in Re Callie Sheard
01-15-01027-CV
Tex. App.Dec 7, 2015Background
- Mother (Callie Sheard) filed a Petition to Modify the parent‑child relationship and a timely Motion to Transfer the SAPCR from Harris County to Montgomery County because the child had lived in Montgomery County for more than six months.
- The O'Dells (maternal great aunt and uncle) were serving as joint managing conservators under a June 18, 2013 Harris County order.
- Respondents filed a Motion for Reappointment of Attorney ad Litem (Juli Crow); the court signed an order appointing the ad litem on November 10, 2015 without a noticed hearing to Sheard.
- The court sua sponte set a hearing for November 17, 2015. At that hearing the court allowed the O'Dells to argue first, reappointed the ad litem again, and denied Sheard's Motion to Transfer.
- The O'Dells filed a controverting affidavit on November 18, 2015 (after the court’s November 17 oral ruling); Sheard contends the affidavit was untimely, unverified, and failed to deny the statutory grounds for transfer.
Issues
| Issue | Plaintiff's Argument (Sheard) | Defendant's Argument (O'Dells) | Held (trial‑court action) |
|---|---|---|---|
| Whether the trial court must transfer the SAPCR to the county where the child has resided six months or longer under Tex. Fam. Code §155.201(b) | Motion to transfer was timely filed and the child resided in Montgomery >6 months, so transfer was mandatory and ministerial | Opponents preferred Harris County because the court is familiar with the history; they argued convenience and continuity justify staying | Trial court denied the Motion to Transfer at the November 17 hearing (court orally rendered Motion Denied; later signed order denying transfer) |
| Whether respondents timely filed a controverting affidavit under Tex. Fam. Code §155.204(d) | No controverting affidavit was on file by the statutory deadline (first Monday after the 20th day after service), so the transfer should have been automatic | Filed a controverting affidavit (but did so after the court’s November 17 ruling) asserting best‑interest and inconvenience concerns | Controverting affidavit was filed November 18 (after hearing); court nevertheless proceeded and denied transfer |
| Whether the appointment/reappointment of the Attorney ad Litem complied with notice and hearing requirements (Tex. R. Civ. P. 21 and Family Code §107.021) | Initial order (Nov. 10) was signed without notice or a hearing; reappointment at the Nov. 17 hearing was improper because transfer was mandatory (or, at minimum, Sheard was not given procedural opportunity to be heard first) | O'Dells argued reappointment was necessary because Crow had institutional knowledge and the parties could pay fees | Court reappointed Juli Crow as Attorney ad Litem (order signed Nov. 10 and again Nov. 18) |
| Whether the trial court had authority to make non‑temporary rulings (including permanent appointment of an ad litem) after a mandatory transfer motion was ripe and uncontested | If transfer was mandatory and uncontested, the transferring court lost jurisdiction to make permanent rulings; Montgomery County should decide ad litem issues | O'Dells argued the court retained discretion and practical reasons favored Harris County | Court made a permanent ad litem appointment and denied transfer despite relator's assertion the transfer was mandatory |
Key Cases Cited
- In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (standards for abuse of discretion in mandamus review)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus principles and when extraordinary relief is appropriate)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus two‑prong test and abuse‑of‑discretion framework)
- In re Leder, 263 S.W.3d 283 (Tex. App.—Houston [1st Dist.] 2007) (orig. proceeding) (mandamus appropriate to compel mandatory transfer under Family Code)
- Proffer v. Yates, 734 S.W.2d 671 (Tex. 1987) (holding transfers for child residence > six months are ministerial)
- Silverman v. Johnson, 317 S.W.3d 846 (Tex. App.—Austin 2010) (no pet.) (trial court abuses discretion by making permanent rulings that should await transferee court when mandatory transfer is required)