in Re: Stacey Diane Sartor ( 2015 )

ACCEPTED
06-15-00027-CV
SIXTH COURT OF APPEALS
Jul 02 15 03:28p
TEXARKANA, TEXAS
p.17/7/2015 2:20:55 AM
DEBBIE AUTREY
CLERK
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
7/7/2015 8:04:00 AM
DEBBIE AUTREY
hlo. 0615-00027-Cv Clerk
In the Court of Appeals
Sixth Judicial Dietrict
Terarkanar Texas
In rc STACEY IIIANE SARTOR, Relator
RESPONSE, TO REAL PARTY IN n'TEREST'S RESPONSE TO
PETITION FOR WRIT OF MANDAMUS
lv{arianne Howlurd
State Bar No. 24055693
Gle,n Wietzel
State Bar No. 24047704
1910 Forest I.n-
Garlan4 TX75M?
Tel:214.288.1731
Fax 214.853.5835
mhowland@dlivcustody, com
Sartor f ResJrnse
Pag" 1 ofll
Identity of Parties and Counsel
The following is a list of all parties and all counsel who have appeared in
this matter:
Relator: STACEY DIANE SARTOR
Attorneys for Relator in the trial court: Marianne Howland, 1940 Forest Ln.,
Garland, TX 75A42, State Bar No. 24055693 and Glen Wietzel, 1940 Forest Ln.,
Garland, TX75042, State Bar No. 24047704.
Respondent: ERIC CLIFFORD
Attorney for Respondent in the trial court: N/A
Real party in interest: JASON SARTOR
Attomey for real party in interest in the trial court: Jennifer Gibo. 109 1" Street
SE, Paris, Texas 75460, State Bar No. 24032343.
Table of Contents
Index of Authorities IV
PETITION FOR WRIT OF MANDAMUS 1
I. Statement of the Case 4
il. Statement of Jurisdiction 4
ru. Issues Presented 4
Issue No. I
ry. Statement of Facts 4
Sartor I Response
Page 2 of11
V. Argument and Authorities
A. Standard of Review: Availabilitv of Mandamus Relief
B. Issue No. 1: Respondent abused his discretion when he denied Motion
to Transfer Venue
Prayer
Certification
Certfficate of Service
APPENDICES: The followine documents are attached to this petition and
incorporated in it for all purposes.
Appendix A: Affidavit of STACEY DIANE SARTOR
Appendix B: Attached to this Response are the following documents:
A certified copy of the First Amended Motion to Transfer Venue.
Appendix C: Affidavit of Marianne Howland, one of the attorneys for
Relator.
Statement of the Case
1. The underlying suit is a suit to modiff parent-child relationship, in
which Relator filed a motion to transfer venue.
2. Respondent denied Relator's motion to transfer venue on May 5,2015.
3. Respondent is ERIC CLIFFORD, Judge of the 6rH Judicial District
Court of Lamar County, Texas, whose address is 119 N. Main St. Paris, Texas
Sartor I Response
Page 3 ofll
75460.
Statement of Juris diction
This Court has jurisdiction to issue a writ of mandamus under section 6 of
article V of the Texas Constitution and section 22.221(a) of the Texas Government
Code.
Issues Presented by Real Party in Interest
Issue No. 1: Respondent abused his discretion when he denied Relator's First
Amended Motion to Transfer Venue.
Texas Family Code Section 155.201 states that "if a suit to modiff or a
motion to enforce arL order is filed in the court having continuing, exclusive
jurisdiction of a suit, on the timely motion of a party the court shall, within the
time required by Section 155.204, transfer the proceeding to another county in this
state if the child has resided in the other county for six months or longer.
Statement of Facts
Relator, STACEY DIANE SARTO& resides in Hunt County, Texas with
the children the subject of this suit. Relator resided in Hopkins County with the
children for six months prior to the filing of the underlying suit.
JASON SARTOR resides in Kansas. The exact address of JASON
SARTOR is unknown. It is undisputed that JASON SARTOR resides in Kansas.
None of the parties to this case reside in Lamar County, Texas.
Sartor I Response
Page 4 of 11
Relator timely filed Defendant's Notice of Motion and Motion to Dismiss
for Lack of Personal Jurisdiction and Improper Venue, or, in the Alternative, to
Transfer Venue and the First Amended Motion to Transfer Venue. JASON
SARTOR failed to file a controverting affidavit in response to the Motion to
Transfer Venue. The affidavit that JASON SARTOR filed was not controverting
in nature. The affidavit did not allege that Relator did not reside in Hopkins or
Hunt County for at least six months prior to the filing of her suit. Respondent,
Judge Eric Clifford, heard the motion on March 2A,2015 at 10:00 a.m. Relator
testified that she had resided in Hopkins County for at least six months before the
underlying suit was filed. Respondent denied Relator's motion even though
Respondent had a mandatory ministerial duty to transfer the case to Hunt County,
Texas, where the children the subject of this suit have resided for more than six
months or, in the alternative, Hopkins County, where the children lived for at least
six months prior to the filing of the underlying suit.
Respondent only took testimony from Relator and JASON SARTOR's
father. No testimony from JASON SARTOR was taken.
Respondent verbally denied Relator's motion to transfer (see page 19, line
20 through 23 of the transcript attached to Real Parly in lnterest's Response).
Therefore, Relator did not submit an order granting the motion to transfer.
Respondent issued an Order Denying Motion to Transfer on May 5,2015.
Sartor lResponse
Page 5 ofll
Jul 02 15 03:29o p.2
Argument and, Aut horities
A. Standard of Review: Availabilitv of Mandamus Relief.
Requisites of mandamus relief are a showing of (1) a legal duty to perforrn a
nondiscretionary act, (2) a demand for performance of a nondiscretionary act, and
(3) a refusal to perforrn after zuch demand was made. Erbs v. Bedard,760 S,W.2d
750, 755 (Tex. App.-Dallas 1988) (orig proceeding). Mandamus relief is
available when under the circwn$tances of the case tbe facts and law perrrit the
trial court to make but one decision--and the trial court has refused to make that
decision*and remedy by appeal to correct the ruling is inadequate. Proffer v.
Yates, 734 S.W.2 d 67 1, 673 (Tex. 1 987) (orig. proceedine).
Mandamus is available to compel mandatory transfer in suits affecting the
parent-child relationship. Proffer, 734 S.W.2d at 672; Arias v. Sputor, 623
S.W.2d 312, 313 (Iex. l98l) (orig. proceeding)- Transfer of a case to a county
where the child has resided for more than six months is a mandarcry ministerial
duty under section 11.06(b) (now section 155.201) of the Texas Family Code.
Proffer, 734 S.W.2d at 673- Parents and children who have a right under the
mandatory venue provisions to venue in a particular county should not be forced to
go through a fial that is for naught. Proffer,734 S.W.2d, at 673. Justice demands
a speedy resolution of child custody and child support issues. Proffer,734 S.W.zd
at673.
Sanor f Response
Page 6 of ll
Jul 02 15 03:29p
p.3
B. Issue No. I
Relator should be granted relief brcause the hial judge abused his discretion
in denying the motion to transfer venue. The hial judge failed to perfonn his
mandatory ministerial duty to transfer the case to Hunt Count;r, Toras or, in the
alternative, Hopkins County, Texas.
Prayer
Relator pray$ that this Court issue ia writ of mandamus comnanding he
triai court to vacate the order of May 5,2015 denying Relatot's Defendant's Notice
of Motion and Motion to Disniss for Lack of Personal Jurisdictioa and Improper
Venue, or, in the Alternativeo to Transfer Venue and Relator's First Amendod
Motion to Transfer Venue and ordering the hial court to grant RelatoCs Motion to
Transfer and transferthe case to Hunt County, Texas or, in the altemative, Hopkins
Connty, Texas.
Law Office of Marianne Howland
1940 ForestLn.
Garland TX 75Mz
Tel:214.288.1731
Far 214.853.5835
Em ail mhowland@dfrvcustody.com
State BsrNo.24055693
Sartor lRespons€
Page 7ofll
Jul 02 15 03:29p
p,4
Certilication
I certifr that I have reviewed the above response and have concluded tbal
every factual statement in the reqponse is srrpported by con:petent evidence
included in the atrached appendix or rword-
Certificate of Senice
I certi$ that a mrc copy of this Response to Real Party in Interest's
Response to Petition for Writ of Mandamus lr'irs served in accordance with nrle 9.5
of the Texas Rules of Appellatc Procedure on each party or that party's lead
corrnsel as follows:
Parry: JASON SARTOR
Lead attorney: Jennifer Gibo
Address of service: 119 lo Street SE, Paris, Texas 75ffi
Method of service: via facsimile: 903-9054966
Date of senrice: JuY -\ ,2015
A copy of ftis notice is being filed u'i& the appellate clerk in accodance
with rule 25.1(e) of Sre Texas Rules ofAppellate
a
Attorney for Relator
Sstor I Response
Page 8 ofll
Ju1021503:29p p.5
Apperd.ixl.'Affidavit of STACEY DIANE SARTOR
STACEY DIANE SARTOR eppeared in person before me today and stabd
under oath:
"My uame is STACEY DIANE SARTOR. I am above the age of eighteen
years of age, and I arn futly compstent to make this affidavit. I am the Relator in
this Petition for Writ of Mandamus. The fbcts stated in this affidavit are within my
personal knowledge and are tnre and correcl
I have resided in llunt County with the children the subject of this suit since
May 2014. I resided in Hopkins County for six months before the underlying zuit
was filed-
I filed my Defendant's Notice of Motion and Motion to Dismiss for Lack of
Personal Jgrisdiction and Impropu Venue: or, in the Alternative, to Transfer
Venue on Decembef 9, 2014. My attorney &en filed a First Anended Motion to
Transfer Veirue on January 5, 2015, and I appeared at the hearing on tvlarch 20,
2015 at 10:00 a.m. Judge Eric Clifford did not take testimony from JASON
SARTOR on tris issue. Judge Eric Clifford ver$ally denied my motion and &en
issued an order denying my motion on May 5, 2015.
Sartor lResponse
Page9 of ll
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Jul 02 15 03:30p
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SIGNED under oath before me
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Sartor I RssPonse
Paga 10 ofll
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