Opinion
NUMBER 13-19-00011-CV
06-28-2019
IN THE INTEREST OF Z.K.S., A CHILD
On appeal from the 105th District Court of Nueces County, Texas.
ORDER
Before Justices Benavides, Hinojosa, and Perkes
Order Per Curiam
Appellant Kristi Michelle Shullaw has filed a motion to stay that portion of the trial court's December 7, 2018 "Order in Suit Affecting the Parent-Child Relationship" which awards "week on/week off" possession of the subject child. Appellant contends that the order violates section 105.002 of the family code, which prohibits the trial court from contravening a jury verdict designating a joint managing conservator with the exclusive right to designate the primary residence of a child without geographic restriction. See TEX. FAM. CODE ANN. § 105.002(c)(1)(D), (E). Appellee Brandon Austin Schonefeld has filed a response asking this Court to deny the motion.
An appellate court may suspend, during the pendency of an appeal, enforcement of a final order in a suit affecting the parent-child relationship upon a "proper showing." Id. § 109.002(c); TEX. R. APP. P. 24.2(a)(4); see In re A.C.S., 157 S.W.3d 7, 8-9 (Tex. App.—Waco 2004) (order) (per curiam); see also In re R.H.M., No. 03-14-00603-CV, 2014 WL 4966543, at *1 (Tex. App.—Austin Oct. 3, 2014, no pet.) (order) (per curiam); Marquez v. Marquez, No. 08-12-00129-CV, 2012 WL 1555204, at *1-2 (Tex. App.—El Paso May 2, 2012, no pet.) (mem. op. on motion) (per curiam).
The Court, having examined and fully considered the motion to stay, is of the opinion that appellant has made a proper showing and is entitled to relief. Therefore, appellant's motion should be granted. See TEX. FAM. CODE ANN. § 109.002(c); TEX. R. APP. P. 24.2(a)(4). Accordingly, the motion to stay is hereby GRANTED and we hereby suspend enforcement of that portion of the "Order in Suit Affecting the Parent-Child Relationship" providing for "week on/week off" possession, pending final resolution of this appeal or further order of this Court. All other provisions of the trial court's order will remain in effect, subject to each party's right of appeal.
We further ABATE the appeal and REMAND to the trial court to notice and set a hearing for the consideration of any necessary temporary possession orders during the pendency of the appeal. The trial court is directed to forward a supplemental clerk's record, including any orders rendered, and a supplemental reporter's record to this Court within thirty (30) days of the date of this order, or to notify this Court within such period indicating a date by which the trial court can comply.
IT IS SO ORDERED.
PER CURIAM Delivered and filed the 28th day of June, 2019.