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concluding that the relator did not waive right to mandatory transfer of venue by also asserting that the transfer would be convenient for the parties
Summary of this case from In re VenegasOpinion
NO. 01-15-01027-CV
05-05-2016
IN RE CALLIE SHEARD, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Callie Sheard, has filed a petition for a writ of mandamus challenging the trial court's order denying her motion to transfer and order reappointing an attorney ad litem in a suit affecting the parent-child relationship ("SAPCR"). We conditionally grant the petition in part.
The underlying proceeding is In the Interest of E.A.P., cause no. 2012-01222J, in the 313th District Court of Harris County, Texas, the Honorable Glenn Devlin presiding.
Background
In June 2013, a Harris County district court signed a final order appointing Sheard as possessory conservator of her minor child, E.A.P., and real parties in interest, Judy and Ronald O'Dell, E.A.P.'s maternal great-aunt and great-uncle, as joint managing conservators of E.A.P. In October 2015, Sheard filed a petition to modify the terms and conditions for access to and possession of E.A.P., and a motion to transfer the proceeding to Montgomery County. In her motion to transfer, Sheard asserted that E.A.P.'s principle residence was in Montgomery County and that she had been in that county for the six-month period preceding the commencement of the suit, and Sheard asked the trial court to transfer the proceeding to Montgomery County. Ronald O'Dell was served with Sheard's motion on October 21, 2015, and Judy O'Dell was served with the motion the next day.
The O'Dells filed a motion seeking reappointment of Juliane Crow as the attorney ad litem to represent E.A.P. in the proceeding. Their motion indicates that they also filed a counter-petition seeking termination of Sheard's parental rights. On November 10, 2015, the trial court signed an order appointing Crow as the attorney ad litem for E.A.P.
At a November 17, 2015 hearing, the trial court considered Sheard's motion to transfer and the O'Dells' motion for reappointment of the attorney ad litem. Sheard's counsel stated that Sheard opposed the November 10, 2015 order appointing the attorney ad litem because it was "signed with no notice" to her. Counsel further stated:
[I]f the case is transferred to Montgomery County under the mandatory transfer provision, I don't think it would make sense for the parties to have to pay a Harris County attorney to go to Montgomery County. I'm not saying that I am opposed to an ad litem, period. I just think it doesn't make sense for a Harris County ad litem.As to the motion to transfer, Sheard's counsel contended that E.A.P. had been living with the O'Dells in Montgomery County for over two years.
So, under Section 155.201(b) [of the Texas Family Code] it would be a mandatory transfer to Montgomery County. So, I'm asking—it's the convenience to the [O'Dells]. That's where they live. They're the ones who moved the child there, and we're asking the Court to transfer the case to Montgomery County.The O'Dells' counsel responded, "[U]nder those circumstances it's related to the convenience of [the O'Dells]," and "we do not want the case transferred, Judge. We would prefer the case stay here because the Court also has knowledge of the background of the case since this case originated as a CPS case." Sheard's counsel replied that, under section 155.204 of the Family Code, transfer was mandatory if no controverting affidavit were filed within the answer period and no controverting affidavit had been filed in this case. The trial court denied the motion to transfer.
On November 18, 2015, the O'Dells filed an unverified "Respondent's Controverting Affidavit" in which their counsel stated:
The proposed transfer of the above styled and numbered case is against the best interest of the child. The 313th Judicial District Court
Judge is knowledgeable about the case history and background. The reappointment of Amicus Attorney in the case, Julie Crow, is also critical to the child's best interest and traveling to Montgomery County would be an inconvenience for her.That day, the trial court signed two orders—an order denying Sheard's motion to transfer and an order appointing Crow as attorney ad litem for E.A.P. Sheard then filed a motion objecting to the O'Dells' controverting affidavit and their proposed order denying her motion to transfer. According to the petition, Sheard filed her motion before discovering that the trial court had signed the order denying the motion to transfer. Sheard then filed her mandamus petition in this Court.
In addition, Respondent's permanent managing conservators prefer the current Court due to the above reasons. Petitioners also have wholly failed to present any evidence to the contrary or factually justify a transfer.
Discussion
A. Standard of review
Mandamus is an extraordinary remedy that is available when a trial court clearly abuses its discretion and there is no adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 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). A trial court "abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law." In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). "A trial court has no 'discretion' in determining what the law is or in applying the law to the facts." Walker, 827 S.W.2d at 840.
The requirement that persons seeking mandamus relief establish the lack of an adequate remedy by appeal is a "fundamental tenet" of mandamus practice. Id. The Texas Supreme Court has held that remedy by appeal is frequently inadequate in cases regarding child custody and child support issues. See Proffer v. Yates, 734 S.W.2d 671, 672-73 (Tex. 1987). Mandamus is available to compel mandatory transfer in a suit affecting the parent-child relationship. See In re Thompson, 434 S.W.3d 624, 628 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (citing In re Wheeler, 177 S.W.3d 350, 352 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding)).
B. The trial court's denial of Sheard's motion to transfer venue
In one issue, Sheard contends that, under section 155.201(b) of the Texas Family Code, the trial court abused its discretion when it denied her motion to transfer venue because the court had a mandatory, ministerial duty to transfer the suit to Montgomery County.
Under the Family Code, a venue transfer is mandatory if a party timely files a motion to transfer the proceeding to a county where the child has resided for six months or longer and no controverting affidavit is filed. TEX. FAM. CODE ANN. §§ 155.201(b), .204(c) (West 2014). With exceptions not applicable here:
[A] motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed. A motion to transfer by another party is timely if it is 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.Id. § 155.204(b). To contest a timely filed motion to transfer, an opposing party must file a controverting affidavit denying that the grounds for transfer exist on or before the first Monday after the twentieth day after the date of notice or service of the motion to transfer. Id. § 155.204(d). When a motion to transfer is timely filed and no controverting affidavit is filed, the proceeding must "be transferred without a hearing to the proper court" no later than twenty-one days after the deadline for filing a controverting affidavit. Id. § 155.204(c); see id. § 155.201(b) (providing suit must be transferred within time section 155.204 requires).
As the party seeking to modify the June 2013 order, Sheard was a petitioner or movant and must have made her motion to transfer at the time her initial pleadings were filed. Sheard filed both her initial pleadings and her motion to transfer simultaneously on October 8, 2015. However, Sheard's motion to transfer included in the mandamus record contains the trial court clerk's file stamp dated October 8, 2015, and her petition to modify contains the trial court clerk's file stamp dated October 13, 2015. The O'Dells assert that the motion was untimely because Sheard filed it before her suit to modify was filed "at a time when she was neither petitioner nor movant, and there was no suit before the court of continuing, exclusive jurisdiction." Sheard asserts that the date discrepancy is the result of a problem with the acceptance of the petition at the clerk's office and her motion to transfer was timely "according to section 155.204 because she filed it before her [petition for] modification was filed."
A clerk's file stamp is prima facie evidence of the date of filing, but the presumption it raises may be rebutted. Dallas Cty. v. Gonzales, 183 S.W.3d 94, 103 (Tex. App.—Dallas 2006, pet. denied) (citing Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 371-72 (Tex. 1990)). In her reply to the O'Dells' response in this Court, Sheard asserts that she submitted her petition to modify and motion to transfer "simultaneously on October 8, 2015" but, on October 12, 2015, was notified that the trial court clerk had rejected the petition and, the next day, she resubmitted the petition. See TEX. R. CIV. P. 21(f)(5) (providing electronically filed document is deemed filed when transmitted to filing party's electronic service provider). Attached to the reply are unsworn copies of information from counsel's "electronic filing manager." However, in determining whether a trial court abused its discretion, we generally do not consider documents that were not before the trial court when it ruled. See In re Hardwick, 426 S.W.3d 151, 158 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding) (citing In re Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding)).
The Family Code indicates a legislative intent that "matters affecting the parent-child relationship to be heard in the county where the child resides." In re T.J.L., 97 S.W.3d 257, 264 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding) (citing TEX. FAM. CODE ANN. § 155.201(b)). And, "[t]ransferring a case to a county where the child has resided for more than six months is a mandatory ministerial duty under section 155.201 of the Family Code." In re Thompson, 434 S.W.3d at 628 (citations omitted). Section 155.204(b) contemplates the filing of a motion to transfer venue at the time of the filing of the initial request for relief. Inre Grossnickle, No. 06-03-00096-CV, 2003 WL 21939782, at *2 (Tex. App.—Texarkana Aug. 14, 2003, orig. proceeding) (mem. op.); see Bollard v. Berchelmann, 921 S.W.2d 861, 865 (Tex. App.—San Antonio 1996, orig. proceeding) (concluding transfer was not mandatory when counter-petitioners filed motion to transfer venue almost eight months after filing initial pleadings).
We conclude that, under the circumstances here, Sheard's motion was timely. Section 155.24(b) provides that a motion to transfer be "made at the time the initial pleadings are filed." "Initial pleadings" refers to the first pleadings filed by a petitioner. See In re Simonek, 3 S.W.3d 285, 288 (Tex. App.—Waco 1999, orig. proceeding); Bollard, 921 S.W.2d at 866; see also In re Wheeler, 177 S.W.3d at 354 (describing relator's first pleadings in regard to modifying parent-child relationship as "her motion to modify and her motion to transfer venue"). The record reflects that, on October 8, 2015, the trial court clerk filed Sheard's motion to transfer venue in the same cause number as the prior proceeding involving E.A.P. See TEX. FAM. CODE ANN. § 102.013(a) (West 2014) (providing, in suit for modification, clerk shall file petition and all related papers under same docket number as prior proceeding). And, several days later, the trial court clerk filed Sheard's petition to modify in the same proceeding. The filing of the petition started a new proceeding to modify the terms for access to and possession of E.A.P. See id. § 102.002. Sheard's petition states that the trial court had continuing, exclusive jurisdiction of the suit but "a transfer [was] being sought transferring this case to Montgomery County, Texas under mandatory venue provisions" and identified Montgomery County as E.A.P.'s county of residence. In the petition. Sheard asks the trial court to "enter its orders in accordance with the allegations contained in this petition." There was a problem with the acceptance of the petition at the clerk's office but because the motion to transfer had been filed at the time the petition to modify was filed, we conclude that Sheard moved for transfer at the time her initial pleadings were filed and her motion was timely.
Because Sheard's motion was timely, the O'Dells must have filed, no later than Monday, November 16, 2015, a controverting affidavit denying that the grounds for transfer existed if the allegations supporting transfer were not true. See TEX. FAM. CODE ANN. § 155.204(b) (providing party desiring to contest transfer must file controverting affidavit on or before first Monday after twentieth day after date of notice of motion to transfer is served). The only affidavit filed was the O'Dells' counsel's affidavit filed on November 18, 2015, which addressed the issue of "convenience" and did not controvert the residence of E.A.P. Even if the unverified affidavit had controverted the mandatory grounds for transfer asserted in Sheard's motion, which it did not, the affidavit was untimely. Because the affidavit was untimely, the trial court had no discretion but to transfer the SAPCR to Montgomery County and the court abused its discretion in failing to do so. See In re Leyva, 333 S.W.3d 315, 318 (Tex. App.—San Antonio 2010, orig. proceeding).
However, the O'Dells assert that Sheard cannot establish that the trial court abused its discretion because her "framing of the venue issue before [the trial court] as convenience of the parties amounts to invited error." According to the O'Dells, Sheard "set the venue hearing," "invited the trial court to consider the convenience of the parties as a basis to weigh transfer of the case from Harris County," and did not object to the O'Dells' counsel's response regarding convenience.
The mandamus record indicates that Sheard filed and served a notice of hearing for her motion to transfer venue. In her motion, Sheard sought transfer asserting that E.A.P.'s principal residence was Montgomery County and had been for the six-month period before the filing of the modification proceeding. At the November 17, 2015 hearing, Sheard's counsel argued that transfer was mandatory because E.A.P. had resided in Montgomery County during the six-month period before the filing of the modification suit. As part of her argument, she stated that transfer would also be convenient for the parties since they already lived there. The trial court denied the motion to transfer without stating a basis.
Under the "invited error doctrine," a party is estopped from challenging a trial court's ruling if the complaining party requested the specific action that the trial court took. Everitt v. Everitt, No. 01-11-00031-CV, 2012 WL 3776343, at *10 (Tex. App.—Houston [1st Dist.] Aug. 31, 2012, no pet.) (mem. op.) (citing Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861-62 (Tex. 2005)). The doctrine applies when "a party requests the court to make a specific ruling, then complains of that ruling on appeal." In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (citing Tittizer, 171 S.W.3d at 862). The party must have "unequivocally taken a position in the trial court that is clearly adverse to the position on appeal." Id. In contending that transfer was mandatory under section 155.204, Sheard has not taken a position in this Court that is adverse to the one she asserted in the trial court. She does not complain about a ruling she asked the trial court to make. Rather, she asked the trial court to transfer the proceeding to Montgomery County and complains about the trial court's denial of that request. We conclude that the record does not establish that Sheard invited error as to her motion to transfer venue.
C. The trial court's appointment of an attorney ad litem
In her second issue, Sheard contends that the trial court abused its discretion in appointing or reappointing an attorney ad litem for E.A.P. Sheard first asserts that the trial court abused its discretion in signing, on November 10, 2015, an order appointing the attorney ad litem "without proper notice and hearing." She also asserts that the trial court abused its discretion in appointing the attorney ad litem once a transfer to Montgomery County was mandatory.
After Sheard filed her petition to modify, the O'Dells filed a motion asking the trial court to re-appoint in the modification proceeding the attorney ad litem who was the attorney at litem for E.A.P. in the prior proceeding. In their motion, the O'Dells asserted that it appeared that no party could adequately represent E.A.P.'s interests and:
[i]n a private termination suit, a court must appoint either an amicus attorney to assist the court in protecting the interests of the child or an attorney ad litem to represent the child if no other amicus attorney or attorney ad litem has been appointed and no party to the suit can adequately represent the child's interests.As the O'Dells asserted, the Family Code provides for the appointment of an attorney ad litem in a private termination suit. TEX. FAM. CODE ANN. § 107.021(a-1) (West 2014); see In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.—Amarillo 2010, no pet.) (stating, without finding that party could adequately represent child's interests, appointment of amicus attorney or attorney ad litem was mandatory). On November 10, 2015, the trial court signed an order stating that the appointment of an attorney ad litem was necessary to ensure that E.A.P.'s best interest was adequately represented and appointing Crow as the attorney ad litem. Sheard then filed and served a notice of hearing not only for her motion to transfer but also for the O'Dells' motion for reappointment of the attorney ad litem. At the November 17, 2015 hearing, the trial court reaffirmed Crow's appointment as the attorney ad litem and signed a second order appointing her the attorney ad litem the following day.
The mandamus record reflects that, after the trial court signed the November 10, 2015 order, the court notified Sheard's counsel that it had set the O'Dells' motion for hearing on November 17, 2015, and asked Sheard if she wanted to set her motion to transfer for the same time. --------
In her petition in this Court, Sheard contends that the trial court had no discretion to appoint an attorney ad litem the second time because the court had a mandatory duty to transfer venue of the proceedings to Montgomery County. See Vara v. Vara, No. 03-12-00844-CV, 2014 WL 3734194, at *1 (Tex. App.—Austin July 23, 2014, no pet.) (mem. op.) (citing Fitzgerald v. Fitzgerald, No. 14-12-00086-CV, 2013 WL 269040, at *3 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, no pet.) (mem. op.)). The order that Sheard challenges is a temporary order not a case-dispositive order, and the transferee court has the power to make permanent orders as seems fit. See TEX. FAM. CODE ANN. § 105.001(a) (West 2014) (allowing trial court to "make a temporary order . . . for the safety and welfare of the child"); id. § 155.005(a) ("During the transfer of a suit from a court with continuing, exclusive jurisdiction, the transferring court retains jurisdiction to render temporary orders."); Silverman v. Johnson, 317 S.W.3d 846, 849 (Tex. App.—Austin 2010, no pet.) (concluding, although section 155.005(a) does not state court cannot render permanent orders, "the more reasonable construction is that when transfer is to occur—particularly when mandatory venue lies in a different court—the transferring court's actions should be limited to temporary orders so that the court with continuing jurisdiction can make the permanent decisions").
Sheard, however, did not argue in the trial court that it had no discretion to consider the O'Dells' motion because the court had a mandatory duty to transfer the proceeding to Montgomery County. The day of the trial court hearing, Sheard filed a proposed order to withdraw the November 10, 2015 order on the basis that the O'Dells did not properly request a hearing on their motion and "no notice or opportunity was given to [Sheard] on that Motion." At the hearing, Sheard's counsel stated that Sheard opposed the November 10, 2015 order because it was signed "with no notice" and asserted that, "if the case [were] transferred to Montgomery County under the mandatory transfer provision, I don't think it would not make sense for the parties to have to pay a Harris County attorney to go to Montgomery County." Sheard's counsel further stated, "I'm not saying that I am opposed to an ad litem, period. I just think it doesn't make sense for a Harris County ad litem." Sheard did not argue that the trial court had no discretion to appoint or reappoint an attorney ad litem once the court had a mandatory, ministerial duty to transfer the case to Montgomery County. Arguments not presented to the trial court will not be considered in a petition for writ of mandamus. In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding); see In re Jindal Saw Ltd., 264 S.W.3d 755, 767 (Tex. App.—Houston [1st Dist.] 2008 [mand. granted]) (concluding arguments asserted in mandamus petition could not be considered because they were never presented to trial court). Accordingly, we do not reach this in this proceeding.
Sheard also contends that the trial court abused its discretion in allowing the O'Dells "to move first" on their motion for reappointment of an attorney ad litem at the November 17, 2015 hearing and in signing the November 10, 2015 order "without proper notice and hearing." Given the conclusion that Sheard has not shown an abuse of discretion as to the November 18, 2015 order, we do not address these contentions.
Conclusion
Accordingly, because we conclude that the trial court abused its discretion in denying Sheard's motion to transfer venue, we grant Sheard's petition for a writ of mandamus in part, and direct the trial court to vacate the November 18, 2015 order denying her motion to transfer venue of the proceeding to Montgomery County. The writ will issue only if the trial court does not. Finally, we vacate our order, issued on December 8, 2015, staying the trial court's proceedings.
Russell Lloyd
Justice Panel consists of Justices Bland, Brown, and Lloyd.