Opinion
No. 05-14-00803-CV
03-30-2016
VINCENTE GUTIERREZ v. BRENDA GUTIERREZ
On Appeal from the 255th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF13-17718
MEMORANDUM OPINION
Before Justices Lang-Miers, Brown, and Schenck
Opinion by Justice Brown
Appellant Vincente Gutierrez (Father) appeals a divorce decree appointing him and Brenda Gutierrez (Mother) joint managing conservators of their three minor children. On appeal, Father asserts the trial court lacked jurisdiction and/or should have granted his motion to transfer venue. For the following reasons, we affirm.
Mother and Father married in 1996 and separated in 2007. They had three children during their marriage. In 2013, Mother filed a petition for divorce and suit affecting parent-child relationship (SAPCR) in Dallas County. Her petition alleged she had been a domiciliary of Texas for the preceding six-month period and a resident of Dallas County for the preceding ninety days. See TEX. FAM. CODE ANN. § 6.301 (West 2006). Father did not answer and the trial court rendered a default judgment of divorce appointing Mother and Father joint managing conservators of their children. Father filed a motion for new trial asserting the trial court had no jurisdiction because he had filed for divorce in Webb County before Mother filed her suit in Dallas County. Father also filed a post-judgment motion to transfer and plea in abatement asserting the Webb County court had dominant jurisdiction over the suit. The trial court did not rule on Father's motion to transfer or plea in abatement. Father's motion for new trial was overruled by operation of law.
In his first issue, Father asserts the Dallas County court had no jurisdiction over the divorce or the SAPCR because the children were not living in Dallas County when Mother filed her original petition. According to Father, a suit for divorce involving children must be brought in the county where the children reside and further that that requirement is jurisdictional. We disagree.
Father relies on Section 103.001 of the Texas Family Code to support his contentions. Section 103.001 is not jurisdictional, but is a venue statute that determines the proper county to bring a suit affecting the parent-child relationship. See TEX. FAM. CODE ANN. § 103.001 (West 2014); In re Hurley, 442 S.W.3d 432, 433 (Tex. App.—Dallas 2013, orig. proceeding); Kshatrya v. Texas Workforce Com'n, 97 S.W.3d 825, 832 (Tex. App.—Dallas 2003, no pet.) (venue is not jurisdictional); see also TEX. FAM. CODE ANN. § 103.002 (West 2014) (if suit brought in improper county, suit shall be transferred on timely motion). Section 103.001 provides that an original suit shall be filed in the county where the child resides unless another court has continuing exclusive jurisdiction under Chapter 155 or venue is fixed in a suit for dissolution of a marriage. TEX. FAM. CODE ANN. § 103.001.
Section 6.301 of the family code provides no suit for divorce shall be maintained unless, at the time the suit is filed, either the petitioner or respondent has been a domiciliary of this state for the preceding six-month period and a resident of the county of suit for the preceding 90-day period. TEX. FAM. CODE ANN. § 6.301; Stallworth v. Stallworth, 201 S.W.3d 338, 345 (Tex. App.—Dallas 2006, no pet.). Although the residency and domiciliary requirements are not jurisdictional, they are mandatory. In re Marriage of Lai, 333 S.W.3d 645, 648 (Tex. App.—Dallas 2009, no pet.). Father does not dispute Mother met the requirements of the statute. Therefore, Dallas County was a proper venue for the divorce. TEX. FAM. CODE ANN. § 103.001(a) (West 2014); In re Hurley, 442 S.W.3d at 433. We resolve the first issue against Father.
In his second issue, Father asserts the trial court should have "transferred" the case because he filed a petition for divorce in Webb County before Mother filed her petition in Dallas County. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). Father first contends the trial court should have transferred the case to Webb County because it acquired continuing jurisdiction over the children when he filed his petition for divorce and SAPCR. But a trial court does not acquire continuing jurisdiction over a child on the filing of a SAPCR, but on the rendition of a final order in such a suit. See TEX. FAM. CODE ANN. § 155.001 (West 2014); Grimes v. Harris, 695 S.W.2d 648, 651 (Tex. App.—Dallas 1985, no writ).
Father also asserts the Webb County court had "dominant jurisdiction" over the case. The court in which suit is first filed generally acquires dominant jurisdiction to the exclusion of other courts if venue is proper in the county in which suit was first filed. Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005). A dominant jurisdiction complaint must be timely asserted and proven by a plea in abatement or it is waived. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); Beckman v. Beckman, 716 S.W.2d 83, 85-86 (Tex. App.—Dallas 1986, writ dism'd). Here, Father did not file a plea in abatement until after the Dallas County court rendered a final judgment. Further, when Father did alert the Dallas County court to the Webb County suit, he failed to show that county was a proper venue for the suit. We resolve the second issue against Father.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE 140803F.P05
JUDGMENT
On Appeal from the 255th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF13-17718.
Opinion delivered by Justice Brown. Justices Lang-Miers and Schenck participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Brenda Gutierrez recover her costs of this appeal from appellant Vincente Gutierrez. Judgment entered this 30th day of March, 2016.