Code Ann. § 159.316(a). UIFSA also permits the use of affidavits: “An affidavit . . . that would not be under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing in another state.” Id., § 159.316(b). The purpose of this provision was to “eliminate as many potential hearsay problems as possible in interstate litigation because usually the out-of-state party . . . do[es] not appear in person at the hearing.” Attorney Gen. v. Litten, 999 S.W.2d 74, 89 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (quoting Sampson & Tindall, Texas Family Code Ann. § 159.316, Commissioner’s comment to UIFSA Section 316 at 557).
Scott’s second issue includes two separate complaints. First, he argues that the trial court’s admission of the affidavit created surprise and prejudice to him. This complaint arises from his contention that the trial date was chosen so that Monika would be available to testify. He argues that he intended to rely on Monika’s testimony to prove offsets to the amount of support payments due and to establish that Monika had failed to deliver property awarded to Scott by the Swiss courts. Because Monika’s affidavit addressed neither of these issues, and because his trial preparation was based on his understanding that Monika would be present at trial and available for cross-examination, Scott alleges that the trial court erred by admitting the affidavit. Scott also asserts that Monika was required to testify by telephone under section 159.316(f). Subsection (f) provides that “a tribunal of this state shall permit a party or witness residing in another state to be deposed or to testify by telephone . . . .”
Second, Scott argues that even under the standards of section 159.316, the affidavit was not admissible. He complains that Monika’s affidavit did not contain the certified records of child support payments referenced in section 159.316(c), and that Monika was not qualified as an expert witness to testify about the “content, purpose, and effect of orders entered by a Swiss tribunal.” He also contends that her testimony of the amounts due and owing under the Swiss orders constituted inadmissible legal opinions.
We conclude that the trial court did not err by admitting Monika’s affidavit into evidence. Once the Swiss orders were translated, the orders themselves revealed the amounts Scott was ordered to pay and the relevant dates. The orders also reveal the dates the rulings were made, and whether the rulings were made by a trial court or were the result of an appeal. Scott’s objections to Monika’s affidavit did not extend to testimony that was consistent with the Swiss courts’ orders. And the trial court sustained Scott’s objections to statements in the affidavit “that are inconsistent with what the order says.”
Scott could not have been surprised by the substance of the testimony in Monika’s affidavit, as the affidavit was filed with her original petition and had been on file for two years prior to the trial date. While he contends that he was surprised by the inability to cross-examine Monika, he was able to testify by telephone himself as to amounts he had paid and other offsets he claimed. He did not dispute that he owed support under the Swiss court orders, and he calculated the amounts due under the orders on a spreadsheet that was admitted into evidence when he testified. He testified that his calculations were made “by actually calculating the amount due according to the various stages of the decisions, ” similar to Monika’s affidavit testimony. He testified that he had made payments pursuant to the orders, including payments to a Swiss child support collection agency called “ SCARPA.” But he conceded that he did not pay the full amounts he calculated to be due under the orders.
As we have noted, Monika’s physical presence at trial was not required for enforcement of the support orders. Tex. Fam. Code Ann. § 159.316(a). Monika’s testimony regarding the child support orders and the amounts due “would not be under the hearsay rule if given in person, ” and therefore was admissible by affidavit. Tex. Fam. Code Ann. § 159.316(b). Reviewing the record as a whole, we conclude that the admission of Monika’s affidavit into evidence under Family Code section 159.316 was not error, and in any event did not cause the rendition of an improper judgment. See City of Brownsville, 897 S.W.2d at 755. We overrule Scott’s second issue.
In his third issue, Scott argues that the section of UIFSA permitting use of affidavits at trial violates his constitutional right to confront and cross-examine witnesses. We presume that a statute is constitutional. Martinez v. Dallas Cent. Appraisal Dist., 339 S.W.3d 184, 193–94 (Tex. App.—Dallas 2011, no pet.). Scott bears the burden of demonstrating that section 159.316 fails to meet constitutional requirements. Id. at 194.
In support of his argument that Family Code section 159.316 is unconstitutional, Scott cites Davidson v. Great National Life Insurance Co., 737 S.W.2d 312, 314 (Tex. 1987). In Davidson, the court recognized that “[c]ross-examination is a safeguard essential to a fair trial and a cornerstone in the quest for truth.” Id. The court stated that “[d]ue process requires an opportunity to confront and cross-examine witnesses.” Id.[12] Even under Davidson, however, reversal is proper only when the trial court’s error in limiting cross-examination “was reasonably calculated to cause and did cause rendition of an improper judgment.” Davidson, 737 S.W.2d at 314 (concluding that error in limiting cross-examination was harmless under this standard).
The parties did not cite any Texas cases discussing the constitutionality of section 159.316, and we have found none. But courts in other jurisdictions have considered and rejected similar constitutional challenges to UIFSA. See, e.g., Louisiana ex rel. T.L.R. v. R.W.T., 737 So.2d 688, 694–95 (La. 1999) (where defendant failed to use any of alternatives provided in statute for cross-examination, statute not unconstitutional as applied); Davis v. Child Support Enforcement Unit, 326 Ark. 677, 680–81, 933 S.W.2d 798, 799–800 (1996) (court would not consider constitutionality of statute where appellant made no attempt to “confront” witness by methods provided in UIFSA); People ex rel. Orange County v. M.A.S., 962 P.2d 339, 343 (Colo.App. 1998) (no denial of right to cross-examine by admission of interrogatory answers under UIFSA where evidence otherwise admissible and respondent expressly waived right to have mother testify by telephone). As stated by the court in R.W.T., “[i]t has been recognized that the drafters of the UIFSA aimed at ‘providing the best evidentiary safeguards permitted by the circumstances of interstate support litigation.’” 737 S.2d at 694 (quoting Davis, 326 Ark. at 681, 933 S.W.2d at 800).
As noted, subsection (f) of section 159.316 permits deposition or trial testimony by “telephone, audiovisual means, or other electronic means.” In addition, subsection (f) provides that “[a] tribunal of this state shall cooperate with a tribunal of another state in designating an appropriate location for the deposition or testimony.” Tex. Fam. Code Ann. § 159.316(f). Here, the trial court noted, “[c]ertainly, the statute does seem to provide for testimony over the telephone, ” and stated, “ [c]ertainly, [witnesses] can testify by telephone, according to what I see here, if that’s what you want to do.” The court adjourned the morning’s proceedings to allow the parties to contact witnesses to testify by telephone in the afternoon. The record reflects that Scott testified by telephone. The record does not reflect that attempts were made to reach Monika by telephone, or that Scott attempted to exercise other alternatives, such as a deposition by telephone prior to trial, to confront and cross-examine Monika. And as we have explained, the Swiss orders themselves as well as Scott’s own testimony provided evidence of the amounts due and the amounts Scott had paid. As in R.W.T., Davis, and M.A.S., we reject Scott’s challenge to the constitutionality of section 159.316. We overrule Scott’s third issue.
Offsets
In his fourth issue, Scott complains that the trial court failed to offset the judgment by an amount equivalent to the market value of property awarded to him by the Swiss courts but withheld by Monika, and by “the amount of other payments made to and received by” Monika. Scott relies on a paragraph in the June, 2003 order registered by the trial court, which “authorizes Ronald Scott ARNELL to take his moveable goods, remaining in the past family household and over which his property rights have been expressly admitted by Monika ARNELL . . . .” We review the trial court’s decision for abuse of discretion. See Beck v. Walker, 154 S.W.3d 895, 901–02 (Tex. App.—Dallas 2005, no pet.) (most appealable issues in family law case, including trial court’s confirmation of support arrearages, are reviewed under abuse of discretion standard).
At trial, Scott testified that he had made an inventory of the items he claims under the order, assigned a value to each, and submitted the inventory to the office of Port Swiss, a government agency “that handles claims and enforces claims.” Scott testified that the Port Swiss issued a “commandment to pay” to Monika, and he attempted to introduce the commandment into evidence at trial. The trial court sustained Monika’s objection to the exhibit, however, because it had not been translated from the French language. See Tex. R. Evid. 1009 (translation of foreign language document shall be admissible upon affidavit of qualified translator setting forth translator’s qualifications and certifying that translation is fair and accurate); see also Tex. R. Evid. 203 (party intending to raise issue concerning law of foreign country shall give notice and provide translation).
In addition, as noted above, Swiss law governs the amount of support payments due, the computation and payment of arrearages, and the existence and satisfaction of other obligations under the support order. Tex. Fam. Code Ann. § 159.604(a). Scott did not provide any citation to Swiss law that would permit an offset for the value of the personal property, even if proven, against the amounts of support he owes. Ehrenstrom’s statement, the only explanation of Swiss law offered by Scott, does not address the issue. Without applicable law and admissible evidence to support the offsets claimed by Scott, the trial court did not err by not including those offsets in its order. See Tex. Fam. Code Ann. § 159.607(c) (if contesting party does not establish defense under subsection (a) to validity or enforcement of order, registering tribunal shall issue order confirming support order).
Scott also argues that trial court erred by granting him an offset for a fifty percent ownership interest in the Dallas property, because this determination usurps the jurisdiction of the Swiss courts. We have addressed the jurisdictional questions in response to Scott’s first issue. We overrule Scott’s fourth issue.
Award of Attorney’s Fees
In his fifth issue, Scott complains of the trial court’s award of attorney’s fees. UIFSA provides for the recovery of attorney’s fees “if an obligee prevails.” Tex. Fam. Code Ann. § 159.313(b). In addition, section 31.002(e) of the Civil Practice and Remedies Code permits the recovery of attorney’s fees by a judgment creditor. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002(e). Scott argues that because Monika “is not entitled to principal relief sought, there is no basis for recovery or the award of attorneys’ fees.” We have concluded that the trial court properly registered and enforced the Swiss court orders against Scott. The trial court’s award of attorney’s fees to Monika was proper. We overrule Scott’s fifth issue.
Conclusion
We overrule Scott’s five issues. We affirm the trial court’s judgment. 120064F.P05
JUDGMENT
In accordance with this Court’s opinion of this date, the trial court’s Order on Petition for Registration and Enforcement of Support Orders and Order for Turnover is AFFIRMED.
It is ORDERED that appellee Monika Elizabeth Arnell recover her costs of this appeal from appellant Roland Scott Arnell.
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