in Re: Stacey Diane Sartor

ACCEPTED 06-15-00027-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/10/2015 8:55:35 AM DEBBIE AUTREY CLERK

06-15-00027-CV FILED IN 6th COURT OF APPEALS No. TEXARKANA, TEXAS 6/10/2015 8:55:35 AM DEBBIE AUTREY Clerk

In the Court of Appeals

Sixth Judicial District

Texarkana, Texas In re STACEY DIANE SARTOR, Relator

PETITION FOR WRIT OF MANDAMUS

Marianne Howland State Bar No. 24055693 Glen Wietzel State Bar No. 24447704 1940 Forest Ln. Garland. TX 7 5042 TeI:214.288.1731. Fax: 214.853.5835 mhowland@dfivcustody. com

Sartor lPetition for Writ of Mandamus Pase 1 of11

Identity of Parties and Counsel

The following is a list of all parties and all counsel who have appeared in this maffer: Relator: STACEY DIANE SARTOR Attorneys for Relator in the trial court: Marianne Howland, 1940 Forest Ln., Garland, TX 75042, State Bar No. 24055693 and Glen Wietzel, 1,94A Forest Ln., Garland, TX75042, State Bar No. 24047704. Respondent: ERIC CLIFFORD Attorney for Respondent in the trial court: N/A Real party in interest: JASON SARTOR Attorney for real party in interest in the trial court: Jennifer Gibo, 109 1" Street SE, Paris, Texas 75460, State BarNo. 24A32343. Table of Contents Index of Authorities iv

PETITION FOR WRIT OF MANDAMUS I

I. Statement of the Case 4 II. Statement of Jurisdiction 4 ru. Issues Presented 4

Issue No. I

W. Statement of Facts 4 Sartor I Petition for Writ of Mandamus Page2 ofll

V. Argument and Authorities

A. Standard of Review: Availabilitv of Mandamus Relief

B. Issue No. 1: Respondent abused his discretion when he denied Motion

to Transfer Venue Prayer Certffication Certificate of Service APPENDICES: The following documents are attached to this petition and incorporated in it for all purposes. Appendix A: Affidavit of STACEY DIANE SARTOR Appendix B:Attached to this petition are the following documents:

1. A certified copy of Defendant's Notice of Motion and Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue, or, in the Alternative, to Transfer Venue.

2. A certified copy of the Order Denying the Motion to Transfer signed by Respondent. Appendix C:Affidavit of Marianne Howland and Glen Wietzel with attached exhibits: A and B.

Sartor lPetition for Writ of Mandamus ofll Page 3

Statement of the Case

l. The underlying suit is a suit to modiS. parent-child relationship, in which Relator filed a motion to transfer venue.

2. Respondent denied Relator's motion to transfer venue on May 5,2415.

3. Respondent is ERIC CLIFFORD, Judge of the 6rH Judicial District Court of Lamar County, Texas, whose address is 119 N. Main St. Paris, Texas 75460, Statement of Juris diction

This Court has jurisdiction to issue a writ of mandamus under section 6 of article V of the Texas Constitution and section 22.221(a) of the Texas Government Code. Issues Presented Issue No. 1: Respondent abused his discretion and failed to perform his mandatory ministerial duty when he denied Defendant's Notice of Motion and Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue, or, in the Alternative, to Transfer Venue. Statement of Facts

Relator, STACEY DIANE SARTOR, resides in Hunt County, Texas with the children the subject of this suit. Relator has resided in Hunt County with the

children for more than six months. These facts are undisputed. Sartor I Petition for Writ of Mandamus Page 4 of 1l

JASON SARTOR resides in Kansas. It is undisputed that JASON SARTOR resides in Kansas.

None of the parties to this case reside in Lamar County, Texas.

Relator timely filed Defendant's Notice of Motion and Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue, or, in the Alternative, to Transfer Venue. JASON SARTOR failed to file a controverting affidavit in response to the Motion to Transfer Venue. Respondent, Judge Eric Clifford, heard the motion on March 20,2015 at 10:00 a.m. Respondent denied Relator's motion even though Respondent had a mandatory ministerial duty to transfer the case to Hunt Counfy, Texas, where the children the subject of this suit have resided for more than six months.

Respondent issued an Order Denying Motion to Transfer on May 5,2A15. Relator requested Findings of Fact on May 29,2015. Respondent has not provided his Findings of Fact. Argument and Authorities A. Standard of Review: Availability of Mandamus Relief.

Requisites of mandamus relief are a showing of (1) a legal duty to perform a nondiscretionary act, (2) a demand for performance of a nondiscretionary act, and (3) a refusal to perform after such demand was made. Erbs v. Bedard,760 S.W.2d

75A, 755 (Tex. App.--Dallas 1988) (orig proceeding). Mandamus relief is Sartor I Petition for Writ of Mandamus Page 5 of 11

available when under the circumstances of the case the facts and law permit the trial court to make but one decision--and the trial court has refused to make that decision--and remedy by appeal to correct the ruling is inadequate. Proffer v. Yates,734 S.W.2d 671,673 (Tex. 1987) (otig. proceeding).

Mandamus is available to compel mandatory transfer in suits affecting the parent-child relationship. Proffer, 734 S.W.2d at 672; Arias v. Spector, 623 S.W.2d 312, 313 (Tex. 1981) (orig. proceeding). Transfer of a case to a county where the child has resided for more than six months is a mandatory ministerial duty under section 11.06(b) (now section 155.201) of the Texas Family Code. Proffer,734 S.W.2d at 673. Parents and children who have a right under the mandatory venue provisions to venue in a particular county should not be forced to go through a trial that is for naught. Proffer, 734 S.W.2d at 673. Justice demands a speedy resolution of child custody and child support issues. Proffer, 734 S.W.2d at 673. B. Issue No. I

Relator should be granted relief because the trial judge abused his discretion in denying the motion to transfer venue. The trial judge failed to perform his mandatory ministerial duty to transfer the case to Hunt County, Texas. Prayer

Relator prays that this Court issue its writ of mandamus commanding the Sartor I Petition for Writ of Mandamus Page 6 ofll

Venue.. ar; in the Alternative, b Tmnsfer Venue and ordering the trial cout to grant Ei.rhrtor's Motion to Transfrr and transfcr tho case to Hunt Cornty, Texas.

Law Office of ldarianrre Howland l94O ForestLn. Galan4 T]{75A42 mhowland@dfl vurstody. oom

Marianrre Glen Wietzel Stde Ear No. Attorney for Reldor

Certificrtion

I crl,rtiff that I have reviewed the above petition and have consluded that ev€ry frH:ral statement inttrc petition is sryporhd by compe.tent evidenoe included

in the att:ar:hed app€ndix or record.

Ccrtificnte of Seryice

I rtrtiS that a tnre copy of this Petition for Writ of Mandamusi was served in accordmrc,r: with rule 9"5 ofthe Toffis Rules of Appellate Procsdurc on each parly or tlrat pu'y's lEad cousel ss follou,s:

Srtor lP*ition for Writ cfllandrorus Pagc 7 ofll

accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party's lead counsel as follows: Parfy: JASON SARTOR Lead attorney: Jennifer Gibo Address of service: 119 I't Street SE, Paris, Texas 75460 Method of service: via facsimile: 903-905-4966 Date of service: June 11. 2015

A copy of this notice is being filed with the appellate clerk in accordance with rule 25.1(e) of the Texas Rules of Appellate

Marianne land Glen Wietzel Attorneys for Relator

Sartor I Petition for Writ of Mandamus Page 8 of 11

Apperul,x l; Affidavit of STACEY DIANE SARTOR

li'[r\CHY DIAI-IE SARTOR app€ared in person beforc me today and $tated under rurth:

ulil'r nane is STACEY DIAtfE SARTOR I arn above the age of eighteen

years of erge, and I arr fully competent to make this atrdsvit I am the Relator in this Pe{f :ilm for Writ of Mandamus. The futs stafd in this atrdavit are within my

persoruil linowlodge and are trus and corrccL

I lmve resided iil ffifit County wilh thc childrsn the subject ofthis suit sinc€ lvlay 20,1{,

I lil,rd my Defendant's Notis€ of Motion and Mation to Dismiss for Lapk of Persorurl .'ruisdic{ion and Improper Venue, ffi, h the Altsrnntive, to Tranefcr

Venne ,)n December 9,2014 end I appeared at the heurios on lvlareh 20, 2015 at 10:00 a,ru. Judge Eric Clifford did n'm take testimmy from IASON SARTOR on

this issut'. Iudge Eric Clifford vertally denied my motion and tfren iszued an order dsnyiru;:rry motion on May 5, 2015.

SARTOR

$IGNEll under oath before mE on O4{*nr 7-o tS

ffiif:ffi flhT:ft:)3) \QF*ifYuv Expres 10-30-2OtB fi 'o.:E?,"':H: Comm. w===ffi

$artor lPctition frr Writ oflvfmdmw Page I ofl1

Appendix,B: This appendix contains the following:

1. A certified copy of the Motion to Transfer.

2. A certified copy of the Order Denying the Motion to Transfer signed by Respondent, Appendix C Affidavit of Marianne Howland

Marianne Howland appeared in person before me today and stated under oath:

"My name is Marianne Howland. I am above the age of eighteen years of

age, and I am fully competent to make this affidavit. I am one of the attorneys representing Relator, STACEY DIANE SARTOR" in this Petition for Writ of

Mandamus. I am licensed to practice law in the state of Texas. I have thoroughly reviewed the Court's file in this matter. The facts stated in this affidavit are within my personal knowledge and are true and correct.

"Attached to this affidavit are true and correct copies of the following pleadings:

Motion to Transfer Venue

Order Denying Motion to Transfer Venue

Sartor lPetition for Writ of Mandamus Page 10 of11

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' '1.,. 'i ''! s';ijili'Z NANcY vALDEZ -t i[ai , -I IL/,.-, )i .ii,l}rr,.t: f lo,o'v Publtc. Slole of lexos -r;. /\.i S \4y Cornmrssion Expt'es Notarl' Public. Sta/e ol'Texas ) '4-r;;.. -. -'-\' July 30, 2017

Sartor i Petition tirr \\jrrt ,.-'t'\landarnr-rs Page ll ofll

1V912014 slr

RESPONSE TO FAMITY tAW CITATION 83894 TO:

CLERK OF rHECouRr RESPONDTNG I ts )r -r'rt MARVTN ANN pArrERsoN srAcEy DTANE T{-ts F , >t- X)F H oEJ a)?r 11e N, MAiN, ROOM 40s 3201 KARr Lr,r, e{ Srfi{ $s PARTS, TX75460 ; 3",fr GREENV|LLE, rX fi+O$; 6 #g $^F DEFENDANT's NortcE oF MoTIoN AND MorroN To DrsMrss FoR r.ack on fl 3 af'Ia PERSONAT IURTSDTCTION AND IMPROpER VENUE, OR, tN THE ATTERNATTVE, TO TMNSFER VENUE

Thrs response is issued to the 6th District Court of Lamar County, Texas to be filed no later than L0 o'clock A,M. of the Monday next after the expiration of twenty days after the date of service of this citation, received NOVEMBER19,20L4 to the ORIGINAL PETITION lN SUIT AFFECTING THE PARENT.CHITD RETATIONSHIP SEEKING MODIFICATION OF OUT-OF-STATE ORDER filed in said court on October 23,2A014, numbered 83894, on the docket of said court, and styled:

IN THE INTEREST OF

A.S, AND 1.S,,

MINOR CHILDREN

A copy of the ORIGINAL PETITION IN SUIT AFFECTING THE PARENT-CHltD REIATIONSHIP SEEKING MODTFICATION OF OUT-OF-STATE ORDER accompanies this response to citation, along with the NOTICE OF MOTION AND MOTION TO DISMTSS FOR LACK OF PERSONAL f URISDICTION AND IMPROPER VENUE, OR, lN rHE ATTERNATIVE, TO TRANSFER VENUE.

Respectfully

Stacey Diane Sartor, mother and primary conservator NOTICE: THIS DOCUMENT

CONTAINS SENSITIVE DATA

NO.83894

IN THE INTEREST OF

A.S. AND f .S.

CHILDRIN

DEFENDANT,S NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK oF PERSONAL JURTSDTCTiON AND IMPROPER VENLIE, OR, IN THE ATTERNATM, T0 TRANSFER VENUE

TO PLAINTIFF IASON TRAVIS SARTOR AND ATTOURNEYS OF RECORD:

PLEASE TAKE N0TICE THAT on November 20,201,4, Stacey Dlane Sartor will move to dismiss the motion of f ason Travis Sartor on the grounds that the county in which he filed lacks personal jurisdiction and the venue is improper.

The motion will be based on this Notice, the attached Memorandum of Points and Authorities.

This motion is made in a timely response to the aforementioned Family Law Citation,

By: Stacey Diane Sartor

MEMOMNDUM OF POINTS AND AUTHORITIES

1, The non-custodial parent requesting modification of out-oFstate order is a New York resident, as mentioned in the attached court ordered divorce decree, section 13. Real Property Division, stating that Jason Travis Sartor's legal home of record is 306 Flower Ave E., Watertown, New York 1-360L, and that is where he shall return after relief of military duty in Fort Riley, Kansas.

o Jason Travis Sartor and spouse Stephanie Sartor have stated that they never intend to return to Texas in the relief of his duties to the military.

3, Lamar County is not home to fason Travis Sartor, nor his place of birth, nor the place of birth or residency to any of the minor children in reference to this case

4. Stacey Diane Sartor, the custodial parent with shared minor children of Jason Travis Sartor resides at3201, Kari Ln, Apt51.2, Greenville, Tx75402,and has lived here for a period greater than 6 months,

5. The minor children have never resided in the county of Lamar,

6, Originalhome state jurisdiction is New York, the place of birth of Jason Ryan Sartor, and the location of shared realty with Jason Travis Sartor, Stacey Diane Sartor, and minor chlldren during the divorce proceedings.

7. Hunt County is the proper venue for any further proceedings to this case, for that is the legal residenry of the minor children.

B, Any further information on tliis case should be run by myself, Stacey Diane Sartor, residing at320L Kari Ln. Apt 512, Greenville, Tx754O2.

Respects, Stacey Diane Sartor

i i'"qr

I HEREBY CERTIFY THAT THE AFORESAID IS A TRUE lryp CoRRECT COpy oN F|LE OR OF RECORD tN THE t 1?l JUDICIAL \'-ITI JUD|C|AL DISTRICT DtsTRtcT CqURT, cguRT, LAMAR |-AMABCO.. CO., TX srcNED AND SEAL-ED,THF:l_Dly or. \una _

NOTICE: THIS DOCUMENT CONTAINS SENSITIYE DATA

NO.83E94

IN THE INTEREST OF $ IN THE DTSTRTCT COURT $ A.N.S. AND J.R.S. $ 6TH JUDICIAL DISTRICT $ CHILDREN $ LAMAR COUNTY, TEXAS

ORDER DENYING MOTION TO TRANSFER

On March 20,2015 the Court heard the Motion to Transfer filed by Stacey Diane Sartor,

The Court, after considering the pleadings and hearing the evidence and argument of

counsel. finds that the Motion to Transfer should be denied.

SIGNED on

JUDGE PRESIDING

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I HEREBY CERNFT fiATTHE AFORESAID IS A TRUE aND.'CORRECT COPY ON F|LE OR OF RECORD tN THE tlt ruorcrAl DrsTRtcT lltgLJUDtctAL [ Dtsrntcr cquRT, cqunT, LAMAJISO., r-AMAE-co., Tx TX STGNED AND SEALqD TH|S llonv oNLIAA=_