IN RE: VIRGINIA ROSE FREEMAN (2017)

MEMORANDUM OPINION

This proceeding involves a contentious and protracted child custody dispute between the relator, Virginia Rose Freeman, and the real party in interest, Cezar Gonzalez Dominguez. Relator has filed in this court an original mandamus proceeding in which she seeks to compel the judge of the 446th District Court of Ector County, the Honorable Sara Kate Billingsley, to vacate two orders: a March 10, 2017 order granting a motion for new trial and a March 20, 2017 order denying a motion to transfer the cause to Kaufman County. Relator also asks that we require Judge Billingsley to enter orders of affirmative relief related to these two matters. We conditionally grant in part Relator's petition for writ of mandamus.

On October 3, 2016, the trial court signed a final order in a suit to modify the parent-child relationship. The order was based in part on jury findings. Dominguez filed a motion for new trial, and the trial court held a hearing on that motion in early November 2016. According to the parties, the trial court ruled in open court at that hearing that the motion for new trial was granted. However, the trial court did not sign a written order granting a new trial until March 10, 2017, well after the deadline imposed by Rule 329b of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 329b(c), (e).

A new trial can be granted only by a written order signed by the trial court. TEX. R. CIV. P. 329b(c); In re Lovito-Nelson, 278 S.W.3d 773, 775 (Tex. 2009) (noting the importance of this “bright-line rule”). With respect to the motion for new trial in this case, the trial court's ruling in open court had no effect, and the trial court lost plenary power to grant a new trial 105 days after it signed the October 3, 2016 final order. See TEX. R. CIV. P. 329b(c), (e); Lovito-Nelson, 278 S.W.3d at 776. The trial court did not enter a written, signed order granting a motion for new trial until March 10, 2017, 158 days after October 3, 2016.

In his response to the petition for writ of mandamus, Dominguez asserts that the trial court acted properly when it granted the motion for new trial because it retained plenary power over the underlying cause. Dominguez seems to reason that, either because a trial court generally retains continuing jurisdiction in a suit that involves the parent-child relationship or because Dominguez filed a new petition to modify the parent-child relationship on the same day that he filed his motion for new trial, the trial court did not lose plenary power to act. We disagree.

Despite a trial court's continuing jurisdiction in a suit that involves the parent-child relationship, a trial court that has entered a final order in such a suit does not retain plenary power to grant a new trial after the Rule 329b deadlines. See Lovito-Nelson, 278 S.W.3d at 776. A trial court does, however, retain continuing, exclusive jurisdiction over the parties and may, based upon a new petition to modify, modify a previous conservatorship order. See TEX. FAM. CODE ANN. § 156.001 (West 2014); Blank v. Nuszen, No. 01-13-01061-CV, 2015 WL 4747022, at *2 (Tex. App.—Houston [1st Dist.] Aug. 11, 2015, no pet.) (mem. op.). Each modification proceeding results in a final order. See Blank, 2015 WL 4747022, at *2. A suit for modification filed after the rendition of a final order in a suit affecting the parent-child relationship constitutes an original lawsuit. See FAM. § 156.004; Blank, 2015 WL 4747022, at *2; Normand v. Fox, 940 S.W.2d 401, 403 (Tex. App.—Waco 1997, no writ) (stating that a suit for modification is a new lawsuit). Dominguez's filing of a new petition to modify did not alter the trial court's plenary power with respect to its October 3, 2016 final order on Relator's prior petition to modify.

We find the Texas Supreme Court's opinion in Lovito-Nelson to be instructive here. In that case, which also involved a final order in a suit affecting the parent-child relationship, the supreme court held that mandamus relief was appropriate where the trial court had signed a written order granting a motion for new trial after the trial court's plenary power had expired. 278 S.W.3d at 774–76. Likewise, mandamus relief is appropriate here because, on March 10, 2017, when it signed the order granting a new trial, the trial court had lost plenary power with respect to the October 3, 2016 order. The appropriate relief in this case is for this court to direct the trial court to vacate its March 10, 2017 order. See id. at 776. We decline to grant Relator's request to require the trial court to enter an order to affirm that the operative order is the October 3, 2016 order. An order vacating the March 10, 2017 order will have the desired effect, and Relator is not entitled to the requested affirmative relief.

Relator also requests mandamus relief with respect to a March 20, 2017 order in which the trial court denied Relator's motion to transfer the underlying proceeding to Kaufman County. In her motion to transfer, which was filed in the trial court on October 5, 2016, Relator indicated that transfer was proper because the children had resided in Kaufman County “during the six-month period preceding the commencement of this suit.” We understand Relator's reference to “this suit” to mean the suit that was commenced when Dominguez filed his petition to modify in September 2016. After Dominguez filed a response to Relator's motion to transfer, the trial court held a hearing on the motion to transfer, noted that the motion for new trial was still pending, ruled that transfer was not mandatory, and denied the motion to transfer.

Relator relies on the mandatory transfer provision of Section 155.201(b) in support of her contention. See FAM. § 155.201(b). That section provides:

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.

We agree with Relator that mandamus is available to compel mandatory transfer under Section 155.201(b) in suits affecting the parent-child relationship. See Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding); In re Lovell-Osburn, 448 S.W.3d 616, 622–23 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding). However, we do not agree that Section 155.201(b) controls this case.

Section 155.201(c) provides an exception to the provisions of Section 155.201(b). Under that exception, “If a suit to modify ․ is pending at the time a subsequent suit to modify ․ is filed, the court may transfer the proceeding as provided by Subsection (b) only if the court could have transferred the proceeding at the time the first ․ suit was filed.” FAM. § 155.201(c) (emphasis added). When Dominguez filed his petition to modify in September 2016, he also filed a motion for new trial with respect to the previous suit—the suit on Relator's 2015 petition to modify and Dominguez's 2015 counterpetition. The trial court did not sign its order in the previous suit until October 2016. Thus, the previous suit was still pending in September 2016 when Dominguez filed the subsequent suit to modify, and Section 155.201(c) applies. We conclude that, because Section 155.201(c) applies, Relator has not shown that the trial court had a ministerial duty to transfer the cause. Accordingly, we deny Relator's request for mandamus relief related to her motion to transfer the underlying cause to Kaufman County.

We conditionally grant in part Relator's petition for writ of mandamus. The Honorable Judge Sara Kate Billingsley is directed to vacate her March 10, 2017 order granting a new trial. In all other respects, Relator's petition for writ of mandamus is denied. A writ of mandamus will issue only if Judge Billingsley fails to act by June 30, 2017.

JIM R. WRIGHT CHIEF JUSTICE