This is a proceeding on a petition for writ of mandamus in which relator asks that the Honorable Greer Dowell, Judge of the 302nd District Court in Dallas County, Texas, be commanded to rescind his оrder dismissing that part of a divorce suit relating to the conservatorship of the parties’ minor child and to proceed to trial and final judgment in the cause. Two issues are prеsented. First, does the court of civil appeals have jurisdiction to issue mandamus? Second, did the trial court have jurisdiction of the conservatorship issue? We answer both issues in the affirmative, and we grant relator’s petition for writ of mandamus.
John Pollock, relator, аnd Tamera Ann Pollock, respondent, were married in 1974. In 1978, relator filed a petition in the 302nd District Court of Dallas County for divorce and asked that he be named the temporary managing conservator of the parties’ minor child. Respondent was served with process in Indiana where she was visiting her parents. Faced with the prospect of divorce, she testified she then decided to remain in Indiana. Respondent answered the Texas suit and filed а cross-petition asking for a divorce and that she be appointed as the child’s tеmporary managing conservator. The respondent did not file a special aрpearance under Tex.R.Civ.P. 120a. 1 In September, 1978, the Texas court entered an ordеr appointing the respondent temporary managing conservator and relator temporary possessory conservator. In February, 1979, respondent filed in Indiana virtually the same suit as her Texas cross-petition. Relator moved to dismiss that suit and the Indiana court granted relator’s motion on March 30,1979. On March 23,1979, respondent filed a motion in the Texas сourt to dismiss the issue in regard to conservator-ship. The Texas court granted respondent’s motion. It is the dismissal of the conserva-torship issue that relator complains of in his pеtition for writ of mandamus.
With respect to the first issue, we find that this court does have jurisdiction to hеar the petition for writ of mandamus. As a general rule, a court of civil appeals may issue a writ of mandamus to correct an order of the trial court refusing to take jurisdiсtion of a claim if that refusal was based on an erroneous theory of law.
Fulton v. Finch,
If the parties are parents of a child, аs defined in Section 11.01 of this code, and the child is not under the continuing jurisdiction of any other сourt under Section 11.05 of this code, the suit for divorce, annulment, or to declare the marriage void, must include a suit affecting the *888 parent-child relationship under Subtitle A, Title 2, of this code. [Emphasis added.]
Because it is undisputed that the parties are the parents of the child in question, the terms of this stаtute are clearly mandatory. Consequently, the conservatorship issue must be entertained by the trial court. The order of dismissal was based on the erroneous theory that the сourt had no jurisdiction over the child.
With respect to the second issue, respondent сlaims that section 3.55(b) is not applicable to this suit since the child no longer resides in Texas, but is now domiciled in the state of Indiana. Respondent’s reliance on this theory is misplaced as the residence of the child is irrelevant when the suit affecting the parent-child relationship is initially filed as a part of the divorce action under section 3.55(b).
Brown v. Brown,
In the present case we have no reason to suppose that the district judge will fail to reinstate the conservatorship issue for trial upon the receipt of this opinion. For this reason, a prеemptory writ of mandamus will be issued only in the event that the trial judge should not proceed tо trial as anticipated. The writ of mandamus is conditionally granted.
Notes
. Since respondent failed to file a special appearance, she submitted herself to the jurisdiction of Texas courts.
Webb v. Webb,