Hernandez v. Valls

OPINION TIJERINA, Justice. This is a child custody case. The trial court entered an order modifying a prior court order and appointed appellee managing conservator of two minor children, the subjects of this lawsuit. Appellant is the maternal grandmother of the two minor children, and appellee is their natural father. The parents of the children were divorced in Webb County, Texas, on January 12, 1981. By the terms of the divorce decree Rachel Vails, mother of the children, was appointed managing conservator and appellee was appointed possessory conservator. Rachel, the mother and managing conservator, died on February 15,1981. Appellant filed a suit affecting the parent-child [154] relationship on March 23, 1981, seeking appointment as managing conservator. At the same time appellant filed a motion to transfer the suit to Hidalgo County, Texas. Appellee filed a motion to modify the divorce decree on April 14,1981, alleging that he should be appointed managing conservator. The trial court entered an order modifying the previous order on July 2, 1981, and appointed appellee as the managing conservator of the children. Appellant filed a motion requesting the trial court to set a supersedeas bond and suspend the judgment of July 2, 1981, pending appeal and the trial court denied the motion. This Court, upon application of appellant, set the supersedeas bond and issued an order suspending the trial court’s judgment pending appeal. Appellant’s first point of error complains that the trial court erroneously denied her motion to transfer the pending lawsuit to the county where the children reside. The motion to transfer the proceedings alleges that the children have resided in Hidalgo County, Texas, since 1976. The motion further states, [T]he children have resided in Hidalgo County for more than six (6) months pri- or to the filing of the actions filed herein, and the filing of this Motion. Therefore, a transfer of these actions, pursuant to Section 11.06(b) of the Texas Family Code, is required. The trial court’s order denying the motion to transfer found that the children had resided in Hidalgo County for more than six months, but denied the requested transfer, stating: it being the opinion of the Court that this six (6) month residency can only begin to run from the time of the entry of its previous order and is not based on the actual presence of the child in Hidalgo County. Venue in suits affecting the parent-child relationship is addressed in section 11.04 of the Family Code, That section provides that venue in such suits is proper in the county where the child resides. The statute further provides in pertinent part: (c) A child resides in the county where his parents (or parent if only one parent is living) reside, except that: (1) if a managing conservator has been appointed by court order or designated in an affidavit of relinquishment, or if a custodian for the child has been appointed by order of a court before January 1,1974, the child resides in the county where the managing conservator or custodian resides; * * * * * * (4) if the child is under the care and control of an adult other than a parent and (A) neither a managing conservator nor a guardian of the person has been appointed or (B) the whereabouts of the managing conservator or the guardian of the person is unknown or (C) the person whose residence determines the residence of the child under this section has left the child under the care and control of the adult, the child resides where the adult having care and control of the child resides; ... Tex.Fam.Code Ann. § 11.04 (Vernon Supp. 1982-1983). Transfer of proceedings to the county of proper venue is governed by section 11.06 of the Code. At the time of the hearing on appellant’s motion to transfer, section 11.06(b) of the Code provided the following: If a petition or a motion to modify a decree is filed in a court having continuing jurisdiction of the suit, the court, on the timely motion of any party, and on a showing that venue is proper in another county or that a suit for dissolution of marriage has been filed in another court, shall transfer the proceeding to the county where venue is proper or to the court where the suit for dissolution of the marriage is pending. However, if the basis of the motion is that the child resides in another county, the court may deny the motion if it is shown that the child has not resided in that county for at least six months. In computing the period of time during which the child has resided in that county, the court shall not require that the period of residence be continuous and [155] uninterrupted but shall look to the child’s principal residence during the said six-months period. Tex.Fam.Code Ann. § 11.06(b) (Vernon 1979).1 The Texas Supreme Court has held that these statutory provisions are mandatory; that is, on the timely motion of a party, and on a showing that venue lies in another county, the trial court must transfer the suit to the county where venue is proper. Cassidy v. Fuller, 568 S.W.2d 845, 847 (Tex.1978). In Brines v. McIlhaney, 596 S.W.2d 519, 521 (Tex.1980), the Supreme Court interpreted the mandatory venue and transfer provisions, stating: If a managing conservator has been appointed by court order, then the child is deemed to reside in the county where the managing conservator resides. The court may deny the motion to transfer if it is shown that the child has not resided in the transferee county for at least six months. The Family Code does not specify the dates which establish the six-month residency period, but once residence is established, the transfer is mandatory. We hold that Cassidy v. Fuller and Brines v. Mcllhaney, supra, are controlling. At the time the motion to transfer was filed the children had lived in Hidalgo County for more than six months with Rachel Vails, the appointed manager conservator. Following Vail’s death the children continued to live in Hidalgo County under the care and control of appellant. Once the trial court found that the children had resided in Hidalgo County for more than six months prior to the filing of appellant’s suit, the court was under a duty to grant the requested transfer to Hidalgo County. See Brod v. Baker, 591 S.W.2d 457, 458 (Tex.1979). Our holding is strengthened by the fact that the venue provisions of the Code recognize that current circumstances affecting the children may usually best be shown in the county where the children reside. See Cassidy v. Fuller, supra at 847. This is particularly true in the case at bar because the children have lived in Hidalgo County with appellant since 1976. We conclude that the trial court erroneously denied the motion to transfer this cause to the county where the children have resided for more than six months. Appellant’s first point of error is sustained. Appellant’s remaining assignments of error concern the adequacy of the notice of the hearing on appellee’s motion to modify and the trial court’s failure to receive evidence at the hearing. Since our holding on appellant’s first point of error requires a transfer to Hidalgo County and a new trial in that county, we need not address these alleged errors which are unlikely to occur at a new trial. The judgment of the trial court is reversed and the cause remanded. Footnotes [1] This section of the Family Code was amended effective September 1, 1981. Section 11.06(b) now provides as follows: If a petition for further action concerning the child or a motion to modify or enforce a decree is filed in a court having continuing jurisdiction of the suit, on the timely motion of any party, the court shall transfer the proceeding to the county where venue is proper on the basis of either a supporting uncontroverted affidavit or after a hearing when a controverting affidavit contesting the venue has been filed. If the basis of the motion is that the child resides in another county, the court may deny the motion if it is shown that the child has resided in that county for less than six months at the time the proceeding is commenced. If the child resided in another county for six months or longer, the court shall transfer the proceeding to that county. In computing the period of time during which the child has resided in that county, the court shall not require that the period of residence be continuous and uninterrupted but shall look to the child’s principal residence during the said six-months period. Tex.Fam.Code Ann. § 11.06(b) (Vernon Supp. 1982-1983).