In Re Lisa Gore and Glenn Alan Gore, Relator, No. 07-07-00290-CV (Tex.App.- Amarillo, Aug. 23, 2007)(Opinion by Justice Pirtle)(SAPCR venue mandmaus)(Before Chief Justice Quinn, Justices Hancock and Pirtle)
Appeal from of County
ON PETITION FOR WRIT OF MANDAMUS
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In this original proceeding, Relators, Lisa Gore and Glenn Alan Gore, seek to have this Court issue a writ of mandamus commanding the Honorable Robert W. Kinkaid, Jr., presiding judge of the 64th District Court, to rescind the Order Transferring Suit Affecting the Parent-Child Relationship (SAPCR), entered by the trial court on June 12, 2007, in the underlying SAPCR action. The Texas Department of Family and Protective Services (hereinafter the Department) has candidly filed a response wherein it acknowledges that it has been unable to find any "authority or argument to controvert the allegations and arguments set forth in Relators' Petition for Writ of Mandamus." We conditionally grant Relators' petition.
Background
The underlying SAPCR action was originally filed by the Department in 1999. The original court of continuing jurisdiction was the 320th District Court in and for Potter County, Texas. In that action, the Department was named managing conservator of the minor child, Tykaier Gardner, and the Department subsequently placed the child in the foster care of Relators, Lisa and Glenn Gore. After the child had lived in their home for more than six years, on June 19, 2006, Relators filed a petition seeking termination of the parent-child relationship between the child and her parents. The petition was originally filed in the 320th District Court of Potter County; however, it was subsequently transferred to the 64th District Court of Swisher County by order dated November 3, 2006. At the time the case was transferred from Potter County to Swisher County, the child the subject of the proceeding had resided in Swisher County for more than six years and the Department and the attorney ad litem for the child agreed to the transfer. The Department later sought a discretionary transfer of the case back to the 320th District Court and on June 12, 2007, Respondent, the Honorable Robert W. Kinkaid, Jr., entered an order granting the Department's motion. Relators opposed the entry of that order and now seek to have this Court compel Respondent to rescind that order.
Standard of Review
A writ of mandamus will only issue to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal, and the relators have the burden to present the appellate court with a record sufficient to establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992) (orig. proceeding); See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).
Transfer of a SAPCR action to a county where the child has resided for more than six months is a mandatory ministerial duty under § 155.201(b) of the Texas Family Code. Proffer v. Yates, 734 S.W.2d 671, 672 (Tex. 1987) (orig. proceeding); In re Leder, __S.W.3d__, 2007 WL 1953877, at *2 (Tex.App.-Houston [1st Dist.] July 6, 2007) (orig. proceeding). Mandamus relief is available to compel the mandatory transfer of a SAPCR action. Proffer, 734 S.W.2d at 672.
Because it was undisputed that the child the subject of the underlying SAPCR action had resided in Swisher County more than six months, Swisher County was the only county of proper venue and the case should not have been transferred based upon a motion for discretionary transfer. Mandamus is the proper remedy to complain of an erroneous or improper transfer once the transferring court has lost its plenary power over the case. Proffer, 757 S.W.2d at 673. Based upon the above and foregoing, we find that Respondent abused his discretion by granting the Department's motion to transfer venue to Potter County. Accordingly, Relators' Petition for Writ of Mandamus is conditionally granted and Respondent is directed to rescind the June 12, 2007 order transferring venue to Potter County. Because we are confident that Respondent will enter an order effectively rescinding that order, the writ will issue only if he fails to do so.
Patrick A. Pirtle
Justice
Showing posts with label venue. Show all posts
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Monday, August 27, 2007
Monday, July 9, 2007
Mandatory Venue in SAPCR Enforced by Mandamus
Houston Court of Appeals Orders Transfer in Suit Affecting Parent-Child Relationship to Give Effect to Mandatory Venue Provision
In re Rachel Leder, No. 01-07-00453-CV (Tex.App. - Houston [1st Dist.] Jul. 6, 2007)(venue in suit affecting the parent-child relationship, mandamus granted)
Appeal from 300th District Court of Brazoria County (Hon. James Blackstock, sitting as visiting judge) [Hon. K. Randal Hufstetler is the presiding judge]
OPINION BY JUSTICE LAURA CARTER HIGLEY
Relator, Rachel Leder ("Rachel"), has filed a petition for writ of mandamus complaining of Judge James Blackstock's order (1) denying her request to transfer a suit affecting the parent-child relationship ("SAPCR") from Brazoria County to Harris County. Because it was an abuse of discretion to deny the motion to transfer, we hold that Rachel is entitled to mandamus relief.
Background
In 2000, Rachel and real party in interest, Gregory Leder ("Gregory"), were divorced in Brazoria County district court. Pursuant to the divorce decree, Rachel and Gregory became the joint managing conservators of their two children, C.L. and T.L. The decree gave Rachel the right to establish the primary residence of the children. Sometime after the divorce, Rachel and the two children moved to Harris County.
On March 22, 2007, Gregory filed a petition to modify matters affecting the parent-child relationship. Gregory filed the motion in Brazoria County district court. Gregory sought to modify custody with respect to T.L. only. Specifically, Gregory requested that "[T.L.] be allowed to return with [Gregory] to Louisiana and enroll in school there." Gregory requested that he be named T.L.'s sole managing conservator, or alternatively, that he be named the joint managing conservator with the right to designate T.L.'s primary residence.
On the same day, the trial court signed a "Temporary Restraining Order and Order Setting Hearing for Temporary Orders," in which it ordered T.L. to return with Gregory to Louisiana pending further hearing. On March 26, 2007, Rachel filed a general denial, a counter-petition, and a motion to transfer venue. In the motion to transfer, Rachel requested that venue be transferred from Brazoria County to Harris County. Rachel alleged that T.L. had resided in Harris County for at least six months. She also filed a "Motion to Vacate Ex Parte Temporary Orders, and in the Alternative an Emergency Hearing and Request for Sanctions." In addition, Rachel filed a certificate of written discovery indicating that she had served Gregory with her request for production, interrogatories, and request for disclosure. On March 30, 2007, Rachel filed another motion for sanctions and a notice of hearing regarding the motion to transfer and the request for sanctions.
On April 26, 2007, Gregory's attorney filed an affidavit to controvert the motion to transfer. In the affidavit, Gregory's attorney averred that Rachel "has appeared or will appear in a hearing on a Motion to Vacate, Temporary Orders or other hearing before a hearing on the Motion to Transfer and therefore has waived jurisdiction."
At a hearing on May 10, 2007, the trial court denied the motion to transfer and held that Rachel had waived venue by invoking the jurisdiction of the court. On May 29, 2007, the court signed an order denying the motion to transfer, which Rachel challenges in this mandamus proceeding.
Standard of Review
An erroneous denial of a mandatory venue transfer is subject to mandamus relief without a showing of inadequate remedy by appeal. In re Tex. Ass'n of Sch. Bds., Inc., 169 S.W.3d 653, 656 (Tex. 2005); see Tex. Fam. Code Ann. § 155.204(h) (Vernon Supp. 2006) (providing that denial of mandatory transfer is not subject to interlocutory appeal). Mandamus relief is available only to correct a "clear abuse of discretion" when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). "A trial court clearly abuses its discretion if 'it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Id. (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). Mandamus will issue when there is a legal duty to perform a nondiscretionary act, a demand for performance, and a refusal. O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (orig. proceeding).
Analysis
The duty to transfer a SAPCR pursuant to Family Code section 155.201(b) is a mandatory, ministerial duty. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987); In re Wheeler, 177 S.W.3d 350, 352 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding). Section 155.201(b) provides, in pertinent part,
If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party 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) (Vernon Supp. 2006).
Here, no one disputes that the trial court has continuing, exclusive jurisdiction over the case. See Tex. Fam. Code Ann. § 155.001(a) (Vernon 2002). The mandamus record shows that Rachel timely filed the motion to transfer venue, see Tex. Fam. Code Ann. § 155.204, and it is undisputed that T.L. had lived in Harris County longer than six months at the time Gregory filed the SAPCR. Accordingly, the requirements of section 155.201(b) have been satisfied.
Nonetheless, Gregory contends, and the trial court concluded, that Rachel waived venue by invoking the trial court's judicial power. More particularly, Gregory claims that Rachel acted inconsistently with her desire to change venue when she filed a counter-claim, a jury demand, a motion to vacate the ex parte temporary orders, two motions for sanctions, and a certificate of written discovery before obtaining a ruling on her motion for transfer. In so doing, Gregory relies on the legal precept that a party may impliedly waive venue by taking some action inconsistent with an intent to pursue the venue motion, thereby invoking the judicial power of the court. See Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 309-10 (Tex. App.--Fort Worth 1988, writ denied).
In reviewing the waiver issue, we are cognizant that the Family Code's transfer procedures are the exclusive mechanisms for challenging venue and for transferring the case in a SAPCR. (2) See Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex. 1983); see also In re G.R.M., 45 S.W.3d 764, 767 (Tex. App.--Fort Worth 2001, no pet.). A review of the pertinent Family Code sections reveals that a party seeking a transfer does not waive venue by requesting affirmative relief in the trial court before obtaining a ruling on the motion to transfer venue. Specifically, Family Code section 155.204(b) provides, in part, that a motion to transfer is timely if filed by a petitioner when she files her initial pleadings in a SAPCR. (3) Tex. Fam. Code Ann. § 155.204(b) (Vernon Supp. 2006). In other words, section 155.204(b) contemplates the simultaneous filing of a motion to transfer and a request for affirmative relief. Thus, to the extent that Rachel requested relief from the trial court in tandem with her motion to transfer, such action does not waive venue.
We also recognize that a party seeking a venue transfer may generally urge certain preliminary motions without waiving the right to complain about venue. See Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex. App.--Texarkana 1995, no writ). Of particular relevance, courts have held that, because venue relates to trial on the merits, contesting a motion for temporary relief without first challenging venue does not waive a venue challenge. See Green v. Barker, 806 S.W.2d 274, 275 (Tex. App.--Fort Worth 1991, orig. proceeding) (holding that, in SAPCR, movant asserting motion to transfer did not waive venue challenge by participating in hearing on temporary orders before filing motion to transfer); Box v. Fleming, 484 S.W.2d 617, 619 (Tex. Civ. App.--Eastland 1972, no writ) (holding that wife's motion to set aside show cause order pending final hearing on main suit did not waive venue challenge); cf. In re Lambdin, No. 07-03-0328-CV, 2003 WL 21981975, *3 (Tex. App.--Amarillo Aug. 20, 2003, orig. proceeding) (mem. op.) (concluding that, in SAPCR, wife's participation in trial on the merits of husband's motion to enforce, without first seeking ruling on her motion to transfer, waived venue challenge). Courts have also held that pursing other preliminary matters ancillary to the main action, such as engaging in discovery, does not waive venue. See Petromark Minerals, Inc. v. Buttes Res. Co., 633 S.W.2d 657, 659 (Tex. App.--Houston [14th Dist.] 1982, writ dism'd w.o.j.).
Here, we conclude that Rachel's actions did not waive her venue challenge. The affirmative relief requested by Rachel in tandem with her motion to transfer is expressly contemplated by the mandatory venue statute. See Tex. Fam. Code Ann. § 155.204(b).
Rachel's preliminary motions and discovery are ancillary to the main action and did not invoke the power of the trial court in a manner inconsistent with Rachel's continuing intention to insist on a change of venue. (4)
See Gentry, 891 S.W.2d at 768.
Conclusion
Because Rachel's motion to transfer was timely, T.L. had lived in Harris County for six months or longer, and Rachel did not waive venue, a transfer to Harris County is mandatory. See Tex. Fam. Code Ann. § 155.201(b). We hold that the trial court abused its discretion by denying the motion to transfer. Accordingly, we hold that Rachel is entitled to mandamus relief. We will issue the writ only if Judge Blackstock fails (1) to vacate his May 29, 2007 order denying the motion and (2) to enter an order transferring the case to Harris County.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Keyes, and Higley.
1. The Hon. Randall Hufstetler is the elected judge of the 300th Judicial District Court of Brazoria County. The Hon. James Blackstock, sitting as visiting judge, signed the complained of order in the underlying suit, In the Interest of Ciara Jade Leder and Tarah Elise Leder, children, No. 9091 (300th Dist. Ct., Brazoria County, Tex.).
2. As a result, courts have held that, in a SAPCR, the Family Code's transfer provisions supplant the rules of procedure and venue statutes, which govern venue challenges in other types of civil cases. Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex. 1983). Thus, to the extent that Gregory asserts that Rachel has violated the due order of pleadings rule found in the Rules of Civil Procedure, such rule is not applicable. See Martinez v. Flores, 820 S.W.2d 937, 938 (Tex. App.--Corpus Christi 1991, no writ) (interpreting predecessor section 11.06, court held that due order of pleadings rule, Tex. R. Civ. P. 86(1), not applicable to filing of motion to transfer venue in SAPCR).
3. Section 155.204(b) provides, in its entirety, as follows:
Except as provided by Subsection (a) or Section 262.203, a motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed. A motion to transfer by another party is timely if it is made on or before the first Monday after the 20th day after the date of service of citation or notice of the suit or before the commencement of the hearing, whichever is sooner.
Tex. Fam. Code Ann. § 155.204(b) (Vernon Supp. 2006).
4. A party filing a venue motion has the burden to diligently request a setting on the motion and obtain a ruling prior to a trial on the merits. Cliff Jones, Inc. v. Ledbetter, 896 S.W.2d 417, 418 (Tex. App.--Houston [1st Dist.] 1995, no writ). A delay in obtaining a hearing provides a basis for the trial court to deny a venue motion. Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 408 (Tex. App.--Houston [14th Dist.] 2004, no pet.). Here, there was no delay. Rachel filed a notice of hearing on the motion to transfer four days after filing the motion. The trial court heard and orally denied the motion 45 days after it was filed, before any decision on the merits.
In re Rachel Leder, No. 01-07-00453-CV (Tex.App. - Houston [1st Dist.] Jul. 6, 2007)(venue in suit affecting the parent-child relationship, mandamus granted)
Appeal from 300th District Court of Brazoria County (Hon. James Blackstock, sitting as visiting judge) [Hon. K. Randal Hufstetler is the presiding judge]
OPINION BY JUSTICE LAURA CARTER HIGLEY
Relator, Rachel Leder ("Rachel"), has filed a petition for writ of mandamus complaining of Judge James Blackstock's order (1) denying her request to transfer a suit affecting the parent-child relationship ("SAPCR") from Brazoria County to Harris County. Because it was an abuse of discretion to deny the motion to transfer, we hold that Rachel is entitled to mandamus relief.
Background
In 2000, Rachel and real party in interest, Gregory Leder ("Gregory"), were divorced in Brazoria County district court. Pursuant to the divorce decree, Rachel and Gregory became the joint managing conservators of their two children, C.L. and T.L. The decree gave Rachel the right to establish the primary residence of the children. Sometime after the divorce, Rachel and the two children moved to Harris County.
On March 22, 2007, Gregory filed a petition to modify matters affecting the parent-child relationship. Gregory filed the motion in Brazoria County district court. Gregory sought to modify custody with respect to T.L. only. Specifically, Gregory requested that "[T.L.] be allowed to return with [Gregory] to Louisiana and enroll in school there." Gregory requested that he be named T.L.'s sole managing conservator, or alternatively, that he be named the joint managing conservator with the right to designate T.L.'s primary residence.
On the same day, the trial court signed a "Temporary Restraining Order and Order Setting Hearing for Temporary Orders," in which it ordered T.L. to return with Gregory to Louisiana pending further hearing. On March 26, 2007, Rachel filed a general denial, a counter-petition, and a motion to transfer venue. In the motion to transfer, Rachel requested that venue be transferred from Brazoria County to Harris County. Rachel alleged that T.L. had resided in Harris County for at least six months. She also filed a "Motion to Vacate Ex Parte Temporary Orders, and in the Alternative an Emergency Hearing and Request for Sanctions." In addition, Rachel filed a certificate of written discovery indicating that she had served Gregory with her request for production, interrogatories, and request for disclosure. On March 30, 2007, Rachel filed another motion for sanctions and a notice of hearing regarding the motion to transfer and the request for sanctions.
On April 26, 2007, Gregory's attorney filed an affidavit to controvert the motion to transfer. In the affidavit, Gregory's attorney averred that Rachel "has appeared or will appear in a hearing on a Motion to Vacate, Temporary Orders or other hearing before a hearing on the Motion to Transfer and therefore has waived jurisdiction."
At a hearing on May 10, 2007, the trial court denied the motion to transfer and held that Rachel had waived venue by invoking the jurisdiction of the court. On May 29, 2007, the court signed an order denying the motion to transfer, which Rachel challenges in this mandamus proceeding.
Standard of Review
An erroneous denial of a mandatory venue transfer is subject to mandamus relief without a showing of inadequate remedy by appeal. In re Tex. Ass'n of Sch. Bds., Inc., 169 S.W.3d 653, 656 (Tex. 2005); see Tex. Fam. Code Ann. § 155.204(h) (Vernon Supp. 2006) (providing that denial of mandatory transfer is not subject to interlocutory appeal). Mandamus relief is available only to correct a "clear abuse of discretion" when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). "A trial court clearly abuses its discretion if 'it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Id. (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). Mandamus will issue when there is a legal duty to perform a nondiscretionary act, a demand for performance, and a refusal. O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (orig. proceeding).
Analysis
The duty to transfer a SAPCR pursuant to Family Code section 155.201(b) is a mandatory, ministerial duty. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987); In re Wheeler, 177 S.W.3d 350, 352 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding). Section 155.201(b) provides, in pertinent part,
If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party 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) (Vernon Supp. 2006).
Here, no one disputes that the trial court has continuing, exclusive jurisdiction over the case. See Tex. Fam. Code Ann. § 155.001(a) (Vernon 2002). The mandamus record shows that Rachel timely filed the motion to transfer venue, see Tex. Fam. Code Ann. § 155.204, and it is undisputed that T.L. had lived in Harris County longer than six months at the time Gregory filed the SAPCR. Accordingly, the requirements of section 155.201(b) have been satisfied.
Nonetheless, Gregory contends, and the trial court concluded, that Rachel waived venue by invoking the trial court's judicial power. More particularly, Gregory claims that Rachel acted inconsistently with her desire to change venue when she filed a counter-claim, a jury demand, a motion to vacate the ex parte temporary orders, two motions for sanctions, and a certificate of written discovery before obtaining a ruling on her motion for transfer. In so doing, Gregory relies on the legal precept that a party may impliedly waive venue by taking some action inconsistent with an intent to pursue the venue motion, thereby invoking the judicial power of the court. See Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 309-10 (Tex. App.--Fort Worth 1988, writ denied).
In reviewing the waiver issue, we are cognizant that the Family Code's transfer procedures are the exclusive mechanisms for challenging venue and for transferring the case in a SAPCR. (2) See Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex. 1983); see also In re G.R.M., 45 S.W.3d 764, 767 (Tex. App.--Fort Worth 2001, no pet.). A review of the pertinent Family Code sections reveals that a party seeking a transfer does not waive venue by requesting affirmative relief in the trial court before obtaining a ruling on the motion to transfer venue. Specifically, Family Code section 155.204(b) provides, in part, that a motion to transfer is timely if filed by a petitioner when she files her initial pleadings in a SAPCR. (3) Tex. Fam. Code Ann. § 155.204(b) (Vernon Supp. 2006). In other words, section 155.204(b) contemplates the simultaneous filing of a motion to transfer and a request for affirmative relief. Thus, to the extent that Rachel requested relief from the trial court in tandem with her motion to transfer, such action does not waive venue.
We also recognize that a party seeking a venue transfer may generally urge certain preliminary motions without waiving the right to complain about venue. See Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex. App.--Texarkana 1995, no writ). Of particular relevance, courts have held that, because venue relates to trial on the merits, contesting a motion for temporary relief without first challenging venue does not waive a venue challenge. See Green v. Barker, 806 S.W.2d 274, 275 (Tex. App.--Fort Worth 1991, orig. proceeding) (holding that, in SAPCR, movant asserting motion to transfer did not waive venue challenge by participating in hearing on temporary orders before filing motion to transfer); Box v. Fleming, 484 S.W.2d 617, 619 (Tex. Civ. App.--Eastland 1972, no writ) (holding that wife's motion to set aside show cause order pending final hearing on main suit did not waive venue challenge); cf. In re Lambdin, No. 07-03-0328-CV, 2003 WL 21981975, *3 (Tex. App.--Amarillo Aug. 20, 2003, orig. proceeding) (mem. op.) (concluding that, in SAPCR, wife's participation in trial on the merits of husband's motion to enforce, without first seeking ruling on her motion to transfer, waived venue challenge). Courts have also held that pursing other preliminary matters ancillary to the main action, such as engaging in discovery, does not waive venue. See Petromark Minerals, Inc. v. Buttes Res. Co., 633 S.W.2d 657, 659 (Tex. App.--Houston [14th Dist.] 1982, writ dism'd w.o.j.).
Here, we conclude that Rachel's actions did not waive her venue challenge. The affirmative relief requested by Rachel in tandem with her motion to transfer is expressly contemplated by the mandatory venue statute. See Tex. Fam. Code Ann. § 155.204(b).
Rachel's preliminary motions and discovery are ancillary to the main action and did not invoke the power of the trial court in a manner inconsistent with Rachel's continuing intention to insist on a change of venue. (4)
See Gentry, 891 S.W.2d at 768.
Conclusion
Because Rachel's motion to transfer was timely, T.L. had lived in Harris County for six months or longer, and Rachel did not waive venue, a transfer to Harris County is mandatory. See Tex. Fam. Code Ann. § 155.201(b). We hold that the trial court abused its discretion by denying the motion to transfer. Accordingly, we hold that Rachel is entitled to mandamus relief. We will issue the writ only if Judge Blackstock fails (1) to vacate his May 29, 2007 order denying the motion and (2) to enter an order transferring the case to Harris County.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Keyes, and Higley.
1. The Hon. Randall Hufstetler is the elected judge of the 300th Judicial District Court of Brazoria County. The Hon. James Blackstock, sitting as visiting judge, signed the complained of order in the underlying suit, In the Interest of Ciara Jade Leder and Tarah Elise Leder, children, No. 9091 (300th Dist. Ct., Brazoria County, Tex.).
2. As a result, courts have held that, in a SAPCR, the Family Code's transfer provisions supplant the rules of procedure and venue statutes, which govern venue challenges in other types of civil cases. Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex. 1983). Thus, to the extent that Gregory asserts that Rachel has violated the due order of pleadings rule found in the Rules of Civil Procedure, such rule is not applicable. See Martinez v. Flores, 820 S.W.2d 937, 938 (Tex. App.--Corpus Christi 1991, no writ) (interpreting predecessor section 11.06, court held that due order of pleadings rule, Tex. R. Civ. P. 86(1), not applicable to filing of motion to transfer venue in SAPCR).
3. Section 155.204(b) provides, in its entirety, as follows:
Except as provided by Subsection (a) or Section 262.203, a motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed. A motion to transfer by another party is timely if it is made on or before the first Monday after the 20th day after the date of service of citation or notice of the suit or before the commencement of the hearing, whichever is sooner.
Tex. Fam. Code Ann. § 155.204(b) (Vernon Supp. 2006).
4. A party filing a venue motion has the burden to diligently request a setting on the motion and obtain a ruling prior to a trial on the merits. Cliff Jones, Inc. v. Ledbetter, 896 S.W.2d 417, 418 (Tex. App.--Houston [1st Dist.] 1995, no writ). A delay in obtaining a hearing provides a basis for the trial court to deny a venue motion. Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 408 (Tex. App.--Houston [14th Dist.] 2004, no pet.). Here, there was no delay. Rachel filed a notice of hearing on the motion to transfer four days after filing the motion. The trial court heard and orally denied the motion 45 days after it was filed, before any decision on the merits.
Saturday, June 30, 2007
In re Schoelpple (Tex.App.-Houston 2007)
In re Schoelpple (Tex.App.- Houston [14th Dist.] Feb. 13, 2007)(per curiam)(grandparent access, intervention)
What is SAPCR?
Does nonsuit by parent(s) terminate nonparent intervention, or may suit for access proceed?
PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
On November 30, 2006, relator Cindy Schoelpple filed a petition for writ of mandamus in this court, requesting we compel respondent, the Honorable James Squier, presiding judge of the 312th District Court, Harris County, Texas, to vacate an order granting grandparent access, signed on July 14, 2005. See Tex. Gov't Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.1. For the reasons set forth below, we deny relator's petition.
Background
Relator filed a divorce action in Harris County on June 24, 2004, which included a request for custody of, and support for, her daughter. On October 22, 2004, real party James Schoelpple, the child's maternal grandfather, filed an "Original Petition in Intervention of Grandparent for Conservatorship and Petition for Grandparent's Access," requesting appointment as possessory conservator and possession of and access to the child. On November 15, 2004, relator and her then-husband, David Mora, filed notices of nonsuit, stating they were attempting to reconcile. The trial court signed a dismissal order as to the divorce petition shortly thereafter. On June 15, 2005, relator filed a divorce action in Cherokee County,[1] but did not disclose the Harris County suit.
Following the nonsuit, the Harris County court proceeded on real party's petition. A trial was conducted[2] and, on July 14, 2005, an agreed order was entered, granting real party access to the child ("agreed access order").[3] Real party subsequently filed a motion to enforce the agreed access order in the Harris County court, and relator filed a motion to dismiss for want of jurisdiction. Respondent signed an order denying relator's motion to dismiss on October 27, 2006, and relator challenges that order in this mandamus proceeding.[4]
Discussion
In her mandamus petition, relator argues the agreed access order is void, contending that when she and Mora nonsuited the divorce action, there was no longer a suit in which real party could intervene. She asks this court to compel respondent to dismiss the agreed access order as void.
Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). If a court issues a void order, the relator need not show it does not have an adequate appellate remedy, and mandamus relief is appropriate. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).
A void judgment results when the trial court had (1) no jurisdiction over the parties or subject matter, (2) no jurisdiction to render the judgment, or (3) no capacity to "act as a court." Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987)); In re Sheppard, 193 S.W.3d 181, 186 (Tex. App.CHouston [1st Dist.] 2006, orig. proceeding [mand. denied]). If the court's action is contrary to a statute or statutory equivalent that is not jurisdictional, the judgment is voidable as opposed to void and is corrected through the customary appellate process. Reiss, 118 S.W.3d at 443; In re Sheppard, 193 S.W.3d at 186.
Given the procedural posture of this case and relator's argument, the issue here is whether the nonsuit divested the Harris County court of jurisdiction over real party's petition. See Reiss, 118 S.W.3d at 443; Armentor v. Kern, 178 S.W.3d 147, 149 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (defining a collateral attack on a judgment).
A. Standing to Seek Access
Pursuant to the provisions in the Texas Family Code applicable to this case, a
grandparent may file an original suit affecting the parent-child relationship ("SAPCR")[5] to request access to a grandchild Awithout regard to whether the appointment of a managing conservator is an issue in the suit.@ See Acts of 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 157 (amended 2005) (current version at Tex. Fam. Code Ann. ' 153.432 (Vernon Supp. 2006)).[6] Section 102.004(b) provides that a grandparent cannot file an original suit seeking possessory conservatorship, but may intervene in a pending suit if certain evidence is met. See Acts of 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 125 (amended 2005) (current version at Tex. Fam. Code Ann. ' 102.004(b) (Vernon Supp. 2006)).[7]
In his petition, real party sought both possessory conservatorship under section 102.004 and access under section 153.432, thus utilizing the two methods available under the Family Code to obtain access to his grandchild. See id. '' 102.004(b), 153.432; see also In re C.M.C., 192 S.W.3d 866, 871 n.6 (Tex. App.CTexarkana 2006) (noting grandparents have several methods available to obtain access to grandchildren under Texas's Family Code).
Consequently, even assuming without deciding that real party's intervention in the pending divorce suit was negated by the nonsuit--which requires a further assumption that the request for possessory conservatorship is not a request for affirmative relief --this does not necessitate the conclusion that real party's petition for access under section 153.432 was similarly negated. See In re D.D.M., 116 S.W.3d 224, 232 (Tex. App.-Tyler 2003, no pet.) (stating, where underlying SAPCR order was dismissed, the trial court retained jurisdiction over foster parents intervening for joint managing conservatorship because they sought independent, affirmative relief).[8]
Further, any party may intervene in a suit by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party. Tex. R. Civ. P. 60; In re D.D.M., 116 S.W.3d at 231. "Upon filing of the petition, an intervenor becomes a party to the suit for all purposes," and if a party is nonsuited or dismissed, a party's claim for affirmative relief is not prejudiced. In re D.D.M., 116 S.W.3d at 231. A claim for affirmative relief is one that allows the intervenor to recover relief despite plaintiff's abandonment or failure to establish a claim. Id. at 232. Section 153.432 expressly allows a grandparent to seek access of a grandchild independent of a suit for managing conservatorship and, consequently, real party's request for access, as a claim for affirmative relief, survived the nonsuit. See Tex. Fam. Code Ann. ' 153.432(b); In re D.D.M., 116 S.W.3d at 231.
Conclusion
In sum, relator has failed to establish that she is entitled to the requested relief. Accordingly, we deny relator's petition for writ of mandamus.
PER CURIAM
Petition Denied and Memorandum Opinion filed February 8, 2007.
Panel consists of Chief Justice Hedges and Justices Yates and Seymore.
[1]A final divorce decree was signed by the Cherokee County court on June 7, 2006.
[2]This court was not furnished with a copy of the transcript from the trial.
[3]The agreed access order contains the statutory notices required under section 105.006 of the Family Code, "Contents of a Final Order." See Tex. Fam. Code Ann. ' 105.006 (Vernon Supp. 2006). Further, it was entered in the case as a default judgment and states, in part, that (a) the court had jurisdiction of the case and the parties, (b) "no other court has continuing, exclusive jurisdiction," and (c) "all relief requested in this case and not expressly granted is denied."
[4]Relator also filed a motion to transfer the case to Cherokee County, which real party alleges was denied; however, relator does not challenge that ruling in this original proceeding. See Tex. Fam. Code Ann. ' 155.201 (setting out circumstances for mandatory transfer).
[5]A SAPCR is defined in the Family Code as follows: A "Suit affecting the parent‑child relationship" means a suit filed as provided by this title in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent‑child relationship is requested." Id. ' 101.032(a) (Vernon 2002) (emphasis added).
[6]Section 153.432 was amended effective September 1, 2005 to permit a grandparent to file an original suit to request "possession of" or access to a grandchild. See Tex. Fam. Code Ann. ' 153.432 (Vernon Supp. 2006). The previous version of the statute applies in this case. See id.
[7]Section 102.004(b) was amended effective June 1, 2005; the amendments apply to original suits filed on that date or thereafter. See ' 102.004 historical note (Vernon Supp. 2006). The previous version of the statute applies to this case.
[8]In support of her argument, relator relies on two cases dealing with the death of a spouse during a pending divorce. See Griggs v. Latham, 98 S.W.3d 382 (Tex. App.-Corpus Christi 2003, pet. denied); Smelscer v. Smelscer, 901 S.W.2d 708 (Tex. App.-El Paso 1995, no writ). However, those cases are distinguishable because, here, relator is asserting a collateral attack on the agreed access order and our review is limited to the Harris County court"s jurisdiction to render that order. Also, although relator asserts that real party was unable to intervene and petition for access within one pleading, she did not cite, nor did we find, authority to support that statement.
What is SAPCR?
Does nonsuit by parent(s) terminate nonparent intervention, or may suit for access proceed?
PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
On November 30, 2006, relator Cindy Schoelpple filed a petition for writ of mandamus in this court, requesting we compel respondent, the Honorable James Squier, presiding judge of the 312th District Court, Harris County, Texas, to vacate an order granting grandparent access, signed on July 14, 2005. See Tex. Gov't Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.1. For the reasons set forth below, we deny relator's petition.
Background
Relator filed a divorce action in Harris County on June 24, 2004, which included a request for custody of, and support for, her daughter. On October 22, 2004, real party James Schoelpple, the child's maternal grandfather, filed an "Original Petition in Intervention of Grandparent for Conservatorship and Petition for Grandparent's Access," requesting appointment as possessory conservator and possession of and access to the child. On November 15, 2004, relator and her then-husband, David Mora, filed notices of nonsuit, stating they were attempting to reconcile. The trial court signed a dismissal order as to the divorce petition shortly thereafter. On June 15, 2005, relator filed a divorce action in Cherokee County,[1] but did not disclose the Harris County suit.
Following the nonsuit, the Harris County court proceeded on real party's petition. A trial was conducted[2] and, on July 14, 2005, an agreed order was entered, granting real party access to the child ("agreed access order").[3] Real party subsequently filed a motion to enforce the agreed access order in the Harris County court, and relator filed a motion to dismiss for want of jurisdiction. Respondent signed an order denying relator's motion to dismiss on October 27, 2006, and relator challenges that order in this mandamus proceeding.[4]
Discussion
In her mandamus petition, relator argues the agreed access order is void, contending that when she and Mora nonsuited the divorce action, there was no longer a suit in which real party could intervene. She asks this court to compel respondent to dismiss the agreed access order as void.
Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). If a court issues a void order, the relator need not show it does not have an adequate appellate remedy, and mandamus relief is appropriate. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).
A void judgment results when the trial court had (1) no jurisdiction over the parties or subject matter, (2) no jurisdiction to render the judgment, or (3) no capacity to "act as a court." Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987)); In re Sheppard, 193 S.W.3d 181, 186 (Tex. App.CHouston [1st Dist.] 2006, orig. proceeding [mand. denied]). If the court's action is contrary to a statute or statutory equivalent that is not jurisdictional, the judgment is voidable as opposed to void and is corrected through the customary appellate process. Reiss, 118 S.W.3d at 443; In re Sheppard, 193 S.W.3d at 186.
Given the procedural posture of this case and relator's argument, the issue here is whether the nonsuit divested the Harris County court of jurisdiction over real party's petition. See Reiss, 118 S.W.3d at 443; Armentor v. Kern, 178 S.W.3d 147, 149 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (defining a collateral attack on a judgment).
A. Standing to Seek Access
Pursuant to the provisions in the Texas Family Code applicable to this case, a
grandparent may file an original suit affecting the parent-child relationship ("SAPCR")[5] to request access to a grandchild Awithout regard to whether the appointment of a managing conservator is an issue in the suit.@ See Acts of 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 157 (amended 2005) (current version at Tex. Fam. Code Ann. ' 153.432 (Vernon Supp. 2006)).[6] Section 102.004(b) provides that a grandparent cannot file an original suit seeking possessory conservatorship, but may intervene in a pending suit if certain evidence is met. See Acts of 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 125 (amended 2005) (current version at Tex. Fam. Code Ann. ' 102.004(b) (Vernon Supp. 2006)).[7]
In his petition, real party sought both possessory conservatorship under section 102.004 and access under section 153.432, thus utilizing the two methods available under the Family Code to obtain access to his grandchild. See id. '' 102.004(b), 153.432; see also In re C.M.C., 192 S.W.3d 866, 871 n.6 (Tex. App.CTexarkana 2006) (noting grandparents have several methods available to obtain access to grandchildren under Texas's Family Code).
Consequently, even assuming without deciding that real party's intervention in the pending divorce suit was negated by the nonsuit--which requires a further assumption that the request for possessory conservatorship is not a request for affirmative relief --this does not necessitate the conclusion that real party's petition for access under section 153.432 was similarly negated. See In re D.D.M., 116 S.W.3d 224, 232 (Tex. App.-Tyler 2003, no pet.) (stating, where underlying SAPCR order was dismissed, the trial court retained jurisdiction over foster parents intervening for joint managing conservatorship because they sought independent, affirmative relief).[8]
Further, any party may intervene in a suit by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party. Tex. R. Civ. P. 60; In re D.D.M., 116 S.W.3d at 231. "Upon filing of the petition, an intervenor becomes a party to the suit for all purposes," and if a party is nonsuited or dismissed, a party's claim for affirmative relief is not prejudiced. In re D.D.M., 116 S.W.3d at 231. A claim for affirmative relief is one that allows the intervenor to recover relief despite plaintiff's abandonment or failure to establish a claim. Id. at 232. Section 153.432 expressly allows a grandparent to seek access of a grandchild independent of a suit for managing conservatorship and, consequently, real party's request for access, as a claim for affirmative relief, survived the nonsuit. See Tex. Fam. Code Ann. ' 153.432(b); In re D.D.M., 116 S.W.3d at 231.
Conclusion
In sum, relator has failed to establish that she is entitled to the requested relief. Accordingly, we deny relator's petition for writ of mandamus.
PER CURIAM
Petition Denied and Memorandum Opinion filed February 8, 2007.
Panel consists of Chief Justice Hedges and Justices Yates and Seymore.
[1]A final divorce decree was signed by the Cherokee County court on June 7, 2006.
[2]This court was not furnished with a copy of the transcript from the trial.
[3]The agreed access order contains the statutory notices required under section 105.006 of the Family Code, "Contents of a Final Order." See Tex. Fam. Code Ann. ' 105.006 (Vernon Supp. 2006). Further, it was entered in the case as a default judgment and states, in part, that (a) the court had jurisdiction of the case and the parties, (b) "no other court has continuing, exclusive jurisdiction," and (c) "all relief requested in this case and not expressly granted is denied."
[4]Relator also filed a motion to transfer the case to Cherokee County, which real party alleges was denied; however, relator does not challenge that ruling in this original proceeding. See Tex. Fam. Code Ann. ' 155.201 (setting out circumstances for mandatory transfer).
[5]A SAPCR is defined in the Family Code as follows: A "Suit affecting the parent‑child relationship" means a suit filed as provided by this title in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent‑child relationship is requested." Id. ' 101.032(a) (Vernon 2002) (emphasis added).
[6]Section 153.432 was amended effective September 1, 2005 to permit a grandparent to file an original suit to request "possession of" or access to a grandchild. See Tex. Fam. Code Ann. ' 153.432 (Vernon Supp. 2006). The previous version of the statute applies in this case. See id.
[7]Section 102.004(b) was amended effective June 1, 2005; the amendments apply to original suits filed on that date or thereafter. See ' 102.004 historical note (Vernon Supp. 2006). The previous version of the statute applies to this case.
[8]In support of her argument, relator relies on two cases dealing with the death of a spouse during a pending divorce. See Griggs v. Latham, 98 S.W.3d 382 (Tex. App.-Corpus Christi 2003, pet. denied); Smelscer v. Smelscer, 901 S.W.2d 708 (Tex. App.-El Paso 1995, no writ). However, those cases are distinguishable because, here, relator is asserting a collateral attack on the agreed access order and our review is limited to the Harris County court"s jurisdiction to render that order. Also, although relator asserts that real party was unable to intervene and petition for access within one pleading, she did not cite, nor did we find, authority to support that statement.
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