Opinion
06-21-00052-CV
08-18-2021
IN RE CHELSEA MOREHEAD
Date Submitted: August 17, 2021
Original Mandamus Proceeding
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Ralph K. Burgess, Justice
The underlying proceeding in this case is a modification of the parent-child relationship, which was initiated by Real Party in Interest Z.M. (Father) on December 21, 2020. In her petition for a writ of mandamus, Relator Mother asserts that Respondent, the Honorable LeAnn Rafferty, presiding judge of the 123rd Judicial District Court of Panola County, abused her discretion when she entered a February 12, 2021, temporary order that, in part, modified the parties' agreed order's designation of the conservator with the exclusive right to determine the residence of their four-year-old child, T.W.M. Mother asks this Court to issue a writ of mandamus directing the trial court to vacate the complained-of portions of its February 12, 2021, temporary order. For the reasons below, we deny Mother's petition for a writ of mandamus.
We use initials to protect the identity of the minor children referenced in this opinion.
The trial court's temporary order changed the designation from Mother to Father and gave Father "the exclusive right to designate the primary residence of the child in Angelina County; or any county contiguous to Panola County; or Nacogdoches County."
I. Background
In the parties' final decree of divorce, Mother and Father were named joint managing conservators of T.W.M., with Mother having the right to establish T.W.M's primary residence. Less than a year later, Father filed a petition to modify the parent-child relationship and a request for a temporary restraining order, attaching a sworn affidavit stating, among other things, that Mother's boyfriend spanked T.W.M. and that Mother had anger management issues. On January 4, 2021, the trial court issued a temporary restraining order preventing Mother from having access to T.W.M. Following a hearing on Father's motion, the trial court entered a temporary order naming Father as the parent who had the exclusive right to choose T.W.M.'s primary residence, along with modifying the possession schedule and child support payments. Mother filed a petition for a writ of mandamus asking this Court to vacate the trial court's temporary order, which among other things, designated Father as the parent with the exclusive right to designate T.W.M.'s residence.
Mother filed a counter-petition to modify and a motion to deny relief, which the trial court denied.
The trial court also modified the possession schedule and child support payments. Although Mother briefly refers to the modifications of the possession schedule and child support payments, she primarily complains of the trial court's designation of Father as the parent with the exclusive right to choose T.W.M.'s residence.
II. Applicable Law and Standard of Review
Mandamus will issue only to correct a clear abuse of discretion and only when there is no adequate remedy by appeal. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008, orig. proceeding) (citing Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (per curiam) (orig. proceeding)); State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984). "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.'" Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985), disapproved by In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (orig. proceeding)). "With respect to resolution of factual issues or matters committed to the trial court's discretion, for example, the reviewing court may not substitute its judgment for that of the trial court." Id. at 839-40 (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989) (orig. proceeding) ("holding that determination of discoverability under TEX. R. CIV. P. 166b(3)(d) was within discretion of the trial court")).
The review of a trial court's determination of legal principles is much less deferential. Id. at 840. "A trial court has no 'discretion' in determining what the law is or applying the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute a clear abuse of discretion and may result in appellate reversal by extraordinary writ." Id. (citing Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex. 1991) (orig. proceeding) ("trial court abused discretion by misinterpreting the Code of Judicial Conduct"); Eanes Indep. Sch. Dist. v. Lougue, 712 S.W.2d 741, 742 (Tex. 1986) (orig. proceeding) ("trial court abused discretion by erroneously finding constitutional violation").
Because temporary orders are not appealable, mandamus is an appropriate means to challenge them. Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993) (orig. proceeding) (per curiam) (holding that mandamus is appropriate remedy because temporary order granting visitation is not appealable). Courts of appeals may consider mandamus relief when a trial court enters temporary orders changing the parent with the exclusive right to designate the primary residence of the child. See In re Ostrofsky, 112 S.W.3d 925, 926 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding). Yet, a trial court may not enter a temporary order changing the parent with the right to designate the child's primary residence conditioned upon some act of the primary parent unless the change is in the child's best interest and the child's current circumstances would significantly impair his physical health or emotional development. Id. at 929 (citing TEX. FAM. CODE ANN. § 156.006(b)(1)). A general concern as to the child's emotional development is not enough to show a significant impairment, as required by Section 156.006 of the Texas Family Code . In re Rusch, No. 03-18-00163-CV, 2018 WL 2123384, at *7 (Tex. App.-Austin May 9, 2018, orig. proceeding) (mem. op.).
Section 156.006(b)(1) of the Texas Family Code states,
(b) While a suit for modification is pending, the court may not render a temporary order that has the effect of creating a designation, or changing the designation of the person who has the exclusive right to designate the primary residence of the child . . . under the final order unless the temporary order is in the best interest of the child and:
(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) (Supp.).
III. Discussion
At the temporary hearing, the parties presented conflicting testimony and evidence regarding the use of corporal punishment to discipline T.W.M. during periods when he was in Mother's possession. Having reviewed the record-and recognizing that, as fact-finder, the trial court was free to resolve the conflicting evidence in Father's favor-we find that there was a sufficient basis from which the trial court could have concluded that a temporary change of the right to designate the child's primary residence was in T.W.M.'s best interest and that T.W.M.'s current circumstances would significantly impair his physical health or emotional development. See In re Ostrofsky, 112 S.W.3d at 925. Accordingly, the trial judge did not abuse its discretion in granting the temporary order.
We deny the mandamus petition.