Tippy v. Walker

PER CURIAM. This petition for writ of mandamus raises the issue of whether the six months residency period for mandatory transfer of venue in child custody modification motions under Tex.Fam.Code § 11.06(b) only begins to run after the original custody decree is signed, or at the earlier date when the child’s actual residency in the different county begins. Here the facts are that although the child had continuous residency with the mother in Harris County for fifteen months prior to her filing of the motion to transfer venue, the motion was filed less than six months after Judge Walker actually signed the original final custody order. The respondent and real party in interest have had notice and opportunity to respond, but have offered no argument beyond that advanced in the trial court — that the six months only begins to run after the decree is finally signed. We previously implicitly held that residency runs from the earlier date in holding that transfer was mandatory in Arias v. Spector, 623 S.W.2d 312 (Tex.1981). In our computation in Arias we included part of the pre-judgment residency period to reach the required total residency then specified in section 11.06(b). We now make that implicit holding explicit. After review of the record and consideration of all argument submitted herein, it is the opinion of a majority of the court that relator is entitled by law to relief. Without hearing oral argument, a majority of the court directs that Judge Walker shall transfer the pending motion to modify to a District Court of Harris County. Tex.R.App.P. 122. The writ of mandamus is conditionally issued. The clerk of this court shall issue it to Judge Walker if, and only if, he fails or refuses to comply with this opinion. Nothing in this opinion affects the validity of any temporary or emergency orders Judge Walker may have heretofore issued.