in Re Timothy Brent Claiborne ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00076-CV
IN RE TIMOTHY BRENT CLAIBORNE
Original Proceeding
MEMORANDUM OPINION
Timothy Brent Claiborne filed a petition for writ of mandamus requesting this
Court to compel the Honorable Judge William Bosworth, the judge of the 413th District
Court of Johnson County, to vacate the order denying Claiborne’s motion to transfer
venue. We conditionally grant the writ.
Standard of Review
A writ of mandamus properly issues when the relator demonstrates that the trial
court abused its discretion and there is no adequate remedy by appeal. In re Gulf
Exploration, LLC, 289 S.W.3d 836, 842 (Tex.2009). A trial court abuses its discretion if it
reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial
error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005); Walker v. Packer, 827 S.W.2d 833, 839
(Tex.1992).
Background Facts
The trial court entered a final decree of divorce between Timothy Claiborne and
Ruby Claiborne on July 11, 2008. From 2008 to the present, the trial court has
considered numerous motions to modify and motions for enforcement filed by the
parties. On October 4, 2013, Timothy filed a motion to modify and a motion to transfer
venue. On October 28, 2013, Ruby filed an affidavit controverting the motion to transfer
venue, and she also filed a motion for enforcement.
Motion to Transfer
Timothy argues that the trial court erred in denying the motion to transfer venue
and that the trial court abused its discretion in failing to conduct a hearing on the facts
raised in the controverting affidavit. The Texas Family Code provides for the
mandatory transfer of venue:
(a) 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).
(b) If a suit to modify or a motion to enforce an order is filed in the
court having continuing, exclusive jurisdiction of a suit, on the timely
motion of a party the court shall, within the time required by Section 155.
204, transfer the proceeding to another county in this state if the child has
resided in the other county for six months or longer.
In re Claiborne Page 2
(c) If a suit to modify or a motion to enforce an order is pending at
the time a subsequent suit to modify or motion to enforce is filed, the
court may transfer the proceeding as provided by Subsection (b) only if
the court could have transferred the proceeding at the time the first
motion or suit was filed.
TEX. FAMILY CODE ANN. § 155.201 (West 2014). In the motion to transfer venue, Timothy
alleges that the child has resided in Tarrant County during the six-month period
preceding the commencement of the suit and that venue is proper in Tarrant County
pursuant to Section 155.201.
Ruby filed a controverting affidavit contesting the motion to transfer venue
stating that her residence is on “the border of Tarrant and Johnson counties.” If a
controverting affidavit is filed contesting the motion to transfer, the trial court is
required to hold hearing on the motion. See TEX. FAM. CODE ANN. § 155.204(e) (West
2014). Only evidence pertaining to the transfer may be taken at the hearing. TEX. FAM.
CODE ANN. § 155.204(f) (West 2014).
On January 22, 2014, the trial court considered the motion to transfer venue filed
by Timothy as well as other motions filed by Ruby. The record indicates that the trial
court denied the motion to transfer venue without hearing evidence pertaining to the
motion. The trial court did not hear any evidence concerning the residence of the child
or concerning the facts alleged in the controverting affidavit before denying the motion
to transfer venue. The trial court abused its discretion in failing to conduct a hearing to
consider evidence relating to the motion to transfer venue. An order transferring or
refusing to transfer the proceeding is not subject to an interlocutory appeal. TEX. FAM.
In re Claiborne Page 3
CODE ANN. § 155.204(h) (West 2014). Therefore, Timothy has no adequate remedy by
appeal.
Conclusion
We conditionally grant Timothy Claiborne’s writ of mandamus and direct the
trial court to vacate the order denying Claiborne’s motion to transfer venue and to
conduct a hearing to receive evidence pertaining to the motion to transfer venue. The
writ will issue only if the trial court fails to do so.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Writ conditionally granted
Opinion delivered and filed May 8, 2014
[OT06]
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