Opinion
No. 01-09-00710-CV
Opinion issued July 15, 2010.
On Appeal from the 253rd District Court Chambers County, Texas, Trial Court Case No. 24225.
Panel consists of Justices JENNINGS, ALCALA, and MASSENGALE.
MEMORANDUM OPINION
This appeal concerns orders modifying conservatorship and access to R.M.B., a minor. Appellant Joanna Pinder appeals the trial court's order naming appellee Tabitha Randall the joint managing conservator with the exclusive right to designate R.M.B.'s primary residence. On appeal, Pinder asserts that the trial court lacked jurisdiction, the trial court erred by failing to make a mandatory transfer of the case to Jefferson County as required by the Texas Family Code, and the trial court abused its discretion in determining it was in R.M.B.'s best interest to award Randall the exclusive right to designate R.M.B.'s primary residence. We conclude the trial court had jurisdiction. We also conclude, however, that the trial court erred by failing to transfer the case to Jefferson County. Accordingly, we reverse and remand.
Background
On March 30, 2002, then fifteen-year-old Randall gave birth to R.M.B. Pinder's son is R.M.B.'s father. In 2003, the 253rd District Court of Chambers County entered an agreed final order in a suit affecting the parent child relationship. Over the next several years, Randall lived with several men, married twice, and divorced twice. During this time she moved frequently and did not hold down a steady job.
In March 2007, Randall and R.M.B. moved in with Pinder in Jefferson County. Randall left Pinder's house to move in with a boyfriend, and left R.M.B. with Pinder for the majority of the week. Two nights a week, however, Randall took R.M.B. to spend the night at her house, along with her boyfriend and her other child D.P. A few weeks before filing suit, Pinder stated the house where Randall was living was "filthy" and "deplorable," littered with cigarette butts and garbage.
In January 2008, Pinder filed this suit seeking to be named a joint managing conservator for R.M.B. The trial court granted temporary orders naming Pinder a joint managing conservator and awarding her the exclusive right to designate R.M.B.'s primary residence. After a trial in June 2009, the trial court made its final order on October 12, 2009. The trial court named Pinder a joint managing conservator with Randall, but awarded Randall the exclusive right to designate R.M.B.'s primary residence.
Jurisdiction
In her second issue, Pinder asserts that the trial court's order in this suit affecting the parent-child relationship is void because the court lacked jurisdiction. Specifically, Pinder asserts that R.M.B. did not reside in Chambers County for the six months preceding the filing of this suit.
When a court renders a final order in a suit affecting the parent-child relationship, it acquires continuing, exclusive jurisdiction over the child and suits affecting the parent-child relationship. TEX. FAM. CODE ANN. § 155.001(a) (Vernon 2008); see In re Wheeler, 177 S.W.3d 350, 352 (Tex. App.-Houston [1st] 2005, orig. proceeding). The court retains continuing, exclusive jurisdiction over the child unless jurisdiction has been transferred under sections 155.201-207 of the Texas Family Code or an emergency exists. See TEX. FAM. CODE ANN. §§ 155.001(c), 155.002, 155.201-207 (Vernon 2008 Supp. 2009); In re Wheeler, 177 S.W.3d at 352-53.
Here, the undisputed evidence shows that the 253rd District Court in Chambers County entered a final agreed order in a suit affecting the parent-child relationship concerning R.M.B on June 2, 2003. Thus, the 253rd District Court acquired continuing, exclusive jurisdiction involving matters affecting R.M.B. See TEX. FAM. CODE ANN. § 155.001(a); In re Wheeler, 177 S.W.3d at 352. The 253rd District Court remains the court of continuing, exclusive jurisdiction until jurisdiction has been transferred under sections 155.201-207 of the Texas Family Code. See TEX. FAM. CODE ANN. §§ 155.001(c), 155.002, 155.201-207; In re Wheeler, 177 S.W.3d at 352. Here, it is the trial court's failure to transfer the case that is the subject of Pinder's complaint on appeal. Because the 253rd District Court, the court with continuing exclusive jurisdiction, did not transfer the case, we conclude that the 253rd District Court retained continuing exclusive jurisdiction and that its orders entered in this case are not void. See In re Wheeler, 177 S.W.3d at 352. We overrule Pinder's second issue.
Mandatory Transfer of Court with Continuing Exclusive Jurisdiction
In her first issue, Pinder contends that the trial court erred by failing to transfer this case to Jefferson County pursuant to sections 155.201(b) and 155.204 of the Texas Family Code.
Section 155.201 of the Family Code provides in pertinent part:
(b) 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 . . . 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. § 155.001(b) (Vernon 2008). Section 155.204 prescribes the procedure for transfer as follows:
(c) 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, not later than the 21st day after the final date of the period allowed for the filing of a controverting affidavit, be transferred without a hearing to the proper court.
(d) 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.
TEX. FAM. CODE ANN. § 155.204(c), (d). A motion to transfer by a petitioner is timely if it is made at the time the initial pleadings are filed. TEX. FAM. CODE ANN. § 155.204(b).
Under these provisions, if a motion to transfer is not timely controverted, then the trial court has a mandatory, ministerial duty to promptly, without a hearing, transfer a proceeding to the county where the child at issue has resided for more than six months. TEX. FAM. CODE ANN. §§ 155.201(b), 155.204(a), (b), (c); In re Wheeler, 177 S.W.3d at 352; see Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987). The transferee court becomes the court of continuing, exclusive jurisdiction, and all proceedings continue as if brought there originally. TEX. FAM. CODE ANN. § 155.206(a). The transferor court does not retain jurisdiction over the child. TEX. FAM. CODE ANN. § 155.206(d).
A. Waiver of Appeal
Randall contends that Pinder waived any error of the trial court's denial of the motion to transfer by failing to pursue a petition for writ of mandamus. As mentioned above, the trial court's duty to grant an uncontroverted, timely-filed motion to transfer is mandatory and ministerial; as such, mandamus is available to correct a trial court's failure to transfer. In re Wheeler, 177 S.W.3d at 352; see also Proffer, 734 S.W.2d at 673. Randall contends that because mandamus was available to correct the trial court's action, Pinder has waived any error by failing to pursue mandamus and waiting until a final judgment has been rendered to appeal. Randall cites no authority to support this contention.
The Texas supreme court has stated "the general rule that parties waive nothing by foregoing interlocutory review and awaiting a final judgment to appeal." Perry Homes v. Cull, 258 S.W.3d 580, 586 (Tex. 2008); see also City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 756 (Tex. 2003) ("[F]iling a request for an extraordinary writ is not a prerequisite to an appeal."); Pope v. Stephenson, 787 S.W.2d 953, 954 (Tex. 1990) ("The decision not to pursue the extraordinary remedy of mandamus does not prejudice or waive a party's right to complain on appeal."). This general rule has been applied to failure to pursue mandamus in cases involving erroneous decisions concerning mandatory venue and mandatory transfer under the Family Code. See Campos v. Tex. Property Cas. Ins. Guar. Ass'n for Reliance Nat. Indem. Co., 282 S.W.3d 226, 232 (Tex. App.-Austin 2009, no pet.) (mandatory venue provision of Texas Worker's Compensation Act); In re S.G.S., No. 02-05-211-CV, 2006 WL 1791668, at *1 (Tex. App.-Fort Worth June 29, 2006, pet. denied) (mem. op.) (mandatory transfer under TEX. FAM. CODE ANN. § 155.301(a) (Vernon 2008)). Pinder did not waive error by failing to challenge by mandamus the denial of her motion to transfer.
B. Mandatory Transfer
Here, Pinder filed a petition in the 253rd District Court. At the same time, she filed a motion to transfer asserting R.M.B. had resided in Jefferson County for more than six months. Thus, her motion to transfer was timely. See TEX. FAM. CODE ANN. § 155.204(b). Randall did not file a controverting affidavit. Thus, the trial court had a mandatory ministerial duty to transfer the case to Jefferson County. See TEX. FAM. CODE ANN. §§ 155.201(b), 155.204(a), (b), (c); In re Wheeler, 177 S.W.3d at 352. We sustain Pinder's first issue. Because we sustain her first issue, we do not address her third and fourth issues in which Pinder contends the trial court abused its discretion in granting Randall the exclusive right to designate R.M.B.'s primary residence.
The 253rd District Court covers two counties — Chambers and Liberty. Randall and R.M.B had resided in Chambers County when the 253rd District Court entered the final agreed order in a suit affecting the parent child relationship in 2003. When Pinder filed her petition in this suit, she erroneously filed it with the District Clerk for Liberty County. The 253rd District Court signed an order transferring the case to Chambers County.
Conclusion
We reverse the judgment of the 253rd District Court and remand for the limited purpose of the court transferring the case to Jefferson County.