Hernandez v. Valls , 1983 Tex. App. LEXIS 4830 ( 1983 )

CANTU, Justice,

dissenting.

I do not believe that the proof in this case on the question of transfer under Tex.Fam. Code § 11.06 (Vernon 1979) mandates a nondiscretionary transfer.

Appellee and Rachel Vails were divorced in Webb County on January 12, 1981 and Rachel was appointed managing conservator of the couple’s two minor children while appellee, the natural father, was appointed possessory conservator. At the time of the divorce, Rachel and the children claimed Mercedes, Texas, as their residence.

Rachel died barely a month later on February 15, 1981. Appellant, the maternal grandmother, filed a petition on March 23, 1981 seeking appointment as the managing conservator. A motion to transfer the proceedings accompanied the motion to modify. Appellee filed his motion to modify the prior decree and sought appointment as managing conservator on April 14, 1981. Appellant’s motion to transfer proceedings was heard and overruled by the trial court on April 9,1981. The order was entered on May 15, 1981 and it recites:

It further appearing to the court that the child has resided in Hidalgo County, Texas for more than six (6) months, but, it being the opinion of the court that this six (6) month residency can only begin to run from the time of the entry of its previous order and is not based on the actual presence of the child in Hidalgo County; ...

Thereafter, on June 15,1981, a hearing was had on both pending motions to modify and the trial court appointed appellee as managing conservator of the children and appointed appellant as possessory conservator with reasonable visitation rights. On July 23, 1981, appellee applied for and secured a writ of habeas corpus for the return of the children. The record is silent as to the effect of such writ on the question of immediate possession since a return evidencing its execution does not appear in the record. A five page document purporting to represent the transcription of testimony at the hearings on the motion to transfer and motions to modify accompanies the appellate record. It does not contain any testimony or reflect that any evidence was presented to the court on any of the motions.

As I see it, the sole question before this court is whether appellant may rely upon that period of time preceding the entry of a divorce decree and the creation of a managing conservatorship in favor of the deceased mother to satisfy the requirements of Tex. Fam.Code § 11.06(b) (Vernon 1979). Section 11.06(b) prior to amendment effective September 1, 1981 provided in part:

If a petition or a motion to modify a decree is filed in a court having continuing jurisdiction of the suit, the court, on the timely motion of any party, and on a showing that venue is proper in another county or that a suit for dissolution of marriage has been filed in another court, shall transfer the proceedings to the county where venue is proper or to the court where the suit for dissolution of the marriage is pending. However, if the basis of the motion is that the child resides in another county, the court may deny the motion if it is shown that the child has not resided in that county for at least six months. In computing the period of time during which the child has resided in that county, the court shall not require that the period of residence be continuous and uninterrupted but shall look to the child’s principal residence during the six-months period.

Appellant’s motion to transfer alleges that “the children have resided in Hidalgo County for more than six (6) months prior to the filing of the actions filed herein, and the filing of this motion.” The motion further alleges that the children have resided in Hidalgo County since 1976 when Rachel Vails allegedly separated from appellee. Prior to January 12, 1981, there was no appointed managing conservator. Either parent, therefore, had the rights, privileges, duties and powers of a parent enumerated in the Texas Family Code, especially the right to have physical possession of the child and to establish its legal domicile. Tex.Fam.Code § 12.04(1) (Vernon 1975). By virtue of the divorce decree entered on January 12, 1981, the relationship of managing conservator was created in favor of Rachel Vails. See Tex.Fam.Code § 14.01 (Vernon 1975).

Pursuant to Tex.Fam.Code § 14.02, supra, Rachel Vails, as court-appointed managing conservator, retained all the rights, privileges, duties and powers of a parent to the exclusion of appellee subject to his rights, privileges, duties and powers conferred upon him as a possessory conservator. Rachel Yalls, therefore, became vested with the right to establish the legal domicile of the minor children to the exclusion of appellee’s wishes on January 12, 1981. Upon her death the relationship of managing conservator ceased to exist and appellant could file a motion to modify the con-servatorship only if she was a “party affected by the order or the portion of the decree to be modified.” Tex.Fam.Code § 14.08 (Vernon 1975). I seriously question appellant’s standing to file a motion seeking modification of the prior order. Tex.Fam. Code § 14.08(a) (Vernon 1975); Tex.Fam. Code § 11.09(a) (Vernon 1975). Appellant clearly could not establish the children’s legal domicile without a court created status. See Tex.Fam.Code § 11.04 (Vernon 1975).

The majority opinion is not troubled by the fact that at the time the motion to transfer was heard and overruled the minor children had been under a managing conser-vatorship for barely one month and had established legal domicile through her for considerably less than the required six months. In fact, at the time of the hearing on the motion, the minor children had resided in Hidalgo County for less than three months following the entry of the order granting Rachel Vails managing conserva-torship.

Under the reasoning of the majority it is conceivable that a court of continuing jurisdiction can always be divested of jurisdiction and forced to transfer a modification action under a mandatory duty simply because the prior managing conservator before his appointment has managed to move to a different county pending a divorce for a period in excess of six months. The Legislature could not have intended such a result.¹

In the instant case there was no showing that venue existed in Hidalgo County and, therefore, there was no mandatory duty upon the trial court to transfer the matter from Webb County.² I would hold that appellant did not meet her burden of proof necessary to deprive the trial court of its exercise of discretion and that abuse of that discretion is not evident. I would affirm the judgment of the trial court.

1 . I can envision a situation where the managing conservator dies one day after the appointment following the entry of a divorce decree. If through some chance the managing conservator managed to remove herself and the minor children to another county during the pendency of the divorce but for at least six months, under the majority reasoning the trial court is bound to transfer the matter to the county where the minor children resided during the pendency of the divorce even though conservatorship existed for a single day.

2 . For method of proving mandatory transfer see Koons, Jurisdiction, Venue and transfers in suits affecting the parent-child relationship (where all parties reside in Texas), 9 Tex.Tech. L.Rev. 243, 264 (1977-78).