NO. 07-03-0328 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C AUGUST 20 , 2003

______________________________ In re ELIZABETH ANN LAMBDIN, Relator

_______________________________

Origi nal Pr oceeding

_______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. Pending bef

ore thecou rt isthepet it io n for a writ of m andam us filed by Elizabeth Ann Lam bdin (Lambdin). Sherequests that w e order the Honorable John Boa rd, 181st Judicial District, “to transfer the subj ect action to Collin County” and “rescind its order of Contem ptbecause such co urt did nothave jurisdiction to enter such an order.” The dispute arose from the trial court’s denial of Lamb din’s m otion to transfer venue. The latter
wastendered in response to the filing by her ex- husband , Bran don An drew Am os (Am os), of a m otion to enforce a prior court order regarding his visitation rights. W e deny the petition. Backgr ound According to the record bef or e us (which record omits a t ranscription of the evidentiary

hearing conducted upon the motion to transfer), Lambdin an d Amos are the1 Via her p etition for manda mus relief, La mbdin now requests that the enti re cause ( i.e. the proceedings comm enced by both the mot ion to enf orce and moti on to modi fy) should be transf erred. 2 parents of t

w o ch ildre n. U pon diss olut ion of th eir ma rriage in Mayof 2001 , the t rial court appointed both parents as j oint managing conse rvators of the ir ch ildre n. A ppr

ox im ate ly 17 months passed after the divor ce when, on Novem ber 22, 2002, Lam bdin petitioned the 181st Judicial District Court of Randall Coun ty to m odif y th e pa ren t/c hild r

elat ions hip between Am os and his children. Am os joined issue on D ecem ber 23, 2002, by

filing both
an answer

to thepet ition and a do cum ent ent itled “Co unt er- Pe titio n toMo dify Pa ren t-C hild Relationship.” So too did he tender to the clerk a third document entitled “Motion for Enforcem entand Order to Appear.” H owever, t he exact date on w hi ch he tendered the third document

is unclear for the district clerk’s file-mark appearing on the copy given to
us is illegible. Nonet heless, it is certain t hat he d id so by J anuary 3, 2 003 , si ncetha t is the date on w hich the trial court signed an order setting January 31, 2003, as the date on which the m otion would be heard. Next, on Janu ary13, 2003, Lam bdin tendered her first am endme nt to her petition to m odify the parent-child relationship. Then, on January 27, 2003, she filed the mo tion to transfer venue alluded to in the op ening paragraph of this opinion. The item w as subm itted by La mbdin pro se , an d th ere in, s he r equ ested t he t rial cour t to“tr ans fer this proceeding in accordance w ith the allegations of this motion.” Whether the “proceeding” to which she referred w as that com menced in January of 2003 by the m otion to enforce or thatinitiated in Novem ber of 2002 by her m otion to mo dify went unex plained. 1 Nor did she2 Since La mbdin did notprov ide us with a transcript of the contem pt hearing, the i nform ation about

the parties appearing through counsel and announcing ready was taken from the “Order Holdi ng Respondent in Contempt,” s igned b y the tr ial court o n Febru ary 7, 2 003. See Alcantar v. O klahoma Nat’l Bank , 47 S.W .3d 8 15, 823 (Tex. App.--Fort W orth 2001, no pet.) (stati ng that recit als in a judgm ent are presumed correc t, which presumption m ay be rebutted when there exists a conf lict between the judgment and the record .)
3 Additionally, in res pons e to the allegatio n of Am os that Lambdin waiv ed her venue m otion by announcing “ready,” Lam bdin did not assert that she objected to the trial cour t enter taining th e motion to enforce bef ore resolv ing the v enue dispute. 3 clarify the matter via her “First Am ended Motion to Transfer Venue,” filed on February 7, 2003. Again, Lam bdin simply asked that “this proceeding” be transferred. Though on file, the mo tion to transfer was not the first m otion to be addressed by the trial court. Instead, it convened a hearing upon themo tion to enforce on January 31, 2003. Furtherm ore, each par ty appe are d in person and through their respective legal
counse l. 2 Noth ing of record illustrates that Lambdin urged, at the hearing, her pending mot ion to transfer venue or otherw ise objected to the trial court proceeding with th e hearing on the motion to enforce. Instea d, the trial court noted i n its “Orde r Ho ld ing Respondent

in Contem pt” (signed on February 7, 2003) th at she and her counsel “announced ready for trial.” 3 Via that order, the trial court also held her in contem pt, after stating that it heard the evidence offered by the parties. No hearing was convened upon the m otion to transfer venue until March 25, 2003. Though we have no transcript of th e evidence or argum ent presented at that proceeding, the tri al court sta ted in its ensuing order that it heard the “evidence and argum ent of counsel.” So toodid i t de ny t he m otio n viathesam e or der . Th e lat

ter w as s igne d on Ap ril 9, 2003. Lam bdin petitioned this court for relief from that order on J uly 24, 2003. Analysis4

We first address the allegation that we s hould order the trial court to rescind its February 7th order

holding Lambdin in contem pt. Such is required, according toLam bdin, because thetria l cou rt h ad n o j uris dict ion to en ter tain them otio n. F urt her m ore , it alleg edly had no jurisdiction because §155.206 (d) of the TexasFamily Code de p rived it of same. W e disagree. Section 155.206(d) states that“after the transfer” of a caus e to another court, the transferring cou rt lo sesnot only jurisdicti on over the chi ld but al so jurisdicti on “to enforce its ord er f

or a viol atio n occur ring bef ore or a fte r th e tr

ans fer of j uris dict io n .” T EX . F AM . C ODE A NN . §155.206(d) (Vernon 2002). A s can be seen, the loss of j uris dict ion is
e xp res sly

conditioned upon the transfer of the cause. In other w ords, jurisdiction of the initial or transferring court is not extinguished until the cause is transferred. S o, since the
cause at bar was

never transferred elsew here, §155.206(d) did notdeprive t he trial cour t of j uris dict ion to co nsid er t he m otio n toenf orc e or hold Lam bdin in contem pt. See Groz ier
v. L- B Sp rin kle r & P lu mb ing Rep air , 744 S.W.2d 306, 312 (Tex. App. –Fort W orth 1988, w rit denied) (holding that the trial court h ad j urisdiction to rule on a sum m aryjudgm ent m otion even th ough a m otion to t ransfer venue p ended be fore it). Next, we address whether Lam bdin is entitled to reli ef (via a writ of m andam us) from the trial court’s decision to deny the m otion to transfer venue. We conclude that she is not for the foll owing reasons. First, one (such as Lam bdin) seeking extraordinary relief under Rule52 of the Texas Rules of Appellate Procedure m ust accom pany the petition with eitheran authenti cated transcri pt of any rele va nt te stimony from any underlying proceeding or a statem ent that no testim onywas adduce d in conne ction w ith the m atter.5

T EX . R. A PP . P

. 52.7(a)(2). In absence of such a transcript, the cou rt considering the petition for extraordinary relief presum es that there ex isted evidence to support the trial court’s decision. Ex pa rte Ki ng , 819 S.W. 2d 944, 946 (Tex. App.–Houston [14 th Dist.] 1991) (original proceeding i nvolving a petition for writ of habeas corpus). Here, the trial court disclosed, via its order denying t h e motion to transfer, that i t considere d evidence presented to it. Yet, Lam bdin pro vided us w ith n o re cor d of tha t ev iden ce. Sim ilarly absentis a statem ent by Lam bdin thatno testim ony or evidence was presented to the trial court. Consequently, Lam bdin failed to com ply with Rule 52.7(a)(2), and w e presum e that the trial court had before it evidence to support its decision. Second , Am os co ntended that Lam bdin waived her com plaint about venue by announcing “ready” at the J anuary 31 sthearing on the m otion to enforce. It is w ell-settled thatcom plaints about venue ma y be waived ex pressly or impliedly. The latter occurs w hen the party takes s ome action inconsistent with its position on the venue issue. Grozi er v. L-B Sprin kle r & P lu mb ing Rep air , 744 S.W.2d at 310. An example of s uch acti on i s subm itting oneself to trial without insisting th at the t rial court first address a pending venue mot ion. Ge n try v. Tucker , 891 S .W.2d 766, 768 (Tex. A pp.–Tex arkana 1 995, no writ). Here, nothing of record indicates that Lam bd in insi sted that the trial court consider her mot ion to transfer

venue before i t convened a heari ng upon and reso lved Amos’ mo tion to enforce. Rather, according to the sparse record bef ore us, she announced that she w as “ready” to proceed w hen the m atter wascalled for he a ring. In o ther w ords, t he recor

d indicates that she apparently chose to subm it herself to the trial an d resolution of the very proceed ing that s paw ned her r equest to tran sfer. Sim ply

put, and given the tenor of t he4 The trial cou rt d id not spe cify the particular ground or reason wh y it denied the motion to transfer. 6 brief re cord before us, thetria l cou rt could ver y well ha ve h eld t hat

Lam bdin waived her
venue com plaint. 4

T hird, a p etition for writ of m andam us is generally unavailable as a means of reviewing decisions regarding venue. In re Kramer , 9 S.W.3d 449, 450 (Tex. App.–S an An ton io 1999, orig. proceeding); Scani o v . McFall , 8 77 S.W .2 d 8 88 , 8 91 n. 3 ( Te x. Ap p.– Am arillo1994, orig . proceedi ng). An exception to thi s rule ari ses, however, when the trial court

has a m andatory, m inisterial duty to transfer the cause and refuses to do so. Id. ; accord, Proffer v. Yates , 734 S.W.2d 671, 672-73 (Tex. 19 87); In re Calderon , 96 S.W.3d 711, 715 (Tex. App.–Tyl er 2003, ori g. proceedi ng). Lambdin attempts to f it her situation within the scope of the ex ception by contending that transfer w as m andatory per §155.201(b) of the Texas Fam ily Code. According to that provision, [i]f a suit to mo dify or a m otion to enforce an order is filed in the court having continuing, exclusive j urisdiction of a suit, on the tim ely motion of aparty the court shall

transfer the proceeding to another count y . . . if the child has resided in the other county for six mo nths or longer. T EX . F AM . C ODE A NN . §15 5.2 01( b) ( Ve rno n 20 02)(em pha sis add ed) . Adm itte dly, this provision mandates the transfer of a suit to m odify or mot ion to enforce w hen the stated condition has been m et. And, becaus e it ma ndates transfer, its violation m ay be corrected through a petition for writ of m andam us. Proffer v. Yates , supra ; In re Calderon , supra ; In re Kramer

, supra .5 The word “shall” was also used w hen describing the obli gation to transf er created by §155.201(a) of the F ami ly Code. 7 Yet, the record at bar illustrates that m ore than either a m otion to mo dify or one to enforce a prior or der was pending befo re the tri al court. Qui te the contrary, Lambdin first petitioned for

a m odif ic ation of the divorce decree in Novem ber of 2002. In respons e, Am os not only joined issue by w ay of an an sw er but also h ims elf petitioned for a
mo difi ca tion of the decree. Then, he moved the trial court to enforce its prior order regarding visitation by holding his ex-w ife in contempt. Consequently, w hat the trial court had pending before it was a s uit to modify f ollowed by a subsequen t m otion to enforce. Statute providesthat “if asuit to m odify or amo tion to enforce an order is pending at the ti me a subsequent suit to m odify or mot ion to enforce is filed, [then] the court may transfer the proceeding as provided by Subsection (b) [of §155.201] onl y if the court cou ld have transferred the proceeding at thetime the first motion or suit w as filed.” T EX . F AM . C ODE A NN . §155.201(c) (Vernon 2002). Given the wording of this sta tute and the ex istence of a pending suit to m odify followed by a later mot ion to enforce, the circum stance s befor e the trial court at bar were not e ncom passed by §155.201(b) of the Fam ily Code but rather §155.201(c). Moreo ver, in describing the obligation, i f any, to transfer im posed by§155.20 1(c), the legislatur

e used the w

ord “may .” This differs from its description of the obligation to transfer impos ed by §155. 201(b); there it used the w ord “shall.” 5 Thus, it took care to distinguish between the obligations imposed by thetw o pr ovis ions . A nd, w e ca n re adily
see w hy. In a situation encom passed by §155.201(c), the trial court has before it an6 To do ot her wi se, t hat is, to in ter pret “may” as mand atin g atra nsfer of venuewo uld effect ively depriv e the trial court of i ts abilit y to av oid interf erence with and a delay in resolv ing a prev iously pending and o ngoing suit. 8 ongoing suit or proce eding thr ough which the litigants have subm itted thems elves to the trial court’s authority (assum ing thatno one previously sought a transfer of venue) when the second suit or proceedi ng begins. However, in a situation encompas sed by §155.201(b), both parties have not effectively subm itted thems elves to the jurisdiction of the trial court through th eir involvement in a prior, yet pending, action. Thus, it is both logical and practical for the legislature to have treated the situation encom passed by §155.201(c) d iffe ren tly fro m tha t en com pas sed by §15 5.2 01( b) in eff ort to a void interfer ence with or delay in the prosecution of a n ongoing sui t. Given thi s, it is al so logical to construe the w ord “may” as vesting the trial court with som e range of perm is siveness or discreti on when decidin g whether to transfer pr oceeding s e ncompasse d by§155.201(c). See In re Est at e o f M inn ic k , 653 S. W.2d 50 3, 5 08 ( Tex . A pp. –A m arillo 1983, no writ) (stating that thete rm “ may” generally creates a discretionary and not a
m andatory

function ). 6 Final ly, because we interpret the word “m ay,” as used in §155.201(c), as vesting the trial court with discretion, the trial court at bar did not have a ma ndatory duty to transf er the cause, as did the trial courts in Kramer , Proffer , and Calderon. And, because it did not have such a duty, we cann ot say that thesit uat ion b efo re u s fa lls within the exception to the general rule against invoking the extraordinary relief of m andam us as a m eans of reviewing venue issues. Accordingly, the petition for writ of m andam us is denied.9 Brian Quinn Justice