In re Calderon

• Decision Date: 05 February 2003
• Docket Number: No. 12-02-00228-CV.,12-02-00228-CV.
• Citation: 96 S.W.3d 711
• Parties: In re Kimberly CALDERON.
• Court: Texas Court of Appeals

96 S.W.3d 711

In re Kimberly CALDERON.

No. 12-02-00228-CV.

Court of Appeals of Texas, Tyler.

February 5, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Carole W. Clark, pro se.

John E. Freeman, Deborah J. Race, Tyler, for Real Party In Interest.

Pascual Madrigal, San Antonio, for Relator.

Panel consisted of WORTHEN, C.J. and GRIFFITH, J.

OPINION ON MOTION FOR REHEARING

JAMES T. WORTHEN, Chief Justice.

The real party in interest, David Holiday ("Holiday"), filed a motion for rehearing. Pending our disposition of Holiday's motion, we stayed our order conditionally granting the writ. We deny the motion for rehearing, and the stay of our prior order is lifted. However, our opinion of October 23, 2002 is withdrawn, and the following opinion is substituted in its place.

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.

BACKGROUND

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 minors, and the 321st District Court of Smith County has continuing, exclusive jurisdiction over matters relating to the children.¹

On February 23, 1999, Calderon filed a motion to transfer venue on the grounds that she and the children had resided in Bexar County for more than six months. Holiday filed a response alleging that Calderon had, on the same date, urged an oral motion to modify and sought temporary orders without stating that a motion to transfer was being filed contemporaneously. Therefore, Holiday concluded, the motion to transfer venue was not timely filed. He did not deny that the children had resided in Bexar County for more than six months. A notation on the court's docket sheet dated July 6, 1999 reflects that "[a] mtn to transfer has been filed and needs a hearing." The next entry on the docket sheet states that the motion to transfer venue was heard on July 23, 1999 and denied.

On April 17, 2000, Holiday and Calderon entered into a mediated settlement agreement ("MSA") to resolve the litigation between them. The MSA primarily relates to their parental rights and duties, but also provides that jurisdiction will remain in Smith County for three years. On October 24, 2000, the trial court signed an order approving the MSA 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 MSA (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 MSA 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.

AVAILABILITY OF MANDAMUS

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.

Transferring 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 Texas Family Code.² Bollard v. Berchelmann, 921 S.W.2d 861, 863 (Tex.App.San Antonio 1996, no writ) (citing Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987), which refers to section 11.06³); see TEX. FAM.CODE ANN. & sect; 155.201(b) (Vernon 2002). An order denying a motion to transfer the proceeding is not subject to interlocutory appeal. TEX. FAM.CODE ANN. § 155.204(e) (Vernon 2002). Remedy by regular appeal, though available, is frequently inadequate to protect the rights of parents and children to a trial in a particular venue. Proffer, 734 S.W.2d at 673. Therefore, mandamus is available to compel mandatory transfer in a SAPCR. Id. at 672; In re Sanchez, 1 S.W.3d 912, 914 (Tex.App.Waco 1999, orig. proceeding).

ABUSE OF DISCRETION

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 MSA 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 MSA provision.

Relationship Between Family Code Sections 155.201 and 153.0071

Section 155.201(b) 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.

TEX. FAM.CODE ANN. § 155.201(b) (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) (referring to section 11.06⁴). 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, 734 S.W.2d at 673; In re Powell, 79 S.W.3d 814, 816 (Tex.App. Fort Worth 2002, orig. proceeding); Sanchez, 1 S.W.3d at 914.

In support of her argument that the MSA 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 [creating an exception to the general venue statute when a person has contracted in writing to perform an obligation in a particular county] 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 attempt to negate those provisions by contract was void.⁵ See id. The court reasoned that "[t]o hold otherwise would defeat the legislature's intent that matters affecting the parent-child...