in Re John Phelps ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00360-CV
IN RE John PHELPS
Original Mandamus Proceeding 1
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: July 31, 2013
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
On June 7, 2013, relator John Phelps filed a petition for writ of mandamus, complaining of
the trial court’s failure to sign an order transferring continuing and exclusive jurisdiction of a child
custody matter to Galveston County without a hearing. See TEX. FAM. CODE ANN. § 155.301(a)
(West 2008). We conclude the trial court abused its discretion in requiring the motion be set for
hearing. See TEX. FAM. CODE ANN. § 155.204(c) (West 2008). Therefore, we conditionally grant
mandamus relief.
BACKGROUND
Phelps filed a motion to transfer continuing exclusive jurisdiction and motion for
enforcement of possession in Bexar County in December of 2012. Bexar County acquired
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This proceeding arises out of Cause No. 2000-CI-07648, styled In the Interest of E. H-P., A Minor Child, pending in
the 73rd Judicial District Court, Bexar County, Texas, the Honorable Richard Price presiding.
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continuing exclusive jurisdiction over the suit affecting the parent-child relationship as a result of
an original order of parentage and order for possession in Cause No. 2000-CI-07648. Phelps
alleged in his motion that the child and the child’s mother, Vanessa Hollinger, reside outside the
state and that Phelps, the only party to the proceeding remaining in Texas, now resides in Galveston
County. Phelps sought transfer of continuing exclusive jurisdiction to Galveston County pursuant
to section 155.301 of the Texas Family Code and in the interest of convenience of the parties. See
TEX. FAM. CODE ANN. § 155.301 (a), (c) (West 2008).
Hollinger filed a pro se motion to dismiss for lack of jurisdiction and to transfer exclusive
jurisdiction to Pottawattamie County, Iowa on January 21, 2013. In her motion, Hollinger
acknowledged the original 2000 order establishing continuing exclusive jurisdiction in Bexar
County, but asserted that Bexar County no longer had exclusive jurisdiction because she and the
child had been residing out of state since June of 2012.
On February 6, 2013, Phelps sent a letter to the Bexar County district clerk stating, “Under
the provisions of Texas Family Code § 155.204(c) ‘Procedure for Transfer’ please transfer the case
to Galveston County, Texas without a hearing. The Respondent, Vanessa Hollinger, did not file a
controverting affidavit with her motion.” With his letter, Phelps enclosed his response to
Hollinger’s motion to dismiss and transfer to Iowa, attaching an affidavit controverting certain
facts contained in Hollinger’s motion and a proposed order on his motion to transfer.
One week later, the staff attorney for the Bexar County Civil District Courts sent a letter to
the parties acknowledging that Judge Richard Price, as presiding district judge for the month of
February 2013, had received Phelps’s letter and proposed order, but advised that “[i]n light of the
jurisdictional issues that appear to be present, the Judge requires that a hearing be set on the
motions to transfer filed by both parties.” Phelps responded with a second letter on February 18,
2013, asserting that the requirement of a hearing was contrary to the provisions of the Texas Family
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Code, reiterating that Hollinger had filed no controverting affidavit and again providing a proposed
order for signature, along with copies of cases applying section 155.204 of the Texas Family Code.
Phelps sent two additional letters, one in April and one in May, through the staff attorney
for the district courts, re-urging his request that an order on his motion be signed without a hearing.
No order was ever signed and no hearing has been held on Phelps’s motion to transfer. Phelps then
filed this petition for writ of mandamus.
ANALYSIS
Subchapter D. of Chapter 155 of the Texas Family Code is entitled “Transfer of
Proceedings Within the State When a Party or Child Resides Outside the State.” TEX. FAM. CODE
ANN. ch. 155, subch. D, § 155.301 (West 2008). Section 155.301(a) provides:
A court of this state with continuing, exclusive jurisdiction over a child custody
proceeding under Chapter 152 [Uniform Child Custody Jurisdiction and
Enforcement Act] or a child support proceeding under Chapter 159 shall transfer
the proceeding to the county of residence of the resident party if one party is a
resident of this state and all other parties including the child or all of the children
affected by the proceeding reside outside the state.
TEX. FAM. CODE ANN. § 155.301(a) (emphasis added).
Section 155.301 (c) provides:
Except as otherwise provided by this subsection, if a transfer of continuing,
exclusive jurisdiction is sought under this section, the procedures for determining
and effecting a transfer of proceedings provided by this chapter apply. If the
parties submit an agreed order for transfer, the court shall sign the order without
the need for other pleadings.
TEX. FAM. CODE ANN. § 155.301(c) (emphasis added).
Section 155.204 provides the “Procedure for Transfer”:
(c) If a timely motion to transfer has been filed and no controverting affidavit is
filed within the period allowed for its filing, the proceeding shall, not later than the
21st day after the final date of the period allowed for the filing of a controverting
affidavit, be transferred without a hearing to the proper court.
TEX. FAM. CODE ANN. § 155.204(c).
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It is undisputed that Phelps’s motion to transfer was timely filed. It is also undisputed that
Hollinger did not file a controverting affidavit in response to Phelps’s motion within the time
period required by the statute. See TEX. FAM. CODE ANN. § 155.204(d) (West 2008). Given the
lack of a controverting affidavit, the trial court had a ministerial duty to follow the procedures
provided by the Texas Family Code and enter an order of transfer to Galveston County without
the requirement of a hearing on Phelps’s motion. See In re Leyva, 333 S.W.3d 315, 317-18 (Tex.
App.—San Antonio 2010, orig. proceeding) (concluding trial court abused its discretion in failing
to order transfer without a hearing, even to evaluate whether transfer was mandatory, where no
timely controverting affidavit was filed); In re Casseb, 119 S.W.3d 841, 843 (Tex. App.—San
Antonio 2003, orig. proceeding) (no discretion but to transfer to the county of residence of the
only Texas resident party under section 155.301).
By failing to complete the ministerial act of signing an order of transfer and instead
requiring a hearing on Phelps’s motion, the trial court abused its discretion. See In re Leyva, 333
S.W.3d at 318 (addressing the trial judge’s contention that a hearing was necessary to determine
whether transfer was mandatory). Despite the fact that Hollinger had asserted in her motion that
she and the child had resided out of state for some period of time, the trial court’s duty to transfer
the proceeding within Texas, when there is at least one party that remains in the state and the
procedural requirements for transfer without a hearing have been met, is unchanged. See In re
Forlenza, 140 S.W.3d 373, 379 (Tex. 2004) (the decree-granting state retains continuing exclusive
jurisdiction, even when the child and custodial parent reside out of state, until there is a
determination that the significant connection and substantial evidence requirements of section
152.202(a) are no longer met); see also TEX. FAM. CODE ANN. § 155.301(a) (providing for transfer
within the state when the child and one party reside outside the state).
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04-13-00360-CV
CONCLUSION
Based on the foregoing analysis, we hold the trial court abused its discretion in failing to
transfer continuing exclusive jurisdiction over the enforcement proceeding under Texas Family
Code section 155.301 without a hearing. Accordingly, we conditionally grant the petition for writ
of mandamus and direct the trial court to transfer the underlying proceeding to Galveston County
without a hearing. See TEX. FAM. CODE ANN. §§ 155.204(c), 155.301(a) (West 2008). The writ
will issue only if the trial court fails to comply within ten days from the date of this court’s order.
Luz Elena D. Chapa, Justice
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