Opinion
NUMBER 13-20-00509-CV
01-27-2021
IN RE JOSE ANGEL PAREDES IV
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Hinojosa
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so," but "[w]hen granting relief, the court must hand down an opinion as in any other case"); id. R. 47.4 (distinguishing opinions and memorandum opinions).
By petition for writ of mandamus, relator Jose Angel Paredes IV seeks to compel the trial court to grant his motion to transfer venue of the underlying case from Hidalgo County, Texas, to Dimmit County, Texas based on a mandatory venue statute in the Texas Family Code. See TEX. FAM. CODE ANN. § 155.201(b) (providing for a mandatory transfer of venue in a matter affecting the parent-child relationship "to another county in this state if the child has resided in the other county for six months or longer"); id. § 155.204(d) (stating in relevant part that "a party desiring to contest the motion [to transfer venue] must file a controverting affidavit denying that grounds for the transfer exist"). We conditionally grant the petition for writ of mandamus.
This original proceeding arises from trial court cause number F-5361-19-G in the 370th District Court of Hidalgo County, Texas, and the respondent is the Honorable Noe Gonzalez. See TEX. R. APP. P. 52.2.
I. BACKGROUND
On February 20, 2020, Paredes and real party in interest Angela Rocha entered an "Agreed Order in Suit Affecting the Parent Child Relationship" regarding their two minor children. The order appointed Paredes and Rocha as joint managing conservators and gave Paredes the exclusive right to designate the primary residence of the children within Dimmit County, Hidalgo County, or the adjoining counties.
On June 30, 2020, Rocha filed a "Petition to Modify Parent-Child Relationship and Ex Parte Temporary Restraining Order under One Year and Order Setting Hearing for Temporary Orders." She alleged that Paredes was physically abusing the children. The trial court granted an ex parte restraining order against Paredes. At the time, the children were in Rocha's possession pursuant to the parties' visitation schedule.
On August 24, 2020, Paredes filed a verified "Motion to Transfer Venue" seeking to transfer venue from Hidalgo County, Texas, to Dimmit County, Texas, based on the children's residence in Dimmit County. Paredes asserted that the children had resided continuously in Dimmit County with Paredes since December 29, 2019 and had attended school there. That same day, Paredes filed an "Original Answer and Counterpetition to Modify Conservatorship and Child Support Subject to Motion to Transfer Venue."
On September 29, 2020, Paredes filed a "Motion to Enter Order to Transfer [] Venue without Hearing." Paredes asserted that Rocha had not filed an affidavit controverting his venue facts, and accordingly, the trial court was required to transfer venue to Dimmit County. On October 5, 2020, Paredes filed an additional pleading regarding venue in which he again argued, inter alia, that Rocha's failure to file a controverting affidavit meant that transfer was mandatory without the necessity of a hearing. He asserted that: the children began residing with him on December 29, 2019 in Carrizo Springs, Dimmit County; the children attended school in the adjoining county; and Rocha took possession of the children for her extended summer visitation on or about June 21, 2020 but failed to return the children to Paredes.
Paredes's motion to transfer venue was set for hearing on October 6, 2020. That day, the trial court took the motion to transfer under advisement.
This original proceeding ensued. Paredes contends that the trial court had a ministerial duty to transfer the case to Dimmit County, without a hearing, because Rocha failed to file a controverting affidavit regarding the children's residency. In contrast, Rocha argues that a review of the record demonstrates that (1) the trial court did not rule on the motion to transfer because it required "clarification" from the parties on a missing Rule 11 agreement; (2) the parties had an agreement that Paredes had the right to control the children's right of residence as of January 2020, but not earlier; and (3) for the purposes of Texas Family Code § 155.201(b), the children did not reside in Dimmit County for six months. See TEX. R. CIV. P. 11 ("Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record."); TEX. FAM. CODE ANN. § 155.201; id. § 155.204.
II. MANDAMUS
Mandamus is an "extraordinary" remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). To obtain mandamus relief, the relator must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008) (orig. proceeding).
Mandamus is available to compel the mandatory transfer of venue in a suit affecting the parent-child relationship because a trial court that improperly refuses its ministerial duty to transfer has abused its discretion. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding); Cassidy v. Fuller, 568 S.W.2d 845, 847 (Tex. 1978) (orig. proceeding); In re Venegas, 595 S.W.3d 341, 344 (Tex. App.—Eastland 2020, orig. proceeding); In re Yancey, 550 S.W.3d 671, 674 (Tex. App.—Tyler 2017, orig. proceeding); In re Thompson, 434 S.W.3d 624, 628 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding); In re Lawson, 357 S.W.3d 134, 135-36 (Tex. App.—San Antonio 2011, orig. proceeding). In such cases, remedy by direct appeal is inadequate because parents and children who have a right to mandatory venue "should not be forced to go through a trial that is for naught" and because "[j]ustice demands a speedy resolution of child custody and child support issues." Proffer, 734 S.W.2d at 673; see In re Lawson, 357 S.W.3d at 136; see also TEX. FAM. CODE ANN. § 155.204(h) (providing that an order transferring or refusing to transfer venue "is not subject to interlocutory appeal").
III. MANDATORY VENUE
Section 155.201(b) of the family code provides that, if a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit and a party files a timely motion to transfer, the court "shall, within the time required by Section 155.204, transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer." TEX. FAM. CODE ANN. § 155.201(b); see In re Venegas, 595 S.W.3d at 344. "The plain language of Section 155.201(b) demonstrates the legislature's desire that matters affecting the parent-child relationship be heard in the county of the child's residence." In re Yancey, 550 S.W.3d at 675; see Cassidy, 568 S.W.2d at 847 (explaining that it is easier to prove the current circumstances affecting children in their county of residence).
Under the statutory scheme, a motion to transfer venue by a petitioner or movant is timely "if it is made at the time the initial pleadings are filed." TEX. FAM. CODE ANN. § 155.204(b). A party who contests the transfer must file "a controverting affidavit denying that grounds for the transfer exist" on or before "the first Monday after the 20th day after the date of notice of a motion to transfer is served." Id. § 155.204(d). If a qualifying controverting affidavit is timely filed, each party is entitled to notice not less than ten days before the hearing date on the transfer motion. Id. § 155.204(e). At the hearing, "[o]nly evidence pertaining to the transfer may be taken." Id. § 155.204(f). If, on the other hand, no controverting affidavit is filed within the period allowed for its filing, "the proceeding shall, not later than the 21st day after the final date of the period allowed for the filing of a controverting affidavit, be transferred without a hearing to the proper court." Id. § 155.204(c). This provision is mandatory. See Proffer, 734 S.W.2d at 673; In re Venegas, 595 S.W.3d at 344; In re Yancey, 550 S.W.3d at 674; Silverman v. Johnson, 317 S.W.3d 846, 849 (Tex. App.—Austin 2010, no pet.).
If transferred, the transferee court becomes the court of continuing, exclusive jurisdiction, and all proceedings continue as if brought there originally. TEX. FAM. CODE ANN. § 155.206(a). The transferee court acquires the power to enforce previous orders entered by the transferor court, including disobedience of the transferring court's order that occurred before or after the transfer. Id. § 155.206(c). "After the transfer, the transferring court does not retain jurisdiction of the child who is subject of the suit, nor does it have jurisdiction to enforce its order for a violation occurring before or after the transfer of jurisdiction." Id. § 155.206(d).
IV. ANALYSIS
By one issue, Paredes contends that the trial court abused its discretion by failing to order venue transferred to Dimmit County, Texas in the absence of a controverting affidavit regarding venue. Here, the mandamus record shows that Paredes filed his verified motion to transfer venue on the same day that he filed his answer to suit and his counterpetition. See id. § 155.204(b). Rocha did not file a controverting affidavit, timely or otherwise. Therefore, based on the statutory directive, the trial court had a mandatory duty to transfer the case to the proper court without holding a hearing. See TEX. FAM. CODE ANN. §§ 155.201(b), .204(c); In re Venegas, 595 S.W.3d at 346; In re Yancey, 550 S.W.3d at 675-76; In re Lawson, 357 S.W.3d at 136; In re Leyva, 333 S.W.3d 315, 318 (Tex. App.—San Antonio 2010, orig. proceeding); see also In re B.E., No. 13-20-00234- CV, 2020 WL 4218796, at *4 (Tex. App.—Corpus Christi-Edinburg July 22, 2020, orig. proceeding) (mem. op.) (stating that a trial court has a statutory, ministerial duty to promptly transfer the suit without a hearing once all requirements of the mandatory-venue-transfer statute are met); In re L.C.R., No. 01-19-00667-CV, 2020 WL 3456595, at *4 (Tex. App.—Houston [1st Dist.] June 25, 2020, no pet.) (mem. op.) (same).
As stated previously, Rocha contends that the trial court did not abuse its discretion in failing to transfer venue because Paredes failed to establish that the children had resided in Dimmit County for the requisite six-month period. We disagree. Paredes's verified motion to transfer venue explicitly stated that the children had resided with him in Dimmit County since December 29, 2019. Rocha filed her "Petition to Modify Parent-Child Relationship and Ex Parte Temporary Restraining Order under One Year and Order Setting Hearing for Temporary Orders" on June 30, 2020, and Paredes filed his "Motion to Transfer Venue" contemporaneously with his counterpetition and answer on August 24, 2020. Thus, the period of the children's residency in Dimmit County exceeds the requisite six-month statutory requirement. See TEX. FAM. CODE ANN. § 155.201(b); see also id. § 155.203 ("In computing the time during which the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted but shall look to the child's principal residence during the six-month period preceding the commencement of the suit."). Accordingly, we reject Rocha's argument otherwise.
Rocha further asserts that the trial court did not err in failing to transfer venue because it required "clarification" from the parties on a missing Rule 11 agreement. In connection with this issue, she asserts that the parties had agreed that Paredes's right to control the children's residence did not begin until January 2020. Rocha's argument refers to an agreement reached by the parties and as read into the record at a hearing held on November 4, 2019. Rocha asserts that Paredes did not file the transcript of the hearing until after he filed his motion to transfer venue and thus the agreement was not filed when Paredes attempted to enforce it. See TEX. R. CIV. P. 11.
Rocha argues that the children began to reside in Dimmit County on January 7, 2020. However, as stated previously, she did not file an affidavit in support of this allegation. Further, the portion of the record that she cites in favor of this proposition fails to support it. Rocha references a portion of the November 4, 2019 hearing wherein Paredes's counsel questions Paredes if he understands that he will become the primary conservator of the children and that the children would reside with him "effective the day before school starts" in January 2020. This dialogue does not constitute evidence of what subsequently occurred and does not contradict Paredes's testimony regarding the date of inception of the children's residence with him. --------
Leaving aside any issue regarding whether the parties had reached an agreement pertaining to venue, we reject Rocha's contentions. The Texas Supreme Court has held that an agreement between the parties will not supersede the family code's mandatory venue provisions. See Leonard v. Paxson, 654 S.W.2d 440, 441-42 (Tex. 1983) (orig. proceeding) (stating that "the mandatory venue and transfer provisions of the Family Code control and cannot be negated by contract" and to hold otherwise "would defeat the legislature's intent that matters affecting the parent-child relationship be heard in the county where the child resides, and would promote forum shopping by contract"); see also In re Lovell-Osburn, 448 S.W.3d 616, 622 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding [mand. dism'd]); In re Calderon, 96 S.W.3d 711, 718-20 (Tex. App.—Tyler 2003, orig. proceeding [mand. denied]); Huckeby v. Lawdermilk, 709 S.W.2d 331, 333 (Tex. App.—Eastland 1986, no writ); see also In re Mathes, No. 03-20-00379-CV, 2020 WL 7063684, at *2-3 (Tex. App.—Austin Dec. 3, 2020, orig. proceeding) (mem. op.). The Tyler Court of Appeals has explained this proposition as follows:
Under the holding in Leonard, any attempt to supplant the mandatory transfer provision applicable in a SAPCR is void. The term "void" means "of no legal effect" or "null." Therefore, the provision cannot be an effective
contractual waiver of Calderon's right to the transfer required by [§] 155.201. Furthermore, a settlement agreement attempting to change venue contrary to the statutory law of the state cannot constitute a waiver of venue. In a SAPCR, venue is proper in the court of continuing jurisdiction unless a transfer is requested. If the child has resided in another county for more than six months and a motion to transfer is timely filed, the transfer of the proceeding is mandatory. The [mediated settlement agreement] provision contravenes this statutory scheme, and in so doing, "defeats the legislature's intent that matters affecting the parent-child relationship be heard in the county where the child resides. . .." Consequently, we conclude that the [mediated settlement agreement] provision is not a valid express waiver of venue.Calderon, 96 S.W.3d at 719-20 (citations omitted); see also In re Mathes, 2020 WL 7063684, at *2-3. Thus, any agreement pertaining to venue that was allegedly reached by the parties cannot defeat the family code's mandatory venue provisions. See Leonard, 654 S.W.2d at 441-42; In re Lovell-Osburn, 448 S.W.3d at 622; In re Calderon, 96 S.W.3d at 719-20.
Based on the foregoing, we conclude that the trial court had a ministerial duty to transfer the case from Hidalgo County to Dimmit County. We sustain the sole issue presented in this original proceeding.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus, the response, the reply, and the applicable law, is of the opinion that Paredes has met his burden to obtain relief. Accordingly, we CONDITIONALLY GRANT the petition for writ of mandamus and direct the trial court to transfer the case to Dimmit County. The writ will issue only if the trial court fails to promptly comply.
LETICIA HINOJOSA
Justice Delivered and filed on the 27th day of January, 2021.