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In re Lee-Cole

Court of Appeals of Texas, Twelfth District, Tyler

July 19, 2017

IN RE: FRANCIS CHARLINE LEE-COLE, RELATOR

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          JAMES T. WORTHEN, CHIEF JUSTICE

         Relator Francis Charline Lee-Cole filed this petition for writ of mandamus, contending that the trial court erred in failing to abate this divorce proceeding. We deny the petition for writ of mandamus.

         Background

         The underlying suit is a divorce proceeding between Francis and Perry Wayne Cole, the real party in interest. The suit was filed in Anderson County, Texas, [1] on February 27, 2017. In his original petition, Perry alleged that the parties were married on March 7, 2015, and ceased to live together as husband and wife on or about January 1, 2016. He stated in the petition that he had been a domiciliary of Texas for the preceding six month period, and a resident of Anderson County for the preceding ninety day period. Francis responded by filing a plea in abatement, alleging that Perry had not met the dual requirements of being both a domiciliary of Texas for six months or a resident of Anderson County for ninety days prior to filing the divorce petition.

         The trial court held a hearing on Francis's plea in abatement on April 17, 2017. At the hearing, Francis testified that Perry had lived in Georgia from April 2016 until December 2016. She stated that she filed a missing persons report with law enforcement on August 14, 2016. Two days later, she was notified that Perry had been located in Acworth, Georgia. Perry testified that he had indeed gone to Georgia in August of 2016, in an attempt to get away from Francis. He testified that while he was there he worked for five days as a temporary employee for Express Services, Inc., and lived in a motel. Afterwards, he returned to his home at 607 Variah Street, Palestine, Texas. Perry introduced into evidence his 2016 W-2 statement showing that he had earned $402 in wages from Express Services, Inc.

         However, Francis testified that in October 2016, she leased a home at 1875 Bluebonnet Drive in Rockwall, Texas. She stated that both she and Perry were listed as tenants. Francis testified that Perry "came back [from Georgia] physically and lived with [her] in December" 2016 at the Rockwall address. She acknowledged that she moved from the Rockwall address on January 4, 2017. Perry testified that his name was on the Rockwall lease because of Francis's bad credit, and stated that she would not have been able to rent the house unless he had signed the lease. Moreover, he said, he signed the lease electronically, i.e., by email. Perry also stated that he visited Francis for three days around Christmas 2016, with his son. He further testified that he resided at the 607 Variah Street address in December 2016. According to Perry, he had not resided with Francis during any period from August 2016 until February 2017.

         Nonetheless, Francis's counsel questioned Perry about a notice sent to him by the Internal Revenue Service at an address in Flint, Smith County, Texas. Perry testified that this address was a property owned by his mother, and that he had resided at that address in 2013 or 2014 while taking care of her. However, he testified, he had lived with both his mother and grandmother at the 607 Variah Street address since August 2016. Perry also introduced into evidence a driver's license issued by the Texas Department of Public Safety on January 3, 2017, showing his address to be the 607 Variah Street address. Finally, Perry testified that he had resided at the 607 Variah Street address at least six months prior to filing his divorce petition.

         At the conclusion of the evidence, the trial court overruled Francis's plea in abatement, stating that it did not believe there was "any evidence that [Perry] intended to permanently reside in Georgia." However, Francis's counsel questioned the trial court as follows:

Francis's counsel: Well, on the ninety-day period. He filed on February 27th, and on the ninety-day period, January 4th-January 4th he was in Bluebonnet, they were moved out. That's not-
The Court: What I'm getting at is, even if I were to grant it, he would have overcome the obstacle to jurisdiction, but I think with the burden of proof, you had the burden of proof and I don't think you moved [sic] it that he intended to reside anywhere other than where he's residing. And so I'm going to overrule.

         Following the hearing, the trial court ...


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