in Re Sherven Etemadi ( 2008 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-08-329 CV ____________________

IN RE SHERVEN ETEMADI

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Original Proceeding

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MEMORANDUM OPINION

In this original proceeding, Sherven Etemadi challenges the trial court's failure to grant his motion to transfer a suit affecting the parent-child relationship (SAPCR) from the court of continuing jurisdiction to the county of the children's residence on the filing date for the petition for modification and motion to transfer. We conditionally grant the petition for writ of mandamus.

The trial court entered the initial SAPCR order in 2005. The real party in interest, Anna J. McGraw, filed a motion to increase child support in 2006. That motion alleged the children were residents of Jasper County. McGraw filed another motion to modify child support in 2007. This motion also alleged the children were residing in Jasper County. The order signed April 5, 2007, provides a Houston address for McGraw. On March 7, 2008, Etemadi filed a petition for modification that alleges the children reside in Harris County. Etemadi filed a motion to transfer with his petition for modification. The grounds stated for the transfer are that the principal residence of the children is Harris County and neither party resides in Jasper County. McGraw received service of citation on March 10, 2008. McGraw timely filed an answer, but did not file a response to the motion to transfer until August 1, 2008. The controverting affidavit filed with the answer to the motion to transfer states that McGraw and the children moved to Florida on June 5, 2008, and that none of the parties currently reside in Harris County. Etemadi submitted a proposed transfer order on April 15, 2008, but the trial court has not signed the order of transfer.

Transfer is mandatory if a suit to modify a SAPCR order is filed in the court having continuing, exclusive jurisdiction of a suit, and a party files a timely motion to transfer to a county where the children have resided for six months or longer. Tex. Fam. Code Ann. § 155.201(b) (Vernon Supp. 2008).

A motion to transfer is timely if it is made at the time the initial pleadings are filed. Tex. Fam. Code Ann. § 155.204(b) (Vernon Supp. 2008). McGraw contends that the phrase "initial pleadings" refers to the first post-judgment action filed by any party; thus, she argues, Etemadi waived his right to seek a transfer by failing to file a motion to transfer when McGraw filed motions to modify in Jasper County in 2006 and 2007. We are not persuaded by this unique interpretation of the statute. There is no support in the mandamus record for McGraw's assertion that the children were residing in Harris County when McGraw filed her 2006 and 2007 motions to modify. Furthermore, McGraw's construction of Section 155.204(b) ignores the fact that the legislature statutorily designated a motion to modify a SAPCR as a new suit. See Tex. Fam. Code Ann. §§ 156.003, 156.004 (Vernon 2002). The entry of an appealable order in the previous modification proceeding concludes those proceedings and each subsequent filing of a new motion to modify requires issuance of citation and observation of the formalities of due process. Id.; see Rose v. Rose, 117 S.W.3d 84, 88 (Tex. App.--Waco 2003, no pet.) (distinguishing motions to enforce existing judgments from motions to modify a SAPCR). If a suit to modify is pending when a new suit is filed the trial court may transfer the proceeding only if the court could have transferred the proceeding at the time the first suit was filed. Tex. Fam. Code Ann. § 155.201(c) (Vernon Supp. 2008). In this case, however, neither the 2006 nor the 2007 modification proceedings were pending when Etemadi filed his petition to modify. The motion to transfer was filed with the initial pleadings of the petitioner in the active proceeding. Accordingly, Etemadi's motion to transfer was timely filed.

Etemadi pled in his motion to transfer that the children had resided in Harris County for the six months preceding the filing of the petition to modify and that no party presently resides in Jasper County. McGraw did not file a controverting affidavit on or before the first Monday after the 20th day after the date of service. See Tex. Fam. Code Ann. § 155.204(d) (Vernon Supp. 2008). Because McGraw failed to deny that grounds for a transfer exist in a timely filed controverting affidavit, transfer is mandatory. Tex. Fam. Code Ann. § 155.204(c); see In re Daly, 148 S.W.3d 578, 581 (Tex. App.--El Paso 2004, orig. proceeding). A party may obtain mandamus relief to compel a mandatory transfer of the SAPCR. Proffer v. Yates, 734 S.W.2d 671, 672 (Tex. 1987) (orig. proceeding).

McGraw argues that neither judicial economy nor the best interests of the children will be served by transferring the proceedings to a county where none of the parties presently reside. She argues that technical rules of practice and pleading are of little importance in determining issues concerning the custody of children. See Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967). Leithold pre-dates the Family Code and involves a situation where the trial court's full jurisdiction over the case had been invoked but the party failed to plead for modified visitation as an alternative to custody modification sought in the petition. See id. This case does not concern specificity of pleadings. The crux of this case is McGraw's failure to timely file her controverting affidavit as required by Section 155.204. Her answer does not allude to the residence of any party, nor does it mention transfer of the case. Under these circumstances, the Family Code requires the trial court to transfer the case. See Tex. Fam. Code Ann. § 155.204(c); compare In re Simonek, 3 S.W.3d 285, 288 (Tex. App.--Waco 1999, orig. proceeding) (Notwithstanding alleged wrong-doing by movant, transfer was mandatory because non-movant failed to file controverting affidavit), with In re Ferguson, 172 S.W.3d 122, 126 (Tex. App.--Beaumont 2005, orig. proceeding) (Court considered controverting affidavit in light of good faith attempt to controvert transfer motion). ⁽¹⁾

Etemadi filed a timely motion to transfer alleging the children had lived in Harris County for six months or longer and McGraw did not controvert that statement. No hearing is required and transfer to Harris County is mandatory. Because the trial court has not performed the ministerial act of signing the transfer order, we conditionally grant mandamus relief. We anticipate the trial court will promptly transfer the suit affecting parent-child relationship to Harris County. A writ will issue only in the event the trial court fails to transfer the proceeding in accordance with this opinion.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on August 8, 2008

Opinion Delivered September 11, 2008

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Presumably, a motion for a discretionary transfer could be addressed by the transferee court. See, e.g., Tex. Fam. Code Ann. § 155.202(b) (Vernon 2002).