Jul 02 15 03:28p

p.1

hlo. 0615-00027-Cv

In the Court of Appeals

Sixth Judicial Dietrict

Terarkanar Texas

In rc STACEY IIIANE SARTOR, Relator

RESPONSE, TO REAL PARTY IN n'TEREST'S RESPONSE TO

PETITION FOR WRIT OF MANDAMUS

lv{arianne Howlurd

State Bar No. 24055693

Gle,n Wietzel

State Bar No. 24047704

1910 Forest I.nGarlan4 TX75M?

Tel:214.288.1731

Fax 214.853.5835

mhowland@dlivcustody, com

Sartor f ResJrnse

Pag" 1 ofll

ACCEPTED

06-15-00027-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/7/2015 2:20:55 AM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/7/2015 8:04:00 AM DEBBIE AUTREY Clerk
Identity of Parties and Counsel

The following is a list of all parties and all counsel who have appeared in

this matter:

Relator: STACEY DIANE SARTOR

Attorneys for Relator in the trial court: Marianne Howland, 1940 Forest Ln.,

Garland, TX 75A42, State Bar No. 24055693 and Glen Wietzel, 1940 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

Attomey for real party in interest in the trial court:

SE, Paris, Texas 75460, State Bar No. 24032343.

Table of Contents

Index of Authorities

PETITION FOR WRIT OF MANDAMUS

I. Statement of the Case

il. Statement of Jurisdiction

ru. Issues Presented

Issue No. I

ry. Statement of Facts

Jennifer Gibo. 109 1" Street

IV

1

4

4

4

4

Sartor I Response

Page 2 of11
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

Certification

Certfficate of Service

APPENDICES: The followine documents are attached

incorporated in it for all purposes.

Appendix A: Affidavit of STACEY DIANE SARTOR

to this petition and

Appendix B: Attached to this Response are the following documents:

A certified copy of the First Amended Motion to Transfer Venue.

Appendix C: Affidavit of Marianne Howland, one of the attorneys for

Relator.

Statement of the Case

1. The underlying suit is a suit to modiff parent-child relationship, in

which Relator filed a motion to transfer venue.

2. Respondent denied Relator's motion to transfer venue on May 5,2015.

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

Sartor I Response

Page 3 ofll
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 by Real Party in Interest

Issue No. 1: Respondent abused his discretion when he denied Relator's First

Amended Motion to Transfer Venue.

Texas Family Code Section 155.201 states that "if a suit to modiff or a

motion to enforce arL order is filed in the court having continuing, exclusive

jurisdiction of a suit, on the timely motion of a party the court shall, within the

time required by Section 155.204, transfer the proceeding to another county in this

state if the child has resided in the other county for six months or longer.

Statement of Facts

Relator, STACEY DIANE SARTO& resides in Hunt County, Texas with

the children the subject of this suit. Relator resided in Hopkins County with the

children for six months prior to the filing of the underlying suit.

JASON SARTOR resides in Kansas. The exact address of JASON

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

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

Sartor I Response

Page 4 of 11
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 and the First Amended Motion to Transfer Venue. JASON

SARTOR failed to file a controverting affidavit in response to the Motion to

Transfer Venue. The affidavit that JASON SARTOR filed was not controverting

in nature. The affidavit did not allege that Relator did not reside in Hopkins or

Hunt County for at least six months prior to the filing of her suit. Respondent,

Judge Eric Clifford, heard the motion on March 2A,2015 at 10:00 a.m. Relator

testified that she had resided in Hopkins County for at least six months before the

underlying suit was filed. Respondent denied Relator's motion even though

Respondent had a mandatory ministerial duty to transfer the case to Hunt County,

Texas, where the children the subject of this suit have resided for more than six

months or, in the alternative, Hopkins County, where the children lived for at least

six months prior to the filing of the underlying suit.

Respondent only took testimony from Relator and JASON SARTOR's

father. No testimony from JASON SARTOR was taken.

Respondent verbally denied Relator's motion to transfer (see page 19, line

20 through 23 of the transcript attached to Real Parly in lnterest's Response).

Therefore, Relator did not submit an order granting the motion to transfer.

Respondent issued an Order Denying Motion to Transfer on May 5,2015.

Sartor lResponse

Page 5 ofll
Jul 02 15 03:29o p.2

Argument and, Aut horities

A. Standard of Review: Availabilitv of Mandamus Relief.

Requisites of mandamus relief are a showing of (1) a legal duty to perforrn a

nondiscretionary act, (2) a demand for performance of a nondiscretionary act, and

(3) a refusal to perforrn after zuch demand was made. Erbs v. Bedard,760 S,W.2d

750, 755 (Tex. App.-Dallas 1988) (orig proceeding). Mandamus relief is

available when under the circwn$tances of the case tbe facts and law perrrit 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.2 d 67 1, 673 (Tex. 1 987) (orig. proceedine).

Mandamus is available to compel mandatory transfer in suits affecting the

parent-child relationship. Proffer, 734 S.W.2d at 672; Arias v. Sputor, 623

S.W.2d 312, 313 (Iex. l98l) (orig. proceeding)- Transfer of a case to a county

where the child has resided for more than six months is a mandarcry 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 fial 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.zd

at673.

Sanor f Response

Page 6 of ll
Jul 02 15 03:29p

p.3

B. Issue No. I

Relator should be granted relief brcause the hial judge abused his discretion

in denying the motion to transfer venue. The hial judge failed to perfonn his

mandatory ministerial duty to transfer the case to Hunt Count;r, Toras or, in the

alternative, Hopkins County, Texas.

Prayer

Relator pray$ that this Court issue ia writ of mandamus comnanding he

triai court to vacate the order of May 5,2015 denying Relatot's Defendant's Notice

of Motion and Motion to Disniss for Lack of Personal Jurisdictioa and Improper

Venue, or, in the Alternativeo to Transfer Venue and Relator's First Amendod

Motion to Transfer Venue and ordering the hial court to grant RelatoCs Motion to

Transfer and transferthe case to Hunt County, Texas or, in the altemative, Hopkins

Connty, Texas.

Law Office of Marianne Howland

1940 ForestLn.

Garland TX 75Mz

Tel:214.288.1731

Far 214.853.5835

Em ail mhowland@dfrvcustody.com

Sartor lRespons€

Page 7 ofll

State BsrNo.24055693
Jul 02 15 03:29p p,4

Certilication

I certifr that I have reviewed the above response and have concluded tbal

every factual statement in the reqponse is srrpported by con:petent evidence

included in the atrached appendix or rwordCertificate of Senice

I certi$ that a mrc copy of this Response to Real Party in Interest's

Response to Petition for Writ of Mandamus lr'irs served in accordance with nrle 9.5

of the Texas Rules of Appellatc Procedure on each party or that party's lead

corrnsel as follows:

Parry: JASON SARTOR

Lead attorney: Jennifer Gibo

Address of service: 119 lo Street SE, Paris, Texas 75ffi

Method of service: via facsimile: 903-9054966

Date of senrice: JuY -\ ,2015

A copy of ftis notice is being filed u'i& the appellate clerk in accodance

with rule 25.1(e) of Sre Texas Rules ofAppellate

a

Sstor I Response

Page 8 ofll

Attorney for Relator
Ju1021503:29p p.5

Apperd.ixl.'Affidavit of STACEY DIANE SARTOR

STACEY DIANE SARTOR eppeared in person before me today and stabd

under oath:

"My uame is STACEY DIANE SARTOR. I am above the age of eighteen

years of age, and I arn futly compstent to make this affidavit. I am the Relator in

this Petition for Writ of Mandamus. The fbcts stated in this affidavit are within my

personal knowledge and are tnre and correcl

I have resided in llunt County with the children the subject of this suit since

May 2014. I resided in Hopkins County for six months before the underlying zuit

was filedI filed my Defendant's Notice of Motion and Motion to Dismiss for Lack of

Personal Jgrisdiction and Impropu Venue: or, in the Alternative, to Transfer

Venue on Decembef 9, 2014. My attorney &en filed a First Anended Motion to

Transfer Veirue on January 5, 2015, and I appeared at the hearing on tvlarch 20,

2015 at 10:00 a.m. Judge Eric Clifford did not take testimony from JASON

SARTOR on tris issue. Judge Eric Clifford ver$ally denied my motion and &en

issued an order denying my motion on May 5, 2015.

Sartor lResponse

Page9 of ll
p.6

Jul 02 15 03:30p

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Sartor I RssPonse

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