Opinion
No. 05-16-01451-CV
06-05-2017
IN RE DARLA JALANE EDDINS, Relator
Original Proceeding from the 254th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF13-23371-R
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Evans
This original proceeding arises from orders in a Suit Affecting the Parent Child Relationship (SAPCR) action that changed primary custody of the children from relator Jalane Eddins (the children's mother) to Mark Eddins (the children's father) and gave Mark the right to establish the primary residence of the children. Jalane seeks a writ of mandamus directing the trial court to vacate the temporary orders. We conditionally grant the petition.
Background Facts
Jalane and Mark have two children together. Jalane and Mark mediated their divorce and custody action and entered into a mediated settlement agreement at that time. They ultimately entered an agreed final divorce decree on November 5, 2015. The agreed divorce decree appointed Jalane and Mark joint managing conservators, with Jalane designated the managing conservator with the right to designate the children's primary residence within Denton County and contiguous counties. Mark was awarded possession under the Standard Possession Order and ordered to pay guideline support as well as certain agreed childcare expenses and $13,000 per month for the children's competitive rodeo activities.
On March 11, 2016, Mark filed a petition for enforcement of the divorce decree, and a petition to modify parent-child relationship. In the petition to modify, Mark asked for equal periods of possession and requested certain orders to facilitate exchanges of the children and communications with Jalane. Mark did not request a modification of the terms of the conservatorship or of the designation of the person having the exclusive right to designate the primary residence of the children. Over the next two months, Jalane and Mark reached agreements and entered into agreed temporary orders addressing communications between Mark and Jalane and between Jalane and Mark's new wife, Audrey George, setting out Jalane and Mark's agreement that the children begin counseling, instituting a neutral location for exchanges of the children, and providing Mark make up possession dates for dates he and Jalane had traded. Mark then amended his petition for enforcement of the divorce decree three times. In the third amended petition for enforcement, Mark alleged violations of the decree relating to the parties' communications and interactions dating back to December 10, 2015. Specifically, Mark complained of Jalane's alleged conduct including failure to surrender the children on December 10, 2015 and March 4, 2016, multiple vulgarity-laden text messages Jalane sent to Mark privately in November and December 2015, a verbal exchange where both Mark and Jalane cursed in the presence of the children at the December 10, 2015 exchange, Jalane's surveillance of Mark at a May 21, 2016 baseball game, and three remarks Jalane made in May and July 2016 about Mark and Audrey.
The December 10, 2015 exchange took place at Jalane's home. Mark had hired a private investigator, Glen Cox, to witness the exchange of the children. Cox parked in the property's second driveway and watched Jalane and the children playing in the yard, which frightened Jalane. When she asked Cox who he was, Cox refused to tell her. When she asked Cox to leave her property, Cox refused. Cox video recorded the interaction with Jalane as well as the exchange of the children. Jalane hit Cox's iPhone to get him to stop recording. Although Jalane had the children ready and waiting to go with Mark, the children refused to go with Mark on December 10, 2015 when Mark would not assure them that they would not have to be with Audrey. Mark voluntarily left without the children. The children also refused to go with Mark on March 4, 2016 because they did not want to be around Audrey during the visitation. In addition to Mark's complaints about several text messages sent by Jalane in November and December 2015, Mark also alleged that Jalane videotaped Mark at a May 21, 2016 baseball game, and made three disparaging remarks about Mark and his girlfriend in the presence of the children. Specifically, Mark alleged that Jalane said "don't let Audrey be mean to the kids" on May 26, 2016. She also purportedly had a police officer check to see if Audrey had been drinking before exchanging the children at a late-night exchange following a rodeo event on July 31, 2016 and told Mark that she smelled alcohol on him. Mark argued that Jalane's conduct violated the divorce decree's provisions that required Mark and Jalane to deal with each other in an appropriate manner publicly and privately and to use civil e-mails, text messages, and telephone calls when communicating about the children, and prohibited Jalane from making disparaging remarks about Mark or Audrey within the hearing of the children and from conducting surveillance of Mark.
Mark reiterated these allegations at the October 24, 2016 hearing on Mark's third amended petition for enforcement of the divorce decree and asked the court to hold Jalane in contempt for violating the divorce decree. Mark argued that Jalane was verbally abusive toward him in person and via text and voicemail, and that Jalane was alienating the children from him. He asked for a contempt order to stop Jalane's behavior and to punish her for the behavior by awarding Mark attorney's fees.
Neither the motion for enforcement, which was the only motion set for hearing on October 24, 2016, nor Mark's motion for modification included an allegation that temporary orders were necessary because the children's present circumstances would significantly impair the children's physical health or emotional development. Similarly, neither motion included an affidavit required by sections 156.006 and 156.102 of the family code to support changing the parent with the exclusive right to determine the children's residence. TEX. FAM. CODE ANN. § 156.006 (West Supp. 2016); id. § 156.102 (West 2014). Nonetheless, at the end of the hearing, the trial judge held Jalane in contempt and ordered "immediate and exclusive possession to the father with exclusive rights, power, and duties until further orders." The next day—October 25, 2016—Mark amended his petition to request modification of the parent-child relationship seeking for the first time that he be appointed temporary sole managing conservator and given the exclusive right to designate the children's primary residence and attached his affidavit supporting the new request for relief. He also asked that Jalane be excluded from possession of the children until the court determined what contact would be appropriate.
The court scheduled an evidentiary hearing on the issues of temporary conservatorship, possession, and support for October 28, 2016. At the hearing, the trial judge told the parties that the hearing was needed because the testimony she heard at the prior hearing "does rise to the level of emotional harm [to the children]." The witnesses who testified at this hearing did not opine on whether the children's present circumstances would significantly impair or endanger the children's physical health or emotional development. The children's counselor testified that both children, and predominantly the preteen daughter, view Mark as all bad and Jalane as very good, and that the children spend more time with Jalane and had adopted more of Jalane's thoughts and opinions. But she also testified that both Mark and Jalane had shared too much information about the cause of the divorce and post-divorce proceedings with the children. Jalane admitted that she had acted inappropriately at some of the exchanges, but she also testified that she believed her responses to the children's questions and her reactions to Mark's private investigators were appropriate. There was testimony that Audrey acted aggressively toward Jalane and the children at rodeo events and during the children's visits with Mark. Jalane also testified that after Mark met Audrey, he stopped being supportive of the children's rodeo competition activities and sometimes would not let them attend rodeo events when he had them for visitation. Jalane testified that part of the reason the children were angry with Mark was because he was trying to keep them from competing in the rodeo events that Mark agrees are the children's passion.
At the end of the hearing, the trial judge criticized Jalane for her testimony that Jalane believed her reaction to Mark's private investigator at the December 10, 2015 exchange was appropriate. She also stated that Jalane has "given these children no permission to love their father, and you think it's okay to let them know that." She then found that the temporary order making Mark sole managing conservator and making him the party with the exclusive right to determine the children's primary residence was in the children's best interest because leaving the children with Jalane "would ensure that they would not have a relationship with the father. Accordingly, they would be — impair their physical or emotional development."
On December 1, 2016, the trial judge signed temporary orders changing the custody provisions, enjoining Jalane from contact with the children, and giving Mark the exclusive right to designate the children's primary residence. The trial judge found that court intervention was needed because Jalane "is consciously or unconsciously preventing and undermining the relationship between" the children and Mark, the children and their stepmother, and "such alienating behavior is detrimental to the short and long term emotional health of the children." The trial judge also ordered a child custody evaluation. The trial judge signed a separate order holding Jalane in contempt for failing to comply with the agreed final divorce decree and awarding Mark attorney's fees and costs. The contempt order included changes to custody, including giving Mark immediate possession of the children "to the exclusion of" Jalane, and giving Mark the exclusive right to designate the children's primary residence. The contempt order also included the court's finding that "the children's present environment may endanger the children's physical health or significantly impair the children's emotional development."
Standard of Review
This Court is authorized to issue mandamus relief to correct a clear abuse of discretion for which relator has no other adequate remedy. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Because temporary orders in suits affecting the parent-child relationship are not appealable, a petition for a writ of mandamus is an appropriate means to challenge them. Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991); In re Winters, No. 05-08-01486-CV, 2008 WL 5177835, at *3-4 (Tex. App.—Dallas Dec. 11, 2008, orig. proceeding); In re Pensom, 126 S.W.3d 251, 257 (Tex. App.—San Antonio 2003, orig. proceeding).
Mark argues that Jalane has an adequate remedy as to the enforcement order because that order is a final and appealable order. We disagree. The trial judge specifically stated that the October 24, 2016 orders from the bench were temporary orders. The December 1, 2016 written "Order of Enforcement by Contempt" explicitly states that "This ORDER is a temporary interruption of conservatorship, possession and access, and support." The order then directs Mark "to file appropriate pleadings at which time a full hearing with proper notice shall be conducted by the Court relating to conservatorship, possession and access, and support of the children." The December 1, 2016 "Temporary Orders in Suit to Modify Parent-Child Relationship" are explicitly temporary and are to remain in force "until the signing of the final order or until further order of this Court." These are unappealable, temporary orders and are properly reviewed through a mandamus proceeding.
Applicable Law
In a suit affecting the parent-child relationship, the trial court may make a temporary order for the safety and welfare of the child, including an order modifying a prior temporary order. TEX. FAM. CODE ANN. § 105.001(a) (West 2014). But certain temporary orders may not be rendered except after notice and hearing, including orders for the temporary conservatorship of the child. Id. § 105.001(a), (b), (h) (West 2014). Further, while a suit for modification is pending, a trial court may not generally render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the child's primary residence under the final order. Id. § 156.006 (West Supp. 2016); id. § 156.102 (West 2014).
Although in an emergency demanding immediate action a trial court can issue without notice orders changing custody followed by proper notice, appropriate pleadings, and a full hearing, no party to this case contends this was an emergency situation and the trial court did not make a finding that it was an emergency requiring immediate action. See Dannelley v. Dannelley, 417 S.W.2d 55, 58-59 (Tex. 1967); In re Herring, 221 S.W.3d 729, 730 (Tex. App.—San Antonio 2007, no pet.) (trial court abused its discretion in denying notice and hearing before modifying prior temporary child custody order where the temporary order was not prompted by any emergency).
Section 156.102 applies only if the motion to change the person having the exclusive right to designate the primary residence is filed within one year of the earlier of:
• The date of the order sought to be modified, orId. Section 156.006 and section 156.102 apply slightly different standards for determining whether a temporary order changing who has the exclusive right to designate the child's primary residence is proper. Under section 156.006, the trial court may enter such an order only when doing so is in the best interest of the child and the child's present circumstances would significantly impair the child's physical health or emotional development. Id. § 156.006. Under section 156.102, the temporary order is permitted only if "the child's present environment may endanger the child's physical health or significantly impair the child's emotional development." Id. § 156.102(b)(1).
• The date the mediated settlement agreement was signed that lead to the order sought to be modified.
Under either section, however, the party seeking the temporary order must attach an affidavit to the motion that contains facts that support the allegations regarding the children's present circumstances. Id. § 156.006(b-1) (the affidavit must contain "facts that support the allegation that the child's present circumstances would significantly impair the child's physical health or emotional development."); id. § 156.102(a), (b) (the affidavit must contain "along with supporting facts" an allegation that "the child's present environment may endanger the child's physical health or significantly impair the child's emotional development").
Both sections also prohibit the trial court from holding a hearing on the motion to modify and from granting the relief sought "unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Subsection (b) are stated in the affidavit." Id. § 156.102(c) (emphasis added); id. § 156.006(b-1) ("The court shall deny the relief sought and decline to schedule a hearing on the motion unless the court determines, on the basis of the affidavit, that facts adequate to support the allegation are stated in the affidavit.") (emphasis added). Any error in holding a hearing is harmless, however, if the testimony admitted during the hearing supports the allegation that the child's environment may significantly impair his or her physical health or emotional development. In re C.G., No. 04-13-00749-CV, 2014 WL 3928612, at *3 (Tex. App.—San Antonio Aug. 13, 2014, no pet.) (mem. op.).
"Texas courts have recognized that the "significant impairment" standard in section 156.006(b)(1) is a high one." In re Serio, No. 03-14-00786-CV, 2014 WL 7458735, at *2 (Tex. App.—Austin Dec. 23, 2014, orig. proceeding) (mem. op.). To establish "significant impairment" of the children's physical health or emotional development, the movant must present evidence of bad acts or omissions committed against the children. See id. (court abused its discretion by issuing temporary orders where the record did not include evidence of "serious acts or omissions" from which the court could imply significant impairment); see also In re C.G., No. 04-13-00749-CV, 2014 WL 3928612, at *8 (Tex. App.—San Antonio Aug. 13, 2014, no pet.) (mem. op.) ("While the record indicates a poor relationship between Shaun and Loretta, and even assuming Loretta violated the terms of the divorce decree, we believe the evidence is legally insufficient to support an implied finding that the children's present environment may endanger their physical health or significantly impair their emotional development."); In re Payne, No. 10-11-00402-CV, 2011 WL 6091265, at *2 (Tex. App.—Waco Dec. 2, 2011, orig. proceeding) (requiring evidence of bad acts that are more grave than violation of a divorce decree or alienation of a child from a parent); In re C.S., 264 S.W.3d 864, 874-75 (Tex. App.—Waco 2008, no pet.) (same); Graves v. Graves, 916 S.W.2d 65, 69 (Tex. App.—Houston [1st Dist.] 1996, no writ) (allegations that mother's boyfriend denied father access to the child insufficient to show that present environment may endanger child's physical health or significantly impair her emotional development).
Analysis
We must first determine whether the temporary orders are void due to lack of notice and failure to meet the pleading requirements of sections 156.006 and 156.102. Mark did not ask for temporary conservatorship orders in the petition for enforcement of the divorce decree, which was the only motion heard on October 24, 2016. Nonetheless, the trial judge verbally-rendered temporary conservatorship orders at that hearing. Such orders were not supported by the pleadings, were rendered without the notice required by section 105.001 of the family code, and are void. TEX. FAM. CODE ANN. § 105.001(a), (b), (h). Similarly, the trial judge made Mark the person with the exclusive right to designate the child's primary residence without submission of the affidavit required by sections 156.006 and 156.102 before such a change may be made. That verbal order is also void. That does not end the inquiry, however, because the trial court issued written temporary orders after Mark amended his motion and attached an affidavit in support. Jalane had notice of the amended motion and of the October 28, 2016 hearing. The December 1, 2016 written orders are, therefore, not void for lack of notice.
We must next decide whether section 156.102 applies under these facts. The parties entered the mediated settlement agreement in June 2015, the agreed final divorce decree was signed on November 5, 2015, Mark filed the motion to modify on March 11, 2016, and Mark filed the amended motion to modify on October 25, 2016. Jalane contends section 156.102 applies because Mark filed the original motion to modify within a year of signing the mediated settlement agreement. Mark argues that he sought the temporary orders for the first time when he filed the amended motion to modify more than a year after signing the mediated settlement agreement. We agree with Mark.
The original motion did not fall under the plain language of section 156.102 because it did not seek an order changing the person having the exclusive right to designate the primary residence of the children. Mark first sought that relief in the October 25, 2016 amended motion, which was filed more than a year after the parties entered the mediated settlement agreement. Where, as here, a party seeks an order changing the person having the exclusive right to designate the primary residence for the first time in an amended motion, the filing date of the amended motion controls. See, e.g., In re C.L.L., No. 12-06-00007-CV, 2007 WL 2045241, at *3 (Tex. App.—Tyler July 18, 2007, orig. proceeding) (mem. op.) (filing date of amended motion controls because amended motion supersedes previously-filed motions). Accordingly, we conclude that section 156.102 is inapplicable here.
Next, we must determine whether Mark's pleadings and evidence in support of the amended motion were sufficient under section 156.006(b-1) to justify the trial court holding a hearing and issuing the temporary orders. The trial court was prohibited from holding a hearing on the motion to modify and from granting the specific relief sought under section 156.006 unless it determined "on the basis of the affidavit, that facts adequate to support the allegation are stated in the affidavit." TEX. FAM. CODE ANN. § 156.006(b-1). Whether the trial court should have held the hearing, however, is no longer relevant here because the trial court actually held the hearing and issued the temporary orders based on the evidence presented at the hearing. See, e.g., In re Barkley, No. 07-09-0190-CV, 2009 WL 2431499, at *1 (Tex. App.—Amarillo Aug.10, 2009, orig. proceeding) ("So, other than being an academic exercise, it matters not whether evidence exists to warrant a hearing when the court actually holds the hearing and resolves the dispute upon the evidence there tendered. And, that happened here."). Therefore, we next examine the record for evidence to support the allegation that the children's environment may significantly impair their physical health or emotional development. We conclude the evidence presented at the hearing did not rise to the level of establishing substantial impairment of the children's physical health or emotional development.
The trial judge issued the temporary orders based on her finding that Jalane had engaged in parental alienation against Mark. The trial judge stated at the hearing that making Mark the primary parent was necessary because Jalane is preventing the children from having a relationship with Mark. She reiterated this finding in the temporary orders, finding that court intervention is needed because Jalane "is consciously or unconsciously preventing and undermining the relationship between" the children and Mark, the children and their stepmother, and "such alienating behavior is detrimental to the short and long term emotional health of the children." But not all parental alienation supports a finding of significant impairment. See, e.g., In re C.S., 264 S.W.3d at 874-75 (distinguishing cases where allegations indicating pattern of parental alienation were insufficient to support finding that children's present environment might endanger their physical health or significantly impair their emotional development from one case finding significant impairment based in part on clinical psychologist's report that significant impairment would result; concluding as matter of law record of parental alienation was insufficient to support significant impairment). At most, the evidence showed a dysfunctional relationship between Mark and Jalane, violations of the divorce decree's communication provisions, inappropriately angry and negative exchanges between Mark and Jalane, sometimes in front of the children, and conduct that the trial court viewed as Jalane alienating the children from Mark but about which no witness, not even the children's counselor, expressed that opinion. Indeed, Mark asserted that there were only two instances where he was unsuccessful obtaining the children at an exchange. This record is insufficient to support the wholesale change in custody made here and changing the parent with the right to designate the children's primary residence. In re C.S., 264 S.W.3d at 874-75; In the Interest of C.G., 2014 WL 3928612, at *3. Based on this record, we conclude the trial judge abused her discretion in issuing the temporary orders.
Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to issue a written ruling vacating the December 1, 2016 temporary orders and reinstating the agreed final divorce decree within ten (10) days of the date of this opinion. A writ will issue only if the trial court fails to comply with this opinion and the order of this date. 161451F.P05
/David W. Evans/
DAVID EVANS
JUSTICE