in Re: Chad Clifton Magee ( 2004 )

NO. 07-03-0475-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 2, 2004
______________________________
IN RE CHAD CLIFTON MAGEE, RELATOR
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Relator Chad Clifton Magee seeks a writ of mandamus directing the Honorable Tom
Neely, District Judge for the 46th Judicial District, to vacate an Order of Transfer dated
September 4, 2003 and to enter an order denying Kristi Magee’s Motion to Transfer Venue.
Relator and Kristi Magee1 were divorced by the 46th District Court on September 25,
2002 after a trial before a jury. They were named joint managing conservators of their two
children, with Kristi having the right to establish the residence of the children. The jury
findings required the children’s residence to be established in Wilbarger or contiguous
counties. On June 11, 2003 the court ruled on relator’s Motion for Enforcement and Kristi’s
Motion to Extend Time. The court signed an order denying relator’s motion to hold Kristi
1
Hereafter Chad Clifton Magee will be referred to as relator and Kristi Magee will be
referred to as Kristi.
in contempt, and ordering Kristi to establish the children’s residence in Wilbarger or
contiguous counties no later that twenty days from the date she received her share of a
401(k) from her former husband’s employment.
Kristi received the funds from relator’s 401(k) on April 28, 2003. On June 23, 2003
she filed a Petition to Modify the Parent-Child Relationship, a Motion for Appointment of
Receiver and Clarification and a Motion to Transfer Venue. Her motion to transfer venue,
based on section 155.201(b) of the Texas Family Code, stated that the children of the
marriage had resided in Montgomery County, Texas, for at least six months prior to the
filing of the motion and that transfer to Montgomery County was required under section
155.201(b). Tex. Fam. Code Ann. § 155.201(b) (Vernon 2002). Relator filed a
controverting affidavit on July 14, 2003. Tex. Fam. Code Ann. § 155.204(b). On July 24,
2003 he filed a Motion for Enforcement requesting Kristi be held in contempt for failing to
relocate the children to Wilbarger or contiguous counties as ordered.
An evidentiary hearing was held on Kristi’s motion to transfer venue on August 8,
2003. At the hearing relator did not dispute that Kristi and the children had lived in
Montgomery County from May 12, 2002 to the date of the hearing. The court entered an
order on September 4, 2003, transferring the suit to Montgomery County. Relator seeks
a writ of mandamus directing the trial court to vacate the order of transfer.
Relator asserts that sections 105.002(c)(1)(D) and (d) of the Texas Family Code do
not allow the court to contravene the jury’s verdict restricting the children’s residence and
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domicile to Wilbarger county and contiguous counties.2 Section 105.002 reads, in relevant
part:
(c) In a jury trial (1) a party is entitled to a verdict by the jury on the issues of
. . . ( D) the determination of the primary residence of the child. . . . (d) The
court may not contravene a jury verdict on an issue submitted under
Subsection (c)(1). . . .
Tex. Fam. Code Ann. § 105.002(c)(1)(D) and (d) (Vernon 2002). The divorce decree
contains provisions establishing the geographical area for the children’s primary residence
in accord with the jury’s determination. The court’s September 4 order transferred venue
of the proceeding, but did not modify the decree.
Relator contends that the court’s order of transfer impermissibly nullifies the jury’s
determination of the children’s residence. We disagree. Relator confuses transfer of
venue with a modification of the terms of the divorce decree. If a suit to modify or a motion
to enforce an order is filed in the court having continuing exclusive jurisdiction over the suit
and a party makes a timely motion to transfer the proceeding to another county in this
state, transfer is a mandatory ministerial duty if the child has resided in the other county for
six months or longer. Tex. Fam. Code Ann. § 155.201(b). Proffer v. Yates, 734 S.W.2d
671, 673 (Tex. 1987) (referring to section 11.06, the predecessor to section 155.201).
When a suit affecting a parent-child relationship is transferred, all the proceedings
are continued as if they were brought originally in the court to which it is transferred. Tex.
2
Section 105.002 was modified effective September 1, 2003. Because this suit was
filed before the effective date, it is governed by the law in effect on the date that suit was
filed.
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Fam. Code Ann. § 155.206(a). The judgment or order transferred has the same effect as
when it was originally rendered and must be enforced just as it would have been in the
originating court. Tex. Fam. Code Ann. § 155.206(b). The court to which the proceeding
is transferred is required to enforce judgments or orders of the transferring court and has
the power to punish disobedience of orders issued by the transferring court, whether they
occurred before or after the transfer. Tex. Fam. Code. Ann. § 155.206(c) and (d). Both
parties may pursue their pending motions in Montgomery County. See In re Kramer, 9
S.W.3d 449, 451 (Tex.App.–1999, orig. proceeding).
Relator, relying on In re C.R.O., 96 S.W.3d 442, 447 (Tex.App.–Amarillo 2002, no
writ) asserts that transferring the case also undermines the public policy of the State of
Texas which encourages frequent contact of children with their parents and encourages
parents to share in the rights and duties of raising their children. Tex. Fam. Code Ann. §
153.001(a). In re C.R.O. did not concern a mandatory transfer within the State of Texas.
It involved the effort of a father to prohibit his wife from moving from Texas to Hawaii with
their two children. The court designated the residence of the children as Fort Bend County,
Texas and contiguous counties, subject to the father maintaining his residence in those
counties. The court found that allowing the children to move to Hawaii would have severely
impacted their relationship with their father due to the long distance involved. We do not
find the facts and issues presented to the court in In re C.R.O. relevant to this case.
It is relator’s burden to establish he is entitled to the relief being requested. Walker
v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); see Johnson v. Fourth Court of Appeals, 700
S.W.2d 916, 917 (Tex. 1985). Relator has failed to meet that burden. The trial court
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performed a mandatory ministerial duty in ordering the proceedings transferred to
Montgomery County. The request for a writ of mandamus is denied.
James T. Campbell
Justice
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