                                                                                                           ACCEPTED
                                                                                                       06-15-00086-CV
                                                                                            SIXTH COURT OF APPEALS
                                                                                                  TEXARKANA, TEXAS
GEORGANNA L. SIMPSON, P.C.                                                                      12/15/2015 12:49:47 PM
                                                                                                      DEBBIE AUTREY
         ATTORNEY AT LAW                                 GEORGANNA L. SIMPSON
                                                                                                                CLERK
      1349 EMPIRE CENTRAL DRIVE                          EMAIL: georganna@glsimpsonpc.com
     WOODVIEW TOWER, SUITE 600
                                                         OF COUNSEL: BETH M. HEARN
      DALLAS, TEXAS 75247-4042
 PHONE 214-905-3739 $ FAX 214-905-3799
                                                                           RECEIVED IN
                                                                      6th COURT OF APPEALS
                                                                        TEXARKANA, TEXAS
                                                                     12/15/2015 12:49:47 PM
                                     December 15, 2015
                                                                          DEBBIE AUTREY
                                                                              Clerk
 Sixth District Court of Appeals                                           Via E-Service
 Debbie Autrey, Clerk
 100 North State Line Ave., Ste. 20
 Texarkana, Texas 76701

        Re:     In re Tara Tyndell, No. 06-05-00086-CV

        REAL PARTIES IN INTEREST’S POST-SUBMISSION LETTER BRIEF

 Dear Ms. Autrey,

        Please accept this post-submission letter brief in the above-referenced

 cause, which was requested by the Court at the oral argument held on De-

 cember 9, 2015, and bring it to the attention of the justices at your earliest

 convenience.

 A.     Best Interest of the Child

        At the hearing on her motion to transfer, Mother failed to produce any

 evidence that transferring the SAPCR to Jefferson County would be in the

 best interest of the Child. Texas Family Code Section 153.002 provides:

        The best interest of the child shall always be the primary consid-
        eration of the court in determining the issues of conservatorship
        and possession of and access to the child.
Tex. Fam. Code § 153.002. Further, the Texas Family Code reflects a legisla-

tive intent that “matters affecting the parent-child relationship be heard in the

county where the child resides.” Leonard v. Paxson, 654 S.W.2d 440, 442

(Tex. 1983) (orig. proceeding). Not only did Mother present no evidence of a

valid marriage that is subject to dissolution, she also did not present any evi-

dence that the best interest of the Child would be served by hearing this case

in a county [Jefferson County] other than where he has resided for the last

five years [Hunt County1].

       Mother argued that because the word “venue” was not included in Tex-

as Family Code Section 153.002 then the best interest of the child should not

be at issue when determining venue. However, Mother’s argument ignored

the fact that this SAPCR proceeding’s sole purpose was to determine conser-

vatorship and possession of and access to the Child, and venue is at issue in

making that determination. Additionally, Mother’s argument ignored the leg-

islature’s consistent focus on the best interest of the child throughout the Tex-

as Family Code. See e.g., Tex. Fam. Code §§ 45.004, 54.04, 51.11, 65.059,

105.004, 107.202, 153.001, 156.101, 157.374, 161.001, 162.016, 263.307,

1
 Jefferson County is located approximately 300 miles from Hunt County and takes approximate-
ly 5.5 hours to travel by car between these counties. Additionally, there are no airlines that fly
between Hunt County and Jefferson County.

                                                2
264.001, 266.004. Given this legislative mandate to always consider the best

interest of the child, it is reasonable to presume that implicit in Texas Family

Code Section 155.201 is an understood requirement that the parents are mar-

ried and that at least one parent is a managing conservator of the child or at a

minimum has been residing with the child. To hold otherwise would disre-

gard the best interest of the Child and would promote forum shopping. With-

out this understood prerequisite, a parent—who may be neither a managing

conservator nor even be residing with the child—could simply allege an in-

formal marriage and file for divorce in a different county from where the

child has been residing with the goal of obtaining a transfer of a pending

SAPCR after receiving an adverse ruling.

      During oral argument, this Court expressed concern for the possibility

of a final divorce decree that would not provide for conservatorship and pos-

session of and access to the Child. However, this situation occurs regularly

when the UCCJEA or UIFSA requires a SAPCR to be heard separately from

a divorce proceeding. Tex. Fam. Code §§ 152.001–152.317, 159.001–

159.902; see, e.g., In re Dean, 393 S.W.3d 741, 747 (Tex. 2012).




                                       3
B.     Response to Mother’s Post-Submission Letter

       In response to Mother’s Post-Submission Letter Brief filed on Decem-

ber 10, 2015, Aunt and Uncle submit the following for consideration by this

Court:

       1.      Mandamus Review.

       Mother relies on In re China Oil and Gas Pipeline Bureau, 94 S.W.3d

50 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding) to support her

contention that this Court is restricted to the trial court's “specific bases” for

its decision.2 Mother misplaces her reliance.

       In In re China Oil, the order subject to the mandamus specifically stat-

ed findings to support the trial court’s judgment. Id. at 54–55. Nevertheless,

the parties disputed in the mandamus proceeding whether the trial court could

have reached its decision on a ground specifically not ruled on according to

the trial court’s findings. Id. at 63–64.

       The appellate court noted that a relator bears “a heavy burden” to estab-

lish that the trial court abused its discretion. Id. at 56 (citing Canadian Heli-

2
  No court has cited this opinion for this proposition. Cf. In re Lambdin, No. 07-03-00328-CV,
2003 WL 21981975, at *3, n.4 (Tex. App.—Amarillo 2003, orig. proceeding) (denying manda-
mus when “[t]he trial court did not specify the particular ground or reason why it denied the mo-
tion to transfer[,]” and the “trial court could very well have held that [Mother] waived her venue
complaint.”) (emphasis added).

                                                4
copters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994)). The court further

stated that because the trial court’s ruling was expressly limited to whether a

particular statutory exception applied, it would be inappropriate for the appel-

late court to rule in a mandamus proceeding on a different exception explicit-

ly not addressed by the trial court. Id. at 64.

      Here, although Respondent stated at the hearing’s conclusion reasons

he was inclined to deny Mother’s motion to transfer, he also stated that he in-

tended to do more research before ruling. 2RR:25–29. Further, the signed or-

der denying Mother’s motion to transfer stated no specific basis for the deni-

al. App.3:2. Rather, it simply stated that “after reviewing the arguments of

counsel and authorities, [the court] finds that [Mother’s motion] should be

denied.” App.3:2. Mother has not met her heavy burden to establish that Re-

spondent abused his discretion in denying her motion to transfer when she

presented no evidence to the Hunt County trial court supporting a transfer to

another county where the Child had never resided.

      2.    Knowing Waiver.

      Mother asserts that the actions of an attorney are not always binding on

the client. However, even presuming this is true, Mother’s participation in

mediation was inconsistent with her pending motion to transfer.
                                         5
      A waiver of a right occurs when one with full knowledge of material

facts does something that is inconsistent with the right or her intention to rely

on it. Ford v. Culbertson, 308 S.W.2d 855, 865 (Tex. 1958). Regardless of

Mother’s knowledge of her attorney’s actions, Mother cannot reasonably

claim that she did not understand, or that she should not have understood, that

participating in mediation was inconsistent with her motion to transfer. If she

had participated in mediation in good faith to settle the case, then she should

have known that upon reaching a settlement agreement, there would not have

been any case left to be transferred.

      3.    Manipulation Findings.

      Mother attempts to distinguish the facts of this case from the case cited

by Aunt and Uncle in their response to her petition for writ of mandamus,

(Garza v. Tex. Dep’t of Human Servs., 757 S.W.2d 44 (Tex. App.—San Anto-

nio 1988, writ denied)) and the case referred to by Respondent during the

hearing on Mother’s motion to transfer (Huey v. Huey, 200 S.W.3d 851 (Tex.

App.—Dallas 2006, no pet.)) to support her claim that the evidence did not

support a manipulation finding. Mother continues to read the case law too

narrowly.



                                        6
      Here, in addition to evidence that Mother lacked respect for the trial

court’s authority, Mother did not allege she was informally married to Father

until after the trial court entered temporary orders for supervised visitation—

five months after Mother initiated the SAPCR. RPI.App.5:2–3; OA.2, 12,

15. While there was no judicial admission or a violation of an order to create

jurisdiction, Mother’s actions could have reasonably been interpreted as an

attempt to manipulate jurisdiction and to avoid an unfavorable final judg-

ment. See In re R.E.A., No. 13-10-0057-CV, 2011 WL 3557427, at *1 (Tex.

App.—Corpus Christi 2011, no pet.) (mem. op.); In re M.A.S., 246 S.W.2d

182, 184 (Tex. App.—San Antonio 2007, no pet.); Garza, 757 S.W.2d at 45.

                                  Respectfully submitted,

                                  /s/Beth M. Hearn
                                  Beth M. Hearn,
                                  beth@bhearnlegal.com
                                  Of Counsel to Georganna L. Simpson, P.C.
                                  Attorney for Real Parties in Interest
                                  John and Jennifer Nowell




                                      7
                          CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of Real Parties in Interest
Jennifer Nowell and John Aubrey Nowell’s Post-Submission Letter Brief has
been served as follows:

Hon. J. Andrew Bench                                           Via E-Service
196th Judicial District Court                           jdeary@huntcounty.net
P.O. Box 1097
Greenville, Texas 75401-1097
Respondent

E. Alan Bennett                                                 Via E-Service
Sheehy, Lovelace & Mayfield, P.C.                         abennett@slmpc.com
510 N. Valley Mills Dr., Ste. 500
Waco, Texas 75710
Relator Tara Brook Tyndell’s Attorney

                                   /s/Beth M. Hearn
                                   Beth M. Hearn
                                   Of Counsel to Georganna L. Simpson, P.C.




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