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In re Rusch

Court of Appeals of Texas, Third District, Austin

May 9, 2018

In re Lena Elizabeth Rusch

          ORIGINAL PROCEEDING FROM BURNET COUNTY

          Before Chief Justice Rose, Justices Goodwin and Field.

          MEMORANDUM OPINION

          Melissa Goodwin, Justice.

         Relator Lena Elizabeth Rusch has filed a petition for writ of mandamus asking this Court to compel the trial court to order the transfer of the underlying case to Brazos County and to vacate its temporary orders in the underlying suit affecting the parent-child relationship. See Tex. Gov't Code § 22.221; see also Tex. R. App. P. 52.1. We granted Rusch's motion for temporary relief and stayed all proceedings in the trial court and enforcement of the temporary orders during the pendency of this mandamus proceeding. We will conditionally grant the petition for writ of mandamus because we conclude that the trial court (1) failed to perform its ministerial duty to transfer the case and (2) abused its discretion by rendering temporary orders that changed the divorce decree's designation of Rusch as the parent with the exclusive right to determine the primary residence of the children. See Tex. R. App. P. 52.8(c); see also Tex. Fam. Code §§ 155.201(mandatory transfer), 166.006(b) (temporary orders).

         BACKGROUND[1]

         This mandamus proceeding arises out of a petition to modify the parent-child relationship filed by real party in interest Michael Brasuel on December 1, 2017. Brasuel sought to modify the parties' final decree of divorce, which was signed October 13, 2010, by the County Court at Law of Burnet County. The decree named Rusch and Brasuel as joint managing conservators of their sons, CDB and TWB. The decree gave Rusch the exclusive right to designate the children's primary residence "within 160 miles of Marble Falls, Texas." In the petition to modify, filed on December 1, 2017, Brasuel requested that the trial court appoint him to be the person who has the right to designate the primary residence of the children.

         Motion to transfer

         On December 4, 2017, Rusch filed a motion to transfer venue based on Section 155.201 of the Family Code. See generally Tex. Fam. Code §§ 155.201-.297 (concerning transfer of continuing, exclusive jurisdiction in suits affecting parent-child relationship); see also id. § 155.201(b) (providing that on party's timely motion court must transfer modification proceeding to county of child's residence if child has resided in other county for six months or longer). In her affidavit attached to the motion, Rusch attested that she was pregnant with TWB when she moved to Brazos County in December 2008 with CDB, who was then 15 months old, and that they have resided there since that time.

         Later on December 4, Rusch filed "Respondent's Original Answer Subject to and Without Waiving Respondent's Motion to Transfer Venue" and "Respondent's Motion to Dissolve Temporary Restraining Order Subject to and Without Waiving Respondent's Motion to Transfer Venue." On December 5, the trial court signed an emergency ex parte temporary restraining order and also set a hearing for temporary orders on December 13.

         Brasuel filed a response in opposition to the motion to transfer venue on December 13, the day that the hearing on temporary orders was set. Brasuel attached an affidavit to the response that in substance stated only, "The facts and allegations contained in the Response in Opposition to Motion to Transfer Venue are within my personal knowledge and are true and correct." The response to the motion did not allege any facts controverting Rusch's averment in her affidavit that the children had resided in Brazos County for over six months.

         On December 13, the trial court conducted a hearing on temporary orders and on Rusch's motion to dissolve the temporary restraining order. Both parties appeared with their attorneys, taking issue with whether the trial court should, or indeed could, reach Rusch's motion to transfer venue on that day. Rusch had noticed the hearing on December 4, the day she filed the motion to transfer, scheduling the hearing for December 13. Brasuel argued that the trial court should reset the hearing on the motion to transfer because he was entitled to ten days' notice. See id. § 155.204(e).

         After the court heard evidence related to the temporary restraining order and the petition to modify, Rusch's attorney again urged during closing arguments that "this is not the proper county to dispose of this case in" and made one final request to the court:

Of all of the requests that petitioner is making, the attorney -- the guardian ad litem and the counseling, we would just ask that the court hold off on ruling on any of those issues until after the court has had a chance to rule on the motion to transfer venue.

         The court, in addition to making its temporary orders concerning residency and visitation, stated:

I'm going to order that you all go to mediation. I will not consider a transfer at any point in time, so just letting you know that, because I do -- I don't know -- I am also going to order that counseling continue with the counselor that the children are seeing in Austin, if that's still the choice that you want.

(Emphasis added.) On February 8, 2018, the trial court signed the temporary orders, memorializing the orders made at the hearing, including that "[t]he Court, after examining the record and hearing the evidence and argument of counsel, finds that all necessary prerequisites of the law have been legally satisfied and ...


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