in Re: Alina Yancey ( 2017 )

ACCEPTED
12-17-00235-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/28/2017 7:47 PM
Pam Estes
CLERK
No.
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
7/28/2017 7:47:59 PM
IN THE TWELTH COURT OF APPEALS PAM ESTES
Clerk
TYLER, TEXAS
IN RE ALINA YANCE Y,
REALTOR
On Petition for a Writ of Mandamus from Cause No. 2012-09-444-CL From the
County Court At Law of Rusk County Texas
(The Honorable Chad Wes Dean)
LAKISHA ANDERSON - SINVILLE
StateBar No. 24053073
PO Box 784
Tyler, TX 75710
Tel: (903) 526 -3335
Fax: (800) 618 -9361
E-mail: lakisha@me.com
Counsel of Record for Realtor Alina Yancey
Attorney for Realtor
TABLE OF CONTENTS
RELATOR/RES/POI ............................................................... .. 3
STATEMENT OF THE CASE .................................................... .. 6
STATEMENT OF JURISDICTION .................................................. .. 7
ISSUES PRESENTED .................................................................. .. 8
STATEMENT OF FACTS .............................................................. .. 9
SUMMARY OF ARUGEMENT ....................................................... ..
ARGUMENT
l. MANDAMUS RELIF IS PROPER ........................................... .. 10
II. THE TRIAL COURT DEPRIVED RELATOR OF HER RIGHTS
UNDER THE TEXAS FAMILY CODE
A. THE TRIAL COURT ABUSED IT’S DISCRETION IN FAILING
TO GRANT THE MOTION TO TRANSFER AT THE
CONCLUSION OF THE MOTION TRANSFER HEARING,
AFTER A CONTROVERTING AFFIDAVITY HAD
BEEN FILED PERTAING TO ONE OF THE THREE CHILDREN
THE SUBJECT OF THE SUIT
PRAYER ...................................................................... .. 1 1
IDENTITIES OF PARTY AND COUNSEL
The following is a list of all parties and all counsel who have appeared in this matter:
Relator:
Alina Yancey
Attorney for Relator in the trial court: LaKisha Anderson-Sinville, PO Box 784, Tyler,
TX 75710, State Bar No. 24053073
Respondent: Honorable Judge Chad Wes Dean of County Court of Law Rusk County,
Texas, whose address is 115 N. North Main Henderson, Texas 75652
Real P2_u_‘g in Interest:
Nelson Pruitt
Attorney for real party in interest in the trial court: Allison Biggs, 1501 Old
Nacogdoches Road, Henderson, TX 75654
Real Pagty in Interest:
Office of the Attorney General IV-D
Attorney for real party in interest in the trial court: E. Lavem Campbell, 1650 N.
Eastman Rd., Longview, TX 75601
TABLE OF AUTHORITIES
STATE CASE
In the Interest of T.J.L. and ME.L.
97 S.W.3d 257 (Tex. App.-Houston 2002).
STATE STATUTES
TEX. FAM. CODE ANN. § 155.201 (b)
TEX. FAM. CODE ANN § 155.204
CERTIFICATE OF SERVICE
APPENDICES: The following documents are attached to this petition and incorporated
in it for all purposes.
Appendix A: State Case
Appendix B: State Statute 155.201 and 155.204
Appendix C: A certified copy of the Motion to Transfer
Appendix D: A certified copy of Suit For Modification of Support Order and
Motion to Confirm Support Arrearage.
Appendix E: A certified copy of Order Denying Transfer.
Appendix F: A certified Copy of Respondent’s Original Answer (Attached as
addendum Appendix
Appendix G: F inal Decree of Divorce
Appendix F : A certified copy of Respondent’s First Amended Answer
Appendix H: A certified copy of Respondent’s Amended Answer
Appendix I: A certified copy of Counterpetition to Modify the Parent Child
Relationship
Appendix J: A certified copy Suit for Modified Support and Motion to Confirm
Support Arrearage
Appendix K: A certified copy of Notice of Nonsuit
Appendix 1: A certified copy of Scheduling Order
Appendix J : A certified copy of Notice of Final Judgment
Appendix K: A certified copy of docket sheet
Appendix L: In addition, Relator relies on the clerk's record and the reporter's
record filed in this matter.
STATEMENT OF THE CASE
This petition for Writ of Mandamus and for Emergency Relief arises from a
Motion to Transfer filed in conjunction with a Suit for Modification of Support
Order and Motion to Confirm Support Arrearage. The motions were filed by the
Office of the Attorney General-IV D. Nelson Pruitt filed an answer with an
attached contraverting affidavit. The controverting affidavit only pertained to the
child he had in his conservatorship, John Pruitt. The children Heather Kay Pruitt
and Laura Anngayle Pruitt were not named in the controverting affidavit. A
motion to transfer hearing was held and the Court denied the motion to transfer.
The transfer of the case relating to the children Heather Kay Pruitt and Laura
Anngayle was mandatory under the Texas Family Code.
Realtor is requesting this Honorable Court to issue a writ of mandamus
instructing the Honorable Judge Dean, County Court at Law, Rusk County to
transfer the cause of action from Rusk County to Smith County.
STATEMENT OF JURISDICTION
This Court has jurisdiction to issue a writ of mandamus under section 6 of article V
of the Texas Constitution and section 22.22l(b) of the Texas Government Code, in that
Respondent, the Honorable Judge Chad Dean is the Judge of the County Court at Law of
Rusk County, Texas and within the court's appellate district. (TEX. R. APP. P. 52.3(e)
mandating that relief must first be sought in intermediate appellate courts); see also
GOV’T §§ 22.220(a), (b) (establishing concurrent jurisdiction and when the supreme
court may be petitioned)
ISSUES PRESENTED
Issue No. 1: Did respondent, Honorable Judge Dean, abuse his discretion when he denied
the motion to transfer, after testimony from both parents that the two of the children
subject to the suit did not live in Rusk County, Texas and had not lived in Rusk County
the 6 months preceding the filing of the suit.
STATEMENT OF FACTS
January 31, 2017 the Office of the Attorney General flled the pleading MOTION
TO TRANSFER (Appendix C) the SUIT FOR MODIFICAION OF SUPPORT ORDER
AND MOTION TO CONFIRM SUPPORT ARREARAGE ( Appendix D). On February
23, 2017 respondent filed Respondent’s Original Answer and attached the Declaration
Controverting Motion to Transfer to the Answer (Appendix E). On May 16, 2017 the
Honorable Judge Dean held a hearing on the Motion to Transfer, and subsequently denied
the motion to transfer. (Appendix E) (R.R . page 32 line 18-19). At the hearing Nelson
Pruitt admitted that the children Laura Annagayle Pruitt and Heather Kay Pruitt did not
live with him. (R.R. page 13 line 20-22) . Nelson Pruitt further testified that Laura
Annagayle Pruitt and Heather Kay Pruitt had not lived in Rusk County for “a little less
than one year. “ (R.R. page 13 line 24-25)
ARGUMEN TS AND AUTHORITIES
At the conclusion of the Motion to Transfer hearing, Judge Dean denied the motion
to transfer (Appendix E) (R.R. page 32 line 18-19). The denial of the motion to transfer
was in violation Texas Family Code l55.201(b) (Appendix B). The honorable Judge
Dean could only deny transfer if the petition was not timely filed (Texas Family Code
155.201(b). None of the parties argued that the petition was not timely filed (R.R. 1-32).
At the time of the hearing, Nelson Pruitt argued that the case should not be
transferred because his son lived with him (R.R. page 11 line 23-25) (See also In The
Interest of T.J.L. and M.E.L., 97 S.W.3d 257, 264 Jimmy maintans transfer was not
automatic at the time because Cynthia included included T.J.L. in the motion, and
controverted as to T.J.L. (Appendix A)). Nelson Pruitt also stated that traveling to Smith
County would be inconvenient to him (R.R. page 12 line 13-16). However, 155.201 (b)
is a statute that provides for mandatory transfer, and the Court only had discretion if it
was not timely filed (Texas Family Code 155.201 (b)).
Further the case In The Interest of T.J.L. and M.E.L., 97 S.W.3d 257 (Houston
2002) the children the subject of the suit were each living with different parents in
different counties in Texas. In the case of In The Interest of T.J.L. and M.E.L., the trial
Court was the court of continuing jurisdiction (ID 263). A motion to transfer was filed,
and the Court denied the transfer (ID 263). Further in that case the Court held that a
motion to sever did not need to be filed to effect that transfer as to one or several children
10
(Id 264). In Conclusion the Court ruled that:
the court was required to promptly sever and transfer all proceedings
pertaining to M.E.L. At that time the court and no further jurisdiction to
enforce the divorce to decree as to M.E.L. Accordingly, the subsequent
orders granting Jimmy’s motion for enforcement and denying Cynthia’s
motion for enforcement are void as to M.E.L (Id 265).
Because 155.201 (b) is a mandatory transfer statute the Judge Dean should
have granted the transfer and severed the case as to Heather Kay Pruitt and Laura
Annagayle Pruitt.
Prayer
Relator prays that this Court issue its writ of mandamus commanding the trial court
to transfer the cause of action to Smith County, Texas the court of continuing jurisdiction.
LAKISHA ANDERSON- SINVILLE
PO Box 784
Tyler, TX 75710
~~
~~
Tel: (903)526-3335
Fax: (800)618-9361
E-mail: 1akisha@me.c
By:
LaKisha A e sonusinville
'
State Bar No. 24053073
Attorney for Relator
11
Certificate of Service
I certify that a true copy of this Petition for Writ of Mandamus was served in
accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that
party's lead counsel as follows:
Respondent: Judge Chad Wes Dean of County Court of Law of Smith County, Texas,
whose address is 115 N. North Main Henderson, Texas
Date of Service: Friday July 28, 2017
Real party in interest: Nelson Pruitee
Attorney for real party in interest in the trial court: Allison Biggs, 1501 Old
Nacogdoches Road, Henderson, TX 75654
Date of Service: Friday August 28, 2017
Real party in interest: Office of the Attorney General-IV D
Attorney for real party in interest in the trial court: E. LaVem Campbell, 1650 N.
Eastman Rd., Longview, Texas 75601-3345.
~
Date of Service: Friday August 28, 2017
A copy of this notice is being filed with the appellate clerk i
~ ccordance with rule
25.1(e) of the Texas Rules of Civil Procedure.
X
LaK' haA deia)
'
ville
Atto or Relator
12
VERIFICATION
LaKisha Anderson-Sinville appeared in person before me today and stated that she
has read the foregoing petition and the facts tated within are the best of her knowledge,
and the exhibits filed separately in an appendix to this petition are true and correct copies
of the orginal documents.
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SWORN TO BEFORE THIS 28 DAY OF JULY, 2017
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13
APPENDIX A
97 S.W.3d 257 (Tex.App.—Houston [14th Dist] 2002), 14-01-00547, In re T.J.L. /"/ div.c1 {text-
alignz center) /“/
Page 257
97 S.W.3d 257 (Tex.App.—Houston [1-tth DIst.] 2002)
IN THE INTEREST OF T.J.L. AND M.E.L.
NO. 14-01-00547-CV
court of Appeals of Texas, Fourteenth District, Houston
December 31, 2002
Flehearing Overruled Jan. 30. 2003.
Page 258
[Copyrighted Material Omitted]
Page 259
On Appeal from the County Court at Law No. 1 Brazos County. Texas Trial Court Cause No.
34,442A-CCL1
Gillian Richards, Houston, for appellants.
Anne M. Cofer, Houston, for appellees.
Panel consists of Chief Justice BFIISTEFI and Justices ANDERSON and FROST.
OPINION
Kern Thompson Frost, Justice
Appellant Cynthia Anne Murray Langley challenges the trial court's order denying her
( 1)
motion to transfer; (2) the trial court's order granting appellee Jimmy Don Langley's motion for
enforcement; and (3) the trial court's order denying her motion for enforcement. We affirm in part,
and reverse and remand in part.
Page 260
I. Factual and Procedural Background
In January of 1996, Cynthia and Jimmy Langley were divorced Brazos County and in
appointed joint-managing conservators of their three minor children. Cynthia was given the right to
establish the residence of their younger daughter, M.E.L., and Jimmy was given the right to
establish the residence of their son, T.J.L., as well as their older daughter. On July 26, 1999.
Cynthia filed a petition to modify the parent-child relationship seeking to be appointed conservator
with the right to establish the residence of both M.E.L. and T.J.L.mAt the same time, she filed a
motion to transfer jurisdiction over the children from Brazos County to Harris County on the
grounds M.E.L. and T.J. L. had resided with her in Harris County during the preceding six months.
in response, Jimmy filed an had resided with him in Brazos County since
affidavit stating T.J.L.
June 11, 1999. However, Jimmy did not file a oontroverting affidavit with respect to M.E.L.'s
residence in Harris County.
On October 25, 2000, Jimmy filed a motion for enforcement of two portions of the divorce
decree. he alleged Cynthia had failed to exchange M.E.L. for his periods of possession in the
First,
manner required by the decree. Second, he alleged Cynthia had failed to comply with the
provisions for payment of the children's healthcare expenses and for processing insurance-claim
forms. The decree orders Jimmy to provide healthcare insurance for the children. Cynthia must
submit to Jimmy all bills and other documents any insured expense she incurred for the
reflecting
children within ten days after she receives them. Jimmy must then submit the expense to the
insurance carrier within ten days. The decree further orders Jimmy and Cynthia to each pay half of
the children's uninsured healthcare expenses. The party who incurred an uninsured expense must
submit to the other party all bills and other documents reflecting the expense within ten days after
that party receives them. The other party must then reimburse the paying party half of the expense
within ten days.
On November 6, 2000, trial court heard Cynthia's motion to transfer and Jimmy's motion
the
for enforcement. At the beginning of the hearing, Cynthia nonsuited her motion to transfer and
petition to modify as to T.J.L. only. The trial court stated on the record that it denied the motion to
transfer as to M.E.L. and granted Jimmy's motion for enforcement.
On December 8, 2000, Cynthia another motion to transfer as to M.E.L. only and a
filed
motion to sever. At the same time, she filed a motion for enforcement of healthcare child support
by reduction judgment and contempt, and for clarification, alleging Jimmy had failed to pay his
to
share of the children's uninsured healthcare expenses as required by the divorce decree.
On January 2, 2001, the trial court signed an order denying Cynthia's first motion to transfer.
The record does not reflect a ruling on Cynthia's second motion to transfer, although the court
signed the order denying her first motion after she filed the second motion.
On February 16, 2001, the trial court signed an order granting Jimmy's motion for
enforcement. The court found that Cynthia was 100% responsible for paying all healthcare
expenses she incurred on behalf of the children from January 5, 1996 through November 6, 2000,
whether covered by insurance or not, because she failed to comply with the divorce—decree
Page 261
payment and processing of healthcare expenses. in addition, the court
provisions regarding
changed the exchange location for Jimmy's possession of M.E.L. because Cynthia had not been
exchanging M.E.L. at the required locations. Finally, the court ordered Cynthia to post a $2,500
bond to ensure her compliance with the parts of the decree regarding the new exchange location
for M.E.L.
On February 16, 2001, the trial court also heard Cynthia's motion for enforcement. On March
12, 2001, the trial court signed an order denying Cynthia's motion for enforcement. This appeal
followed.
Issues Presented for Review
ll.
Cynthia presents twelve issues for review. Her first eight issues challenge the February 16.
2001 order granting Jimmy's motion for enforcement:
(1) Did thecourt have jurisdiction to render the final order granting Jimmy's motion for
trial
enforcement on the issues concerning M.E.L.?
(2) Did Jimmy's motion for enforcement comply with the minimum pleading requirements of
section 157.002 of the Texas Family Code? (3) Must a motion for enforcement strictly comply with
section 157.002 of the Texas Family Code to entitle the movant to take advantage of that section's
special privilege of an expedited final hearing only ten days after service of the motion? (4) Were
the pleadings and the evidence sufficient to support the trial court's ruling that Cynthia "shall be
responsible for 100% of all health care expenses incurred for the children whether covered by
health insurance or not through and including services rendered from January 5, 1996 through
November 6, 2000"? (5) Was it within the trial court's discretion to hear evidence on and arrive at
an amount of the uninsured medical reimbursement arrearages without pleadings for the
enforcement and reduction of these to judgment, without notice to Cynthia that the amount of the
arrearages was to be at issue at the hearing, and without notice of the amount of arrearages
alleged by Jimmy? (6) Does the trial court's finding that the actual amounts expended by Cynthia
and Jimmy for uninsured health care expenses for the children were approximately equal for the
period from January 5. 1996 through November 6, 2000, support the order that Cynthia be 100%
responsible for allsuch expenses incurred, whether covered by insurance or not, during that
period? (7) Did the trial court have discretion to modify the time and place for picking up M.E.L.,
sua sponte and without pleadings or notice of hearing to Cynthia? (8) By ordering that Cynthia be
responsible for 100% of the medical expenses of the children not paid by insurance, did the trial
court impermissibly modify the terms of the divorce decree while purporting to enforce it? in her
last four issues, Cynthia challenges the March 12, 2001 order denying her motion for enforcement:
(9) Did the trial court have jurisdiction to consider the claims pertaining to M.E.L. in the actions for
modification and for enforcement filed on December 8, 2000?
(10) Was it within the trial court's discretion to deny Cynthia enforcement
Page 262
of unreimbursed medical child-support amounts for which she had pleaded and which were
incurred during the period November 6. 2000 through February 16, 2001, without holding a
hearing for the receipt of evidence? (11) is the March 12, 2001 order void or voidable because it
inaccurately reflects that a hearing was held for receipt of evidence, although this did not occur?
(12) As to Cynthia's motion for enforcement of unreimbursed medical expenses, did the trial court
impermissibly reduce the amount of child support arrearage that Jimmy owed by failing to hold a
hearing for the receipt of evidence as to expenses incurred from November 6, 2000 through
February 16, 2001?
III. Analysis
A. Does this court have Jurisdiction over the trial court's order denying Cynthia's motion to
transfer the proceedings regarding M.E.L. to Harris County?
Jimmy asserts this court does not have appellate jurisdiction to review the trial court's order
denying Cynthia's motion to transfer the proceedings regarding M.E.L. to Harris County. He
contends Cynthia failed to perfect appeal of the order denying transfer because her notices of
appeal make reference
only to the dates of the enforcement orders. See Tex.Fl.App. P. 25.1 (d)(2)
(notice of appeal must include the date of the judgment or order appealed). Jimmy's arguments
are without merit.
was based on the exclusive-transfer provisions of the Texas
Cynthia's motion to transfer
Family Code, applicable to suits affecting the parent-child relationship. See Tex. Fam. Code
§
155.201 B207. An order denying transfer under these provisions is not subject to interlocutory
appeal. § 155.204(e). However, an interlocutory order
Id. is appealable when has merged into a
it
subsequent final, appealable order. See H.B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193
(i'ex.1963) (holding that prior interlocutory orders merge into subsequent order disposing of
remaining parties and issues. creating a final and appealable judgment); Wilkins v. Farm
State
Mutual Auto. 58 S.W.3d 176, 182 (Tex.App.—Houston [14th Dist.]
Ins. Co., 2001, no pet). The
Family Code allows appeal from a final order rendered in a suit affecting the parent-child
relationship. Tex. Farn. Code§ 109.002(b); In re Taylor, 45 S.W.3d 357, 358 (Tex.App.—Waco
2001, orig. proceeding). The enforcement orders are final orders into which the denial of the
motion to transfer could properly merge.
Cynthia was not required to file a notice of appeal that explicitly referred to the order denying
transfer or the date of this order. See In re S. G. S. and E.E.S., 53 S.W.3d 848, 852
(Tex.App.—Fort Worth 2001, no pet.) (holding husband's notice of appeal of final order disposing
of all issues in wife's petition to modify invoked appellate jurisdiction to consider order denying
husband's motion she properly challenges the order denying transfer as an
to transfer). Instead,
issue in her appeal of the enforcement orders. See Parks v. Huffington, 616 S.W.2d 641. 644
(Tex.Civ.App.—Houston [14th Dist.] 1981, writ ref'd n.r.e.) (stating interlocutory order may be
appealed by point of error when suit out of which it arose is appealed). Accordingly. Cynthia's
notices of appeal have invoked this court's jurisdiction to address the merits of her motion to
transfer.
B. Was the trial court required to transfer the proceedings regarding M.E.L. to Harris
County?
Page 263
In her first and ninth issues, Cynthia contends the trial court had no jurisdiction to enter the
orders granting Jimmy's motion for enforcement and denying her motion for enforcement as to
M.E.L. because it was required to transfer the proceedings pertaining to M.E.L. to Harris County.
[2]
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 § 155.001 (a); In re
G.H.M., 45 S.W.3d 764, 766 ('l'ex.App.—Fort Worth 2001, no pet.). The court retains continuing,
been transferred under sections
exclusive jurisdiction over the child unless jurisdiction has
155.201-207 of the Texas Family Code [3] or an emergency exists. See Tex. Fam. Code "
155.001(c). 155.002, 155.201-207; In re G.H.M., 45 S.W.3d at 766-67. Section 155.201 provides
in pertinent part:
(b) a suit to modify or a motion to enforce an order is filed in the court having continuing,
If
exclusive jurisdiction of a suit, on the timely motion of a party the court 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 § 155.201 (b) (emphasis added). Section 155.204 prescribes the procedure for
transfer as follows:
(a)... if a timely motion to transfer has been filed and no controverting affidavit is filed within the
period allowed for its filing, the proceeding shall be transferred promptly without a hearing to the
proper court.
(b) On or before the first Monday after the 20th day after the date of notice of a motion to transfer
is served, a party desiring to contest the motion must file a controverting affidavit denying that
grounds for the transfer exist. (c) If a controverting affidavit contesting the motion to transfer is
filed, each party is entitled 10 days before the date of the hearing on the
to notice not less than
motion to transfer. Id. § 155.204(a),(b),(c) (emphasis added).
Under these provisions, if a motion to transfer is not timely controverted, then the trial court
has a mandatory, ministerial duty to promptly, without hearing, transfer a proceeding to the county
where the child at issue has resided for more than six months. Id.
"
155.201 (b),155.204(a),(b),(c);
Proffer v. Yates, 724 S.W.2d 671, 673 (Tex. 1987); Arias v. Spector, 623 S.W.2d 312, 313 (Tex.
1981). The transferee court becomes the and all
court of continuing, exclusive jurisdiction,
proceedings continue as brought there originally. Tex. Farn. Code § 155.206(a). The transferor
if
court does not retain jurisdiction over the child. Id. § 155.206(d). The transfer-or court has no
jurisdiction to enforce its order for violations occurring before or after the transfer. Id. The
transferee court acquires the power to enforce previous orders entered by the transferor court. Id.
§ 155.206(c),(d). Any subsequent motions for enforcement must be filed in the transferee court as
the court of continuing, exclusive jurisdiction. Id. § 157.001 (a).
Page 264
Cynthia contends the court had a mandatory duty to transfer the proceedings pertaining
trial
to M.E.L. to Harris County when Jimmy did not controvert her first motion to transfer as to M.E.L.
Jimmy maintains transfer was not automatic at that time because Cynthia included T.J.L. in the
motion, and he controverted the motion as to T.J.L.
The statute is not as clear as itcould be on whether transfer as to one child is required when
not all children of a marriage live in the county to which transfer is sought. However, in construing
a statute. our primary aim is to give effect to the Legislature's intent. Osferberg v. Peca, 12 S.W.3d
31, 38 (Tax. 2000). We must construe a statute as written and endeavor to ascertain legislative
intent from its language. ld.; Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.20o1). In
addition, we must always consider the statute
as a whole rather than its isolated provisions.
Helena Chemical 00., 47 S.W.3d at 493.
The language of the whole statute indicates that the Legislature intended for trial courts to
determine continuing, exclusive jurisdiction on a child-by-child basis because the statute
consistently refers to jurisdiction over the ''child,'' in the singular.
155.001, See Tex. Farn. Code "
155.201. It also clear the Legislature wanted matters affecting the parent-child relationship to be
is
heard in the county where the child resides. See id. § 155.201(b); Cassidy V. Fuller, 568 S.W.2d
845, 847 (Tex.1978). easier to prove the current circumstances affecting the child in that
it is
county. See Cassidy, 568 S.W.2d at 847. Further, the statute recognizes that transfer as to some,
but not all, children may be appropriate. Section 155.207(b) provides that "[t]he clerk of the
transferring court shall keep a copy of the transferred files. If the transferring court retains
jurisdiction of who was the subject of the suit, the clerk shall send a copy of the
another child
complete files to the court to which the transfer is made and shall keep the original files." Tex.
Farn. Code § 155.207(b). Accordingly, we construe the statute as requiring a court to transfer the
proceedings affecting a child to the county where the child resides, even if it retains jurisdiction
over another child of the marriage who does not live in the transferee county.
when faced with a similar issue in Koether V. Morgan, 787 S.W.2d 582 (Tex.App.—Waco
1990, proceeding), the court of appeals rejected the nonmovant's argument that it was
orig.
against the best interests of the children to split them up for jurisdictional purposes. See id. at 584-
85. instead, the court recognized "[s]ection 11.06(j) [now section 155.207] indicates on its face
that the legislature specifically contemplated thewisdom and necessity of such a transfer... when
custody of a couple's children is divided between the mother and father and one parent moves to
another county with the children of whom that parent is managing conservator." Id. at 585. The
Koethercourt further stated the statute allows for the realities of a highly mobile society and does
not require that a particular case live in the county to which transfer is sought. Id.
all children in
Jimmy also asserts Cynthia had to file a motion to sever to be entitled to a transfer as to
M.E.L. only. We disagree. The statute does not state that a motion to sever is required to effect
transfer as to one of several children. However, the statute clearly contemplates severance in
those instances because it prescribes the procedure for handling the case files when one child is
transferred and another child is not. See Tex. Fam. Code § 155.207. Further, a trial court may
sever any C338 OI’!
Page 265
its own initiative. Tex.Ft. Civ. P. 41; Andrews East Texas Med. Center-Athens, 885 S.W.2d 264,
V.
266 (Tex.App.-Tyler 1994, no writ). Most importantly, we have determined that the Legislature
intended transfer as to one child when not all children live in the transferee county. Severance is
the procedure to implement transfer those instances. See Van Dyke v. Boswell, O'Toole, Davis
in
& Pickering, 697 S.W.2d 381, 383 (T am
985) (stating severance splits a suit into two or more
independent actions, and controlling reasons for severance are to do justice, avoid prejudice, and
787 S.W.2d at 535 (stating severance proper to implement the
further convenience); Koether,
Family Code's mandatory venue provisions); Stewart v. Whitworth, 453 S.W.2d 875, 881-82
Tex.App.-Houston [1 st Dist.] 1994, writ dism'd) (affirming severance to transfer venue as to one of
several defendants when the claim against him was severable from claims against co-defendants).
Therefore, because our primary aim is to give effect to legislative intent, we construe the statute as
requiring severance to transfer the proceedings as to one of several children, even when the
movant does not move to sever.
We conclude the trial court was required to promptly sever and transfer all proceedings
pertaining to M.E.L. to Harris County when Jimmy did not oontrovert Cynthia's first motion to
transfer as to M.E.L. At that time, the trial court had no further jurisdiction to enforce the divorce
decree as to M.E.L. See Tex. Fam. Code Ann. " 155.206, 157.001(a). Accordingly, the subsequent
orders granting Jimmy's motion for enforcement and denying Cynthia's motion for enforcement are
void as to M.E.L. We sustain Cynthia's first and ninth issues.
C. Motions for Enforcement
Cynthia's remaining issues challenge the orders granting Jimmy's motion for enforcement
and denying Cynthia's motion for enforcement. Because the orders are void as to M.E.L., we do
not address the remaining issues as to M.E.L. Specifically, we do not address Cynthia's seventh
issue challenging the trial court's alteration of the exchange
Jimmy's possessions of
location for
M.E.L. In addition, we do not address the issues regarding M.E.L.'s healthcare expenses.
However, the orders also pertain to T.J.L. because the motions for enforcement addressed