in Re Lorin A. Strickland , 2012 Tex. App. LEXIS 315 ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00501-CV
IN RE LORIN A. STRICKLAND
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ORIGINAL PROCEEDING
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OPINION
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This original proceeding concerns whether a trial court’s temporary order in
a modification proceeding fails to comply with section 156.006(b) of the family
code. Tex. Fam. Code Ann. § 156.006(b) (West Supp. 2011). Because we hold
that it does, we conditionally grant relief.
Background
Relator, Mother, and real party in interest, Father, were divorced on
January 29, 2010. The agreed decree named them joint managing conservators
of their two children. Additionally, the trial court named Mother the parent with
the exclusive right to designate the primary residence of the children. The
decree did not contain any geographic limitation on Mother’s right to designate
the children’s primary residence.
In November 2011, Father filed a petition to modify the parent-child
relationship and an application for a temporary restraining order. In the attached
affidavit, Father averred that Mother was planning to move to Florida before 2012
to live with her boyfriend, who intended to support the children. He also averred
that he wanted to prevent Mother from “removing the children from their schools
in Texas, their social functions in Texas, and their sports teams in Texas and
specifically their family in Texas, including” Father. The trial court granted Father
a temporary restraining order on November 22, 2011, restricting the children’s
residence to “Denton and contiguous counties within Texas.” The trial court also
set a hearing date for December 5, 2011.
At the hearing, Father asked that a social study be prepared and that the
children not be allowed to move “until the [c]ourt renders a final decision that
social studies put in place.” The trial court ordered that a social study be
prepared “as quickly as possible” and further stated, “I will order that the parties
remain in the area until the social study can be completed, and they not be
moved to any other location where they will not be available for purposes of
getting the information needed for the social study.”
Mother subsequently filed a petition for writ of mandamus. We granted her
motion for emergency relief and stayed the trial court’s December 5, 2011 order
on December 12, 2011.
Standard of Review
Mandamus relief is proper only to correct a clear abuse of discretion when
there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas,
290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding).
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A trial court clearly abuses its discretion when it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law or
if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair
Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With respect to the resolution of
factual issues or matters committed to the trial court=s discretion, we may not
substitute our judgment for that of the trial court unless the relator establishes
that the trial court could reasonably have reached only one decision and that the
trial court=s decision is arbitrary and unreasonable. In re Sanders, 153 S.W.3d
54, 56 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 839–40. In other
words, we give deference to a trial court=s factual determinations that are
supported by evidence, but we review the trial court=s legal determinations de
novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.
proceeding).
Because a trial court’s temporary orders are not appealable, mandamus is
an appropriate means to challenge them. See In re Derzapf, 219 S.W.3d 327,
334–35 (Tex. 2007) (orig. proceeding); In re Russell, 321 S.W.3d 846, 853 (Tex.
App.––Fort Worth 2010, orig. proceeding [mand. denied]).
Applicable Law
Section 156.006 of the family code provides that
(b) 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 the
temporary order is in the best interest of the child and:
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(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; or
(3) the child is 12 years of age or older and has expressed to
the court in chambers as provided by Section 153.009 the name of
the person who is the child’s preference to have the exclusive right
to designate the primary residence of the child.
Tex. Fam. Code Ann. § 156.006(b).
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. In re Payne, No. 10-11-00402-CV, 2011 WL 6091265,
at *2 (Tex. App.––Waco Dec. 2, 2011, orig. proceeding) (mem. op.); In re
Winters, No. 05–08–01486–CV, 2008 WL 5177835, at *2 (Tex. App.––Dallas
Dec. 11, 2008, orig. proceeding) (mem. op.). The Dallas and Waco Courts of
Appeals, in similar factual circumstances, have both held that a trial court’s
temporary order imposing a geographic restriction on a child’s residence when
there is no geographic restriction in the decree is a change in the designation of
the person who has the exclusive right to designate the primary residence in
violation of section 156.006(b). Payne, 2011 WL 6091265, at *2; Winters, 2008
WL 5177835, at *3. We agree with the reasoning of these cases and hold that
the trial court’s order that the children remain “in the area” pending the
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preparation of social studies has the effect of changing the designation of the
parent with the primary right to determine the children’s residence under the
decree because it imposes a restriction whereas the decree has none. See Tex.
Fam. Code Ann. § 156.006(b); Payne, 2011 WL 6091265, at *2; Winters, 2008
WL 5177835, at *3.
Thus, because we have determined that the trial court’s order does effect
such a change, we must determine whether any of the statutory exceptions
apply. The only exception that could apply in this case is subsection (b)(1):
whether “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).
Father did not attach any evidence to his motion to modify, but he did
attach an affidavit to his request for a temporary restraining order, which was
filed about half an hour later. The affidavit alleges the following:
. . . Respondent is currently unemployed and dating a man
that is looking to support her financially. She has stated to both
myself and the children on numerous accounts and against both
mine and the children’s wishes that she plans on moving with the
children to Florida prior to 2012, in order to be with her new
boyfriend and for him to support her and the children. This would
not be in the children’s best interests and would cause them harm.
. . . . I wish more than anything to prevent Respondent from
removing the children out of the state of Texas permanently.
Specifically, I would like to prevent Respondent from removing the
children from their schools in Texas, their social functions in Texas,
and their sports teams in Texas and specifically their family in Texas,
including myself. It is in the children’s best interest to remain in
Texas and allowing them to move outside of Texas would cause
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irreparable harm to the children’s emotional health. My children are
actively involved in school related [sic] and have strong connections
with their friends and family members that live close by.
Both my children have a strong support system in the Dallas
Fort-Worth area; they have 2 great grandmothers, 2 paternal
grandparents, 2 aunts and an uncle, and their father. In Florida, the
children do not have any such support system, as they will not know
anyone. In addition, I am concerned because the Respondent has
no job or source of income and is relying on her current boyfriend.
Thus, if their relationship may end, my children would be residing
with a parent with no income and further . . . Respondent may be
forced to return back to Texas or to another state where she can
have financial support.
Moving with the children outside of Texas, and withdrawing
the children from school is preventing them from attending any and
all their regular social activities here in Texas and would cause
irreparable damage to both children as they would be traumatized. I
believe that this will have an extremely harmful effect on my
children’s wellbeing and it is imperative to create a sense of stability
and a lack of harm for [them]. It is in their best interest to remain
here in Texas where their schools are located, their doctors are
located, their family and friends are located, and their father is
located.
The parties did not present any new evidence at the December 5 hearing; the
trial court only heard argument from counsel.
Father did not allege that the children would suffer any significant
impairment of their physical development by moving out of state other than
speculation that they could be left without resources if relator’s relationship with
her boyfriend ended.1 He did allege that moving them would emotionally harm
the children; however, he did not allege any specific impairment to their
1
At the hearing, Mother’s counsel stated that Mother was moving to Florida
to get married.
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emotional development other than being separated from their family, friends, and
normal activities in Texas. Although this is evidence that the children will likely
experience emotional distress from separation and loss, it is not by itself
evidence of significant impairment of their emotional development as required to
trigger the statutory exception. See, e.g., In re Rather, No. 14-11-00924-CV,
2011 WL 6141677, at *2 (Tex. App.––Houston [14th Dist.] Dec. 8, 2011, orig.
proceeding) (mem. op.); In re Payne, 2011 WL 6091265, at *2; In re Winters,
2008 WL 5177835, at *3.
Father contends that this case is unlike those cited above because in
those cases the parents were attempting to move within the State of Texas. But
section 156.006 does not distinguish between geographical restrictions within or
outside of the state, nor have we found any cases holding that a parent’s move
outside of the state constitutes significant impairment per se to a child’s
emotional development. Cf. Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex. App.–
–Fort Worth 1985, writ dism’d) (determining that evidence showing that the child
feared moving, that the child would not be able to see his younger sibling for
months or years because of the prohibitive cost of travel to Panama, and that a
psychologist concluded that moving the child away from his mother and sibling
could prove to be detrimental to his mental health was sufficient evidence of
significant impairment to require trial court to hold hearing on motion to modify).
Because each child’s circumstances are different, conditions that could
significantly impair the emotional development of one child may not affect
another child as strongly. Thus, specific allegations as to how a child’s emotional
development will be significantly impaired are statutorily required. Father’s
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general allegations here do not show that the children’s present circumstances
would significantly impair their emotional development. Based on the prohibition
codified in family code section 156.006(b) precluding the trial court from issuing a
temporary order effecting a change in the designation of the person having the
right to designate the primary residence of the child, and the absence of
evidence triggering a statutory exception to this prohibition, we are compelled to
conclude that the trial court abused its discretion by ruling that the children must
remain “in the area” pending the preparation of a social study. See Tex. Fam.
Code Ann. § 156.006; In re Rather, 2011 WL 6141677, at *2; In re Payne, 2011
WL 6091265, at *2; In re Winters, 2008 WL 5177835, at *3.
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Conclusion
Having determined that Mother is entitled to relief, we conditionally grant
Mother’s petition for writ of mandamus, and we order the trial court to vacate its
December 5, 2011 ruling.2 Mandamus will issue only if the trial court fails to
comply with this order. Upon the trial court’s compliance with this order, our
December 12, 2011 stay order will automatically be lifted.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
MCCOY, J., dissents without opinion.
DELIVERED: January 10, 2012
2
Our ruling should not be construed as preventing the continuation of the
motion to modify proceeding; it applies to the December 5, 2011 temporary order
only.
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