In re Calderon, 12-02-00228-CV.
| Decision Date | 23 October 2002 |
| Docket Number | No. 12-02-00228-CV.,12-02-00228-CV. |
| Citation | 88 S.W.3d 395 |
| Parties | In re Kimberly CALDERON. |
| Court | Texas Court of Appeals |
Pascual Madrigal, San Antonio, for relator.
Carole W. Clark, pro se.
John E. Freeman, Deborah J. Race, Tyler, for real party in interest.
Panel consisted of GOHMERT, JR., C.J., WORTHEN, J., and GRIFFITH, J.
Kimberly Calderon ("Calderon") brings this petition for writ of mandamus complaining of an order denying her motion to transfer venue filed pursuant to section 155.201 of the Texas Family Code. We conditionally grant the writ.
David Holiday ("Holiday") and Calderon were divorced in 1993 in Smith County, Texas. Two children were born to the marriage. Since 1998, the children have resided with Calderon in San Antonio, Texas, which is in Bexar County. The children are both minors, and the 321st District Court of Smith County has continuing, exclusive jurisdiction over matters relating to the children.1
On April 17, 2000, Holiday and Calderon entered into a mediated settlement agreement ("MSA") to resolve ongoing litigation between them. The M.S.A. primarily relates to their parental rights and duties, but also provides that jurisdiction will remain in Smith County, Texas for three years. On October 24, 2000, the trial court signed an order approving the M.S.A. and incorporating its terms. The order contains the following provision: "The Court further finds that jurisdiction and venue shall remain in Smith County, Texas for a period of three (3) years from the date of entry of this Order." The order also states that the residence of the minor children is in San Antonio.
On May 28, 2002, Calderon filed a motion to transfer venue from Smith County to Bexar County. Approximately one week later, Calderon filed a motion in Smith County seeking modification of the trial court's October 24 order. Holiday filed an affidavit controverting Calderon's motion to transfer. In his affidavit, Holiday contends that Calderon is not entitled to the transfer because paragraph 8 of the M.S.A. (the "MSA provision") expressly states that continuing jurisdiction of the children will remain in Smith County for three years. Holiday also points out that the M.S.A. provision is incorporated into the trial court's October 24 order.
Calderon requested that the trial court rule on her motion to transfer without a hearing. The trial court denied Calderon's request and on August 15, after a hearing, denied Calderon's motion. Calderon filed her petition for writ of mandamus asking this court to direct the trial court to vacate its order denying the motion to transfer and to transfer the proceedings to Bexar County. Calderon also asks this court to impose sanctions against Holiday pursuant to Rule 52.11 of the Texas Rules of Appellate Procedure.
Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex.2000) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.
Calderon argues that the trial court had no discretion to deny her motion to transfer because it is undisputed that the children have resided in Bexar County for more than six months. She further contends that the M.S.A. provision cannot serve as a defense to her motion because the mandatory transfer requirement of section 155.201 cannot be negated by contract. Holiday maintains that the trial court properly denied Calderon's motion to transfer because (1) section 153.0071 of the Texas Family Code allows the parties to a mediated settlement agreement in a suit affecting the parent-child relationship ("SAPCR") to make an agreement that is contrary to section 155.201; (2) Calderon, by "clear overt acts," waived her right to contest the trial court's order denying her motion to transfer; and (3) Calderon is estopped and/or barred from attacking the M.S.A. provision.
Section 155.201(b) of the Texas Family Code provides as follows:
(h) 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. § 155.201(b) (Vernon 2002) (emphasis added). The Texas Supreme Court has held that the use of the word "shall" indicates that this statute is mandatory. Cassidy v. Fuller, 568 S.W.2d 845, 847 (Tex.1978) ().2 Therefore, a trial court has no discretion but to transfer the proceeding if the child has resided in another county for six months or more. E.g., Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987) (applying section 11.06); In re Powell, 79 S.W.3d 814, 816 (Tex.App.Fort Worth 2002, orig. proceeding); In re Sanchez, 1 S.W.3d 912, 914 (Tex.App.Waco 1999, orig. proceeding).
In support of her argument that the M.S.A. provision does not control over the mandatory transfer requirement of section 155.201, Calderon calls our attention to the supreme court's decision in Leonard v. Paxson, 654 S.W.2d 440 (Tex.1983). In Leonard, the relator and her former husband entered into an agreement incident to divorce, which was approved by the trial court and incorporated into the final divorce decree. The agreement provided that "[a]ll acts contemplated by this Agreement shall be performed in El Paso County, Texas, and all sums of money payable under this Agreement shall be payable in El Paso, Texas."
The next year, the relator instituted a proceeding to modify the child support provisions of the divorce decree. In addition, she filed a motion to transfer the proceeding to the county where her children had resided for more than six months prior to the filing of the motion to modify. Her former husband contested the motion to transfer alleging that venue was proper in El Paso County under the venue provision of the agreement. The trial court agreed and denied the motion to transfer. The relator sought a writ of mandamus from the supreme court.
In reviewing the lower court's action, the supreme court concluded that, despite the agreement of the parties, the trial court had a mandatory duty to transfer the proceeding. Id. at 441. In so holding, the court noted that "the fixing of venue by contract, except in such instances as permitted by Article 1995, § 5 [] is invalid and cannot be the subject of private contract." Id. (citing Fidelity Union Life Ins. Co. v. Evans, 477 S.W.2d 535, 537 (Tex.1972)).
Although the agreement in Leonard stated that all acts contemplated by the agreement, including the payment of money, were performable in El Paso County, the relator did not allege that her former husband had breached the agreement nor did she seek a money judgment for support payments due under the terms of the agreement. Instead, the relator sought to modify the agreement's child support provisions. Consequently, the underlying proceeding was a SAPCR and not a suit for breach of contract. As such, article 1995, section 5 was inapplicable because the venue provisions of the Family Code remove a SAPCR from the operation of the general venue statute. Id. Therefore, the mandatory venue and transfer provisions of the Family Code controlled, id. at 441-42, and the attempted contractual modification of those provisions was void. See id. The court reasoned that "[t]o hold otherwise would defeat the legislature's intent that matters affecting the parent-child relationship be heard in the county where the child resides, and would promote forum shopping by contract." Id. at 442 (citing Cassidy, 568 S.W.2d at 847).
Holiday contends that Leonard does not control here. To support his position, he first relies on section 153.0071,3 which prescribes the mediation procedure in a SAPCR. Subsection (d) provides that a mediated settlement agreement is binding on the parties if the agreement
(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.
TEX. FAM.CODE ANN. § 153.0071(d) (Vernon 2002).
Holiday points out that section 153.0071 incorporates the strong public policy favoring alternative dispute resolution in family law cases in Texas. Further, he argues, in effect, that section 153.0071(e), which provides that a party is entitled to judgment on a mediated settlement agreement "notwithstanding Rule 11, Texas Rules of Civil Procedure or another rule of law," affords parties wider latitude in a mediated settlement agreement than is available in an agreement reached outside of mediation. Specifically, Holiday contends that mediated settlement agreements containing the requisite language and signatures are enforceable notwithstanding "Rule 11, the rules of procedure or any other rule of law." Therefore, he concludes that an agreement fixing venue is permitted in a mediated settlement agreement and controls over the mandatory transfer provision of section 155.201, provided the parties comply with the requirements of subsection (d). Calderon does not contend that the agreement fails to comply with these...
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