Opinion
No. 06-20-00098-CV
02-04-2021
IN RE MICHELLE LOURENS
Original Mandamus Proceeding Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
In 2018, the County Court at Law of Bowie County (CCL) entered an agreed order that awarded Michelle Lourens the exclusive right to designate the primary residence of her child, C.L. As a result, C.L. lived with Michelle in Parker County, Texas, until he moved in with his father, Andrew Lourens, on July 28, 2020, after obtaining Michelle's permission. Before the move, on June 16, 2020, Andrew filed a suit to modify the parent-child relationship in the CCL so that he could be designated as the parent with the exclusive right to determine the child's residence. Michelle filed a motion to transfer the case to Parker County, but the trial court denied the motion after stating at the conclusion of the venue transfer hearing that, "[r]egardless of the legalities," C.L. was seventeen and should be allowed "to exercise his wishes." Michelle has filed a petition for writ of mandamus arguing that the transfer was required under Chapter 155 of the Texas Family Code. Because we agree, we conditionally grant Michelle's petition for writ of mandamus.
"Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law." In re Cooper, 320 S.W.3d 905, 908 (Tex. App.—Texarkana 2010, orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). "Mandamus is an available remedy when a trial court fails to grant a motion to transfer venue under Section 155.201 of the Texas Family Code." Id. (citing In re Kerst, 237 S.W.3d 441, 442-43 (Tex. App.—Texarkana 2007, orig. proceeding); In re Compton, 185 S.W.3d 526, 530 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding)).
"If a child has resided in another county for more than six months, the Texas Family Code requires that a [suit affecting the parent-child relationship (SAPCR)] be transferred to the county of the child's residence." Id. In relevant part, Section 155.201 of the Texas Family Code provides as follows:
(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.Id. at 909 (quoiting TEX. FAM. CODE ANN. § 155.201(b)). As a result, "[t]ransfer of a SAPCR action to a county where the child has resided for more than six months is a mandatory ministerial duty under Section 155.201(b) of the Texas Family Code," and "[m]andamus relief is available to compel the mandatory transfer." In re Kerst, 237 S.W.3d 441, 443 (Tex. App.—Texarkana 2007, orig. proceeding).
"Section 155.203 of the Family Code directs the trial court to look at the child's 'principal residence' to determine the county of the child's residence when determining if venue must be transferred." In re Lawson, 357 S.W.3d 134, 136 (Tex. App.—San Antonio 2011, orig. proceeding) (citing TEX. FAM. CODE ANN. § 155.203). "In computing the time during which the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted[,] but shall look to the child's principal residence during the six-month period preceding the commencement of the suit." TEX. FAM. CODE ANN. § 155.203 (emphasis added).
At the hearing, it was undisputed that the child had resided in Parker County until after Andrew filed the SAPCR. Because C.L. resided in Parker County during the six-month period preceding the commencement of the suit, the trial court had a mandatory duty to transfer the proceeding to Parker County. See Lawson, 357 S.W.3d 136; Cooper, 320 S.W.3d at 909.
We conditionally grant the petition for writ of mandamus and direct the trial court to (1) vacate the order denying the motion to transfer and (2) transfer this suit to Parker County. We are confident that the trial court will comply, and the writ of mandamus will issue only if the trial court fails to do so.
Josh R. Morriss, III
Chief Justice Date Submitted: February 3, 2021
Date Decided: February 4, 2021