### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00 379
- CV N O. 03
- 20
- 00441
- CV

In re Julia Ellen Mathes

OR I GINAL PROCEEDING S FROM BELL COUNTY

M E M O R A N D U M O P I N I O N

Relator Julia Ellen Mathes has filed two petition s for w rit of mandamus . The first pet ition, docketed as cause numb er 03

- 20

- 00379

- CV , complain s of the Bell County d istrict

c ourt ’ s refusal to transfer the underlying suit affecting th e parent

- child relationship (SAPCR) to Rusk County, where Julia and her child r e n with real party in interest Donal d Mathes have lived f or mo re than six months . The second , docket ed a s cause numb er 03

- 20

- 0 0441

- CV , c omplains of the Bell County district co urt ’ s temporary orders awarding Donald the right to designate the children ’ s pr i m ary residence within Bell or Williamson counties

. W e conditional l y grant mandamus relief

. See Tex. R. App. P. 52.8 ( c )

.
P rocedural Summary Donald and Jul ia have two children

— son D.M., who was nine at t he time of the hearing , and daughter M.M., who was f o ur . In 20 19, the Bell County district c ourt signed an agreed d ivorce decree awarding J ulia , who was then living in Rusk County, the right to designate2

the children ’ s primary residence . The children ’ s primary residence was initially restricted to Rusk, B e ll, and Williamson count ies , but t he decree o rder ed that the res triction would narrow to Bell a nd Williamson counties as of August 1, 2020 . The agreed decree also provided th at venue would “ remain fi xed in Bell County ” and that the parties would not “ at t e mpt to change venue or jurisdi ction. ” In February 2020, Donald file d a m otion asking the Bell County district court to confirm that he did not owe any child

- support arrearage . J ulia then filed a motion to transfer

ven ue to Rusk C o unty , where the childr e n had lived for more than a ye ar . In mid

- March, she filed a petition to modi fy, seeking the removal of the geo graphic restriction and ag ain seeking to have the proceeding transferred , and i n April, she filed a motion for entry of a transfer order.
T he B e ll County d istrict c ourt held a hearing in late May on Ju lia ’ s motion to tra nsfer but never issued a n order

. In July, Julia filed her first petition for writ of manda mus, complaining of the
court ’ s fail ure to transfer the p roceed in g . She also sought an e mergency stay of the divorce decree ’ s provision that required the children to move to Bell or Williamson count ies by A ugust 1 . O n July 28, we issued an or der staying that p ortion of the decree.

Meanwhile, Donald filed his own petition to modify, seeking t he right to designate the child ren ’ s p rimary residence . The Bell County d istrict c ourt held a hearing and sign ed temporary orders on August 20 , award ing Donal d the right to designate the children ’ s primary residence within Bell and Williamson counties. J ulia then filed her second petition fo r writ of mandamus, complaining of the temporary orders.3 Denial of Motion to Transfer We first consider Julia ’ s first petition, complaining of the de nial of her motio n to transfer venue. T he family code provides th at if a timely motion to transfer is filed and the opposing party d oes not file a controverting affidavit wi thin twenty days of being served n otice of the motion, the SAPCR “ shall, not later than the 21st day after the final date of the period allowed for th e filing of a controverting affidavit, be transferred without a hearing to the proper
court. ” Tex. Fam. Code § 155.204(c) , (d)

. “ I f a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a su it , on the tim ely motion of a party the court shall , within the time required by Section 155. 204 , transfer the proc eeding to another county in this state if the child has resided in the other county for six months or longer. ” Id

. § 155.201(b) (e mp hasis ad ded )

. M andamus relief is app ropriate if a trial court does not perform a ministerial act or duty , and transfer of a SAPCR case under a mandat ory venu e provision is a man datory ministerial du ty

. See, e.g. , P roffer v. Y ates , 734 S.W.2d 671, 67 2

- 7 3 (Tex. 1 9 87) ; In re Rusch , No. 03

- 18

- 00163

- CV, 2018 WL 2123384, at *3 (Tex. App.

— Austin May 9, 2018 , orig. proceeding ) (mem. op. )

. “ Therefore, mandamu s relief is available to compel mandatory transfer of a case to a county where the child has resided for more tha n si x months. ” Rusch , 2018 WL 2123384, at *3

.

Julia filed her motion to transfer a fter Donald filed a motion related to chi ld

support arrearag e s . Donald responded in oppos ition to Julia ’ s motion but did not file a n a ffidavit
controvert ing Juli a ’ s assertio ns r e lated to venue . Instead, he averred that “ [n]o motion for enfo rcement or motion to modify has been filed , ” that the divorce decree was b oth an order and

“ a contractual obligation ” b arr ing J ulia from seeking to change venue, and that Donal d believed
J ul ia ’ s motion was frivolous and had been brough t in bad faith. Julia then filed a motion to4

modif y , seeking the removal of the geographical r estrictions , and re

- ur g ed her mo tion to transfer

. Donald filed a nother response in opposition , but again, neither his r esponse nor the a ffidavit attached address ed Julia ’ s venu e - related allegations.

Donald asserts that the trial court did not ab use its d iscretion in failing to transfer the case to Rusk County because Julia contractually waived her rights to seek a trans f er of venue and agre e d to move the chil dren back to Bell or Williamson countie s. 1 However, a mediated settlement agreement cannot supersede the family co de ’ s mandatory venue stat utes

. 2 See Leonard v. Paxson , 654 S.W.2d 440, 441

- 42 (Tex. 1983 ) ; In r e Lov e ll

- Osburn , 448 S.W.3d 616, 622 (Tex. App.

— Houston [14th Dist.] 2014 , orig. proceeding ) ; I n re Calderon , 96 S.W.3d 711, 718

- 20 (Tex. App.

— Tyler 2003 , orig. proceeding ) ; Huckeby v. Lawdermilk , 709 S.W.2d 331, 333 (Tex. App.

— Eastland 1986 , no w rit ) . As our s ister court has explained :

1 I n his original r esponse, D onald argu e d that the trial court had the discretion to withhold a ruling d ue to the ongoing COVID

- 19 pandemic, see Twenty

- Sixth Em ergency Order Regarding the COVID

- 19 State of Disaster, Mis c. Docke t N o. 20

- 9 112 , Supreme Court of Texas ( Sept. 1 8, 2020) ( court s may su spend de adli nes “ for a stated period ending no later than December 1, 2020 ” ) . How e ver, he abandoned that argument in his amended response , and we note that the court does not appear to h ave st ated that it was postponing a ruling for a “ stated period

. ” Fu rther, t he court has held two hearing s and issued temporary orders while the e merg ency orders were in effect , thus neutralizing any persuasive effect of that argument

.

2 Donald cite s to H

ue y v . H u e y fo r the proposition that Texas co urts “ have long recogn ized . . . that the matter o f venue is a personal privilege that a party may expre ssly or impliedly waive. ” 200 S.W.3d 851 , 853 ( Tex. App.

— Dallas 2006, no pet.)

. However, in Huey , th e co urt con clud ed th at because the mother had moved to a county outside t he divorce decree ’ s geographical restrictions, thus violating the court order, she could not then rely on the mand atory venue pro visions

— “ permitting appellant to obtain the benefit o f an othe rwi se manda tory transfer based on the children ’ s residence in Ho ward County, when such residence is solely the result of appellant ’ s intentional d isregard and violation of the divorce decree, would condone appellant ’ s violation of the divorce decr ee a nd en cou rag e oth ers to do the same in similar circumstances , ” and “ c ompelling a transfer on facts such as presented here would promote forum shopping. ” Id

. The facts in Huey are distinguishable from the facts here , in which Julia did not violate the decr ee by mo vin g to Rusk County and instead was living there at the time the decree was signed

.5

Under the holding in Leonard , any attempt to supplant the mandatory transfer provision applicable in a SAPCR is void. The term “voi d” means “of no legal effect” or “null.” Therefore, the prov ision cannot be an effective contr a ctual waiver of Calderon ’ s right to the transfer required by section 155.201. Furthermore, a settlement agreement attempting to change venue contrary to the statutory law of the state cannot constitute a waiver of venue. In a SAPCR, venue is proper in t h e court of continuing jurisdiction unless a transfer is requested. If the child has resided in another county for more than six months and a motion to transfer is timely filed, the transfer of the proceeding is mandatory

. The [mediated settlemen t a greem e n t] provision contravenes this statutory scheme, and in so doing, “defeats the legislature ’ s intent that matters affecting the parent

- ch ild relationship be heard in the county where the child resides.

. . .” Consequently , we conclude that the [media ted s e t tlemen t agreement] provision is not a valid express waiver of venue.

Calderon , 96 S.W .3 d at 719

- 20 (citations omitted).

Leonard bars the parties ’ agreed d i vorce decree from defeat ing the family code ’ s manda tory venue provisions. See 654 S.W.2d a t 441

- 4 2 ( “ the mandatory venue and transfer provisions of the Family Code control and cannot be negated by contract ” ) ; Calderon , 96 S.W.3d
at 719

- 20

. T he Bell County district court thus abused its discretion in not transferring the
pro ceeding to Rusk Coun ty

. S e e Rusch , 2018 WL 2 123384, at *3

. Primary Re sid ence Determination We next turn to Julia ’ s second petition for writ of mandamus, challenging the Bell County d istrict c ourt ’ s temporary orders, wh ich were issued after we stayed the divorce decree ’ s provision r e la ted to whether the children had to relo cate fro m Rusk County

.

A s relevant here, w hile a suit for modification is pending, a court may not render temporary order s changing the pe rson who ha s the exclusive right to designat e the child ’ s primary residence u nl ess su c h a ch ange is in the child ’ s best interest and “ the order is necessary because the child ’ s present circumstances would significantly impair the child ’ s physical hea lth6

or emotional development

. ” Tex. Fam. Cod e § 156.006 (b)(1)

. T he “ significant i mp airmen t ” standard is a high one and requires evidence of bad acts beyond a violation of a divorce decree or a parent ’ s attempts to alienat e a child from the other parent. See , e.g. , In re Coker , No. 03

- 17

- 00862

- CV, 2018 WL 700033, at *4 (Tex. App.

— Aust i n Jan. 2 3 , 2018 , orig. proceeding ) (mem.
op. ) ; In re Charles , No. 03

- 17

- 00731

- CV, 2017 WL 5985524, at *4 (Tex. App.

— Austin Dec. 1, 2017 , orig. proceedi ng ) (mem. op.)

. Mandamus is an appropriate remedy when a trial court abuses its discretion in issuing t e mp orary o rders in a SAPCR. See, e.g. , In re Mays

- Hooper , 189 S.W.3d 777 , 778 (Tex. 2006) (orig. proceeding); In re Lewin , 149 S.W.3d 727, 734 (Tex. App.

— Austin 2004, orig. proceeding ); In re Vernor , 94 S.W.3d 201, 209

- 10 (Tex. App.

— Austin 2002, orig. pro c ee ding ). In co nsidering Julia ’ s petition, w e must review whether the court had sufficient evi dence on which t o render the tem po rary orders changing the parent with the right to designate the child ren ’ s primary residence

. 3

D onald tes tified that he has r e m a rried , t hat he an d his new wife have a son , and that D.M. and M.M. ha ve a close bond with him, their stepmother, and their h alf

- brother

. Donal d further testified that when Natalie Lenard, t he children ’ s therapist in Round Rock, indicated that D.M. “ had b e en or s u ffering from a series of emotional outbursts , including anger and frustration” related to his relat ionship with Julia , it c onfirmed Dona ld ’ s fears

. Donald also said that note s from Daniel Ca brera, the children ’ s therapist in east Texas, indicate d that D. M

. ’ s

3 “ D uring the transfer of a suit from a court with contin uing, exclusive jurisdiction, the transferring court retains jurisdiction to render temporary orders , ” and the t ran sfe rring court ’ s juris diction “ terminates on the docketing of the case in the trans feree court

. ” Tex. Fam. Code § 155.005 ; s ee In re Es tes , No. 07

- 17

- 00225

- CV, 2017 WL 3122359 , at *3 (Tex. App.

— Amarillo July 19, 2017, orig . procee ding ) (mem. op.) ( “ A m and ato ry du ty to do somet hing is not the functional equivalent of actually doing that th ing. Therefore, because the trial court never ente red an order transferring venue , . . . [the trial court] retained jurisdiction to enter temporary orders in acco rdanc e w ith the provisions of the Texas Family Code. ” )

.7

suff ering “ had gotten worse ” over the last yea r. D onald , however , had not see n any reason for

concern when the children were with him for summer visitation

. Instead, he said, the children behave “ [l] ike kids. They run around, have fun, lau g h ing, yo u know, j ust getting a chance to be kids and be themselves. ”

Donald testified that he was concern ed “about parental alien ation ” and that he had a list of more than 150 instances in which Julia denied him teleph one or electronic access to the chil d ren . W h en asked on cross - examination about M.M. ’ s dis traction during phone calls or her outright refusal to get on the phone with him, Donald bla med Julia and said M.M. did not behave like that when she was in Donald ’ s house and had to talk to Ju lia

. He sometim e s heard Julia tell the children to end their phone calls with him, testifying that the night before the hearing, he heard her tell D.M. to get off the phone after less than three minutes. He also expressed concerns about Julia ’ s attempts to c hang e D.M. ’ s ni ckname and testified that Julia agreed in Jul y 2020 to
start co - parenting th era py but had since i gnored his messages about it

.

Donald thought it was in the children ’ s best interest to live with him and his wi fe because Julia has given the ch ildr e n the m e ss age that “ they ’ re not supposed to enjoy their time with us. ” Instead, he said, “ they feel like they ’ re torn because if they have fun with us it ’ s them disobeying their mom. And they fe el like they have to choose between one of us. . . . It for c es them into a position they shouldn ’ t have to be in. ” Donald believed the children had

“ [a]bsolutely ” suffere d significant emotional harm due to Julia ’ s behavior.

Lenard testified that she had bee n the children ’ s therapist since the spring of 2019. 4 Sh e had se e n the children interact with their father , stepmother, and half

- brother , and she

4 Le nard testified at the May hearing, and the parties referred to her te stimony and her report in the Au gust hearing.8

testified that the y were very open , loving, and affectionate with Donald and their stepmother. Lenard had not seen them inte ract with J ulia and had only spoken t o Ju l i a on ce o r twice. Lenard also said she had not been able t o review any note s or records from Ca brera because she had not gotten a release from Julia. Lenard had diagnosed D.M. with “ adjustment disorder with mixed anxiety and depress ion ” and “ child affec t e d by pa r ent relationship distress

. ” She said D.M. was

“ very withdrawn and very closed off ” at the beginning o f therap y and did not like to discuss his feelings about his parents and their divorce

. Lena rd was wor king with him on self

- advocacy ,
se lf

- este e m , hea lt h y boundaries, and learning to be a child because he “ is a little parentified ” with regard to M.M. Lenard testified that D.M. had indicated “ that he feels he ’ s not supposed to ha ve a good relationship with his father and especially with his stepm o t her ” an d said : I ’ m concerned about the messages that he gets. I ’ m concerned about his ability to voice the conflict that he ’ s feeling because you can tell he ’ s feeling s ome loyalty binds. He ’ s feeling, you know , pushed in different directions. He fee l s he has to pick one parent over the other, but he doesn ’ t know how to say that. And I ’ m concerned that it ’ s going to continue and it ’ s going to increase his anxiety, it ’ s going to increase some of the symptoms of depression I see in him.

L enard had dia g n osed M. M . with “adjustment disorder unspecified ” and “ child affected by parent relationship distress , ” explaining that M.M. “ is struggling with the conflict ” be tween her parents. M.M. is “ more happy

- go - lucky ” tha n D .M., but she will “ close off a little b i t ” when she talks about her famil y . L enard testified about a recent incident during therapy in which M.M. drew her family , drawing herself, D.M ., Donald, and J ulia. She started to draw her stepmother but then st arted to erase it

. L e nard to ld M.M. she c o uld “ dr a w whoever is in your family, ” and M.M. drew her stepmother and half

- brother , but when Lenard asked what M.M. called her stepmother, M.M. said, “ I ’ m not allowe d to call her mama. ” She then laid down on9

the floor , curled up , and cried a little bit

. Lenard said this concerned her “ significantly ” because , like D.M ., “ she ’ s getting me ssages ” and “ feels that she ’ s caught in a loyalty bind. ”

At the conclusion of the hearing, the trial court ruled that Donald ’ s m otion for temporary orders was “ both proc e d urall y a nd substantively sufficient to establi sh a basis for a change ” of the right to designate primary residence. T he court said that “ this is a temporary order, but it is what I believe is in the best interest of the children at this time. ”

We have vie we d the evi d ence in fa v or of the trial court ’ s temporary order

. See Charles , 2017 WL 5985524, at *4

. Certainly the evidence , taking as true all of Donald ’ s

asser tions and disregarding Julia ’ s testimony to the contra ry , shows that the children feel torn b et w een thei r parents and unhappy about the di vorce and that Julia has sent them messages, whether overtly or through non

- verb al cu es, that they should hold their stepmother at a distance. However, the evidence f

alls short of showing that Julia ’ s alleged at t em pt s to a l ien ate the children from Donald w ere causing the children “significant impairment ” and therefore cannot support the change of prim ary residence under section 156.006(b)(1)

. See Coker , 2018 WL 700 033, at *5

- 6 ; Charles , 2017 WL 5985524, at *4

. Fu r ther, the trial court did not find , either orally at the hearing or in its temporary orders, that the change was necessary because the children ’ s emotional development was suffering s igni ficant impairmen t and instead referenc ed only the children ’ s best in t erest s , w h ich is not the applicable standard at this stage of the proceeding

. T he trial court thus abused its discretion in rendering the temporary order naming D onald as the parent with the right to designate the childr en ’ s primary residence , and Juli a h as no ade q uate remedy by appeal

. See Lewin , 149 S.W.3d at 734

.10 Conclu sion The Bell C o unty district court abused its discretion in failing to grant Jul ia ’ s motion to transf

er under section 155. 201 of the family code. It further abused its discretion i n

s igning th e temporary orders that awarde d Donald the right to designate the children ’ s primary resid ence . We conditionally grant mandamus relief and instr uct the Bell C o unty district court to
vacate the temporary orders and issue an order transferring t h e SAPCR to R u sk County . Writ will issue only in the unlikely event the Bell C o unty district court does not comply with this opinion.

________________ __________________________ Jeff Rose, Chief Justice Before Chief J ustice Rose , Justices Baker and K elly Fil ed: Dec ember 3, 2020