in the Interest of R. E. A., a CHILD ( 2011 )

NUMBER 13-10-00557-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF R.E.A., A CHILD
On appeal from the County Court at Law Number 4
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
By a single issue, A.A. appeals the trial court’s decision to maintain jurisdiction
and deny her motion to transfer venue of a suit affecting the parent-child relationship
(SAPCR) pursuant to the family code. See TEX. FAM. CODE ANN. § 155.201 (West
2008). We affirm.
I. BACKGROUND1
R.E.A. was born March 23, 2007. A.A. is his mother and his father is J.U.,
1
This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
appellee.2 On November 27, 2007, an order was obtained in Montgomery County
establishing the parent-child relationship; the order named A.A. as managing
conservator and J.U. as possessory conservator. On October 7, 2008, J.U. filed a
motion for enforcement of possession and petition to modify the parent-child
relationship. Following a hearing, the trial court ordered that J.U. only have supervised
visits with R.E.A.
On August 11, 2010, A.A. filed a petition for divorce in Harris County, Texas.
The petition asserted that J.U. ―has claimed or may claim that the parties are married as
a result of a common law marriage‖ and that the parties have lived apart without
cohabitation for at least three years. On the same day, August 11, 2010, A.A. filed a
motion to transfer the SAPCR in the Montgomery County court, asserting that the trial
court had a duty to transfer the suit to Harris County because a suit for dissolution of the
marriage was pending in Harris County. See TEX. FAM. CODE ANN. §§ 6.407 (West
2006) (providing that if SAPCR is pending when suit for dissolution of marriage is filed,
SAPCR shall be transferred to court in which dissolution suit is filed); 155.201(a) (West
2008) (providing that on filing of motion showing suit for dissolution of marriage has
been filed in another court and requesting transfer to that court, court with continuing
exclusive jurisdiction of SAPCR shall transfer proceedings to court in which dissolution
suit is pending).
On Friday, August 13, 2010, the trial court held a hearing on A.A.’s motion to
transfer.3 J.U. appeared pro se and requested that he be permitted to have
2
Appellee did not file a brief to assist us in this appeal.
3
We note that the reporter’s record contains two volumes dated August 13, 2010. At the end of
the proceedings in each volume, the trial court notes that proceedings will continue ―on Monday at 10:00
o’clock.‖ The trial court denied A.A.’s motion for transfer on August 13, 2010. Trial on J.U.’s motion to
2
unsupervised visits with R.E.A. A.A. was represented by counsel.
At the hearing, A.A’s counsel argued that pursuant to sections 6.407(a) and
103.002(b) of the family code,4 the trial court was required to transfer the SAPCR to
Harris County because A.A. had filed suit for dissolution of marriage in Harris County.
The trial court noted that it had ―not seen evidence of‖ the filing of a suit for dissolution
in Harris County. The court stated:
[the Court]: Okay. I am going to allow you to prove to this Court that
there has been a filing of this divorce action, that it has been
filed, and it is on file. . . . I am not going to rely on just mere
representation that there has been a petition filed at this
hour. If I find that a divorce action has been filed, and it was
filed even Wednesday of last week, the Court has no other
option but to transfer this proceeding. But I will make it
known to the Court in Harris County that this Court believes
that there has been a manipulating of the rules, given the
fact that there has been a suit affecting parent child
relationship. A paternity action filed in 2007. That there has
been a modification that’s been on file since 2008. And a
counter petition in this cause of action November 2008. That
this case has been be set [sic] for trial, and on the eve of the
trial setting, there is a motion to transfer requesting that this
case be transferred because a divorce action was filed two
days before trial with everything that is before the Court.
And that the Court would believe that there is a playing with
the rules.
A.A.’s counsel presented the testimony of Loretta Duncan, his paralegal.
Duncan testified that she filed the petition for dissolution by fax to Harris County on
modify the parent-child relationship continued on August 16, 2010.
4
A.A.’s counsel cited section 103.002(b) of the family code, which governs venue in an original
suit affecting parent-child relationship, see TEX. FAM. CODE ANN. § 103.002 (West 2008), not, as is the
case here, in a suit to modify or a motion to enforce filed in a court having continuing, exclusive
jurisdiction. See id. § 103.002(c) (―The procedures in Chapter 155 apply to a transfer of: (1) an original
suit under this section; or (2) a suit for modification or a motion for enforcement under this title.‖)
(emphasis added). The trial court, however, correctly cited the mandatory transfer provisions under
section 155.201. See id. § 155.201 (West 2008).
3
―Wednesday,‖5 but had not yet received a return fax showing that the document had
been file stamped and given a cause number. The trial court asked whether Duncan
had a confirmation from the fax machine showing the filing. Duncan said she was
―sure‖ that she had such a confirmation, but that she had not attached it to the copy of
the petition for dissolution. The court asked, ―even if [Duncan] produced a confirmation
that a request was made to file this, you cannot tell me whether or not Harris County
has accepted this petition and filed it, correct?‖ A.A.’s counsel replied that he could only
―presume‖ that Harris County had filed the petition. The trial court denied A.A.’s motion
to transfer and set J.U.’s motion to modify for trial on Monday, August 16, 2010.
On August 16, 2010, A.A.’s counsel presented the trial court with the fax
confirmation sheet showing that A.A.’s petition for divorce had been sent by fax to
Harris County for filing. An unfiled copy of the petition for divorce and fax confirmation
sheet were admitted in evidence. After the trial court heard testimony in J.U.’s motion to
modify, it granted the motion to modify and ordered that J.U. be permitted a standard
possession order with unsupervised visits with R.E.A.6 The trial court signed the order
on August 19, 2010. This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
Section 155.201(a) of the family code provides:
On the filing of a motion showing that a suit for dissolution of the marriage
of the child's parents has been filed in another court and requesting a
transfer to that court, the court having continuing, exclusive jurisdiction of
a suit affecting the parent-child relationship shall, within the time required
by Section 155.204, transfer the proceedings to the court in which the
dissolution of the marriage is pending. The motion must comply with the
requirements of Section 155.204(a).
5
We presume that the reference is to Wednesday, August 11, 2010.
6
We note that A.A. does not challenge the granting of the motion to modify on appeal.
4
TEX. FAM. CODE ANN. § 155.201(a). The duty to transfer the SAPCR is considered a
mandatory, ministerial act upon a ―showing that a suit for dissolution of the marriage of
the child's parents has been filed in another court.‖ See id.; In re M.A.S., 246 S.W.3d
182, 183–84 (Tex. App.—San Antonio 2007, orig. proceeding); Neal v. Avey, 853
S.W.2d 707, 709 (Tex. App.—Houston [14th Dist.] 1993, writ denied); see also In re:
Jana Hancock, No. 13-09-123-CV, 2009 Tex. App. LEXIS 2787, at **3–4 (Tex. App.—
Corpus Christi April 23, 2009) (orig. proceeding) (mem. op.). ―A motion to transfer
under Section 155.201(a) may be filed at any time.‖ TEX. FAM. CODE ANN. § 155.204(a).
Section 155.204(a) provides that a motion to transfer under section 155.201(a) ―must
contain a certification that all other parties, including the attorney general, if applicable,
have been informed of the filing of the motion.‖ Id. Section 155.204 does not require
that a section 155.201(a) motion to transfer be verified or supported by an affidavit. See
In re Sanchez, 1 S.W.3d 912, 915 (Tex. App.—Waco 1999, orig. proceeding); Hancock,
2009 Tex. App. LEXIS 2787, at *6. 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
be transferred promptly without a hearing to the proper court. TEX. FAM. CODE ANN. §
155.204(c); Sanchez, 1 S.W.3d at 914.
III. DISCUSSION
Here, A.A.’s motion to transfer venue contained a certification that each attorney
of record or party was served with a copy of the motion. See TEX. FAM. CODE ANN. §
155.204(a). J.U. did not file a controverting affidavit. See id. § 155.204(c). The trial
court’s comments suggest that it denied A.A.’s motion to transfer because no proof was
offered that a petition for divorce had actually been filed in Harris County.
5
We recognize that ―[b]y its very terms, [section 155.201(a)] requires a certain
factual showing before the mandatory duty to transfer a case is triggered.‖ In re M.A.S.,
246 S.W.3d at 184. For example, the statute ―presumes the existence of a marriage
subject to dissolution before the mandatory venue transfer provisions take effect.‖ Id.
In In re M.A.S., the San Antonio court affirmed the trial court’s denial of a motion to
transfer based on the trial court’s conclusion that the petition for divorce ―was filed as a
sham.‖ See id. at 184. The San Antonio court noted the trial court’s findings of fact and
conclusions of law, in which it determined that the parties had previously judicially
admitted that they were not married. See id. The court further stated:
In this case, the chronology of events indicates that Silvas filed a petition
for divorce in Reeves County a mere three days before the scheduled trial
of the Bexar County SAPCR, and only after all other efforts to dismiss or
transfer the suit were unsuccessful. The allegations of marriage in the
Reeves County divorce petition were directly contrary to all prior
assertions of non-marriage. The trial court reasonably determined that the
evidence in the case was contrary to a ―showing that a suit for dissolution
of the marriage of the child's parents has been filed in another court,‖ TEX.
FAM. CODE ANN. § 155.201(a) (Vernon Supp. 2007), and thus the court
properly denied the requested motion to transfer venue to Reeves County.
Id. at 184–85. The circumstances in the present case are similar to those in In re
M.A.S. As the trial court noted, A.A.’s motion to transfer was based on the filing of a
divorce petition in Harris County ―filed two days before trial,‖ and the trial court
―believe[d] that there [was] a playing with the rules.‖ Nonethless, the trial court gave
A.A. an opportunity to ―prove to [the court] that there has been a filing of this divorce
action.‖ No evidence that the divorce petition had been filed in Harris County was
offered.7 Based on the evidence presented, we conclude that A.A.’s motion to transfer
7
We note that a file-stamped copy of the divorce petition, reflecting that it was filed August 11,
2010, by the Harris County District Clerk’s office, is included in the appendix of appellant’s brief. The
copy that is included in the clerk’s record, however, bears no Harris County file-stamp. We do not
consider the file-stamped copy of the divorce petition in appellant’s brief, however, because it was not
6
failed to make a ―showing that a suit for dissolution of the marriage of the child’s
parent’s has been filed in another court.‖ See TEX. FAM. CODE ANN. § 155.201(a).
Accordingly, we hold that the trial court properly denied the requested motion to transfer
venue to Harris County.
IV. CONCLUSION
We overrule A.A.’s sole issue and affirm the trial court’s judgment.
DORI CONTRERAS GARZA
Justice
Delivered and filed the
11th day of August, 2011.
submitted to the trial court. See Jarvis v. Field, 327 S.W.3d 918, 929 (Tex. App.—Corpus Christi 2010,
no pet.) (noting that the attachment of documents as exhibits or appendices to appellate briefs is not
formal inclusion in the appellate record).
7