## In the Court of Appeals Second Appellat e District of Texas at F ort Wort h

___________________________ No. 02

- 20

- 00342

- CV

___________________________

Original Proceeding 43rd District Court of Parker Count y, Texas Trial Court No. CV18

- 1157

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr 

### I N RE 

### R.H. , Re lator2 MEMORANDUM OPINION
Rel ator R.H. seeks mandamus reli ef from a trial court order denying her petition to transfer a suit affecting the parent

- child relationship from Parker County to Tarrant County. Because the trial court clearly abused its discretion and because
R elator lacks a n adeq uate remedy by appeal, we conditionally grant mandamus relief

. I. Backg round
Relator and real party in interest K.H. (RPI) are the parents of B.M .H. and
B.W.H. Relator sued RPI for divorce in Parker County. While that divorce proceeding was pending, RP I and B. M.H. moved to Tarrant Co unty. On November 28, 2018, the trial court sig ned a final divorce decree ending the marr iage of Relator and RPI. In the decree, the t rial court appointed both par ents as joint ma naging conservators of the
chil d ren, but i t granted RPI the exclusive right to designate the pri mary r esidence of
B.M.H. 1 On May 9, 20 19, Relator filed a petition t o modify the parent

- c hild relationship
as to B.M.H

. and filed a mo tion to transfer the suit from P arker County to Tarrant County beca use B.M.H. had resided in Tarrant County for at least six months. 2 RPI

1 Relator was granted the exclusive right to designate the pri mary residenc e of B.W.H.

2 In her res ponse, RPI argues that R elator ’ s petition for writ of mandamus shoul d be den ied because R elator did not file a copy of the pe tition to modify as part of the mandamus r ecord. Relator, however, later supplemented the mandamus record to include a copy of the petition to modify. See Tex. R. App. P. 52.7(b) (permitting supplementation of the mandamus record)

.3 filed a controverting affidavi t in response to the motion t o transfer av erri ng that
B.M.H. had not resided o utsi de of Parker County for at least six months. At a hearing
on the motion t o transfer, however, RPI testified that she and B.M. H. had been living
in Tarran t County since at least Septe mber 20, 2018

. At the he a ring, RPI ’ s attorney argued that the sixth

- month residency period did not begin until the trial court signed
the final div orce decree on Novem ber 28, 2018. The trial court denied the moti on to

tra nsfe r , and this mandamus pro ceeding eventually followed.
II. Discussion We grant the extraordinary relief of mandamus only when the trial court has clearly abused its discretion and the rel ator lacks an adequate appe llate remedy. In re Tea m Rocket, L.P

. , 256 S.W.3d 257, 259 (Tex. 2008) (orig. p roceeding ) ; se e In re Stat e , 355 S.W.3d 611, 613 (Tex. 2011 ) (orig. proceeding)

. A trial court a buses its discretion if it reac hes a decision so arbi tra ry and
unreasonable tha t it i s a clear a nd pre judicial error of law or if it f ails to correctly analyz e or apply the law to the facts. I n re H.E.B. Grocery Co

. , 492 S.W.3d 300, 302

– 03 (Tex. 2016) (per curiam ) (orig. proceeding); Walker v. Packe r , 827 S. W.2 d 833, 839

– 40 (Tex. 1992 ) (orig. procee d ing); see also State v. Naylo r , 466 S.W.3d 783, 793 (Tex. 2015) (orig. proceeding) (“A writ of ma ndamus is an extraordinary remedy available ‘to correct an action of a trial judge who commits an abuse of discretio n o r a violation
of a clear duty under the law.’” (quoting State v. Walke r , 679 S.W.2d 484, 485 (Tex.4 1984) (orig. proceeding) ) )

. We def er t o a trial court’s factual determinations that have evidentiary support, but we review the trial court’s legal determ ina tions de novo. In re Labatt Food Serv., L.P

. , 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding)

. The transfer of a suit affecting the parent

- child relationship to a county where
the child has lived fo r at least six months is mandatory under Family Code S ection
1 55.201. In re Wheeler , 177 S.W.3d 350, 352 (Tex. App.

— Houston [ 1st Dist.] 2005, orig. proceeding); In re Powell , 79 S.W.3d 814, 8 16 (Tex. App.

— Fort Worth 2002, orig. proceeding) ; see Tex. Fam. Code Ann. § 155.201 (b)

. Section 155.201(b) provides in pertinen t part: If a suit to modify

. . . is filed in the court having continuing, excl usive jurisdiction of a s uit, on the timely motion of a party the court shall

. . . transfer the proceeding to another county in this state if th e child has resided in the othe r county for six months or longer. Tex. Fam. Code Ann. § 155.201(b)

. A trial court “ has no discretion but to transfer i f the child has resided in another county for six months or more. ” Powell , 79 S.W.3d at 816. In Tippy v. Walker , the Texas Sup reme Cou rt held that the six

- month residency period begins to run
when the child ’ s actual residency in a different county begins, even if the divorce decree is signed after the child begins residing in a different county. 865 S.W.2d 928, 929 (Tex. 1993) (o rig. pro cee ding) (construing prior version of Section 155.201 ) ; see Powell , 79 S.W.3d at 817 (discussing Tippy ).5 Se ction 155.2 01 “ recognizes that transfer as to some, but not all, children may be appropriate ” and “ clearly contemplates severance in th ose instance s . ” In re Yancey ; 550 S.W.3d 671, 675 (Tex. App.

— Tyler 2017, orig. proceeding) (per curiam) (mem. op.) ( quoting In re T.J.L. , 97 S.W.3d 257, 264 (Tex. App.

— Houston [1 4th Dist.] 2002,
no pet. ) )

. A trial court “ must transfer the proceedings affecting a child to the c ounty where t he child resides, even if it retains jurisdiction over another child of the marriage who does not live in the transferee county. ” Yancey , 550 S.W.3d at
675 ( citations and internal quotation s omitted)

. “ [ S ] everance i s the proper procedure for impleme nting th e transfer, e ven without a motion to sever. ” Id . (citing T.J.L. , 97 S.W.3d at 26 5). Here, RPI testi fied at the hearing on Relator ’ s motion to transfer that B.M.H.
ha d been residing in Tarrant County since at least September 20, 2018. Th e record
shows that Relator filed her petition to modify and her moti on to transfer venue on May 9 , 2019

— over seven months after B.M.H. moved to Tarrant County. We reject the argument made by RPI in the trial c ourt that the six

- month residency period d id

n ot begin until the trial court entered the final divorce de cree. 3 S ee Tippy , 865 S.W.2d

3 In her response, RPI do es not repe at her argument raised in the trial court suggesting that th e si x
- month residency period did not begin until the trial court entered the final divor ce decre e , nor does she contend that the evidence does not show that B .M.H. had been residing in Tarrant County for at least six months prior to Relator filing the petition to modify. Instead, RPI argues that the lengthy del ay between the trial court ’ s den ial of t he motion to transfer a nd Relator ’ s filing of her petition for writ of mandamus acts to b ar R elator ’ s petition. In discussin g the timeliness of a mandamus co mplaint, we have held that “[e]quity aids the diligent and6 at 92 9. Because B.M.H. had been r esiding in Tarrant County for at leas t six months when Relator filed her petition to modi fy, th e trial court had a mandatory duty to

tr ansfer th e case as to B.M.H. to Tarrant County , and it abused its discretion by denying Relator ’ s motion to transfer

. See Tex. Fam. Code Ann. § 155.201(b) ; Powell , 79 S.W.3d at 817 ( “ The trial court had a manda tory duty to transfer this suit affecting
the parent

- child relationship to Collin County because the children had resided in Collin County for si x months; therefore, it ab used its discretion by denying the
motion to transfer. ” ).
Texas courts have consiste ntly held tha t mandamus is pro per when a trial court refuses to compel mandatory transfer in a suit aff ecting the parent

- child relationship.

not t hose who slumber on their rights” and th at “it is well

- settled that mandamus relief may be denied where a party inexplicably delays asserting its rights.” In re Hinterlong , 109 S.W. 3d 611, 620 (Te x. App.

— Fort Worth 2003, orig. proceeding) (op. on r eh ’ g) ( citations and internal q uotati on s omitted)

. We have als o said, however, that in determining whether a relator’s delay in seek ing mandamus relief should bar the issuance of the writ, we may analogi ze to the doctrine of laches , which require s that the party asserting the doctrine s how bo th an unreasonable delay and harm resulting to it because of the delay. In re Roxsane R. , 249 S .W.3d 764, 771 (Tex. App.

— Fort Worth 2008, orig. proceeding); Hinterlon g

, 109 S.W.3d at 620. In her response , RPI did not argue or make any showing that sh e was ha rmed by any dela y by Re lator in filing the manda m us. Moreover, this proceeding presents a cle ar abuse of discretion because the trial court had no choice but to transfer the case to Tarr ant County, thus making a laches

- type bar less relevant under these ci rcumstances. Cf. Wa l ker , 827 S.W.2d at 840 (stating that a tr ial court has no discretion in d etermining wh at the law is or applying the law to the facts); Con do m Sense, Inc. v. Alshalabi , 390 S.W.3d 734, 748 (Tex. App.

— Dallas 201 2, no pet.) (apply i ng the a buse of discretion stan dard to trial court ’ s laches decision but noting that a trial court ha s no discretion in determining what the law is or applying the law to the facts). Accordingly, we reject RPI ’ s argument th at Re lator ’ s petition should be barred because of delay. See Roxsane R. , 249 S.W. 3d at 771

– 72 ; Hinterlong , 109 S.W.3d at 620.7 See, e.g. , Proffer v. Yates , 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) ; In re
Whitworth , No. 05

- 1 9

- 00677

- CV , 2019 WL 2 710747, at *2 (Tex. App.

— Dallas Ju ne 28, 2019, orig. proceeding) ( mem. op.); Wheeler , 177 S.W.3d at 352; Powell , 79 S.W.3d
at 816

– 17; In re Sanch ez , 1 S.W. 3d 91 2, 914 (Tex. App.

— Waco 1999, orig. proceeding).

“ In such cases, remedy by d irect ap peal is inade quate beca use ‘ [p]arents and child ren 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 nau ght. ’ ” 4 Whitworth , 2019 WL 2710747, at *2 (quoting P r offer , 7 34 S.W .2d at 673)

. I II. Con clusion
Because the trial court cle arly abused its discretion and Relator has no a dequate appellate remedy , Relator is entitled to mandamus relief. Accordingly, we conditionally grant a writ of mandamus and direct the tr ial cour t to vacate its order denyi ng the motion to tra nsfer v enue , and in its stead, to issue an order severing and
transfer r ing th e suit as to B.M.H

. to Tarrant County. See Te x. R. App. P. 52.8 (c) ; Yancey , 550 S.W.3d at 676

. Our writ will iss ue only if t he t rial cour t f ails to comply

.

4 In her response, RPI argues that we should deny Relator ’ s petition because Relator did not argue or cite authority demonstrating tha t she lacks an ad equate appellate remed y. We disag ree. Relator stated in her petition that the trial court ’ s deni al of her moti on to transfer venue was addressable by mandamus , and she pointed us to Tippy , a case w here the Texas Suprem e Court gra nted mandamus relief followi ng a trial court ’ s refusal to tr ansfer a suit affecting the pare nt

- child relationship. See Tippy , 865 S.W.2d at 929.8 /s/ Elizabeth Kerr Elizabeth Kerr Justi ce Delivered: December 31, 2020