                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-16-00359-CV

                                IN RE TROY PAUL


                                Original Proceeding



                          MEMORANDUM OPINION


      A suit for divorce may not be maintained in this state unless at the time the
      suit is filed either the petitioner or the respondent has been:

          (1) a domiciliary of this state for the preceding six-month period; and

          (2) a resident of the county in which the suit is filed for the preceding
              90-day period.

      TEX. FAM. CODE ANN. § 6.301 (West 2006) (emphasis added).

For a second time, we are asked to determine whether the respondent, Judge William

Bosworth of the 413th Judicial District Court, abused his discretion by finding that an

informal marriage existed between relator Troy Paul and real party in interest Destiny

Spillers and awarding interim attorney’s fees to Destiny from Troy. See generally In re
Paul, No. 10-16-00004-CV, 2016 Tex. App. LEXIS 4766 (Tex. App.—Waco May 5, 2016,

orig. proceeding) (mem. op.). At issue in the first mandamus was the trial court’s award

of $425,000 in interim attorney’s fees to Destiny; however, the trial court has since

awarded Destiny an additional $331,000 in interim attorney’s fees, for a sum total of

$756,000. See id. at *3. In the first mandamus, we concluded that the record evidence

failed to establish that Destiny had met the ninety-day-residency requirement of section

6.301 of the Family Code at the time she filed her counter-petition for divorce. See id. at

*7. Despite more than three-quarters of a million dollars in interim attorney’s fees

awarded, we once again conclude that Destiny has not satisfied the residency

requirement of section 6.301 because the mandamus record does not show that she has

filed an amended divorce petition after establishing residence in Johnson County for

ninety days. We cannot get to the merits of any issue until the petitioner is properly

before the trial court, and she is not yet there. Accordingly, we conclude that the

respondent abused his discretion in entering the complained-of orders and, thus,

conditionally grant Troy’s petition for writ of mandamus.

                                      I.     BACKGROUND

        Many of the underlying facts in this dispute were recited in the first mandamus.

See id. at **1-3. After the issuance of our memorandum opinion in the first mandamus on




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May 5, 2016, the trial court conducted a hearing on the residency requirement. 1 At the

hearing on August 31, 2016, Destiny testified that she has rented a house on Vaden

Avenue in Burleson, Texas, for ninety-one days before the hearing. Destiny confirmed

that the house is located in Johnson County and that she intends to remain a resident of

Johnson County. Despite this testimony, nothing in the mandamus record indicates that

Destiny filed an amended divorce petition asserting that she now satisfies the ninety-day

residency requirement of section 6.301 of the Family Code based on her lease of a house

on Vaden Avenue. See TEX. FAM. CODE ANN. § 6.301. In any event, the trial court

concluded that Destiny is a resident of Johnson County and that she satisfied the ninety-

day residency requirement. At a later hearing on September 26, 2016, the trial court

ordered that Troy pay to Destiny the original $425,000 in interim attorney’s fees, as well

as $331,000 in additional interim attorney’s fees, for a sum total of $756,000 in interim

attorney’s fees. The trial court also ordered Troy to pay temporary spousal support to

Destiny and reaffirmed its earlier finding that Destiny met her prima-facie burden of

proving that an informal marriage existed between Troy and her. Thereafter, Troy filed

a petition for writ of mandamus in this matter.




        1The record reflects that Troy requested additional discovery regarding the residency issue;
however, the trial court denied that request.


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                                   II.    STANDARD OF REVIEW

        Mandamus is an extraordinary remedy that will issue only to correct a clear abuse

of discretion when there is “no adequate remedy by appeal.” In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding) (citations omitted). “A trial

court has no ‘discretion’ in determining what the law is or applying the law to the facts.”

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “Thus, a clear failure by the trial court

to analyze or apply the law correctly will constitute an abuse of discretion.” Id. (citations

omitted). In addition, a trial court clearly abuses its discretion if it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. at 839.

Regarding the resolution of factual issues or matters committed to the trial court’s

discretion, relator must establish that the trial court could reasonably have reached only

one decision. Id. at 839-40. We cannot disturb the trial court's decision unless it is shown

to be arbitrary and unreasonable, even if we would have decided the issue differently.

Id. at 840.

        With respect to the “adequate remedy by appeal” prong, the Texas Supreme Court

has noted that the operative word, “adequate,” does not have a comprehensive

definition. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. “Instead, it is simply a proxy

for the careful balance of jurisprudential considerations that determine when appellate

courts will use original mandamus proceedings to review the actions of lower courts.” In

re Reynolds, 369 S.W.3d 638, 646 (Tex. App.—Tyler 2012, orig. proceeding) (citing In re



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Prudential Ins. Co. of Am., 148 S.W.3d at 136). “These considerations include both public

and private interests, and the determination is practical and prudential rather than

abstract or formulaic.” Id. (citing In re Prudential Ins. Co. of Am., 148 S.W.3d at 136).

Therefore, an appellate remedy may be inadequate when the benefits to mandamus

review outweigh the detriments. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462,

468-69 (Tex. 2008) (orig. proceeding); In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.

2008) (orig. proceeding). “Mandamus will not issue when the law provides another,

plain, adequate, and complete remedy.” In re Tex. Dep't of Family & Protective Servs., 210

S.W.3d 609, 613 (Tex. 2006).

                                          III.   ANALYSIS

        In his seventh issue, Troy complains about the trial court’s handling of the

residency issue. As noted in the first mandamus and above, section 6.301 of the Family

Code provides the following:

        A suit for divorce may not be maintained in this state unless at the time the
        suit is filed either the petitioner or the respondent has been:

             (3) a domiciliary of this state for the preceding six-month period; and

             (4) a resident of the county in which the suit is filed for the preceding
                 90-day period.

TEX. FAM. CODE ANN. § 6.301 (emphasis added). Numerous courts have held that section

6.301 is not jurisdictional, but it controls a petitioner’s right to sue for divorce; in other

words, it is a mandatory requirement that cannot be waived. See In re Milton, 420 S.W.3d



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245, 252 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding); In re Green, 385 S.W.3d

665, 668 (Tex. App.—San Antonio 2012, orig. proceeding) (“Although section 6.301 is not

itself jurisdictional, it is akin to a jurisdictional provision because it controls a party’s right

to maintain suit for divorce and is a mandatory requirement that cannot be waived.”); In

re Marriage of Lai, 333 S.W.3d 645, 648 (Tex. App.—Dallas 2009, orig. proceeding) (holding

that a trial court cannot maintain a suit for divorce unless the residency requirements are

met); Reynolds v. Reynolds, 86 S.W.3d 272, 276 (Tex. App.—Austin 2002, no pet.); McCaskill

v. McCaskill, 761 S.W.2d 470, 473 (Tex. App.—Corpus Christi 1988, writ denied) (“Though

not jurisdictional, the residency requirement protects the interests of the State as well as

the parties, and cannot be waived by the parties.”); see also In re Paul, 2016 Tex. App.

LEXIS 4766, at *5. “Residency must be established as of the date the suit for divorce is filed; it is

not enough that ninety days of residency will pass during the pendency of the divorce proceeding.”

In re Milton, 420 S.W.3d at 252 (citing In re Rowe, 182 S.W.3d 424, 426 (Tex. App.—Eastland

2005, orig. proceeding) (emphasis added)). “The public policy behind these requirements

is to prevent forum shopping by divorce litigants.” Id. (citing Reynolds, 86 S.W.3d at 277).

        “However, because section 6.301 requires the residency requirements to be met ‘at

the time the suit is filed,’ if the requirements are not met at the time of the original

petition, the petitioner must file an amended petition to allow the suit to proceed.” Id. at

266 (Keyes, J., dissenting) (citing TEX. FAM. CODE ANN. § 6.301; In re Rowe, 182 S.W.3d at

426) (stating that it is not enough that ninety days of residence in a county will pass



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during the pendency of the proceeding) (emphasis in original); see Hoffman v. Hoffman,

821 S.W.2d 3, 5-6 (Tex. App.—Fort Worth 1992, no writ) (holding that the trial court

should abate until the petitioner meets the residency requirements, at which point the

petitioner may file an amended petition showing compliance with the requirements).

“Thus, when the petitioner does not meet section 6.301’s residency requirements at the

time he files his original petition, an affirmative act from him is required to allow the case

to proceed, even if he otherwise satisfies the ninety-day requirement during the pendency

of the case.” In re Milton, 420 S.W.3d at 266 (citing In re Rowe, 182 S.W.3d at 426); see

Hoffman, 821 S.W.2d at 5-6.

        Here, the mandamus record includes what appears to be Destiny’s live pleading—

her third amended original answer and counter-petition for divorce filed on November

23, 2015. In this filing, Destiny asserted that she “has been a domiciliary of Texas for the

preceding six-month period and a resident of this county for the preceding ninety-day

period.” However, at the hearing conducted on August 31, 2016, Destiny testified that

she signed the lease to the house on Vaden Avenue on May 31, 2016. And using this date,

Destiny argued that she has met the ninety-day residency requirement.                 This is

problematic because the mandamus record does not show that Destiny filed an amended

petition for divorce ninety days after May 31, 2016—the date she allegedly established

residency in Johnson County.




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        Because Destiny has not filed an amended petition for divorce ninety days after

May 31, 2016, and because it is undisputed that Troy lives in Oklahoma and has no intent

to ever reside in Johnson County, we conclude that the trial court abused its discretion in

determining that Destiny satisfied the residency requirements of section 6.301. See TEX.

FAM. CODE ANN. § 6.301; In re Milton, 420 S.W.3d at 252, 266; In re Green, 385 S.W.3d at

668; In re Rowe, 182 S.W.3d at 426. And as such, Destiny cannot maintain her suit for

divorce until this deficiency is cured. See In re Marriage of Lai, 333 S.W.3d at 648.

                           IV.     AVAILABILITY OF MANDAMUS RELIEF

        The Texas Supreme Court, in In re Prudential, held that review of significant rulings

in exceptional cases may be essential to: (1) preserve a relator’s substantive or procedural

rights from impairment or loss; (2) allow appellate courts to give needed and helpful

direction to the law that would otherwise prove elusive in an appeal from a final

judgment; and (3) prevent the waste of public and private resources invested into

proceedings that would eventually be reversed. See 148 S.W.3d at 136; see also In re Green,

385 S.W.3d at 671. The Texas Supreme Court mandated that when the benefits outweigh

the detriments, we must consider whether the appellate remedy is adequate. In re

Prudential Ins. Co. of Am., 148 S.W.3d at 136. To do so, we employ a balancing test to

determine whether an adequate remedy on appeal exists. Id. at 135-37. “Whether an

appellate remedy is adequate so as to preclude mandamus review depends heavily on




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the circumstances presented.” In re Green, 385 S.W.3d at 671 (citing In re Prudential Ins.

Co. of Am., 148 S.W.3d at 137).

        As previously stated, the record does not reflect that Destiny filed an amended

petition for divorce ninety days after May 31, 2016. Additionally, it remains true that

Troy does not live in Johnson County. Thus, the record still does not indicate that the

ninety-day residency requirement of section 6.301 has been satisfied in this case.

Accordingly, because section 6.301 of the Family Code is mandatory and cannot be

waived, any judgment in this case would eventually be reversed and, thus, amount to a

waste of public and private resources invested into the proceedings. See TEX. FAM. CODE

ANN. § 6.301; In re Milton, 420 S.W.3d at 252; In re Green, 385 S.W.3d at 668; In re Marriage

of Lai, 333 S.W.3d at 648; Reynolds, 86 S.W.3d at 276; McCaskill, 761 S.W.2d at 473. We

therefore conclude that a balancing of the benefits and detriments yields a finding that

Troy lacks an adequate remedy by appeal and mandamus relief is warranted. See id.; see

also In re Prudential Ins. Co. of Am., 148 S.W.3d at 136-37.

                                        V.      CONCLUSION

        Based on the foregoing, we hold that the trial court abused its discretion in

determining that the ninety-day residency requirement was met.            Accordingly, we

conditionally grant Troy’s petition for writ of mandamus and lift our stay order of

October 31, 2016. And because the net effect of conditionally granting Troy’s mandamus

results in the vacatur of the trial court’s informal-marriage finding and interim attorney’s



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fees awards, we express no opinion regarding Troy’s other arguments in his mandamus

petition. See, e.g., In re Milton, 420 S.W.3d at 255.




                                                    AL SCOGGINS
                                                    Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Conditionally granted
Opinion delivered and filed May 3, 2017
[OT06]




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