Summary
holding that trial court abused its discretion because evidence of distance to travel for visitation and evidence that mother's boyfriend "slept a lot" when the child was at home was insufficient to prove significant impairment of child's physical health or emotional development
Summary of this case from In re WaltonOpinion
No. 05-08-01486-CV
Opinion issued December 11, 2008.
Original Proceeding from the 256th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 06-17106-Z.
Before Justices WRIGHT, O'NEILL, and LANG.
MEMORANDUM OPINION
In this original mandamus proceeding, relator Sonji Winters contends the trial judge abused his discretion by affirming the associate judge's temporary orders that had the effect of depriving relator of her right to determine the child's residency in violation of section 156.006 of the Texas Family Code. We conclude the trial judge abused his discretion and that relator has no adequate remedy at law. Accordingly, we conditionally grant mandamus relief.
Background
Relator and real party in interest Tony Winters are the parents of D.W., who is five years old. Relator and real party were divorced in 2006. The decree named relator and real party as joint managing conservators of D.W. The decree further awarded relator the "exclusive right to designate the primary residence of [D.W.] without regard to geographic location." In May 2008, relator obtained employment in Round Rock, Texas. On July 7, 2008, relator filed a motion to modify the parent-child relationship, seeking an increase in child support from real party. Real party filed a general denial. Relator and D.W. relocated to Round Rock, where relator began her new job. Relator filed an amended motion to modify the parent-child relationship. On July 23, 2008, the associate judge entered a temporary order increasing real party's child support obligation to $850 per month. On July 24, 2008, real party filed a counter-petition to modify conservatorship of D.W.
Following a hearing, the associate judge entered temporary orders restricting relator's ability to designate D.W.'s primary residence to Dallas County or a contiguous county. The associate judge further ordered that if relator did not return to Dallas County with D.W. by August 25, 2008, real party would be appointed sole managing conservator of D.W. and relator would be named possessory conservator. Relator appealed the associate judge's order to the district court.
At the hearing before the judge of the 256th Judicial District Court, a minimal amount of testimony addressed the issue of whether a change in relator's right to designate D.W.'s primary residence was necessary because D.W.'s physical health or emotional development would be significantly impaired if he remained in Round Rock pending final disposition of the modification proceedings. When asked by relator's counsel if real party had any evidence to show that if D.W. remained with relator, D.W.'s physical health would be in danger, real party said, "That's never-never said that." The remainder of the testimony centered around relator's and real party's living arrangements and visitation arrangements for D.W.
Following the hearing, the judge of the 256th Judicial District Court affirmed the associate judge's order. In doing so, the judge acknowledged the difficulty in making a residency change in a temporary order. Nevertheless, the judge restricted relator to Dallas County or a contiguous county, focusing on the negative impact D.W.'s residence in Round Rock would have on real party's relationship with D.W. This mandamus proceeding followed. We stayed the temporary orders and requested a response from real party. We have received that response and now address the merits of the petition.
The record before us does not include a signed order by the trial judge, but we do have a reporter's record containing an oral pronouncement by the trial judge affirming the associate judge's temporary order. An oral order by a trial judge may be considered on mandamus if it is adequately shown by the trial court record. See In re Bledsoe, 41 S.W.3d 807, 811 (Tex.App.-Fort Worth 2001, orig. proceeding).
Relator's first petition for writ of mandamus was denied because it was deficient. In re Winters, No. 05-08-001419-CV (Tex.App.-Dallas Nov. 6, 2008, orig. proceeding) (mem. op.).
Standard of Review
Mandamus relief is available when the trial judge abuses his or her authority or violates a legal duty and there is no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). In determining whether a party has an adequate remedy by appeal, we consider whether the benefits outweigh the detriments of mandamus review. See id. at 136. A trial judge abuses his discretion if he reaches a decision that is arbitrary and unreasonable so as to amount to a clear and prejudicial error of law or if the judge fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). A trial judge has no discretion in determining what the law is or in applying the law to the facts, and a clear failure by the court to correctly analyze or apply the law will constitute an abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
In determining whether a party has an adequate remedy at law, the appellate court must carefully balance jurisprudential considerations that implicate both public and private concerns. See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (per curiam). An appeal is inadequate when the parties are in danger of losing substantial rights. See In re Van Waters Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) (orig. proceeding) (per curiam). Such a danger may arise when the appellate court could not cure the error, the error would vitiate a party's ability to present a viable claim or defense, or the error could not be made part of the appellate record. See id.
Texas Family Code
Chapter 156 of the Texas Family Code provides for modifications of the parent-child relationship. See generally Tex. Fam. Code Ann. §§ 156.001-.410 (Vernon 2002 Supp. 2008). Section 156.006 governs temporary orders in this regard. Subsection (b)(1) states:
Subsections (b)(2) and (b)(3) do not apply to this case.
(b) While a suit for modification is pending, the trial court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless:
(1) the order is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development.
Tex. Fam. Code Ann. § 156.006(b)(1) (Vernon Supp. 2008).
To determine whether a temporary order effectively changes the person with the exclusive right to designate the child's primary residence, we must examine the temporary order in relation to the final order. In re Sanchez, 228 S.W.3d 214, 217 (Tex.App.-San Antonio 2007, orig. proceeding); (citing In re Ostrofsky, 112 S.W.3d 925, 929 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding)). A temporary order that deprives a custodial parent of any discretion inherent in the right to determine the child's primary residence has the effect of changing the designation of the person with the exclusive right to designate the child's primary residence. See In re Sanchez, 228 S.W.3d at 217.
Analysis
The original divorce decree provided that relator had the right to determine the primary residence of D.W. without geographic limitation. The temporary order required relator to maintain D.W.'s residence in either Dallas County or a contiguous county. The August 25, 2008 temporary order further provided that if relator did not return with D.W. to Dallas County or a contiguous county, real party would be named sole managing conservator and relator would be named possessory conservator. Therefore, the temporary orders clearly had the effect of changing relator's right to designate D.W.'s primary residence. See Tex. Fam. Code Ann. § 156.006(b)(1); In re Sanchez, 228 S.W.3d at 217; In re Ostrofsky, 112 S.W.3d at 929. We, therefore, must determine whether the record establishes the change was necessary because D.W.'s present circumstances would impair his physical health or emotional development.
Relator asserts real party presented no evidence that D.W.'s present circumstances would impair his physical health or emotional development. Real party responds that the trial judge did not abuse his discretion because there was evidence relator left D.W. with her live-in boyfriend who "slept a lot," leaving D.W. unsupervised, thus impairing his physical health. Real party also asserts that relocating D.W. "a significant distance" from real party would significantly impair D.W.'s emotional development.
The trial judge did not make any findings that D.W.'s present circumstances would significantly impair his physical health, nor does the record contain evidence to support such a finding. Real party did not testify to any specific acts and his affidavit expresses only vague concerns about relator's boyfriend's ability to supervise D.W. or to obtain medical assistance for D.W. if needed.
Nor does the record support a finding that the change was necessary due to impairment of D.W.'s emotional health. Real party asserts that impairment of visitation would significantly affect D.W.'s emotional health, but the only evidence in the record as to visitation was that relator complied with the trial court's orders regarding visitation periods and real party never had to drive to Round Rock to visit D.W.
Because the record does not support the trial judge's decision to change relator's right to designate D.W.'s primary residence, we conclude the trial judge abused his discretion by changing that right in the temporary orders. We now turn to whether relator has an adequate remedy at law.
The temporary order is an interlocutory order that is not appealable under either the Texas Family Code or the Texas Civil Practices and Remedies Code. See generally Tex. Fam. Code Ann. §§ 156.001-.410; Tex. Civ. Prac. Rem. Code Ann. § 51.014 (Vernon 2008). Moreover, the order is indeterminate in length and no appeal could be brought until the trial court enters a final judgment on the modification. Therefore, we conclude relator has no adequate remedy at law.
Conclusion
We conclude the trial judge abused his discretion by entering temporary orders that had the effect of changing relator's right to determine D.W.'s primary residence and that relator has no adequate remedy at law. Accordingly, we CONDITIONALLY GRANT relator's petition for writ of mandamus.
The Court ORDERS the Honorable David Lopez, Presiding Judge of the 256th Judicial District Court, to: (1) sustain relator's appeal from the trial judge's temporary orders of August 7, 2008 and August 25, 2008; and (2) to enter an order vacating the temporary orders of August 7, 2008 and August 25, 2008. We further ORDER the Honorable David Lopez to file, within TWENTY DAYS of the date of this order, a certified copy of his order showing compliance with this Court's opinion and order. The mandamus will issue only if the Honorable David Lopez, Presiding Judge of the 256th Judicial District Court, fails to comply with this Court's opinion and order.
This Court's November 7, 2008 order staying the temporary orders and the trial court's proceedings will remain in effect pending further order of the Court.