Opinion
03-24-00291-CV
06-19-2024
In re Chrissy Bensyl
ORIGINAL PROCEEDING FROM BELL COUNTY
Before Chief Justice Byrne, Justices Smith and Theofanis
MEMORANDUM OPINION
Darlene Byrne, Chief Justice
Relator Chrissy Bensyl has filed a petition for writ of mandamus seeking relief from the trial court's failure to timely grant her motion to transfer pursuant to Section 155.201(b) of the Texas Family Code, which requires the mandatory transfer of suits to modify or motions to enforce an order when a party timely moves to transfer the proceeding because the subject child has resided in a different county for six months or longer. See Tex. Fam. Code § 155.201(b). For the reasons explained below, we conditionally grant mandamus relief.
BACKGROUND
On February 29, 2024, real party in interest Erin Bensyl filed a Motion for Enforcement of Child Support Order and Order to Appear in Bell County, Texas. Relator Chrissy Bensyl was served on March 6, 2024. One week later on March 13, 2024, Chrissy filed a Motion to Transfer, which she served electronically on Erin's counsel. In her transfer motion, Chrissy argued that the child who was the subject of the suit had resided in Potter County, Texas for more than six months and therefore the trial court was required to transfer the case to Potter County under Section 155.201(b). Erin thereafter did not file any response to the transfer motion or a controverting affidavit.
We use Relator's and Real Party in Interest's first name or preferred name because both share the same surname.
On April 9, Chrissy electronically filed a proposed order and requested that the trial court sign the order transferring the underlying proceeding to Potter County. A trial court representative initially responded that a hearing was necessary if the proposed order was not an agreed order to transfer. After Chrissy's counsel responded that the statute required a transfer without hearing because Erin did not file a controverting affidavit, the trial court representative responded that the trial court would not sign the order "until proper service is done." When asked to clarify what constituted "proper service of what document," the trial court responded that "[i]t is my opinion and requirement that service of a motion to transfer must be by the same means as service of process of a new action."
On May 1, 2024 (after the deadline for the trial court to transfer the proceeding had already passed), the trial court clarified that "[i]t has always been my opinion and policy that motions to transfer must be served on opposing parties." In response, Chrissy's counsel clarified that the motion to transfer was electronically served on Erin in accordance with the Texas Rules of Civil Procedure, and counsel attached proof of said service. The trial court in a subsequent email then stated that Section 155.204 did not apply because neither subsection (a) or (a-1) of Section 155.201 applied to the underlying enforcement action. See Tex. Fam. Code § 155.204; see also id. § 155.201(a) (requiring mandatory transfer of certain "suit[s] [when] dissolution of the marriage of the child's parents has been filed in another court"), (a-1) (requiring mandatory transfer of certain "suit[s] in which adoption of a child is requested has been filed another court").
Relator thereafter sought mandamus relief in the present original proceeding. Contemporaneously, the trial court scheduled a hearing for May 9 to consider Chrissy's motion to transfer, as well as several filings by Erin. We granted a motion for emergency relief and stayed all trial court proceedings on May 8, 2024. See Tex. R. App. P. 52.10(b).
STANDARD OF REVIEW
Generally, mandamus is an "extraordinary remedy" available only when a Relator shows that (1) the trial court clearly abused its discretion and (2) no adequate remedy by appeal exists. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). A trial court clearly abuses its discretion when it fails to analyze or apply the law correctly or reaches a decision that is arbitrary, unreasonable, and without reference to guiding principles. In re Allstate Indem. Co., 622 S.W.3d 870, 875-76 (Tex. 2021) (orig. proceeding); In re H.E.B. Grocery Co., 492 S.W.3d at 302. In particular, "[t]rial courts have no discretion in determining what the law is or applying the law to the facts." In re Allstate Indem., 622 S.W.3d at 875-76.
A transfer of a suit affecting the child-parent relationship to the county where the child has resided for more than six months is a mandatory ministerial duty. See In re Anderson, No. 14-23-00760-CV, 2024 WL 47438, at *1-2 (Tex. App.-Houston [14th Dist.] Jan. 4, 2024, orig. proceeding) (mem. op.) (per curiam); accord In re Rusch, No. 03-18-00163-CV, 2018 WL 2123384, at *3 (Tex. App.-Austin May 9, 2018, orig. proceeding) (mem. op.) (quoting Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam)). The failure of a trial court to perform a mandatory ministerial duty is subject to mandamus relief regardless of any showing of the lack of adequate remedy by appeal. See In re Lovell-Osburn, 448 S.W.3d 616, 618 (Tex. App.-Houston [14th Dist.] 2014, orig. proceeding); see also In re Anderson, 2024 WL 47438, at *2; In re Gonzalez, No. 08-23-00053-CV, 2023 WL 2214183, at *3 (Tex. App.-El Paso Feb. 24, 2023, orig. proceeding) (mem. op.); In re Rusch, 2018 WL 2123384, at *3. Accordingly, we need only consider whether the trial court abused its discretion by failing to transfer the underlying case pursuant to the mandatory venue transfer statute.
ABUSE OF DISCRETION
Chrissy complains that the trial court abused its discretion by failing to timely transfer the underlying proceeding to Potter County without a hearing after Erin declined to file a controverting affidavit. We agree.
The mandatory transfer statute lists several circumstances when a suit affecting the parent-child relationship must be transferred to a different venue. See Tex. Fam. Code § 155.201 ("Mandatory Transfer"). Relevant here, in a suit to modify or a motion to enforce an order, the court having continuing, exclusive jurisdiction must transfer the proceeding to another county if (1) a party timely moves for transfer and (2) the child that is the subject of the suit "has resided in [an]other county for six months or longer." Id. § 155.201(b). "The plain language of Section 155.201(b) demonstrates the legislature's desire that matters affecting the parent-child relationship be heard in the county of the child's residence." In re Rusch, 2018 WL 2123384, at *4 (quoting In re Yancey, 550 S.W.3d 671, 675 (Tex. App.-Tyler 2017, orig. proceeding) (per curiam)).
Chrissy timely filed her Motion to Transfer seven days after she was served with Erin's enforcement motion, and she contemporaneously electronically served that motion on Erin's counsel. See Tex. Fam. Code § 155.204(b) (providing transfer motion is timely when "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"). Chrissy further explained in her transfer motion that the subject child currently resided in Potter County and had resided there for more than six months prior to her filing the motion. See id. § 155.203 (providing residency need not be "continuous and uninterrupted but shall" consider "the child's principal residence during the six-month period preceding the commencement of the suit").
Accordingly, Erin would have needed to file, no later than April 8, 2024, a controverting affidavit denying that grounds for transfer existed. See id. § 155.204(d) (requiring party contesting transfer to file controverting affidavit "[o]n or before the first Monday after the 20th day after the date of notice of a motion to transfer is served"). Chrissy and Erin agree that Erin did not file any controverting affidavit by that deadline. Because a controverting affidavit was not filed, the Bell County trial court was required to transfer the proceeding "without a hearing" to Potter County "not later than the 21st day after the final date of the period allowed for the filing of a controverting affidavit." See id. § 155.204(c) (emphasis added). The trial court refused to transfer the matter, however, and instead set the transfer motion for hearing on May 9. See In re Rusch, 2018 WL 2123384, at *5 (concluding that trial court failed to perform ministerial duty by failing to timely transfer pursuant to mandatory transfer statute).
If the contesting party timely files a controverting affidavit, the trial court holds an evidentiary hearing and must transfer the case if the court finds that grounds for transfer exist. Tex. Fam. Code § 155.204(e)-(g).
In communications with Chrissy, the trial court referenced three different reasons for not timely transferring the proceeding to Potter County as required under the mandatory transfer statute. See Tex. Fam. Code § 155.204(c). Initially, a trial court representative stated that a hearing was necessary because the proposed order was not an agreed order to transfer. But under the express requirements of Section 155.204, any hearing was expressly prohibited because no controverting affidavit was filed. See id.
The trial court then stated that "proper service" of the transfer motion was required, which the trial court explained "must be by the same means as service of process of a new action." Contrary to the trial court's directive, however, the mandatory transfer statute does not contain any provision requiring a specific method of service beyond what is normally required under the applicable rules. See Tex. Fam. Code § 155.204 ("Procedure for Transfer"); Tex.R.Civ.P. 21 ("Filing and Serving Pleadings and Motions"), R. 21a ("Methods of Service"). Here, Chrissy's motion to transfer contained a certificate of service specifying the method of service employed and the record also contains documentation from the eFile Texas system showing service on Erin's counsel. See Tex. R. Civ. P. 21a(b)(3) ("Electronic service is complete on transmission of the document to the serving party's electronic filing service provider. The electronic filing manager will send confirmation of service to the serving party."); Stettner v. Lewis & Maese Auction, LLC, 611 S.W.3d 102, 106 (Tex. App.-Houston [14th Dist.] 2020, no pet.) ("[A] certificate of service raises a presumption of service and receipt, even if the certificate contains an incorrect statement as to the method of service.").
Although Erin references issues with how appellate documents were electronically served in this original proceeding, she does not contest that she was properly served with the transfer motion in the underlying proceeding.
Finally, after the mandatory transfer deadline had already passed, see Tex. Fam. Code § 155.204(c) (requiring that proceeding be transferred "not later than the 21st day after" deadline for filing controverting affidavit), the trial court stated that the mandatory transfer statute did not apply because the underlying case involved neither a pending divorce nor adoption, see id. § 155.201(a) (requiring mandatory transfer of certain "suit[s] [when] dissolution of the marriage of the child's parents has been filed in another court"), (a-1) (requiring mandatory transfer of certain "suit[s] in which adoption of a child is requested has been filed in another court"). Although the trial court is correct that neither of those subsections applies to the underlying enforcement action, Chrissy sought mandatory transfer under a different subsection that was applicable here. See id. § 155.201(b) (requiring mandatory transfer of certain "suit[s] to modify or a motion to enforce an order" when "child has resided in [an]other county for six months or longer").
Based on the record in this case, the trial court was required to transfer the underlying proceeding to Potter County without a hearing because Erin did not file a controverting affidavit. See id. § 155.204(c). When the trial court failed to timely transfer the underlying enforcement proceeding and instead set the motion for a hearing after the deadline to transfer had already passed, id. § 155.201(b), the trial court failed to perform its ministerial duty, see In re Rusch, 2018 WL 2123384, at *5. Mandamus relief is therefore the "proper remedy to redress [this] failure." Id. at *3 (quoting In re Phillips, 496 S.W.3d 769, 774 (Tex. 2016) (orig. proceeding)).
CONCLUSION
We conditionally grant Chrissy's petition for writ of mandamus, dissolve our temporary stay, and direct the trial court to grant, without a hearing, Chrissy's motion to transfer the underlying proceeding to Potter County pursuant to Section 155.201(b) of the Texas Family Code. The writ will issue only if the trial court fails to comply.
We deny Chrissy's request for additional relief under Rule 45 of the Texas Rules of Appellate Procedure, which is limited to "frivolous" appeals. See Tex. R. App. P. 45.