In Re: Johnnie Gwendolyn Elliott--Appeal from 294th District Court of Van Zandt County

NO. 12-07-00217-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: JOHNNIE

GWENDOLYN ELLIOTT, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Johnnie Gwendolyn Elliott seeks a writ of mandamus requiring the respondent to vacate her June 11, 2007 order denying Mrs. Elliott s motion to transfer venue and to enter an order transferring the underlying divorce case to Dallas County.1 We deny the petition.

Background

James Elliott and Johnnie Gwendolyn Elliott are husband and wife. Mr. Elliott filed a divorce action in Van Zandt County alleging that he had been a domiciliary of Texas for the preceding six months and a resident of Van Zandt County for the preceding ninety days. Mrs. Elliott filed a motion to transfer venue requesting that the action be transferred to Dallas County. She alleged in her motion that Mr. Elliott had failed to plead venue facts and attached an affidavit to the motion stating that her county of residence is Dallas County and the parties homestead is situated in Dallas County. Mr. Elliott did not respond to the motion. At a hearing on April 25, 2005, the trial court denied Mrs. Elliott s motion to transfer venue and signed an order on June 11, 2007 memorializing its ruling. Mrs. Elliott then filed this original proceeding along with a motion for temporary relief.

Availability of Mandamus

Mandamus will not issue unless the trial court has committed a clear abuse of discretion for which appeal is not an adequate remedy. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). In the instant case, Mrs. Elliott contends that venue of the underlying divorce action is proper in Dallas County because the general venue statute applies. See Tex. Civ. Prac. & Rem. Code Ann. 15.002(a)(2) (Vernon 2002).2 She further argues that because she filed a timely motion to transfer venue in accordance with Texas Rule of Civil Procedure 87 and Mr. Elliott failed to oppose the motion as required by the rule, the trial court abused its discretion in denying her motion to transfer. We disagree.

The Texas Family Code provides that a suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been (1) a domiciliary of this state for the preceding six months and (2) a resident of the county in which the suit is filed for the preceding ninety days.3 Tex. Fam. Code Ann. 6.301 (Vernon 2006). As a specific statute, section 6.301 controls over the general venue statute, section 15.002. See Lutes v. Lutes, 538 S.W.2d 256, 257 (Tex. App. Houston [14th Dist.] 1976, no writ) (interpreting predecessor to section 6.301). Therefore, the general venue statute does not apply in divorce actions. Id. Consequently, the petitioner in a divorce action may now bring suit in either the county of his residence or in that of the respondent s. But the choice of in which of those counties the suit is to be filed is still given to the petitioner. Id. at 258. (interpreting prior section 3.21 containing same language as section 6.301). Moreover, a motion to transfer venue is not appropriate in a divorce case and should not be granted even when the respondent does not file a controverting affidavit as required by Rule 87. See id. (plea in abatement proper method of challenging satisfaction of residency requirements); Randell v. Randell, 222 S.W.2d 252, 254 (Tex. Civ. App. Fort Worth 1949, writ dism d) (residency requirements not subject to waiver for failure to controvert motion to transfer venue).

Alternatively, Mrs. Elliott argues that because an interest in land (the parties homestead) is at stake in the divorce action, the trial court should have granted her motion to transfer. Certain actions pertaining to real property, including actions for recovery of real property or an estate or interest in real property and suits for partition of real property, must be brought in the county in which all or a part of the property is located. See Tex. Civ. Prac. & Rem. Code Ann. 15.011 (Vernon 2002). However, the underlying proceeding is a divorce action. The power vested in the courts to grant divorces is strictly regulated by statute. Harkness v. McQueen, 207 S.W.2d 676, 679 (Tex. App. Galveston 1948, no writ); see also Tex. Fam. Code Ann. 6.001 .711 (Vernon 2006). The power of the courts to divide the estate of the parties is a special power conferred by statute. See Tex. Fam. Code Ann. 7.001 (Vernon 2006) ( In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. ). When the trial court fails to decree a partition of the parties real property in decreeing the divorce, a subsequent independent partition suit can be brought. Harkness, 207 S.W.2d at 679. That suit must be brought in the county in which all or a part of the property is located. See id. (trial court properly transferred venue of postdivorce partition action to county in which real property was located); see alsoTex. Civ. Prac. & Rem. Code Ann. 15.011. When, as here, no divorce decree has been entered, the specific statute, section 6.301, controls venue of the action. See Lutes, 538 S.W.2d at 257.

Conclusion

Section 6.301, and not section 15.002 or section 15.011, governs venue in this case. Therefore, the trial court did not abuse its discretion in overruling Mrs. Elliott s motion to transfer venue. Because the trial court did not abuse its discretion in overruling the motion, we need not address whether Mrs. Elliott has an adequate remedy by appeal. The petition for writ of mandamus is denied and the motion for temporary relief is overruled as moot.

SAM GRIFFITH

Justice

Opinion delivered July 18, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 The respondent is the Honorable Teresa Drum, Judge of the 294th Judicial District Court, Van Zandt County, Texas. The real party in interest is James Elliott.

2 Subject to exceptions not applicable here, all lawsuits shall be brought (1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; (2) in the county of the defendant s residence at the time the cause of action accrued if the defendant is a natural person; or (3) in the county of the defendant s principal office in this state, if the defendant is not a natural person. Tex. Civ. Prac. & Rem. Code Ann. 15.002(a).

3 It is uncontroverted that Mr. Elliott meets these requirements.