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In re Bradford

Court of Appeals of Texas, Sixth District, Texarkana
Feb 15, 2007
No. 06-07-00016-CV (Tex. App. Feb. 15, 2007)

Opinion

No. 06-07-00016-CV

Date Submitted: February 15, 2007.

Date Decided: February 15, 2007.

Original Mandamus Proceeding.

Before MORRISS, C.J., CARTER AND MOSELEY, JJ.

Memorandum Opinion by Justice CARTER.


MEMORANDUM OPINION


Patricia Karin Bradford has petitioned this Court for a writ of mandamus. Bradford had filed a special appearance in the trial court following a petition for divorce filed by Bradford's husband, Floyd Elton Bradford. The trial court overruled Patricia's special appearance and ruled that it had jurisdiction over Patricia's person. In her request for mandamus relief, Patricia would have us compel the trial court to vacate its order, grant the special appearance, and dismiss Floyd's petition for divorce. We decline to do so.

The Parties' Marriage

The parties agree on general facts regarding their marriage. They were married in October 1970 in Montana. Floyd was a member of the United States Air Force, and the parties lived together in most of the places he was stationed, including North Dakota, Idaho, Japan, and Fort Worth, Texas; they lived on an Air Force base in Fort Worth from March 1978 to December 1979. The couple lived in North Dakota from 1982 to 1999, when Floyd moved to Arkansas. Floyd moved to Lamar County, Texas, where he had grown up, in 1999 or 2000.

Our rendition of factual allegations is derived from affidavits filed by the parties in the trial court.

Floyd has purchased real property in Lamar County and resides there. He filed his petition for divorce July 3, 2006. Patricia continues to reside in North Dakota. She filed her own suit for divorce in North Dakota on or about July 24, 2006. Floyd asserts that the family "visited regularly . . . in Texas" during the marriage, "at a minimum . . . once a year." However, Patricia provides more detail, listing seven occasions from December 1981 to June 1997 when the couple visited for holidays, funerals, and the like. She claims not to have been to Texas since 1997. The parties seem to agree that, since Floyd moved to Texas, they have corresponded via mail and telephone only.

Mandamus Is Extraordinary Measure

Mandamus is an "extraordinary" remedy that is "available only in limited circumstances." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Mandamus is appropriate "only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). Generally, increased cost and delay alone do not make an ordinary appeal an inadequate remedy. Walker, 827 S.W.2d at 842. Because in the ordinary case no circumstances apart from the increased cost and delay of trial and appeal are present, mandamus typically will not lie from the denial of a special appearance. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 307 (Tex. 1994) (orig. proceeding).

The Texas Supreme Court, however, has recognized that, in some situations, a challenge to personal jurisdiction cannot be adequately remedied on appeal. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig. proceeding). An ordinary appeal may be inadequate in cases involving conservatorship or support of children. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding); Hutchings v. Biery, 723 S.W.2d 347, 350 (Tex.App.-San Antonio 1987, orig. proceeding). In addition, there may be other "extraordinary situations" in which the denial of a special appearance cannot be adequately remedied on appeal. Link, 925 S.W.2d at 596. The court maintains, though, that the exercise of the power of mandamus "is justified only when parties stand to lose their substantial rights," In re TXU Elec. Co., 67 S.W.3d 130, 135 (Tex. 2001) (orig. proceeding) (quoting Walker, 827 S.W.2d at 842), that is, rights personal to the party seeking relief.

Texas courts have recognized that, because of the special interests involved in custody cases and the lack of appeal for temporary orders, mandamus is proper to review the trial court's improper assumption of jurisdiction in such matters. In re Barnes, 127 S.W.3d 843, 846 (Tex.App.-San Antonio 2003, orig. proceeding) (citing Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993)). There is no allegation of a custody dispute in the Bradfords' case. Cf. In re Alley, 1 S.W.3d 268 (Tex.App.-Texarkana 1999, orig. proceeding).

For example, a case involving sovereign immunity ( United Mexican States v. Ashley, 556 S.W.2d 784 (Tex. 1977)).

We also point out that, while the Legislature, subsequent to Canadian Helicopters, provided for interlocutory appeal of denials of special appearances, that legislation specifically exempted cases brought under the Texas Family Code. Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(7) (Vernon Supp. 2006).

This case does not meet the requirements for such extraordinary relief. While Patricia does offer argument, supported by her affidavit, that she has health issues which would make travel to Texas inconvenient and uncomfortable, such statements do not show that she would lose substantial rights unless mandamus is granted or that she does not have an adequate remedy by appeal. Her petition asks us to order the divorce action to be dismissed in its entirety. She does not dispute that Floyd has resided in Lamar County for several years. A district court in Lamar County could have jurisdiction to grant his requested divorce and to adjudicate property rights in Texas. A court may exercise jurisdiction, in a suit for dissolution of marriage, over those matters in the suit for which the trial court has authority. Tex. Fam. Code Ann. § 6.308 (Vernon 2006); see also Dawson-Austin v. Austin, 968 S.W.2d 319, 324-25 (Tex. 1998). There, the Texas Supreme Court held that the trial court had jurisdiction to grant a divorce where one party was a nonresident of Texas, but lacked jurisdiction "to determine the managing conservatorship of children or divide property outside the State of Texas." Austin, 968 S.W.2d at 324.

We do not believe Patricia has shown her remedy by appeal to be inadequate. This case involves no child conservatorship or visitation issues, but rather, only a divorce and division of property issues. Patricia has the right to appeal any decision of the trial court, including jurisdictional issues. We do not find this case to be one warranting the extraordinary remedy of mandamus, and accordingly we deny Patricia's request for relief.

We further deny the motion to stay the proceedings in the trial court.


Summaries of

In re Bradford

Court of Appeals of Texas, Sixth District, Texarkana
Feb 15, 2007
No. 06-07-00016-CV (Tex. App. Feb. 15, 2007)
Case details for

In re Bradford

Case Details

Full title:IN RE: PATRICIA KARIN BRADFORD

Court:Court of Appeals of Texas, Sixth District, Texarkana

Date published: Feb 15, 2007

Citations

No. 06-07-00016-CV (Tex. App. Feb. 15, 2007)