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In re Braden

Court of Appeals of Texas, Fourteenth District

February 22, 2018

IN RE JENNIFER BRADEN, Relator

         ORIGINAL PROCEEDING WRIT OF MANDAMUS 328th District Court Fort Bend County, Texas Trial Court Cause No. 14-DCV-216657

          Panel consists of Justices Christopher, Donovan, and Jewell.

          MEMORANDUM OPINION

          PER CURIAM

         Relator is Jennifer Braden (Mother) and real party-in-interest is Hussain Rahim (Father).

         On December 29, 2017, relator filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West Supp. 2017); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Ronald Pope, presiding judge of the 328th District Court of Fort Bend County, to vacate his June 12, 2017 Order, which (1) denied Mother's request that the court relinquish jurisdiction over Father's Motion for Enforcement of Child Support Order, (2) denied Mother's request that hearings related to Father's Motion for Enforcement of Child Support Order be conducted as described in Section 159 of the Texas Family Code, and (3) denied Mother's request that the court relinquish jurisdiction to modify the November 23, 2013 conservatorship order in this Suit Affecting Parent-Child Relationship.

         Mandamus Standard

         To obtain mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding).

         Except in unusual circumstances, mandamus relief is not available after a final judgment has been issued because the relator then has an adequate remedy by direct appeal.[1]

         "A case becomes moot when (1) there is no real controversy, or (2) when a party seeks a judgment which, when rendered, cannot have any practical legal effect." Tex. Comm'n on Enviro. Quality v. San Marcos River Found., 267 S.W.3d 356, 360 (Tex. App.-Corpus Christi 2008, pet. denied); In re Braden, No. 14-16-00480-CV, 2016 WL 3742308, at *1 (Tex. App.-Houston [14th Dist.] July 12, 2016, orig. proceeding) (per curiam) (mem. op.). The court will not issue mandamus "if for any reason it would be useless or unavailing." Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995).

         Analysis

         The trial court issued a Final Order on January 31, 2018, which modified the previous conservatorship and child support orders. This Final Order may be appealed. Such an appeal provides an adequate remedy for the review of Mother's complaints regarding the denial of her requests that the court relinquish jurisdiction to modify conservatorship and child support orders. Further, these issues are moot because they were decided in the Final Order. See In re Braden, 2016 WL 3742308, at *1.

         In her remaining issues, Mother argues that the trial court abused its discretion by denying her requests that the court relinquish jurisdiction of Father's Motion for Enforcement of Child Support Order and that any hearings of that motion be conducted as described in Chapter 159 of the Texas Family Code.

         Section 159.316(f) of the Family Code states, "In a proceeding under this chapter, a tribunal of this state shall permit a party or witness residing outside this state to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location." Tex. Fam. Code Ann. § 159.316(f) (West Supp. 2017) (emphasis added). The Legislature's use of the word "shall, " as opposed to "may, " means that the trial court has a mandatory, not a discretionary, duty to permit Mother to testify by telephone. See Tex. Gov't Code § 311.016(2) (West 2013) (stating "shall" imposes a duty). "The Code Construction Act makes clear that the use of "shall" normally imposes a mandatory requirement. Tex. Gov't Code § 311.016(2)." Crosstex Energy Services, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 392 (Tex. 2014). Accordingly, Mother has a statutory right to appear and testify by telephone at any hearings on motions to enforce child support orders of the court.

         However, the record does not show whether Father intends to pursue his Motion for Enforcement of Child Support Order in the Texas court, given that Mother is now in New York. The trial court did not hear the Motion for Enforcement of Child Support Order at the trial which occurred on January 8 and 9, 2018. Therefore, unless Father sets his Motion for Enforcement of Child Support Order for hearing, the issues regarding the trial court's ...


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