in Re: Tonya Burling ( 2016 )

GRANT; and Opinion Filed June 21, 2016.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00529-CV
IN RE TONYA BURLING, Relator
Original Proceeding from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-52021-05
MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Schenck
Opinion by Justice Schenck
Relator (Mother) filed this petition for writ of mandamus after the trial court denied her
motion to transfer venue from Collin County to Harris County pursuant to section 155.201(b) of
the Texas Family Code. After reviewing the record, we conclude the trial court abused its
discretion by denying Mother’s motion and that Mother has no adequate remedy by appeal.
Therefore, we conditionally grant the writ of mandamus.
Mother and real party in interest (Father) were divorced January 24, 2006. At the time,
Mother, Father, and their two minor children, K.J.Y. and K.D.Y., lived in Collin County.
Mother and Father were appointed joint managing conservators, and Mother was awarded the
exclusive right to establish the children’s residence without geographic restriction. In 2012,
Mother moved to Harris County, and subject to an “out of court agreement,” K.D.Y. went with
Mother and lived in Harris County, while K.J.Y stayed in Collin County with Father. In mid-
August 2015, Mother and Father verbally agreed that K.J.Y. would move to Harris County to
live with his mother and sister. According to Father, the agreement was for one year; according
to Mother, it was not.
On March 2, 2016, Mother filed a motion to modify child support and a motion to
transfer venue because both children had resided in Harris County for more than six months.
Father filed an “Affidavit Controverting Motion to Transfer” in which he admitted that K.D.Y.
had lived in Harris County since 2012, and that K.J.Y. had lived in Harris County for six months.
To obtain mandamus relief, Mother must show both that the trial court has abused its
discretion and that she has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d
124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.
1992) (orig. proceeding). After reviewing the record, we conclude Mother has met this burden.
Section 155.201(b) of the family code provides that the court of continuing, exclusive
jurisdiction shall “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) (West 2014).
This provision is mandatory. Cassidy v. Fuller, 568 S.W.2d 845, 847 (Tex. 1978) (orig.
proceeding) (construing former TEX. FAM. CODE ANN. § 11.06(b), repealed by Act of April 6,
1995, 74th Leg., R.S., ch. 20, § 2, Tex. Gen. Laws 282 (current version at TEX. FAM. CODE ANN.
§§ 155.201–203 (West 2014))) (while use of the word “shall” is not necessarily determinative
that a statute is mandatory, legislature’s use of “shall” in one portion of family code’s venue
transfer statute and “may” in another indicated that venue transfer provision in first was intended
to be mandatory). While section 155.202 of the Texas Family Code grants a trial court certain
discretion with regard to venue, it is only to grant a transfer in the interest of justice or to deny a
motion to transfer to another county if the child has been living in the new county for less than
six months. TEX. FAM. CODE ANN. § 155.202 (West 2014) (discretionary transfer). Neither
–2–
circumstance applies here. Accordingly, section 155.201(b) determines the full extent of the trial
court’s discretion in this matter.
If a motion to transfer is not timely controverted, the trial court has a mandatory,
ministerial duty to promptly transfer to the county where the child at issue has resided for more
than six months. See TEX. FAM. CODE ANN. § 155.204(c) (West 2014). When, as here, a
controverting affidavit is filed, but the affidavit fails to deny that grounds for transfer exist the
allegations in the motion to transfer are effectively uncontroverted. See Martinez v. Flores, 820
S.W.2d 937, 939–40 (Tex. App—Corpus Christi 1991, no writ).
The Texas Supreme Court has consistently held that when the statutorily required
grounds for mandatory venue transfer under the Family Code exist, mandamus is proper because
in such a case the duty to transfer is ministerial and a trial court that improperly refuses a transfer
has abused its discretion. See, e.g., Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig.
proceeding); Cassidy, 568 S.W.2d at 847. In such cases, remedy by direct appeal is inadequate
because “[p]arents and children who have a right under the mandatory venue provisions to venue
in a particular county should not be forced to go through a trial that is for naught. Justice
demands a speedy resolution of child custody and child support issues.” Proffer, 734 S.W.2d at
673; see also In re Foreman, 05-13-01618-CV, 2014 WL 72483, at * 2 (Tex. App.—Dallas Jan.
9, 2014, orig. proceeding) (mem. op.); In re Wilson, 05–06–01107–CV, 2006 WL 2773100, at *1
(Tex. App.—Dallas Sept. 12, 2006, orig. proceeding.) (mem. op.); In re Turner, 05–02–01174–
CV, 2002 WL 1933241, at *1 (Tex. App.—Dallas Aug. 22, 2002, orig. proceeding) (mem. op.).
Here, the undisputed facts show Mother was given the exclusive right to establish the
primary residence of the children without geographic restriction. In 2012, she moved to Harris
County with K.D.Y. K.J.Y. moved to Harris County to live with Mother and K.D.Y. for the
2015–16 school year and had lived in Harris County for more than six months when Mother filed
–3–
her petition to modify and motion to transfer venue. Under these circumstances, the trial court
was required to transfer venue to Harris County.
Accordingly, we conditionally grant Mother’s petition for writ of mandamus. A writ will
issue only in the event the trial court fails to vacate its April 14, 2016 order denying Mother’s
motion to transfer and to sign an order granting Mother’s motion to transfer venue.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
160529F.P05
–4–