In Re Nabors

276 S.W.3d 190, 2009 Tex. App. LEXIS 394, 2009 WL 145264

• Court: Court of Appeals of Texas
• Decided: January 16, 2009
• Docket: 14-08-00380-CV
• Status: Published

Opinions

MAJORITY OPINION

CHARLES SEYMORE, Justice.

In this original proceeding, relators, James Madison Nabors and Julia Nabors, seek a writ of mandamus ordering the respondent, the Honorable Michael Schneider, to transfer the underlying case from Harris County to Fort Bend County. We conditionally grant the writ.

Background

On May 16, 2006, the Texas Department of Family Protective Services (“TDFPS”) placed T.D.P. and D.E.P. with the Nabors-es, who became their foster parents. On August 22, 2007, the trial court signed a final order in a suit to terminate the parental rights of T.D.P. and D.E.P.’s biological parents. TDFPS was named the sole managing conservator. On October 26, 2007, the children were removed from the Naborses’ home on allegations of abuse. TDFPS informed the Naborses that “[biased on the information gathered, it was determined that you had no role and the investigation was closed.” The children were not returned to the Naborses’ home.

On November 9, 2007, the Nabors-es filed, in Harris County, a petition for adoption and motion to modify the parent-child relationship with an accompanying motion to transfer venue to Fort Bend County.¹ In their motion, the Naborses alleged that Fort Bend County has been the children’s principal residence and “has been in that county during the six-month period preceding the commencement of this suit.”² On December 19, 2007, TDFPS filed an answer. Prior to a hearing on February 4, 2008, TDFPS filed a response to the motion to transfer supported by an affidavit. The trial court denied the motion to transfer venue.³

STANDARD OF REVIEW

In order to obtain mandamus relief, the relator must show that the trial court clearly abused its discretion, and the relator has no adequate remedy by appeal. In re Sw. Bell Tele. Co., L.P., 226 S.W.3d 400, 403 (Tex.2007) (orig.proceeding). A trial court has no discretion in determining what the law is or applying the law to facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). The transfer of a suit-affecting the child-parent relationship to a county where the child has resided for more than six months is a mandatory ministerial duty. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). Therefore, a writ of mandamus is available to compel the mandatory transfer of a suit affecting the parent-child relationship. Id. at 672.

Motion to Transfer venue

Because the 315th District Court of Harris County was the court of continuing jurisdiction based on the suit to terminate parental rights, the Naborses filed their motion to modify, petition for adoption, and motions to transfer in that court. See Tex. Fam.Code Ann. §§ 103.001(a) (Vernon 2002) (an original suit shall be filed in the county where the child resides unless another court has continuing exclusive jurisdiction); 155.001 (Vernon 2002) (a court acquires continuing, exclusive jurisdiction over the matters provided for by this title in connection with a child on the rendition of a final order). The Naborses sought to transfer the case to Fort Bend County on the assertion that the children had resided there for more than six months preceding the filing of the motion to modify and the petition for adoption. Section 155.201 of the Texas Family Code provides for the mandatory transfer of a proceeding on a motion to modify as follows:

(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.

Tex. Fam.Code Ann. § 155.201(b) (Vernon Supp.2008) (emphasis added).

The Naborses contend the trial court had a ministerial duty to sever and transfer all proceedings pertaining to the children to Fort Bend County because the children had lived with them in Fort Bend County for the requisite length of time. TDFPS contends the Naborses did not present any evidence to support their motion to transfer venue to Fort Bend County, arguing that the Naborses failed to submit an affidavit that contained sufficient averments.

Venue Rules

TDFPS contends the rules governing transfer of venue in a suit affecting parent-child relationship are a combination of the Texas Family Code, the Texas Civil Practice & Remedies Code, and the Texas Rules of Civil Procedure. Relying on the venue statute found in Chapter 15 of the Texas Civil Practice & Remedies Code and the Texas Rules of Civil Procedure, TDFPS asserts that venue questions are decided solely on the pleadings and affidavits, not on live testimony. See Tex. Civ. Prac. & Rem.Code Ann. § 15.064 (Vernon 2002) (“The court shall determine venue questions from the pleadings and affidavits.”); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 n. 4 (Tex.1992) (orig.proceeding) (explaining that live testimony may not be considered at a venue hearing under Rules 87 and 88 of the Texas Rules of Civil Procedure). However, transfer procedures under the Texas Family Code are the exclusive mechanism for transferring suits affecting the parent-child relationship and were designed to supplant the regular venue rules.⁴ Therefore, we need not consider the Naborses’ motions to transfer venue under other statutes or the Rules of Civil Procedure. See Mendez, 761 S.W.2d at 521 (rejecting contention that trial court should have considered motion to transfer, which was filed in contempt proceeding for failure to pay child support, under Rule 86 of the Texas Rule of Civil Procedure and Chapter 15 of the Texas Civil Practice and Remedies Code).

Section 155.204 of the Family Code provides that the “motion must contain a certification that all other parties, including the attorney general, if applicable, have been informed of the filing of the motion.” Tex. Fam.Code Ann. § 155.204(a) (Vernon 2002). Section 155.204 does not require that the motion be verified or supported by an affidavit. See In re Sanchez, 1 S.W.3d 912, 915 (Tex.App.-Waco 1999, orig. proceeding) (“[A] motion to transfer [under section 155.204] does not have to be verified nor must it be supported by an affidavit.”).⁵

The Children’s Residence

At the hearing on the motion to transfer, relator, James Nabors, testified that TDFPS placed the children with him and his wife on May 16, 2006, and the children resided with them in Fort Bend County for seventeen months. The Naborses contend TDFPS failed to controvert their venue averments.

TDFPS contends its affidavit controverts the Naborses’ venue facts. We note that TDFPS did aver that the children were “not currently residing with the Naborses, and have not since October 26, 2007.” However, there is no dispute that the children resided in Fort Bend County for approximately seventeen months before TDFPS removed them from the Na-borses’ household. TDFPS contends that it designated the Naborses’ home as the children’s residence on a temporary basis only. The TDFPS bases a major portion of its venue argument on the assertion that the “principal residence” of the children has always been Harris County because section 103.001(c) provides that a “child resides in the county where the child’s parents reside.” Tex. Fam.Code Ann. § 103.001(c). TDFPS contends it should be denominated the “parent” of the children because it was appointed sole managing conservator.

However, the Texarkana and the Amarillo Courts of Appeals have rejected similar arguments made by TDFPS. First, In re Kerst, 237 S.W.3d 441, 442 (TexApp.-Texarkana 2007, orig. proceeding), presents a somewhat similar scenario in which TDFPS sought and obtained termination of the parental rights. TDFPS placed the children with the Kersts who lived in Bowie county. Id. After a disagreement arose between TDFPS and the Kersts, the children were removed from the Kersts’ home. Id. Subsequently, the Kersts filed a motion to modify the conservatorship and motion to transfer venue from Hopkins county (where the court had continuing jurisdiction) to Bowie County. Id. In their motion, the Kersts alleged that the children had lived in Bowie County for more than six months. Id. It was undisputed that the children had lived with the Kersts, in Bowie County, for approximately seventeen months prior to the date the Kersts filed their motion to transfer venue, which the trial court denied. Id.

The court of appeals rejected TDFPS’s assertion that the Legislature never intended for the proceedings to be transferred to the county where the foster parents resided with the children. Id. at 443-44. TDFPS argued that, until the statute was amended, foster parents had no standing to assert these rights and, when the Legislature granted such standing, it was not contemplated that foster parents would be allowed to seek and obtain a transfer to the county where they resided with the children. Id. But, the court of appeals concluded that the statute requiring the mandatory transfer of a suit affecting the parent-child relationship to the county where the child has resided for six months or longer is straightforward and clear, and declined to accept TDFPS’s invitation to surmise that the statute has some other meaning. Id. at 444.

The appellate court further rejected TDFPS’s argument that the children had not “resided” in Bowie County, but were placed there merely for foster care, reasoning “[i]t cannot be argued that they were only temporarily absent from another, more permanent residence, since these children had no other home or residence.” Id. at 444-45. The court of appeals held that the children had resided in Bowie County for more than six months and directed the trial court to transfer the proceedings. Id. at 445.

Second, In re Gore presents the same scenario in which the original court of continuing jurisdiction in Potter County named TDFPS the managing conservator. No. 07-07-0290-CV, 2007 WL 2403366, at *1 (Tex.App.-Amarillo Aug. 23, 2007, orig. proceeding) (mem.op.). TDFPS placed the child in the foster care of the Gores in Swisher County. Id. After the child had lived with the Gores for more than six years, the Gores filed a petition seeking termination of the parent-child relationship between the child and her parents in the court in Potter County. Id. After the case had been transferred to Swisher County, TDFPS sought and received a discretionary transfer of the case back to Potter County. Id. Because it was undisputed that the child had resided in Swisher County more than six months, the court of appeals held that Swisher County was the only county of proper venue and the case should not have been transferred back to Potter County. Id. at *2.

Similar to Kerst and Gore, it is undisputed that the children had resided in Fort Bend County with the Naborses for more than six months preceding the date the motion to modify and petition for adoption were filed. Therefore, we reject TDFPS’s argument that the children resided in Harris County and their residence in Fort Bend County was temporary. See Kerst, 237 S.W.3d at 444-45.

Convenience Of The PaRties

The Naborses pleaded, alternatively, that the district court in Fort Bend County would be more convenient because all parties and witnesses reside in Fort Bend County. Section 155.202(b) provides that, “[f]or the convenience of the parties and witnesses and in the interest of justice, the court, on the timely motion of a party, may transfer the proceeding to a proper court in another county in the state.” Tex. Fam. Code Ann. § 155.202(b) (Vernon 2002). At the hearing, the trial court stated that the motion to transfer was discretionary, and it was denied. However, as we have concluded, the issue in this case is mandatory venue transfer because it is undisputed that the children lived with the Naborses in Fort Bend County for six months or longer. See Kerst, 237 S.W.3d at 443 (rejecting TDFPS’s argument that forum non conveniens may be relied upon to deny mandatory transfer of proceedings).

Construction Of Section 155.201(b)

TDFPS focused its appellate argument on the contention that this court should deny the petition because relators failed to comply with applicable rules of procedure. In other words, TDFPS argues that the trial court could not consider anything other than the contentions in the Naborses’ motion to transfer venue supported by timely filed affidavits. We have addressed those arguments, however, the dissent opines that our disposition violates certain venue provisions in the family code because the children did not reside in Fort Bend County on the day or at the moment the Naborses filed their motion to transfer venue. See post at 199. We respectfully disagree.

The children resided with the Naborses for approximately seventeen months before TDFPS moved them to Harris County. They were placed in Harris County approximately two weeks before the Na-borses filed their motion to transfer venue. Obviously, at the time of the hearing, the children had resided in the “other county for six months or longer.” Tex. Fam.Code Ann. § 155.201(b); see also Kerst, 237 S.W.3d at 445 n. 6. (“Generally, one designates residence by selecting a home and living in it. Here, the Department designated that the children would live at the Kersts’ home, where they remained for seventeen months. It was their principal residence for the six-month period preceding the commencement of the suit to modify.”).⁶

In support of her proposed interpretation of venue provisions in the family code, our dissenting colleague analyzes and compares the verb tense “has resided ” in the last phrase in the provision for mandatory venue under section 155.201(b) with the verb tense “resides ” in the provision for discretionary venue under section 155.202(a). The dissent relies heavily on verb tense employed by the Legislature in section 155.202(a) — the discretionary venue transfer provision — to support her conclusion that a section 155.201(b) mandatory transfer is necessarily based on an allegation that “ ‘the child resides in another county.’ ” See post at 202-03. First, in interpreting the express provisions of section 155.201(b), we have not supplied additional words.⁷ In section 155.201(b), the Legislature conspicuously did not express any requirement that the children presently or currently reside in the other county. If the Legislature had desired that the child currently reside in the other county at the time a proceeding is commenced, it could have included such language. Second, any attempt to interpose additional requirements for mandatory venue by suggesting that legislative intent is implicit because of a verb tense employed in the discretionary transfer subsection, strains the rules of statutory construction.⁸ Under the plain language in section 155.201(b) the Legislature does not require that the children currently reside in the other county, only that they “have resided” there for six months or longer when the modification suit is filed. See id.9

The majority chooses to follow the Legislature’s clear instructions for determining the county of the children’s residence prescribed as follows:

Determining County of Child’s Residence

In computing the time during which the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted but shall look to the child’s principal residence during the six-month period preceding the commencement of the suit.

Tex. Fam.Code Ann. § 155.203 (Vernon Supp.2008)

Our interpretation and application of the above language properly focuses on determination of the children’s “principal residence ” during the six month period. We duly regard the Legislature’s instructions not to focus on time and location of the children on a particular day. In determining the county of principal residence we focus on elements of permanency for the children which are critical to establishing residency for venue purposes. See Martinez 820 S.W.2d at 940-41 (applying former section 11.06(b), which had language similar to sections 155.201(b), 155.202(a) and 155.208, and opining that child’s principal residence is not determined by this six-month period, but six-month period may be a guide in determining whether new county of residence is intended to be principal, as opposed to merely temporary residence). The record in this case indicates the Naborses fed, clothed and provided a home for the children in Fort Bend County during the relevant period of time. Our dissenting colleague places emphasis on the last phrase in section 155.203 in order to justify her verb tense analysis of sections 155.201(b) and 155.202(a) with the suggestion that “during the six month period preceding the commencement of the suit” means the children must currently reside in the other county or venue will not be mandatory in the other county. The dissent’s interpretation is repugnant to the purpose of section 155.203. The dissent implicitly concludes that the children’s principal residence will never be in the county where they were actually residing during the statutory six month period if they are simply spirited away from that residence to another county before a motion to transfer venue is filed.

The dissent contends our interpretation of section 155.201(b) conflicts with In re T.J.L., 97 S.W.3d 257 (Tex.App.-Houston [14th Dist.] 2002, no pet.). We are referred to page 264 of that opinion with our dissenting colleagues’s statement that this court construed section 155.201(b) to “require that the child be a resident of the other county at the time the suit to modify was filed.” See post at 205. First, T.L.J., pertained to the question of whether transfer of venue as to one child is required when not all children of a marriage live in the county to which transfer is sought. Our court concluded that Section 155.207(b) of the Family Code requires a court to transfer the proceedings affecting a child to the county where the child resides, even if it retains jurisdiction over another child of the marriage who does not live in the transferee county. The T.L.J. court did not interpret or apply section 155.201(b) to answer the specific question presented in this case. Moreover, the court relied on Cassidy v. Fuller, 568 S.W.2d 845 (Tex.1978) when it referred to section 155.201(b).¹⁰

Finally, our dissenting colleague’s effort to construe sections 155.201(b) and 155.203 by relying on certain language in Blacklock v. Miller is likewise misplaced. 693 S.W.2d 651 (Tex.App.-Dallas 1985, orig. proceeding). In that case, the Dallas Court of Appeals cited and relied on Chem-Spray Aerosols, Inc. v. Edwards¹¹ to support its conclusion that “[t]he critical time with regard to the existence of venue facts is the time of filing suit.” Id. at 652. However, Chem-Spray Aerosols is not a family law case,¹² and it is well-established that the Family Code’s transfer provisions supplant the rules of procedure and statutes governing venue challenges in other types of civil cases. See Leonard, 654 S.W.2d at 441. Therefore, the general rules for establishing venue in civil cases are not applicable to suits affecting the parent-child relationship. See, e.g., In re Sanchez, 1 S.W.3d at 914-15 (rejecting argument that motion to transfer venue was untimely because affidavit in support of motion was not served until long after answer date as Family Code does not require that motion to transfer be verified or supported by affidavit); Mendez, 761 S.W.2d at 521 (refusing argument that trial court should have considered motion to transfer venue under Rule 86 of Texas Rules of Civil Procedure and Chapter 15 of Texas Civil Practice and Remedies Code).

Conclusion

We hold venue for these proceedings is mandatory in Fort Bend County. Once the Naborses established that the children continuously resided in Fort Bend County for more than six months preceding the filing of the motion to modify and petition for adoption, the trial court had a ministerial duty to transfer the underlying case to Fort Bend County under section 155.201(b) of the Family Code. See Proffer, 734 S.W.2d at 673. We therefore conditionally grant the petition for a writ of mandamus and direct the trial court to vacate its order denying the Naborses’ motion to transfer, and grant the same.

The writ will issue only if the trial court fails to act in accordance with this opinion.

FROST, J., dissenting.

1 . The original petition for adoption and the motion to transfer venue were filed under the original cause number — 2005-07431J. On November 12, 2007, the Harris County District Clerk notified the Naborses' attorney that it was assigning a new cause number to the petition for adoption — 2007-69035. The Na-borses filed another motion to transfer under the new cause number. The motion to modify the parent-child relationship and the accompanying motion to transfer were filed under the original cause number — 2005-07431J. It appears that the trial court proceeded on the motion to transfer filed with the motion to modify.

2 . The Naborses averred that the children's principal place of residence has been Fort Bend County during the six month period preceding commencement of the suit. They did not allege or aver that the children currently reside in Fort Bend County.

3 . We have not found the trial court’s written order denying the Naborses' motion to transfer venue in the appellate record. However, at the end of the hearing, the trial court stated, “Okay. Then I'm going to deny your motion to transfer ... I am going to not transfer the case.” Texas Rule of Appellate Procedure 52.3(j)(l)(A) requires “a certified or sworn copy of any order complained of, or any other document showing the matter complained of ...” Tex.R.App. P. 52.3(j)(l)(A) (emphasis added). An oral ruling on the record satisfies the requirements of Rule 52.3(j)(l)(A). In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex.App.-Houston [1st Dist.] 2006, orig. proceeding); In re Bledsoe, 41 S.W.3d 807, 811 (Tex.App.-Fort Worth 2001, orig. proceeding); In re Hamrick, 979 S.W.2d 851, 852 n. 3 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding).

4 . See Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex.1983) (orig.proceeding); In re Leder, 263 S.W.3d 283, 286 (Tex.App.-Houston [1st Dist.] 2007, orig. proceeding); Kirby v. Chapman, 917 S.W.2d 902, 907 (Tex.App.-Fort Worth 1996, no writ); Martinez v. Flores, 820 S.W.2d 937, 938 (Tex.App.-Corpus Christi 1991, orig. proceeding); Johnson v. Pettigrew, 786 S.W.2d 45, 48 (Tex.App.-Dallas 1990, no writ); Mendez v. Attorney Gen. of Tex., 761 S.W.2d 519, 521 (Tex.App.-Corpus Christi 1988, no writ); Beyer v. Diaz, 585 S.W.2d 359, 360 (Tex.Civ.App.-Dallas 1979, no writ).

5 . The Naborses prepared and filed an affidavit in support of their petition for writ of mandamus. However, we do not consider this affidavit because it was not submitted to the trial court. Cf. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.) ("The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal and, therefore, the documents cannot be considered.”).

6 . The dissent opines that our interpretation conflicts with the plain language in section 155.201(b) because the Legislature envisioned there would be "only one other county.” See post at 206. Our colleague erroneously suggests the majority's interpretation contemplates that a transfer of venue includes any county in which a child had resided for a period of six months no matter how remote in time to commencement of the proceeding. Contrary to the dissent’s criticism, our interpretation limits rather than "promotes” forum shopping. Apparently, in applying section 155.201(b), the dissent would conclude that a party could thwart a motion to transfer venue by removing children from one county to the other for few days or even a few hours. We disagree. If, as the dissent suggests, a motion to transfer should be denied because a child has resided in the county where the court has continuing jurisdiction for a single day, then the result may be altered by a battle or race to remove a child from one county to the other. Our dissenting colleague would allow the TDFPS to venue shop from one county to the other by exercising its authority to remove a child from any foster home in advance of adoption proceedings.

7 . Notwithstanding the concerns of our dissenting colleague, there is no language militating that the children reside in the other county "throughout" the six month period or at the moment the motion to transfer is filed Apparently, the dissent is willing to add the word “throughout" to the statute. See post at 199.

8 . Consistent with the legislature's instruction under the Code Construction Act, we should not focus on verb tense in determining legislative intent because words in the present tense include the future tense. See Tex. Gov't Code Ann. § 311.012 (Vernon 2005).

9 .Under the Texas Code Construction Act, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). Our dissenting colleague ignores this basic rule by engaging in grammatical semantics. We choose to follow the legislative admonition and presumption that, "a just and reasonable result is intended,” when a statute is enacted. Id.

10 . In Cassidy v. Fuller, the Supreme Court addressed the predecessor statute to section 155.201(b) — section 11.06(b). 568 S.W.2d 845 (Tex.1978). When the Supreme Court issued Cassidy, section 11.06(b) required a showing that venue was proper in another county. See Act of May 25, 1973, 63rd Leg., R.S., ch. 543, 1973 Tex. Gen. Laws 1411, 1414. Former section 11.04, which is currently section 103.001, required that an original suit affecting the parent-child relationship "shall be brought in the county where the child resides.” Id. at 1413. The current section 155.201(b) does not require that the party seeking a transfer to show venue is proper in the transferee county and does not require that the child reside in the transferee county on the same day a motion to modify is filed. Tex. Fam.Code Ann. § 155.201(b). Here, a motion to modify and petition for adoption were filed, not an original suit affecting the parent-child relationship. Consequently, we see no conflict with our interpretation of the statutory language applicable to this case and the Supreme Court’s opinion in Cassidy.

11 . 576 S.W.2d 478 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ dism’d).

12 . Id. at 480. The general venue statute at the time of the Chem-Spray Aerosols opinion was located at Tex.Rev.Civ. Stat. Ann. art. 1995, and is currently found in Section 15.002 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 15.002 (Vernon 2002).