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In re Yancey

Court of Appeals of Texas, Twelfth District, Tyler

September 13, 2017

IN RE: ALINA YANCEY, RELATOR

         ORIGINAL PROCEEDING

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

          MEMORANDUM OPINION

          PER CURIAM

         Relator, Alina Yancey, files this original proceeding in which she complains of the trial court's refusal to transfer venue.[1] We conditionally grant the writ.

         Background

         Yancey and Nelson Pruitt are the parents of J.P., H.P., and L.P. In December 2012, the Rusk County trial court signed a final decree dissolving the marriage between Yancey and Pruitt. In 2014, the trial court signed an order making Pruitt J.P.'s primary managing conservator and making Yancey the primary managing conservator for H.P. and L.P.

         On January 31, 2017, the Texas Attorney General's Office filed (1) a suit for modification of support and motion to confirm support arrearage in Rusk County, and (2) a motion to transfer venue from Rusk County to Smith County on grounds that, although the Rusk County court had continuing jurisdiction, Yancey, H.P., and L.P. had resided in Smith County for more than six months before the filing of the motion. In her affidavit of residency, Yancey averred that she and the children had resided in Smith County for at least six months. Pruitt filed a controverting declaration, in which he stated that J.P. has resided in Rusk County, not Smith County, for at least six months. Pruitt also filed a counter-petition to modify the parent-child relationship.

         At a hearing on the motion to transfer, Pruitt testified that the case originated in Rusk County and that he, Yancey, and the three children resided in Rusk County at that time. However, Yancey, H.P., and L.P. later moved out of the county and J.P. remained with him. He did not want the case transferred because J.P. resides with him in Rusk County and it would be inconvenient to travel to Smith County. He testified that Smith County is H.P.'s and L.P.'s primary domicile and that they lived there longer than six months. Yancey's attorney maintained that the Rusk County court was no longer the court of continuing jurisdiction because the children had not lived in Rusk County for the past six months. She also argued that sever was appropriate for the two children who resided in Smith County.

         On May 16, the trial court denied the motion to transfer. Yancey subsequently filed her own motion to transfer, and Pruitt again filed a controverting affidavit. The record does not reflect that the trial court ruled on Yancey's motion; thus, it was overruled by operation of law. Yancey filed this original proceeding on July 28.[2]

         Prerequisites to Mandamus

         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator has the burden of establishing both of these prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014, orig. proceeding.). "Mandamus will not issue when the law provides another plain, adequate, and complete remedy." In re Tex. Dep't of Family and Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding). Mandamus is available to compel mandatory transfer in a suit affecting the parent child-relationship. In re Lawson, 357 S.W.3d 134, 135-36 (Tex. App.-San Antonio 2011, orig. proceeding); In re Calderon, 96 S.W.3d 711, 715 (Tex. App.-Tyler 2003, orig. proceeding).

         Availability of Mandamus

         Relator contends that, under section 155.201(b) of the family code, the trial court should have transferred the case to Smith County with respect to H.P. and L.P., as both children resided in Smith County for over six months.

         "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) (West 2014). Except in circumstances inapplicable to this case, a motion to transfer by a petitioner or movant is timely if made when the initial pleadings are filed. Id. ยง 155.204(b) (West 2014). "Transferring a case to a county where the ...


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