Opinions, May 5, 2016: Mandatory Transfer of Venue

The First District Court of Appeals released its memorandum opinion in In re Sheard, No. 01-15-01027-CV, a mandamus action over mandatory transfer of venue.

In June 2013, a Harris County district court appointed Sheard PC of her child while her aunt and uncle, Judy and Ronald O’Dell, were named JMCs. In October 2015, Sheard filed a modification and a motion to transfer to Montgomery County under Tex. Fam. Code §§ 155.201 and 155.204. In her motion to transfer, she alleged the child’s principal residence was in Montgomery County and that she and the child had been in the county for the preceding 6 months. The O’Dells filed a counterpetition, seeking termination of Sheard’s parental rights.

The O’Dells also opposed the transfer, arguing the Harris County district court was familiar with the case history. Additionally, they requested the reappointment of the ad litem from the previous order and argued that transferring the case to Montgomery would be an inconvenience for the ad litem. The Harris County trial court denied the motion to transfer and signed an order appointing the ad litem requested by the O’Dells.

Sheard filed the mandamus and, in her first issue, asserted the transfer was mandatory under the statute. The Court of Appeals agreed, noting that transfer of a case to a county where the child has resided for more than six months “is a mandatory ministerial duty under section 155.201 of the Family Code.”

The O’Dells argued in response that the motion to transfer was filed-stamped October 8, 2015 and her modification petition was file-stamped October 13, 2015; thus, the O’Dells argued, the motion to transfer was untimely and too early because Sheard was not, at that moment, a petitioner or movant as required by the statute. Sheard argued that she file the motions simultaneously and that the file-stamp discrepancy was caused by a clerk mixup. The Court of Appeals found the transfer motion was timely because the motion to transfer was filed at the same time as the modification.

Because Sheard’s motion was timely, the burden shifted to the O’Dells to file a controverting affidavit. They had filed an untimely affidavit, but it only argued the issue of convenience and did not dispute the fact the child had resided in Montgomery County for more than six months.

The O’Dells also argued Sheard’s pleadings framed the matter as an issue of convenience which “amounts to invited error.” The Court of Appeals was not persuaded, finding that Shear’s pleading and argument at the hearing, which though they touched upon the inconvenience issue, asserted the basis for mandatory transfer as required by the statute. The “invited error doctrine” was not implicated.

In her second issue, Sheard argued the trial court erred in reappointing an attorney ad litem: 1) without proper notice and hearing; and 2) in Harris County after it was established that transfer to Montgomery County was mandatory. However, the Court of Appeals found that Sheard did not argue in the trial court that the trial court lacked discretion to appoint an ad litem after Sheard established transfer was mandatory and, as such, the argument could not be considered on mandamus. The court also determined Sheard had not established an abuse of discretion as to the ad litem order.

Thus, Sheard’s challenge to the order denying the transfer was sustained, but her challenge to the appointment of the ad litem was not.

 

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