In Re: Lee Ann Grossnickle--Appeal from of County

6-96-028-CV Long Trusts v. Dowd In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-03-00096-CV
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IN RE: LEE ANN GROSSNICKLE
Original Mandamus Proceeding
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Lee Ann Grossnickle has filed a petition for writ of mandamus in which she asks this Court to order the 102nd Judicial District Court to immediately transfer venue of actions affecting the parent-child relationship. She contends the trial court has no discretion but to transfer venue because she has filed an affidavit indicating she and the child have now resided in Dallas for over six months, and her former husband, Richard Grossnickle, has not filed a controverting affidavit. See Tex. Fam. Code Ann. 155.201(b) (Vernon 2002).

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

Her timely motion, in the absence of a controverting affidavit, would typically require mandatory transfer without necessity of a hearing. Section 155.201(b) provides that transfer is mandatory "on the timely motion of a party" if the child has resided in another county for six months or longer. Tex. Fam. Code Ann. 155.201(b) (Vernon 2002).

That language is important because Section 155.204(a), which sets out the procedure to be followed in seeking a transfer, provides that a motion to transfer is timely if made (by the party filing initial pleadings) at the time the initial pleadings are filed, or within a short time thereafter if filed by the other party. Tex. Fam. Code Ann. 155.204(a) (Vernon 2002). If the motion to transfer is timely, then the opposing party must file a controverting affidavit, or the Section 155.201(b) transfer is mandatory. Tex. Fam. Code Ann. 155.201(b).

Further, there is an exception to the rule which explicitly provides that, if a suit to modify or motion to enforce is pending at the time a subsequent suit or motion is filed, the court may transfer the proceeding only if the court could have transferred it at the time the pending motion was filed. Tex. Fam. Code Ann. 155.201(c) (Vernon 2002).

The record provided to this Court does show that the residence of Lee Ann and the child has changed for a period of over six months. It does not, however, clearly show that no pending motion or suit for modification was before the trial court at the time of its filing or that the motion was "timely" as required by statute. Indeed, we will take judicial notice of the fact that an appeal from a ruling by the trial court on child support is presently pending before this Court for decision. Further, this record does not reflect whether additional matters are continuing to be heard by the trial court of continuing jurisdiction that might also impact the availability of a transfer of venue at this point.

Section 155.204 contemplates the filing of the motion to transfer venue at the time of the filing of the initial request for relief. Tex. Fam. Code Ann. 155.204 (Vernon 2002). It is not clear from the record provided in this mandamus that this occurred in the present case, and in Richard's response, he states that the matters presently before this Court were filed several years before Lee Ann filed her motion to transfer venue in March 2003.

Accordingly, we cannot conclude from the record presented that the trial court abused its discretion by declining to immediately transfer venue and instead setting the motion for a hearing.

We are aware that this matter has been set by the trial court for a hearing on the venue issue. When a court renders a final divorce decree, it acquires continuing, exclusive jurisdiction over the matters in the decree affecting a child of the marriage. Tex. Fam. Code Ann. 155.001(a) (Vernon 2002); In re G.R.M., 45 S.W.3d 764, 766 (Tex. App.-Fort Worth 2001, no pet.). As the court which attained that status under an earlier transfer of venue, the 102nd Judicial District Court retains continuing, exclusive jurisdiction over the child unless jurisdiction has been transferred under Sections 155.201-155.207 of the Texas Family Code or an emergency exists. See Tex. Fam. Code Ann. 155.001(c), 155.002, & 155.201-.207 (Vernon 2002); In re T.J.L., 97 S.W.3d 257, 263 (Tex. App.-Houston [14th Dist.] 2002, no pet.); G.R.M., 45 S.W.3d at 766-67.

We are confident that all necessary matters will be addressed during the hearing so that the trial court may make a ruling based on the complete status of the case.

 

We deny the petition.

 

Jack Carter

Justice

 

Date Submitted: August 13, 2003

Date Decided: August 14, 2003