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In re Whitworth

Court of Appeals of Texas, Fifth District, Dallas

June 28, 2019

IN RE VIRGIE BERNICE WHITWORTH, Relator

          Original Proceeding from the 304th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 0900395

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III.

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE.

         The underlying proceeding is a Suit Affecting the Parent-Child Relationship ("SAPCR"). Relator, the child's paternal grandmother, moved to transfer venue of Father's modification proceeding to Smith County because the child resided in Smith County during the six month period preceding the filing of the modification proceeding. See Tex. Fam. Code § 155.201(b). The trial court denied the motion.

         In this original proceeding, Grandmother seeks a writ of mandamus directing the trial court to vacate the order denying transfer to Smith County and directing the trial court to transfer the case to Smith County. Grandmother maintains that Family Code §155.204(c) required that transfer because Father failed to controvert the transfer motion. We requested a response.

         After reviewing the petition, Father's response, and the mandamus record, we conditionally grant the writ of mandamus.

         I. Background

         Father filed a motion to modify the custody and visitation order on April 8, 2019 and sought to reduce relator's visitation and custody rights. On April 19, 2019, relator filed a motion to transfer the case to Smith County because the child resided in Smith County during the six month period preceding the filing of the modification proceeding.

         Seven days later, Father filed an unsworn response to the motion to transfer. In that response, Father told the trial court that, in February 2019 the parties agreed to dismiss the transfer motion and the trial court signed orders dismissing the transfer motion and retaining the case in Dallas. Although such agreements and orders had been made in February 2019, they concerned a prior enforcement proceeding that was dismissed in February 2019. The April 2019 modification proceeding and transfer motion were new and not subject to the prior agreements.

         On May 9, 2019, the trial court signed an order and issued findings denying the motion to transfer, finding that "this transfer was already decided on 2/12/19," and setting the case for "final trial" on Father's and Grandmother's competing motions to modify on July 26, 2019.

         Grandmother now seeks a writ of mandamus directing the trial court to vacate the May 9, 2019 order and to grant the motion to transfer.

         II. Applicable Law

         The Family Code provides that the court of continuing, exclusive jurisdiction shall "on the timely motion of a party . . . 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. § 155.201(b). This provision is mandatory. In re Burling, No. 05-16-00529-CV, 2016 WL 3438075, at *1-2 (Tex. App.-Dallas June 21, 2016, orig. proceeding) (mem. op.) (citing Cassidy v. Fuller, 568 S.W.2d 845, 847 (Tex. 1978) (orig. proceeding). A motion is timely "if it is made on or before the first Monday after the 20th day after the date of service of citation or notice of the suit . . . ." Fam. Code § 155.204(b).

         A party desiring to contest the transfer motion must file "a controverting affidavit denying that grounds for the transfer exist" on or before the first Monday twenty days after notice of the motion is served. See Fam. Code § 155.204(d). If a motion to transfer is not timely controverted, the trial court has a mandatory, ministerial duty to promptly transfer to the county where the child at issue has resided for more than six months. Fam. Code § 155.204(c); In re Turner, No. 05-02-01174-CV, 2002 WL 1933241, at *1 (Tex. App.-Dallas Aug. 22, 2002, orig. proceeding) (mem. op) (not designated for publication). When a controverting affidavit is filed but the affidavit fails to deny that grounds for transfer exist, the allegations in the motion to ...


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