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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