Opinion
No. 05-08-01074-CV
Opinion Filed November 13, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
Original Proceeding from the 301st District Court, Dallas County, Texas, Trial Court Cause No. 03-14732.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
MEMORANDUM OPINION
In this petition for writ of mandamus, relator Esfandiar Maasoumi (Father) asserts the trial court abused its discretion by: (1) failing to render a final order after a trial on the merits was completed on his motion to modify the parent-child relationship; (2) signing a temporary order that violated Texas Family Code Section 156.006(b); (3) signing a temporary order prohibiting further discovery until March 2009; and (4) signing a temporary order appointing the child's therapist into a dual role as a parenting coordinator. For the following reasons, we agree with Father that the trial court abused its discretion by failing to render judgment within a reasonable time after the trial on the merits was completed. We sustain Father's first issue, conditionally grant the petition for writ of mandamus, and order the trial court to vacate the temporary order and to render a final order.
Section 156.006(b) provides as follows:
While a suit for modification is pending, the 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;
(2) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months and the temporary order is in the best interest of the child; or
(3) the child is 12 years of age or older and has filed with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child and the temporary order designating that person is in the best interest of the child.
Tex. Fam. Code Ann. § 156.006 (b) (Vernon Supp. 2008).
Background
After Father and real party in interest Lynette Grange-Maasoumi (Mother) were divorced in August 2005, they were appointed joint managing conservators of their daughter, M.A.M. Among other things, the decree awarded Father the exclusive right to designate M.A.M.'s primary residence within Dallas and contiguous counties. The decree also awarded a rotation of possession of M.A.M., giving each parent essentially equal time.
In June 2005, Father filed a motion to modify, seeking to have Mother's visitation changed to standard visitation. He also requested Mother have psychological testing and be permanently enjoined from making allegations of sexual abuse of M.A.M. against Father. The trial court later denied the requested temporary relief and indefinitely abated the suit to modify. In September 2006, Father again filed a petition to modify the parent-child relationship and requested emergency temporary orders seeking a modification allowing him to have the sole right to make decisions concerning M.A.M.'s education and requested a modification of the time and place for exchange. In response, Mother countersued seeking to be appointed the sole managing conservator, or, alternatively, to have the right to designate M.A.M.'s primary residence. She also requested temporary orders, asking to home school M.A.M. Following a hearing, the trial court ordered M.A.M. to stay at her school and gave Father the exclusive temporary right to determine educational matters for M.A.M. Father later amended his motion to modify, requesting to be appointed sole managing conservator and asking for the right to determine M.A.M.'s residency outside of Dallas and its contiguous counties. Alternatively, Father sought to be appointed joint managing conservator with the sole right to determine educational matters and to be allowed to relocate with M.A.M. to Atlanta, Georgia to pursue a job opportunity. In January 2007, the trial court appointed Lynne Corsi as attorney ad litem for M.A.M. In April 2007, the trial court ordered the parties and M.A.M. to have psychological evaluations. The trial court appointed Dr. Alexandria Doyle to conduct the evaluations and prepare a report. After an October 2007 review hearing, the trial court appointed Joan Hill as M.A.M.'s counselor and ordered her to prepare a report. The trial court also ordered Father and Mother to counseling.
After mother requested a continuance for a February 2008 trial setting, the case went to trial on July 24, 2008. During the two and one-half day trial, both parties testified and presented evidence as well as proposed parenting plans. Dr. Doyle, the court appointed expert, testified extensively about her evaluation of Mother, Father, and M.A.M. It was her opinion that it was in M.A.M.'s best interest to allow Father to relocate to Atlanta and encourage Mother to also go to Atlanta. Mother's expert, Dr. Robert Gordon, disagreed, because, among other things, he did not agree with the psychological testing that showed Mother had a paranoid disorder. Dr. Gordon believed Mother was no longer paranoid and was "in a very healthy range" psychologically. Hill, M.A.M.'s court-appointed counselor, testified, among other things, regardless of whether M.A.M. moved to Atlanta or not, the more she "equally sees both parents and the more frequency, the better off she'll be." Hill reported that after counseling with Mother, Father, and M.A.M., M.A.M.'s behavior was consistent regardless of which parent she was with and that she appeared to be happy, spontaneous, independent as well as respectful to both parents. Dr. Jeffrey Siegel, Father's expert, testified Mother's testing showing paranoid personality disorder could not be "discounted or ignored" and was of the opinion Dr. Gordon discounted the testing results because he is "an old-fashioned clinician." The court appointed attorney ad litem for M.A.M., Lynne Corsi, testified she was "extremely concerned" about Mother's mental health and recommended Father be allowed to relocate, although she stated it would be preferable if Mother were to also relocate to Atlanta. After two years of litigation and a two and one-half day trial, both parties rested and closed.
Following the conclusion of the trial, the trial court did not render a final judgment because it "determined that the current status of the parents does not allow the Court to make a final order." The trial court's order informed the parties that if their trial strategy had been to "put their best foot forward," it expected a delay in rendering judgment would allow a parent involved in that particular strategy to "fall flat on their face." Thereafter, the trial court declined to render judgment and reset the trial for almost a year later. The trial court then, among other things, temporarily established M.A.M.'s domicile in Dallas County until after the completion of the trial in June 2008, and further prohibited any discovery or court action absent "an emergency as defined by Ms. Hill and Ms. Corsi."
Father filed a motion objecting to the interim temporary order and seeking rendition of a final judgment. Following a hearing, the trial court denied Father's objections and rendered a second temporary order. That temporary order, likewise, removes Father's right to establish M.A.M.'s residency, prohibits further discovery and sets the trial for continuation in June 2009. This mandamus proceeding followed.
Discussion
There are generally three prerequisites for the issuance of a writ of mandamus by an appellate court: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979); see also Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (mandamus relief available when trial court abuses its discretion or violates a legal duty and there is no adequate remedy at law).
When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon the motion is a ministerial act. See Eli Lilly Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992); see also Tex. State Bd. of Examiners in Optometry v. Carp, 388 S.W.2d 409, 417 (Tex. 1965) (writ will issue to compel trial court to proceed to judgment). In such circumstances, a trial court must consider and rule upon the motion within a reasonable amount of time. See, e.g., Crouch v. Shields, 385 S.W.2d 580, 582 (Tex.Civ.App.-Dallas 1964, writ ref'd n.r.e.) (finding district court properly issued mandamus compelling probate court to act on application for probate); In re Shredder Co., 225 S.W.3d 676, 679 (Tex.App.-El Paso 2006, orig. proceeding) (finding trial court abused its discretion by refusing to rule on Father's motion to compel arbitration); Kissam v. Williamson, 545 S.W.2d 265, 267 (Tex.App.-Tyler 1976, orig. proceeding) (compelling trial court to proceed to trial and judgment). A trial court's discretion extends to its decision on how to rule on a motion properly before it, and an appellate court then reviews the rulings produced by that judicial power in the normal appellate process. See Baluch v. Miller, 774 S.W.2d 299, 301-02 (Tex.App.-Dallas 1989, orig. proceeding). A refusal to rule within a reasonable time frustrates that purpose and constitutes a denial of due course of law. Id. Consequently, mandamus is available to compel a trial court to make a ruling within a reasonable time. See Marshall, 829 S.W.2d at 158. A reasonable amount of time is determined by the circumstances of the case. Shredder, 225 S.W.3d at 679.
Here, the record shows that Father first filed his motion to modify the parent child relationship almost two years before the trial in this case. He amended his motion to modify adding his request for the right to designate M.A.M.'s residence outside of Dallas and its contiguous counties four months before trial. Prior to trial, the trial court conducted several hearings and Mother, Father, and M.A.M. underwent extensive psychological evaluations and counseling. Dr. Doyle, the court-appointed psychologist interviewed Mother, Father, M.A.M. several times. She also performed psychological testing on Mother and Father, visited M.A.M.'s school, and spoke with M.A.M.'s teachers and pediatrician. At the trial on the merits, Mother, Father, three psychologists, and M.A.M.'s therapist testified extensively regarding M.A.M.'s circumstances, Mother's and Father's parenting skills, and the effect relocation might have on M.A.M. At the conclusion of the trial, the trial court concluded it could not make a final determination on the pending motion to modify, but rather determined it would wait almost a year to do so. The trial court entered a temporary order establishing M.A.M.'s domicile in Dallas County, thus having the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under a prior final order, and refused Father's request to relocate with M.A.M. to Atlanta. Father objected and requested rendition of a final judgment. A trial court is required to consider and rule on a properly filed and pending motion within a reasonable amount of time. We recognize the difficulty of making a decision in this case, nevertheless, refusal to rule on a motion to modify for almost a year after completion of the trial on the merits is not reasonable. Thus, after reviewing the record in this case, we conclude the trial court's refusal to render a final order either granting or denying Father's motion to modify was an abuse of discretion. We sustain Father's first issue. Having done so, we need not address Father's remaining issues. See Tex. R. App. P. 47.1.
Although we do not reach the merits of Father's remaining issues, we note that by designating M.A.M.'s domicile as Dallas County, the trial court effectively changed the designation of the person with the exclusive right to designate M.A.M.'s primary residence under the final order. Because the requirements necessary to do so were not plead nor proved, the trial court's temporary order clearly violated section 156.006(b) of the Texas Family Code.
We conditionally grant the petition for writ of mandamus, and order the trial court to vacate its August 7, 2008 temporary order and to render a final order in this case. Mandamus will only issue if the trial court fails to comply with the opinion and order of this date.