                                                                                                   ACCEPTED
                                                                                               06-15-00027-CV
                                                                                   SIXTH COURT OF APPEALS
Jul 02 15 03:28p
                                                                                         TEXARKANA, TEXAS
                                                                                        p.17/7/2015 2:20:55 AM
                                                                                              DEBBIE AUTREY
                                                                                                        CLERK




                                                                           FILED IN
                                                                    6th COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                    7/7/2015 8:04:00 AM
                                                                        DEBBIE AUTREY
                                    hlo. 0615-00027-Cv                      Clerk




                                  In the Court of Appeals

                                   Sixth Judicial Dietrict

                                     Terarkanar Texas



                           In rc STACEY IIIANE SARTOR, Relator



                   RESPONSE, TO REAL PARTY IN n'TEREST'S RESPONSE TO
                            PETITION FOR WRIT OF MANDAMUS

                                           lv{arianne Howlurd
                                           State Bar No. 24055693
                                           Gle,n Wietzel
                                           State Bar No. 24047704
                                           1910 Forest I.n-
                                          Garlan4 TX75M?
                                          Tel:214.288.1731
                                          Fax 214.853.5835
                                          mhowland@dlivcustody, com




                                                                        Sartor f ResJrnse
                                                                            Pag" 1 ofll
Identity of Parties and Counsel

       The following is a list of all parties and all counsel who have appeared in

this matter:

Relator: STACEY DIANE SARTOR

Attorneys for Relator in the trial court: Marianne Howland, 1940 Forest Ln.,

Garland,   TX 75A42, State Bar No. 24055693 and Glen Wietzel,     1940 Forest Ln.,

Garland, TX75042, State Bar No. 24047704.

Respondent: ERIC CLIFFORD

Attorney for Respondent in the trial court: N/A

Real party in interest: JASON SARTOR

Attomey for real party in interest in the trial court: Jennifer Gibo. 109 1" Street

SE, Paris, Texas 75460, State Bar No. 24032343.

Table of Contents

Index of Authorities                                                               IV

PETITION FOR WRIT OF MANDAMUS                                                       1



I.    Statement of the Case                                                        4

il.   Statement of Jurisdiction                                                    4

ru.   Issues Presented                                                             4

      Issue    No. I

ry.   Statement of Facts                                                           4
                                                                    Sartor I Response
                                                                         Page 2 of11
V.    Argument and Authorities

      A.        Standard of Review: Availabilitv of Mandamus Relief

       B.       Issue   No.   1: Respondent abused his discretion when he denied   Motion

      to Transfer Venue

Prayer

Certification

Certfficate of Service

APPENDICES: The followine documents are attached                  to this petition    and

incorporated in it for all purposes.

Appendix    A:          Affidavit of STACEY DIANE SARTOR

Appendix    B:          Attached to this Response are the following documents:

      A certified copy of the First Amended Motion to Transfer Venue.

Appendix    C:          Affidavit of Marianne Howland, one of the attorneys for

Relator.

Statement of the Case

      1.        The underlying suit is a suit to modiff parent-child relationship, in

which Relator filed a motion to transfer venue.

      2.        Respondent denied Relator's motion to transfer venue on May 5,2015.

      3.        Respondent is ERIC CLIFFORD, Judge          of the 6rH Judicial District

Court of Lamar County, Texas, whose address is 119 N. Main St. Paris, Texas
                                                                         Sartor I Response
                                                                              Page 3 ofll
75460.

Statement of Juris diction

         This Court has jurisdiction to issue a writ of mandamus under section 6 of

article V of the Texas Constitution and section 22.221(a) of the Texas Government

Code.

Issues Presented by Real Party in Interest

Issue No. 1: Respondent abused his discretion when he denied Relator's First

Amended Motion to Transfer Venue.

         Texas Family Code Section 155.201 states that            "if a suit to modiff or a
motion to enforce          arL   order   is filed in the court having continuing,   exclusive

jurisdiction of a suit, on the timely motion of a party the court shall, within the

time required by Section 155.204, transfer the proceeding to another county in this

state   if the child   has resided in the other county for six months or longer.

Statement of Facts

         Relator, STACEY DIANE SARTO& resides in Hunt County, Texas with

the children the subject of this suit. Relator resided in Hopkins County with the

children for six months prior to the filing of the underlying suit.

         JASON SARTOR resides                in Kansas. The exact address of         JASON

SARTOR is unknown. It is undisputed that JASON SARTOR resides in Kansas.

         None of the parties to this case reside in Lamar County, Texas.
                                                                            Sartor I Response
                                                                                 Page 4 of 11
      Relator timely filed Defendant's Notice of Motion and Motion to Dismiss

for Lack of Personal Jurisdiction and Improper Venue, or, in the Alternative, to

Transfer Venue and the First Amended Motion              to Transfer Venue. JASON
SARTOR failed to file a controverting affidavit in response to the Motion to

Transfer Venue. The affidavit that JASON SARTOR filed was not controverting

in nature. The affidavit did not allege that Relator did not reside in Hopkins or

Hunt County for at least six months prior to the filing of her suit. Respondent,

Judge Eric Clifford, heard the motion on March 2A,2015         at 10:00 a.m. Relator

testified that she had resided in Hopkins County for at least six months before the

underlying suit was    filed.   Respondent denied Relator's motion even though

Respondent had a mandatory ministerial duty to transfer the case to Hunt County,

Texas, where the children the subject of this suit have resided for more than six

months or, in the alternative, Hopkins County, where the children lived for at least

six months prior to the filing of the underlying suit.

      Respondent only took testimony from Relator and JASON SARTOR's

father. No testimony from JASON SARTOR was taken.

      Respondent verbally denied Relator's motion to transfer (see page 19, line

20 through 23 of the transcript attached to Real Parly in lnterest's Response).

Therefore, Relator did not submit an order granting the motion           to transfer.
Respondent issued an Order Denying Motion to Transfer on May 5,2015.
                                                                      Sartor lResponse
                                                                           Page 5 ofll
Jul 02 15 03:29o                                                                                     p.2




            Argument and, Aut horities

            A.     Standard of Review: Availabilitv of Mandamus Relief.

                   Requisites of mandamus relief are a showing of (1) a legal duty to perforrn a

            nondiscretionary act, (2) a demand for performance of a nondiscretionary act, and

            (3) a refusal to perforrn after zuch demand was made. Erbs v. Bedard,760 S,W.2d

            750, 755 (Tex. App.-Dallas 1988) (orig proceeding). Mandamus relief is

            available when under the circwn$tances of the case tbe facts and law perrrit the

            trial court to make but one decision--and the trial court has refused to make that

            decision*and remedy by appeal to correct the ruling is inadequate. Proffer              v.

            Yates, 734 S.W.2 d 67 1, 673 (Tex. 1 987) (orig. proceedine).

                   Mandamus is available to compel mandatory transfer in suits affecting the

            parent-child relationship. Proffer, 734 S.W.2d at 672; Arias v. Sputor, 623

            S.W.2d 312, 313       (Iex. l98l) (orig. proceeding)- Transfer of a case to a county

            where the child has resided for more than six months is a mandarcry ministerial

            duty under section 11.06(b) (now section 155.201) of the Texas Family Code.

            Proffer, 734 S.W.2d at 673- Parents and children who have a right under the

            mandatory venue provisions to venue in a particular county should not be forced to

            go through a   fial   that is for naught. Proffer,734 S.W.2d, at 673. Justice demands

            a speedy resolution of child custody and child support issues. Proffer,734 S.W.zd

            at673.
                                                                                  Sanor f Response
                                                                                      Page 6   of   ll
Jul 02 15 03:29p
                                                                                                  p.3




            B.     Issue No. I

                   Relator should be granted relief brcause the hial judge abused his discretion

            in denying the motion to transfer venue. The hial judge failed to perfonn his

            mandatory ministerial duty to transfer the case to Hunt Count;r, Toras or, in the

           alternative, Hopkins County, Texas.

           Prayer

                   Relator pray$ that this Court issue   ia writ of mandamus comnanding he
           triai court to vacate the order of May 5,2015 denying Relatot's Defendant's Notice

           of Motion and Motion to Disniss for Lack of Personal Jurisdictioa and Improper

           Venue, or,   in the Alternativeo to Transfer Venue and Relator's First Amendod
           Motion to Transfer Venue and ordering the hial court to grant RelatoCs Motion to

           Transfer and transferthe case to Hunt County, Texas or, in the altemative, Hopkins

           Connty, Texas.

                                                  Law Office of Marianne Howland
                                                  1940 ForestLn.
                                                  Garland TX 75Mz
                                                  Tel:214.288.1731
                                                  Far 214.853.5835
                                                  Em ail mhowland@dfrvcustody.com




                                                     State BsrNo.24055693


                                                                               Sartor lRespons€
                                                                                    Page 7ofll
Jul 02 15 03:29p
                                                                                                    p,4




                                                   Certilication

                   I   certifr that I have reviewed the above response and have concluded tbal

            every factual statement in the reqponse         is srrpported by con:petent    evidence

            included in the atrached appendix or rword-




                                             Certificate of Senice

                   I   certi$ that a mrc copy of this       Response   to Real Party in   Interest's

            Response to Petition for   Writ of Mandamus lr'irs served in accordance with nrle 9.5

            of the Texas Rules of Appellatc          Procedure on each party   or that party's lead

            corrnsel as follows:

            Parry: JASON SARTOR

           Lead attorney: Jennifer Gibo

           Address of service: 119 lo Street SE, Paris, Texas      75ffi
           Method of service: via facsimile: 903-9054966

           Date of senrice:   JuY     -\   ,2015

                   A copy of ftis notice is being filed u'i& the appellate clerk in accodance

           with rule 25.1(e) of    Sre Texas Rules   ofAppellate

                                                        a
                                                      Attorney for Relator
                                                                                    Sstor I Response
                                                                                        Page 8   ofll
Ju1021503:29p                                                                                         p.5




          Apperd.ixl.'Affidavit of STACEY DIANE SARTOR

                STACEY DIANE SARTOR eppeared in person before me today and stabd

          under oath:

                "My uame is STACEY DIANE SARTOR. I am above the age of eighteen

          years of age, and   I arn futly   compstent to make this affidavit.   I   am the Relator in

          this Petition for Writ of Mandamus. The fbcts stated in this affidavit are within my

          personal knowledge and are tnre and correcl

                I have resided in llunt County with the children the subject of this suit since

          May 2014. I resided in Hopkins County for six months before the underlying zuit

          was filed-

                I filed my Defendant's Notice of Motion and Motion to Dismiss for Lack of

          Personal Jgrisdiction and Impropu Venue:             or, in the Alternative, to Transfer

          Venue on Decembef 9, 2014. My attorney &en filed a First Anended Motion to

          Transfer Veirue on January 5, 2015, and        I   appeared at the hearing on tvlarch 20,

          2015 at 10:00   a.m.     Judge Eric Clifford did not take testimony from JASON

           SARTOR on tris issue. Judge Eric Clifford ver$ally denied my motion and &en

           issued an order denying my motion on May 5, 2015.




                                                                                       Sartor lResponse
                                                                                           Page9 of   ll
                                                                                             p.6
Jul 02 15 03:30p




                                           on .1"tu   1'l   ^'' u   )   '   {
             SIGNED under oath before me




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                                                                                Sartor I RssPonse
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