In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-11-00119-CV

______________________________

IN RE:

SAMANTHA MOORE

 

 

Original Mandamus Proceeding

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss
2

MEMORANDUM OPINION

Samantha and Justin Moore were divorced December 19, 2008, in Bowie County, Texas. 

In the divorce decree, though Samantha and Justin were named joint managing conservators of 

their two minor children, Justin was awarded the right to determine the children‘s primary 

residence. Since the divorce, Justin and the children have lived in Tennessee. 

From orders of the Honorable Jeff Addison, judge of the County Court at Law of Bowie 

County—declining Texas jurisdiction in favor of Tennessee and, later, dismissing the Texas case 

because a Tennessee case was not filed within a few months 1—Samantha seeks a writ of 

mandamus asking us to order the trial court to vacate its order declining Texas jurisdiction in favor 

of Tennessee, to vacate its order dismissing the cause, and to retain jurisdiction in the State of 

Texas.2 We deny the petition because the trial court‘s actions did not constitute a clear abuse of 

 

1On June 30, 2009, and April 14, 2011, Samantha filed motions to modify. As to the earlier motion, the trial court 

first granted an ex parte temporary restraining order and held a hearing July 9, 2009. The trial court‘s docket sheet 

contains an entry of July 9, 2010, which states, ―Insufficient evidence to continue ex parte order.‖ The trial court‘s 

docket sheet also contains an entry dated October 14, 2010, which states that, after a hearing, modifications were 

granted. The record does not contain a copy of the order modifying the divorce decree. Neither the Relator nor the 

Real Party allege the modifications are pertinent to this appeal. The 2011 motion to modify triggered Justin‘s motion 

requesting the trial court to decline jurisdiction and determine Tennessee was a more convenient forum. After a 

hearing on that motion, the trial court signed an order June 30, 2011, declining jurisdiction and finding that Tennessee 

was a more convenient forum. Samantha filed a motion for new trial, the trial court held a hearing on the motion for 

new trial, consisting of only arguments of counsel, and the motion for new trial was overruled by operation of law. 

On October 19, 2011, the trial court dismissed the cause, noting that Tennessee had been found a more convenient 

forum and that no cause had been filed in Tennessee. No complaint has been raised concerning this order.

2

In her petition, Samantha cites to the reporter‘s record from her pending appeal of the trial court‘s order in this case. 

Samantha has not filed a copy of this transcription in the record in this case or requested this Court to take judicial 

notice of our record in the pending appeal. Although we could deny relief for failure to provide a sufficient record,

see TEX. R. APP. P. 52.7, we, in the interests of justice and judicial economy, take judicial notice of the record in our 

cause number 06-11-00102-CV.
3

discretion.

Mandamus issues only when the mandamus record establishes (1) a clear abuse of 

discretion3or the violation of a duty imposed by law and (2) the absence of a clear and adequate 

remedy at law.4 Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court clearly 

abuses its discretion if ―it reaches a decision so arbitrary and unreasonable as to amount to a clear

and prejudicial error of law.‖ Id. With respect to the resolution of factual issues or matters 

committed to the trial court‘s discretion, we may not substitute our judgment for that of the trial 

court. In re Does 1–10, 242 S.W.3d 805, 811 (Tex. App.—Texarkana 2007, no pet.). Because 

― ̳[a] trial court has no ―discretion‖ in determining what the law is or applying the law to the 

facts,‘‖ a trial court‘s failure to analyze or apply the law correctly will abuse its discretion. In re 

B.T., 323 S.W.3d 158, 160 (Tex. 2010) (quoting Walker, 827 S.W.2d at 840). Therefore, an 

erroneous result based on an erroneous legal conclusion by the trial court constitutes an abuse of 

discretion. Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex. 1996). A clear failure by the trial 

court to apply the law correctly is an abuse of discretion. Walker, 827 S.W.2d at 840.

 

3Our standard of review in a mandamus proceeding is more deferential than in a direct appeal. In a mandamus 

proceeding, our standard of review is for a clear abuse of discretion. See In re Prudential Ins. Co. of Am., 148 S.W.3d 

124, 135 (Tex. 2004). In a direct appeal, our standard of review is for an abuse of discretion. See Hart v. Kozik, 242 

S.W.3d 102, 106 (Tex. App.—Eastland 2007, no pet.).

4

Justin does not contest the availability of mandamus review. Because we conclude the trial court did not commit a 

clear abuse of discretion, it is not necessary for us to determine whether, here, the benefits of mandamus review

outweigh the detriments of mandamus review. We will assume, without deciding, that mandamus review is 

available.
4

Samantha argues that the trial court, having continuing exclusive jurisdiction,5abused its 

discretion in finding that Tennessee was a more convenient forum than Texas. Samantha 

acknowledges that a trial court may decline jurisdiction based on a finding of an inconvenient 

forum under Section 152.207 of the Texas Family Code. Under Section 152.207, a Texas court 

may decline to exercise its jurisdiction if it determines that it is an inconvenient forum and that a 

court of another state is a more appropriate forum. TEX. FAM.CODE ANN. § 152.207 (West 2008). 

Samantha argues, however, that the trial court abused its discretion in weighing the specified 

factors and concluding that Tennessee was a more convenient forum. The statute provides 

factors6to be considered in making the finding:

Before determining whether it is an inconvenient forum, a court of this state shall 

consider whether it is appropriate for a court of another state to exercise 

jurisdiction. For this purpose, the court shall allow the parties to submit 

information and shall consider all relevant factors, including:

 

5

Samantha asserts that the trial court had continuing exclusive jurisdiction. Justin does not contest that assertion. 

The Texas Supreme Court has noted ―exclusive jurisdiction continues in the decree-granting state as long as a 

significant connection exists or substantial evidence is present.‖ In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004) 

(rejecting argument that both significant connection and substantial evidence must exist); see TEX. FAM. CODE ANN.

§ 152.202 (West 2008). The Texas Supreme Court has found significant connections existed in a case much like this 

one. See Forlenza, 140 S.W.3d at 379. In that case, the children had resided outside of Texas for more than five 

years, but the mother had maintained residence in Texas. Id. at 377. The mother had flown to multiple cities to visit 

the children at least fifteen times in the previous four years. Id. The children had visited Texas at least six times in 

the previous four years. Id. On four of the six visits, the children had remained in Texas for at least a month. Id. 

The Texas Supreme Court found that Texas retained exclusive continuing jurisdiction. Id. at 379. It specifically 

noted in Forlenza that its opinion concerned only whether Texas retained exclusive continuing jurisdiction and that it 

was not deciding whether said jurisdiction could be declined under Section 152.207. Id. at 378.

6Although many of these factors implicate the child‘s best interest, the Legislature did not direct trial courts to 

specifically consider the child‘s best interest when determining whether another jurisdiction would be a more 

convenient forum. Hart, 242 S.W.3d at 107.
5

(1) whether domestic violence has occurred and is likely to continue in the 

future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this state;

(3) the distance between the court in this state and the court in the state that 

would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending 

litigation, including testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and 

the procedures necessary to present the evidence; and

(8) the familiarity of the court of each state with the facts and issues in the 

pending litigation.

TEX. FAM. CODE ANN. § 152.207(b).

Samantha concedes there is not any evidence in the record concerning the first and fourth 

factors. Neither party introduced any evidence of domestic violence or of the financial 

circumstances of the parties. Samantha, however, argues the remaining factors clearly weigh 

against the trial court‘s decision. In addition, the record does not contain any evidence 

concerning the seventh factor—the ability of each state to decide the issue expeditiously and the 

procedures necessary to present evidence. Samantha argues that this factor would weigh against 

the trial court‘s decision because this case was ―on track for a custody hearing‖ and, if refiled in 

Tennessee, ―the deadlines for discovery and other evidentiary procedures would have to begin to 
6

run again.‖ Yet there is no evidence Tennessee would be unable to resolve the dispute 

expeditiously. We conclude that, for lack of evidence, this factor weighs neither in favor of nor 

against a finding that Tennessee would be a more convenient forum. Due to lack of evidence, 

none of these factors weigh in either direction.

The second factor strongly favors a finding that Tennessee is a more convenient forum. 

Samantha argues the older child lived in Bowie County for two years and the younger child lived 

in Texas from birth until one and a half years old.7 Justin and the children moved to Tennessee 

before the divorce8and have resided in Tennessee continuously ever since.9 The children attend 

school in Tennessee, and one of them receives counseling in Tennessee. The length of time the 

children have resided outside the state strongly favors declining jurisdiction.

The third factor concerns the distance between the trial court and the state that would 

assume jurisdiction. Justin testified he has to travel ―[a]bout 600 miles‖ one way to attend 

hearings in Bowie County. In her affidavit supporting her motion for new trial, Samantha stated 

the actual distance to ―the halfway point in Hazen, Arkansas is 200.7 miles one way.‖10 This 

factor favors a finding that Texas is an inconvenient forum.

 

7The record does not contain direct evidence of these facts, but these facts are consistent with and can be inferred from 

the testimony at the hearing.

8

Justin testified the move was before the divorce. Samantha testified the move was one week before the divorce on 

December 12, 2008. 

9

Justin testified he works as a corrections officer for the Benton County Sheriff‘s Department and resides in Camden, 

Tennessee. 

10Evidence concerning this fact was not introduced at the hearing on the motion for new trial.
7

The fifth factor requires consideration of any agreement of the parties as to which state 

should assume jurisdiction. Samantha argues Justin agreed to the assumption of jurisdiction by 

Bowie County because he did not raise the jurisdictional issue until May 2011. Samantha, 

though, has not directed this Court to where Justin explicitly agreed to jurisdiction in Bowie 

County. Samantha agreed when asked whether Justin ―submitted to the jurisdiction of this court 

on two other occasions‖ and that Justin ―[n]ever asked to transfer this?‖ While this testimony 

indicates that Justin did not challenge the jurisdiction, it does not establish an agreement. 

Because the record does not contain any suggestion that Justin explicitly agreed to Bowie County 

having jurisdiction, we will not presume an agreement. Absent an explicit agreement, we are not 

persuaded this factor is contrary to the trial court‘s ruling. We conclude this factor does not weigh 

for or against the trial court‘s finding.

The sixth factor concerns the nature and location of the evidence. Samantha argues all of 

her witnesses reside in Bowie County, Texas. Samantha testified the children‘s maternal 

grandparents, maternal great-grandparents, and two maternal aunts reside in Bowie County, 

Texas. Samantha also testified that the children had received counseling from a counselor in 

Bowie County during one summer. Samantha indicates that Child Protective Services in both 

Texas and Tennessee have been involved in this case.11 Samantha testified that Justin moved to 

Camden from another town in Tennessee three and one-half months before the hearing. Due to

the recent move, Samantha argues ―there would be little if any information about [the child] and 

 

11Our review of the record did not discover any evidence to support this allegation.
8

his education in Tennessee.‖ We conclude this factor neither weighs for nor against a finding that 

Texas is an inconvenient forum.

The remaining factor requires consideration of the familiarity of the court of each state 

with the facts and issues of the pending litigation. The trial court presided over the parties‘

divorce and at least one prior modification. This factor weighs against a finding that Texas is an 

inconvenient forum.

Some of the factors favor a finding that Tennessee is a more convenient forum, while 

others weigh against such a finding. Considering the totality of the circumstances, we are unable 

to conclude the trial court clearly abused its discretion. Because reasonable persons could 

disagree concerning whether Texas was an inconvenient forum, the trial court‘s decision was not 

arbitrary or capricious and did not constitute a clear abuse of discretion. Samantha has not 

demonstrated her entitlement to mandamus relief.

For the reasons stated, we deny relief.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 13, 2011

Date Decided: December 14, 2011