The Nikolenko family is embroiled in simultaneous lawsuits in Texas and Russia. The family had been living in Katy, Texas, with Luiza listed as a dependent on Dmitry’s work visa. In 2014, Dmitry’s employer transferred him to Brunei for 3-years. The family contemplated a return to Texas, so they rented their house in Katy. In early 2017, they began planning their return, but Dmitry learned that Luiza wanted a divorce. He ultimately told her, while in Malaysia, that she needed to return to her home country of Uzbekistan, and he was canceling their return to Houston. Instead, Luiza borrowed money and she and the 2 children returned to Texas on July 28, 2017. On May 4, 2018, Luiza filed for divorce and conservatorship in Texas. She was permitted substituted service on Dmitry. On June 29, 2018, Dmitry filed a special appearance in Texas, and fought jurisdiction on the basis that he filed a divorce suit in Russia in September 2017, and the court granted a divorce on March 16, 2018. The Russian court separately granted Dmitry temporary custody on June 29, 2018, based on a finding that Luiza “resides in the territory of the Russian federation,” “her minor children are forced to move from home to another,” and that she “cohabits with numerous men at frequent intervals.” The trial court denied Dmitry’s special appearance in Texas, and found the Russian orders invalid, and refused to recognize them. The Texas court scheduled a trial, ultimately continued due to both parties having visa issues. At the October 2019 trial, the court proceeded, although Dmitry was not present because he had not applied for a visa that would permit him to be there in person, and he was not permitted to appear by Skype. The court granted various relief, including supervised access between the children and Dmitry due to him being a risk of abduction. On appeal, the court addressed a variety of issues. This blog post will focus on the Texas court’s refusal to recognize the Russian divorce decree and the access order’s abduction prevention measures. Luiza argued that she was not afforded due process in the Russian proceeding (having no notice), and it was obtained through fraud.
“[D]ue process requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment elsewhere acquired without due process.” The Texas court concluded that the Russian court proceeded to divorce the parties because it had been told that Luiza’s whereabouts were unknown, and therefore she did not receive legal notice of the proceedings. On the contrary, Dmitry was aware that Luiza had resumed living in Katy, Texas in July 2017 in their marital home. Dmitry argued that Luiza was aware of the Russian proceedings and even negotiated property and custody terms as part of the proceedings. There was no evidence presented that Luiza knew of the proceedings, and no evidence that she received “proper notice or service of that proceeding.” The Russian divorce decree itself states that Luiza did not receive legal notice.
Dmitry also contests the supervised access order, arguing that it rendered it impossible for him to ever exercise access over his children. The trial court had found credible evidence of a risk of international child abduction, and therefore ordered that all of Dmitry’s access to the children were to be supervised by an organization in Texas. Under the Texas statute, the trial court made explicit findings that Dmitry has strong familial, emotional, or cultural ties to Russia, and the Hague Abduction Convention is not in effect between Russia and the United States. He further lacked strong ties to the United States. There would be obstacles to recovering the children if he abducted them, and he previously threatened to take, entice away, keep, withhold, or conceal the children. He lacked financial reasons to stay in the United States and is able to work outside the U.S. He also recently engaged in planning activities to remove the children, including closing bank accounts, hiding documents, and obtaining a custody order in Russia without notice to Luiza and after making misrepresentations to the Russian court. He also has a history of violating court orders. Therefore, the trial court did not abuse its discretion.