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Proffer v. Yates

Supreme Court of Texas
Sep 16, 1987
734 S.W.2d 671 (Tex. 1987)

Summary

holding that relator had no adequate remedy by appeal for trial court's failure to enforce mandatory venue provision in child custody case

Summary of this case from In re Baker

Opinion

No. C-6140.

July 15, 1987. Rehearing Denied September 16, 1987.

Bluford B. Sanders, Jr., Sanders, Moffeit Associates, P.C., El Paso, for relator.

Gary Howard, Samuel Bayless, Leon and Bayless, San Antonio, for respondents.


This is an original mandamus action. Relator, Sally Proffer, seeks a writ of mandamus directing the Honorable John G. Yates, sitting as Judge of the 150th Judicial District Court of Bexar County, to render an order transferring to the district court of El Paso County a cause styled In the Interest of Jack Paul Leon, Jr., A Child. We conditionally grant the writ.

Sally and Jack Leon, Sr. were divorced in Bexar County in 1974. Sally was named managing conservator of the parties' minor child. In 1981 the district court modified the decree by appointing Sally and Jack joint managing conservators. A further modification of the decree occurred in 1982, when Sally's former husband Richard Starnes was named possessory conservator. This order also provided that Jack "shall delegate that the domicile of the minor child . . . shall be with his mother who presently resides" in Bay City, Texas.

In September 1986 Sally filed a motion to modify child support and a motion to transfer venue to the El Paso County district court. Sally alleged, and it is uncontested, that the minor child had lived in El Paso with her for over fifteen months. She argued that the trial court had a mandatory duty to transfer the cause to El Paso. She relied on TEX.FAM. CODE ANN. § 11.06(b), which provides that if the child has resided in another county for six months or longer, "the court shall transfer the proceeding to that county."

The Bexar County district judge denied Sally's request to transfer venue. Sally then filed an original mandamus proceeding in the Court of Appeals for the Fourth Supreme Judicial District of Texas. That court wrote an opinion in which it recognized that the trial court is under a mandatory duty to transfer under the circumstances present in this case. 723 S.W.2d 345. However, the court of appeals denied Sally's petition for writ of mandamus on the ground that she has an adequate remedy by appeal. We disagree.

The writ of mandamus has been available to compel mandatory transfer in suits affecting the parent-child relationship for a number of years. In Cassidy v. Fuller, 568 S.W.2d 845 (Tex. 1978), this court granted mandamus relief to compel transfer of such a suit to a county in which the children had resided for more than six months. In granting mandamus relief, the court recognized the mandatory nature of section 11.06(b), the section which provides that the trial court "shall" transfer when the child has lived for over six months in the county to which transfer is requested. In 1983 this court issued its most recent opinion granting mandamus relief to compel mandatory transfer in a suit affecting the parent-child relationship. In Leonard v. Paxson, 654 S.W.2d 440 (Tex. 1983), the court again granted mandamus relief to compel transfer to a county where the children had been residing for more than six months.

At the time of Cassidy, the Family Code provided that orders regarding transfer of suits affecting the parent-child relationship were "not appealable." TEX.FAM. CODE § 11.06(f) (1975). At the time of Leonard, the Code had been amended to provide that orders regarding transfer are not "subject to interlocutory appeal." TEX.FAM. CODE ANN. § 11.06(i) (1986). The provisions regarding appeal were not mentioned in either Cassidy or Leonard, but the rationale underlying the grant of mandamus relief in each case is the same. Mandamus relief is 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. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

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). And remedy by appeal, though available, is frequently inadequate to protect the rights of parents and children to a trial in a particular venue. 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. Justice demands a speedy resolution of child custody and child support issues.

We hold that the trial court's order denying transfer conflicts with our decisions in Cassidy and Leonard. Pursuant to TEX.R.APP.P. 122, without hearing oral argument, a majority of the court conditionally grants the writ of mandamus. The writ of mandamus will issue only in the event the trial court fails to transfer the proceeding in accordance with this opinion.


Summaries of

Proffer v. Yates

Supreme Court of Texas
Sep 16, 1987
734 S.W.2d 671 (Tex. 1987)

holding that relator had no adequate remedy by appeal for trial court's failure to enforce mandatory venue provision in child custody case

Summary of this case from In re Baker

holding mandamus appropriate to compel venue transfer in suit affecting the parent-child relationship

Summary of this case from In re McCoy

granting mandamus relief under predecessor statute to Family Code Section 155.201

Summary of this case from In re Rusch

granting mandamus relief from trial court's failure to transfer custody dispute to mandatory venue

Summary of this case from In re Crumbley

granting mandamus to transfer venue of child custody case

Summary of this case from In re Kelso

In Proffer v. Yates, 734 S.W.2d 671 (Tex. 1987), the trial court refused to grant a motion to transfer venue when it was undisputed that the child had resided for six months in another county at the time the suit was filed.

Summary of this case from Bigham v. Dempster

providing that justice "demands a speedy resolution" in suits affecting parent-child relationships

Summary of this case from In re G. P.

construing predecessor statute to § 155.201

Summary of this case from In re Henriques

construing predecessor statute

Summary of this case from In re Venegas

applying predecessor to section 155.204

Summary of this case from Vara v. Vara

referring to the original enactment in section 11.06 of the Texas Family Code

Summary of this case from In re Thompson

construing prior statute

Summary of this case from In re Cooper

noting that mandamus has been available to compel mandatory transfer in suits affecting parent-child relationships for "a number of years"

Summary of this case from In re Rivera

noting that mandamus has been available to compel mandatory transfer in suits affecting the parent-child relationship for "a number of years"

Summary of this case from In re Hancock

providing for mandamus proceedings in child custody cases and stating, "Justice demands a speedy resolution of child custody and child support issues"

Summary of this case from Dept. Family, Prot. S. v. Dickensheets

referring to section 11.06, the predecessor to section 155.201

Summary of this case from In re Magee

In Proffer v. Yates, we reasoned that the need to expeditiously resolve custody and support issues makes ordinary appeal inadequate.

Summary of this case from In re Shell Oil Co.

construing former Family Code section 11.06(b) and conditionally granting mandamus relief to compel trial court to perform mandatory, ministerial duty to transfer based on sworn, uncontroverted motion because remedy by appeal inadequate

Summary of this case from Chalu v. Shamala

In Proffer, the parent and child had moved to another jurisdiction and the court of original jurisdiction was required to transfer the case to the new jurisdiction.

Summary of this case from In re Ruiz

referring to the original statute in former Tex. Fam. Code § 11.06

Summary of this case from In re Kramer

referring to the original enactment in section 11.06

Summary of this case from Bollard v. Berchelmann

In Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987), the Supreme Court granted mandamus relief to compel transfer of venue in a child-support case to a county where the child had resided for over six months.

Summary of this case from Hughes v. Black

In Proffer v. Yates, 734 S.W.2d 671 (Tex. 1987), the Supreme Court of Texas acknowledged in an original mandamus proceeding that, while frequently inadequate to protect the rights of parents and children to a trial in a particular venue, remedy by appeal is available, as in the instant case.

Summary of this case from Garza v. Texas Department of Human Services
Case details for

Proffer v. Yates

Case Details

Full title:Sally PROFFER, Relator, v. The Honorable John G. YATES, Judge, et al.…

Court:Supreme Court of Texas

Date published: Sep 16, 1987

Citations

734 S.W.2d 671 (Tex. 1987)

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