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In re Bigham

Court of Appeals of Texas, Tenth District

January 23, 2014

IN RE SIDNEY BIGHAM

Original Proceeding

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

MEMORANDUM OPINION

REX D. DAVIS, Justice

In this original proceeding, Relator Sidney Bigham seeks mandamus relief on the Respondent trial judge's denial of Sidney's motion to transfer the underlying SAPCR case pending in Limestone County to Sidney's pending divorce suit pending in Dallas County. We will conditionally grant relief.

Sharon Bigham, Sidney's sister, has had possession of Sidney's two children, D.S.B. and K.A.B., for several years while Sidney was in prison. Alicia Bigham, Sidney's wife and the mother of the children, apparently has been in and out of jail, and at the time of the underlying hearing, she was in state jail. According to Sharon's response to the mandamus petition, on May 16, 2013 (and shortly before Sidney was to be released from prison), Sharon filed a Suit Affecting the Parent-Child Relationship (SAPCR) in the 87th District Court in Limestone County and applied for temporary orders. On June 6, 2013, the Respondent trial judge signed temporary orders that included appointing Sharon as temporary sole managing conservator of Sidney and Alicia's two children. Sharon's response confirms the entry of the temporary orders.

On June 12, 2013, Sidney filed an original petition for divorce against Alicia and in the interest of D.S.B. and K.A.B. in the 301st District Court in Dallas County. Thereafter, in the SAPCR suit, Sidney filed a "motion to transfer and consolidate" and requested the transfer of the SAPCR suit to the divorce action pending in Dallas County. Sharon filed an answer to the motion that contained a general denial.[1] During the evidentiary hearing on Sidney's motion, Sharon did not dispute that Sidney had filed for divorce in Dallas County.[2] At the conclusion of the hearing, Respondent denied Sidney's motion. Sidney's record included a certified reporter's record of the hearing on his motion to transfer and consolidate.

In making its oral ruling, Respondent acknowledged the mandatory transfer provision in subsection 155.201(a)[3] but asserted that there was another mandatory transfer provision in the statute pertaining to where the child had resided for six months.[4] The written order denying Sidney's motion to transfer states: "The Court determined that the 87th Judicial District Court of Limestone County, Texas, has continuing, exclusive jurisdiction of this case as provided for by section 155.002 of the Texas Family Code."[5]

In his mandamus petition, Sidney asserts that Respondent erroneously denied his motion to transfer the SAPCR suit to Dallas County. We will grant mandamus relief if there has been an abuse of discretion and the relator has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-38 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion when it misapplies the law to the established facts of the case. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). There is no adequate remedy by appeal for the erroneous denial of a mandatory transfer under the Family Code. In re Hancock, No. 13-09-00123-CV, 2009 WL 1089481, at *1 (Tex. App.— Corpus Christi Apr. 23, 2009, orig. proceeding).

The Family Code provides for the mandatory transfer of a SAPCR suit to a suit for dissolution of the marriage of the child's parents in another court. Tex. Fam. Code Ann. § 6.407 (West 2006); id. § 103.002(b) (West 2008); id. § 155.201(a); see Hancock, 2009 WL 1089481, at *1-2; In re Middlebrook, 7 S.W.3d 262, 264 (Tex. App.—Waco 1999, orig. proceeding). The Family Code requires that the SAPCR suit be united with the dissolution suit if the two proceedings are filed separately. In re Allen, 593 S.W.2d 133, 136-37 (Tex. Civ. App.—Amarillo 1979, no writ).

Because we conclude that Respondent had no discretion to deny Sidney's motion to transfer, we conditionally grant the petition for writ of mandamus. Our writ will issue only if Respondent fails (1) to vacate his written order denying Sidney's motion to transfer and (2) to enter an order transferring the ...


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