in Re Jessica Bachelor, 01-15-00287-CV

Background

Relator Jessica Bachelor filed for divorce and child custody in Harris County on Oct 2, 2014; her child and she resided in Harris County.
Real party in interest Eric Bachelor filed a competing divorce and custody suit in Smith County on Oct 8, 2014.
Smith County granted an abatement of Eric’s Smith County suit on Dec 4, 2014.
Eric filed a plea in abatement and a motion to transfer in Harris County on Dec 12, 2014.
Harris County Judge Prine granted the Harris County plea in abatement on Jan 27, 2015 and later granted transfer to Smith County on Feb 20, 2015, after relator had lived in Harris County more than 90 days.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Harris County abused its discretion by abating the Harris County suit after Smith County previously abated its action	Bachelor: Harris County suit was filed first and residency requirement was met; second abatement improperly suspends the first-filed action	Eric: Sought abatement and transfer to avoid multiplicity; asserted procedural or venue grounds supporting abatement/transfer	Trial court granted abatement in Harris County (1/27/2015) in favor of Smith County action
Whether granting transfer after abatement was improper or waived	Bachelor: Transfer was improper because real party pursued abatement first and thereby waived the transfer; relator met residency so case should remain in Harris County	Eric: Simultaneously filed plea in abatement and motion to transfer and later obtained rulings favoring transfer	Trial court granted transfer to Smith County (2/20/2015)
Whether transfer violated Texas Family Code residency rule (suit affecting parent–child relationship)	Bachelor: Child and mother resided in Harris County >90 days (actually ~140 days); Family Code §103.001 requires original suit in county of child’s residence, so transfer was unlawful	Eric: (Implicit) venue/priority or other exceptions justify transfer	Trial court ordered transfer despite relator’s asserted >90-day residency
Whether mandamus is appropriate to remedy venue/abatement in custody case	Bachelor: Mandamus is appropriate because suits affecting parent–child relationship require prompt resolution and ordinary appeal may be inadequate	Eric: Venue questions are usually interlocutory and correctable on appeal; mandamus not warranted	Relator seeks writ of mandamus to vacate abatement and transfer orders; petition invokes the exceptional mandamus standard for child-custody venue disputes

Key Cases Cited

In re Prudential Ins. Co. of Am., 145 S.W.3d 124 (Tex. 2004) (mandamus requires clear abuse of discretion and lack of adequate appellate remedy)
Missouri Pac. R.R. Co., 998 S.W.2d 212 (Tex. 1999) (suits affecting parent–child relationship present circumstances where ordinary appeal may be inadequate)
In re Nicolette Milton, 420 S.W.3d 245 (Tex. App.—Houston [1st Dist.] 2013) (mandamus appropriate where custody/venue issues require expedited, non-appealable relief)
In re Green, 385 S.W.3d 665 (Tex. App.—San Antonio 2012) (mandamus relief directed where residence requirement for venue was not satisfied)
In re Calderon, 96 S.W.3d 711 (Tex. App.—Tyler 2003) (parental venue disputes may be exempt from ordinary appellate adequacy)
Dallas Fire Ins. Co. v. Davis, 893 S.W.2d 288 (Tex. App.—Fort Worth 1995) (first-filed action principles and interplay of abatement rules)
Hoffman v. Hoffman, 821 S.W.2d 3 (Tex. App.—Fort Worth 1992) (abatement appropriate until residency requirements are met)