# in Re Mark Thompson, Sr.

> Texas Court of Appeals, 1st District (Houston) · April 24, 2014 · 434 S.W.3d 624

URL: https://www.frixlaw.com/law-library/cases/3105895

## Case

- **Full name:** In Re Mark THOMPSON, Sr., Relator
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** April 24, 2014
- **Citations:** 434 S.W.3d 624; 2014 Tex. App. LEXIS 4443; 2014 WL 1642694
- **Precedential status:** Published
- **Opinion:** Opinion by Bland
- **Judges:** Keyes, Bland, Brown
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3105895

## Opinion text

Opinion issued April 24, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-00789-CV
———————————
IN RE MARK THOMPSON, SR., Relator

Original Proceeding on Petition for Writ of Mandamus

OPINION

In this proceeding, we determine whether a trial court has jurisdiction over a

suit seeking support for a disabled child who has reached adulthood. Mark

Thompson, Sr., the relator, seeks mandamus relief compelling the trial court to (1)

dismiss the underlying case for lack of jurisdiction and (2) transfer the matter to
Liberty County, Texas, where Thompson claims venue is proper.1 We deny the

petition.

Background

In September 1992, the trial court signed a final divorce decree between

Thompson and Karen Smith, the real party in interest. The decree provided that

Thompson would pay child support for their daughter, J.L.T., until the later of her

reaching the age of 18 or graduating from high school. J.L.T. turned 18 in April

2001 and has graduated from high school. The 1992 divorce decree does not note

that J.L.T. had any disability or impairment.

In January 2013—approximately 21 years after entry of the divorce

decree—Smith sued Thompson for support. Smith’s petition alleges that (1) J.L.T.

“requires substantial care and personal supervision because of a mental disability

and is not capable of self–support” and (2) J.L.T “is over the age of eighteen years,

the disability exists now, and the cause of the disability was known to exist on or

before [J.L.T.’s] eighteenth birthday.” Thompson was served with the petition on

March 18, 2013.

On April 23, 2013, Thompson answered, filed a plea in abatement, and

moved to transfer venue to Liberty County, Texas. Thompson argued that venue is

proper in Liberty County, Texas because both J.L.T. and Smith have resided in

1
The underlying case is In the Interest of J.L.T., cause number 2013-03434, pending in
the 246th District Court of Harris County, Texas, the Honorable Jim York presiding.
2
Liberty County for longer than a six month period. Thompson also moved to

dismiss the suit for lack of jurisdiction because the divorce decree did not establish

any disability before J.L.T.’s 18th birthday, and thus Thompson contends that his

support obligation was discharged when J.L.T. turned 18.

The trial court denied Thompson’s motions. In its order, the trial court stated

the following: “After considering the arguments and reviewing the brief and the

Family Code, the Court rules that a hearing is required to determine the facts

regarding the disability/incapacity of the child and its occurrence date. Therefore,

pending the hearing, the Court rules that it has jurisdiction to conduct the hearing

to determine whether or not it has jurisdiction over the interest of the child,

disability and right to support.”

Thompson seeks mandamus relief, requesting that we direct the trial court to

(1) dismiss the underlying case for lack of jurisdiction, and (2) transfer the suit to

Liberty County, Texas.

Discussion

I. Standard of Review

Mandamus relief is available to correct a clear abuse of discretion when

there is no adequate remedy by appeal. See In re Odyssey Healthcare, Inc., 310

S.W.3d 419, 422 (Tex. 2010) (orig. proceeding) (per curiam). A trial court

commits a clear abuse of discretion when its action is “so arbitrary and

3
unreasonable as to amount to a clear and prejudicial error of law.” In re CSX

Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam). A trial

court has no discretion in determining what the law is or in applying the law to the

particular facts. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.

2004) (orig. proceeding).

The Texas Supreme Court has held that remedy by appeal is frequently

inadequate in cases regarding child custody and child support issues. See Proffer v.

Yates, 734 S.W.2d 671, 672–73 (Tex. 1987) (per curiam). The court reasoned that

(1) parents and children “should not be forced to go through a trial that is for

naught” and (2) “[j]ustice demands a speedy resolution of child custody and child

support issues.” Id. at 673.

II. Jurisdiction

Thompson argues that the trial court lacked jurisdiction over the case

because (1) he satisfied the child support obligations set forth in the divorce decree

and (2) the trial court failed to find that J.L.T. had a disability, or the cause of the

disability was known to have existed, before her 18th birthday.

A. The Trial Court’s Continuing, Exclusive Jurisdiction Over Matters
Affecting the Child

When a court renders a final divorce decree, it acquires continuing,

exclusive jurisdiction over the matters in the decree affecting a child of the

marriage. See TEX. FAM. CODE ANN. § 155.001(a) (West 2014) (“Except as

4
otherwise provided by this section, a court acquires continuing exclusive

jurisdiction over the matters provided for by this title in connection with a child on

the rendition of a final order.”); In re Wheeler, 177 S.W.3d 350, 352 (Tex. App.—

Houston [1st Dist.] 2005, orig. proceeding); In re G.R.M., 45 S.W.3d 764, 766

(Tex. App.—Fort Worth 2001, orig. proceeding).

A court retains its jurisdiction over the child absent a transfer of the cause or

one of the enumerated exceptions in the Family Code occurs. See Wheeler, 177

S.W.3d at 352–53 (“The court retains continuing, exclusive jurisdiction over the

child unless jurisdiction has been transferred under sections 155.201 to 155.207 of

the Texas Family Code or an emergency exists.”); see also TEX. FAM. CODE ANN

§§ 155.001(c) (“If a court of this state has acquired continuing, exclusive

jurisdiction, no other court of this state has jurisdiction of a suit with regard to that

child except as provided by this chapter or Chapter 262.”); 155.002 (West 2014)

(“Except as otherwise provided by this subchapter, a court with continuing,

exclusive jurisdiction retains jurisdiction of the parties and matters provided by this

title.”). A court loses its continuing, exclusive jurisdiction if (1) there is an order of

adoption, (2) the parents remarry and file a subsequent suit for divorce combined

with a suit affecting the parent–child relationship, or (3) another court assumed

jurisdiction in error and rendered a final order pertaining to the child. See TEX.

FAM. CODE ANN. § 155.004 (West 2014).

5
In the present case, the trial court has jurisdiction in two ways. First, section

155.001 of the Family Code provides the trial court with continuing exclusive

jurisdiction over the matter; none of the statutory provisions providing for a loss of

such jurisdiction are applicable. Second, even if the trial court lost jurisdiction

because Thompson discharged his court–ordered support obligation when J.L.T.

turned 18, the court still would have jurisdiction to hear an original suit for support

of an adult disabled child. See TEX. FAM. CODE ANN. §§ 154.305(a)(2) (West

2014) (providing that suit for support of adult disabled child may be filed “as an

independent cause of action or joined with any other claim or remedy provided by

this code”); 154.305(b) (West 2014) (“If no court has continuing, exclusive

jurisdiction of the child, an action under this subchapter may be filed as an original

suit affecting the parent–child relationship.”). Accordingly, we hold that the trial

court has jurisdiction over Smith’s suit for support of an adult disabled child.

B. The Trial Court’s Jurisdiction to Determine Whether a Disability
Existed or Was Known to Exist
Section 154.302 of the Family Code provides that the court may order either

or both parents to provide for the support of a child with a disability for an

indefinite period if the court finds that “the disability exists, or the cause of the

disability is known to exist, on or before the 18th birthday of the child.” TEX. FAM.

CODE ANN. § 154.302(a)(2) (West 2014). There is no requirement that the court

make such a finding before the child’s 18th birthday. Rather, the Family Code

6
makes clear that a suit for support of a disabled child can be made at any time. See

TEX. FAM. CODE ANN. §§ 154.305(a)(1) (“A suit under this chapter may be filed

. . . regardless of the age of the child”); 154.301 (West 2014) (defining “child” as

“a son or daughter of any age”).

Reading the plain language of the applicable statutes together, chapter 154

of the Family Code provides that a suit for support of a disabled child can be filed

at any time, but to obtain an order for the support of that child, the court must find

that the child’s disability existed, or the cause of the disability was known to exist,

prior to the child’s 18th birthday. See TEX. FAM. CODE ANN. §§ 154.301;

154.302(a)(2); 154.305(a)(1).

Thompson, however, relies upon Red v. Red, 552 S.W.2d 90 (Tex. 1977) for

the proposition that the trial court lost jurisdiction over this matter because there

has been no prior finding of disability. In Red, the Texas Supreme Court held that a

trial court “may order that payments for the support of the child shall be continued

after the 18th birthday only if the grounds therefore exist and are invoked before

the child becomes an adult; i.e., before reaching age 18.” Red, 552 S.W.2d at 92.

But the court decided Red before the Legislature enacted section 154.305(a)(1) of

the Family Code, which expressly provides that a suit for support of a disabled

child can be filed “regardless of the age of the child.” TEX. FAM. CODE ANN. §

154.305(a)(1). As our sister court has observed, “[t]he statutory support for Red’s

7
specific holding as to disabled children was removed when the legislature added a

provision allowing a parent to sue, ‘regardless of the age of the child,’ for support

that would extend beyond the disabled child’s eighteenth birthday.” Crocker v.

Attorney Gen. of Tex., 3 S.W.3d 650, 652 n.1 (Tex. App.—Austin 1999, no pet.);

see also Act of May 26, 1989, 71st Leg., R.S., ch. 368, § 2, 1989 TEX. GEN. LAWS

1457 (TEX. FAM. CODE ANN. § 14.051(d), recodified at TEX. FAM. CODE ANN. §

154.305(a)(1)). Similarly, after Red, the Legislature supplemented the definition of

“child” to include “a person over 18 years of age for whom a person may be

obligated to pay child support.” See TEX. FAM. CODE ANN. § 101.003 (West 2014);

Crocker, 3 S.W.3d at 652 n.1.

III. Venue

Thompson argues that mandamus relief is warranted because the trial court

abused its discretion in denying his request to transfer the case to Liberty County,

where J.L.T. has resided for more than six months.

A. Availability of Mandamus Relief

A petition for writ of mandamus is generally unavailable as a means of

reviewing decisions regarding venue. See In re Lambdin, No. 07–03–0328–CV,

2003 WL 21981975, at *3 (Tex. App.—Amarillo Aug. 20, 2003, orig. proceeding)

(mem. op.) (citing In re Kramer, 9 S.W.3d 449, 450 (Tex. App.—San Antonio

1999, orig. proceeding); Scanio v. McFall, 877 S.W.2d 888, 891 n.3 (Tex. App.—

8
Amarillo 1994, orig. proceeding)). An exception to this rule arises, however, when

the trial court has a mandatory, ministerial duty to transfer the cause and refuses to

do so. See id. (citing Proffer, 734 S.W. at 672–73 (Tex. 1987); In re Calderon, 96

S.W.3d 711, 715 (Tex. App.—Tyler 2003, orig. proceeding)); see also In re

Compton, 185 S.W.3d 526, 527 (Tex. App.—Houston [14th Dist] 2006, orig.

proceeding) (“An erroneous denial of a mandatory venue transfer is subject to

mandamus relief without a showing of inadequate remedy by appeal.”) (citing In re

Tex. Ass’n of Sch. Bds., Inc., 169 S.W.3d 653, 656 (Tex. 2005)).

Transferring a case to a county where the child has resided for more than six

months is a mandatory ministerial duty under section 155.201 of the Family Code.

See TEX. FAM. CODE ANN. § 155.201 (West 2014); Proffer, 734 S.W.2d at 673

(referring to the original enactment in section 11.06 of the Texas Family Code);

Bollard v. Berchelmann, 921 S.W.2d 861, 863 (Tex. App.—San Antonio 1996,

orig. proceeding). An order transferring or refusing to transfer the proceeding is

not subject to interlocutory appeal. See TEX. FAM. CODE ANN. § 155.204(h) (West

2014). Therefore, mandamus is available to compel mandatory transfer in a suit

affecting the parent–child relationship. See Wheeler, 177 S.W.3d at 352 (citing

Proffer, 734 S.W.2d at 672–73; In re Sanchez, 1 S.W.3d 912, 914 (Tex. App.—

Waco 1999, orig. proceeding)).

9
Because there is no adequate remedy by appeal for contesting a denial of a

motion to transfer venue in a child support case, the only issue is whether the trial

court’s denial of Thompson’s motion to transfer was an abuse of discretion. We

hold that it was not.

B. Timeliness of the Motion to Transfer Venue

Section 155.201(b) of the Family Code provides for the mandatory transfer

of venue for a modification case upon the timely motion of a party. See TEX. FAM.

CODE ANN. § 155.201(b) (“If a suit to modify or a motion to enforce an order is

filed in the court having continuing, exclusive jurisdiction of a suit, on the timely

motion of a party the court shall . . . transfer the proceeding to another county in

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

With certain exceptions not applicable to the present case, section 155.204(b) of

the Family Code provides that:

a motion to transfer by a petitioner or movant is timely if it is made at
the time the initial pleadings are filed. A motion to transfer by another
party is timely if it is made on or before the first Monday after the
20th day after the date of service of citation or notice of the suit or
before commencement of the hearing, whichever is sooner.
TEX. FAM. CODE ANN. § 155.204(b). The timeliness of a motion to transfer depends

upon whether the movant is a “petitioner” or “other party.” Bollard, 921 S.W.2d at

864.

10
Thompson was served with citation in the underlying suit on March 18, 2013

and filed his answer, motion to transfer, and plea in abatement on April 23, 2013.

Smith claims that Thompson was “another party” under section 155.204(b) and,

thus, missed the deadline to file his motion to transfer because the first Monday

after the 20th day after service of citation was April 8, 2013.

Thompson responds that his motion was timely because “[a] motion to

transfer by petitioner or movant is timely if it is made at the time the initial

pleadings are filed.” (Pet. at 19). Thompson cites Bollard and In re Lender, 263

S.W.3d 283 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding [mand.

denied]) in support of his argument. These cases, however, hold that a motion is

timely filed by a counter–petitioner if the motion to transfer is filed with the

counter–petition. Thompson seeks no relief modifying matters affecting the

parent–child relationship; he is not a counter–petitioner. The court in Bollard also

rejected the argument that any party filing a motion to transfer should be

considered a “movant” under section 155.204(b) of the Family Code. See Bollard,

921 S.W.2d at 864 n.2 (“To read ‘movant’ as the party who files the motion to

transfer would render meaningless the reference to ‘any other party.’”) (citing

Martinez v. Flores, 820 S.W.2d 937, 939 n.2 (Tex. App.—Corpus Christi 1991,

orig. proceeding)).

11
Thompson could only be considered a “petitioner or movant” if he filed a

counter–petition or a motion to modify matters affecting the parent–child

relationship. See Wheeler, 177 S.W.3d. at 354. He did not. Accordingly, we hold

that Thompson was “another party” under section 155.204(b) of the Family Code.

Thus, his motion to transfer venue was due on April 8, 2013, rendering his April

23, 2013 filing untimely. Because Thompson’s motion to transfer was untimely,

transfer of the case was not mandatory and the trial court was within its discretion

to deny the motion.

Conclusion

The trial court acted within its discretion in denying Thompson’s motions to

dismiss the suit for lack of jurisdiction and to transfer venue; accordingly, we deny

the petition for writ of mandamus. Further, we deny Thompson and Smith’s

motions for sanctions against each other. We dismiss Smith’s motion for

reconsideration of the stay granted by this court pending our determination on the

petition for mandamus as moot.

Jane Bland
Justice

Panel consists of Justices Keyes, Bland, and Brown.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3105895. Public record. Not legal advice.