in Re: Michael Gibb ( 2015 )

ACCEPTED
05-15-00088-CV
05-15-00088-CV FIFTH COURT OF APPEALS
DALLAS, TEXAS
1/22/2015 12:29:22 PM
LISA MATZ
CLERK
NO. ___________________
_______________________________________________________
FILED IN
5th COURT OF APPEALS
In the Court of Appeals for the Fifth District of DALLAS, TEXAS
Texas at Dallas 1/22/2015 12:29:22 PM
_____________________________________________ LISA MATZ
Clerk
IN RE MICHAEL GIBB,
Relator.
___________________________________________
Original Proceeding for Writ of Mandamus to the
366th Judicial District Court of Collin County, Texas
Cause No. 366-55837-2009
_______________________________________________________
PETITION FOR WRIT OF MANDAMUS
_______________________________________________________
Charles “Chad” Baruch
THE LAW OFFICE OF CHAD BARUCH
Texas Bar No. 01864300
3201 Main Street
Rowlett, Texas 75088
Telephone: (972) 412-7192
Facsimile: (972) 412-4028
Email: baruchesq@aol.com
Counsel for Relator
Identity of Parties and Counsel
Relator Michael Gibb
Appellate Counsel Trial Counsel
Charles “Chad” Baruch Howard Shapiro
Texas Bar No. 01864300 Texas Bar No. 18110800
THE LAW OFFICE OF CHAD BARUCH THE SHAPIRO LAW FIRM
3201 Main Street P.O. Box 861720
Rowlett, Texas 75088 Plano, Texas 75086
Real Party in Interest Emily Stephens
Charles C. Philips
Texas Bar No. 00784760
PHILIPS & EPPERSON, LP
2301 Virginia Parkway
McKinney, Texas 75071
Respondent The Honorable Raymond G. Wheless
Judge, 366th Judicial District Court (Collin County)
2100 Bloomdale Road, Suite 30146
McKinney, Texas 75071
i
Table of Contents
Identity of Parties and Counsel..................................................................................i
Table of Contents .....................................................................................................ii
Index of Authorities................................................................................................. iv
Statement of the Case............................................................................................... 1
Statement of Jurisdiction .......................................................................................... 1
Issues Presented ....................................................................................................... 1
1. Is mandamus relief warranted by the trial court’s abuse of discretion in
signing temporary orders―
• without any pleading requesting them,
• without any notice they were being considered,
• without any supporting evidence,
• under a habeas corpus provision inapplicable to this SAPCR
enforcement proceeding, and
• where they impermissibly modify a final judgment?
Statement of Facts ....................................................................................................2
Argument .................................................................................................................8
1. The trial court abused its discretion in entering temporary orders
without any supporting pleading, notice, or opportunity for an
adversary hearing. .....................................................................................8
2. The trial court abused its discretion in entering the Order under a
provision limited to habeas corpus proceedings. ..................................... 10
3. The trial court abused its discretion in signing the order without
any supporting evidence. ......................................................................... 11
4. The trial court abused its discretion in modifying the Judgment. ............ 14
Prayer ..................................................................................................................... 15
ii
Certificate of Compliance ....................................................................................... 16
Certificate of Service .............................................................................................. 16
Rule 52.3(j) Certification ........................................................................................ 17
Appendix:
Tab 1: Order Concerning Visitation
Tab 2: Order in Suit to Modify Parent-Child Relationship
Tab 3: Texas Family Code § 157.374
Tab 4: Texas Family Code § 105.001
iii
Index of Authorities
Cases:
Dancy v. Daggett,
815 S.W.2d 548 (Tex. 1991) (per curiam) ............................................................. 8
In re A.B.P.,
291 S.W.3d 91 (Tex. App.—Dallas 2009, no pet.) .............................................. 11
In re Bustos,
No. 04-14-00755-CV, 2014 WL 7339259 (Tex. App.—San Antonio, Dec. 23,
2014, no pet. h.) (mem. op.) .............................................................................9-10
In re Herring,
221 S.W.3d 729 (Tex. App.—San Antonio 2007, orig. proceeding) ..................... 8
In re Lee,
411 S.W.3d 445 (Tex. 2013)........................................................................... 10, 15
McElreath v. Stewart,
545 S.W.2d 955 (Tex. 1977) ............................................................................12, 13
Moroch v. Collins,
174 S.W.3d 849 (Tex. App.—Dallas 2005, pet. denied) ................................. 11-12
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ................................................................................. 8
Whatley v. Bacon,
649 S.W.2d 297 (Tex. 1983) ............................................................................ 9, 10
iv
Statutes, Rules, and Regulations:
TEX. FAM. CODE ANN. §105.001 (West 2014) ................................................ 8, 9, 11
TEX. FAM. CODE ANN. §157.374 (West 2014) .................................................. 10, 12
TEX. GOV’T CODE ANN. §22.221 (West 2004) ........................................................ 1
TEX. R. CIV. P. 329b................................................................................................ 14
v
Statement of the Case
Underlying Proceeding: Enforcement motion in SAPCR.
Respondent: Hon. Raymond G. Wheless, 366th Judicial
District Court, Collin County, Texas.
Respondent’s Action: Granted temporary orders under habeas
corpus provision of Texas Family Code §
157.374 (App. 1).
Date of Order: December 22, 2014.
Statement of Jurisdiction
This Court has jurisdiction to issue a writ of mandamus to a district
court judge under Section 22.221(b)(1) of the Texas Government Code.
TEX. GOV’T CODE ANN. § 22.221(b)(1) (West 2004).
Issue Presented
Is mandamus relief warranted by the trial court’s abuse of discretion in
signing temporary orders―
• without any pleading requesting them,
• without any notice they were being considered,
• without any supporting evidence,
• under a habeas corpus provision inapplicable to this SAPCR
enforcement proceeding, and
• where they impermissibly modify a final judgment?
1
Statement of Facts
Mother and Father are the parents of a six-year-old child.1 This
mandamus proceedings arises from temporary orders for visitation signed by
the trial court on December 19, 2014.2 The trial court signed the temporary
orders nearly two months after signing a final judgment in the case.3
Entry of Final Judgment and Subsequent Temporary Orders
On October 28, 2014, the trial court signed a final order (referred to in
this petition as the Judgment) in a suit between Mother and Father to modify
the parent-child relationship.4 The Judgment incorporated a mediated
settlement agreement.5
The Judgment required that Mother undergo random drug testing for
two years, setting forth a four-stage process (Steps 1, 2, 3, and 4) by which
Mother could―through compliance with these testing requirements―gain
increased possession and access rights.6 Possession rights for all 4 steps were
“subject to the drug testing requirements” of the MSA and Judgment.7 Step
4 was the first stage in which Mother could have unsupervised overnight
1
Ohio App. 2 at 3; R.036.
2
Ohio App. 1; R.121.
3
Ohio App. 2; R.034-100.
4
Ohio App. 2; R.034-100.
5
R.022-032.
6
Ohio App. 2 at 12-31; R.045-064.
7
Ohio App. 2 at 15, 19, 21, 23; R.048, 052, 054, 056.
2
possession of the child. But under the Judgment, Mother could not possibly
reach Step 4 in less than eight months.
The Judgment designated SurScan as the testing facility, required
Mother to submit to monthly random tests as noticed by SurScan, and
mandated that the first test occur by February 5, 2014. Father was to receive
all test results. A positive finding on any test (including a “no show”) would
“return [Mother] to the beginning of Step 1 possession rights . . . .”8
The Judgment required that all Step 1 visitation was to be supervised.9
It further required that Mother “be present with the child during the entire
visit during” for all weekend visits during both Step 1 and Step 2.10
The Judgment became final on November 28, 2014. Thereafter,
Mother filed a motion for enforcement claiming that she was in Step 2 under
the Judgment, but that Father “refused to allow Step 2 possession.” Mother
asked that Father be held in contempt as a result.11 Mother did not request
temporary orders in the motion,12 and the hearing notice made no mention of
temporary orders.13
8
Ohio App. 2 at 13-15; R.046-048.
9
Ohio App. 2 at 15; R.048.
10
Ohio App. 2 at 16, 19; R.049, 052.
11
R.102-113.
12
R.102-113.
13
R.119.
3
The trial court conducted an evidentiary hearing (discussed in the
following section) on Mother’s contempt motion. Midway through the
hearing, the trial court told the parties that the MSA (which formed the basis
for the Judgment) was “a terrible agreement” and “not in the best interest
of the child.”14
At the conclusion of the hearing, the trial court announced that it was
denying the contempt action but was, sua sponte, entering temporary orders
“declaring” Mother to be in Step 4 (thus permitting her unsupervised
overnight possession)—even though Mother had not claimed to be in Step
4.15
The trial court stated it was acting under authority of Section 157.374
of the Texas Family Code, authorizing temporary orders in habeas corpus
proceedings where there exists a “serious immediate question concerning
the welfare of the child.” The trial court stated that a serious immediate
question existed under the MSA upon which it had entered the Judgment
two months earlier:
The Court denies the Motion for Contempt. However,
the Court finds that the present arrangement under this
Order agreed to by the parties is—the MSA—raises a
14
R.273.
15
R.300.
4
serious immediate question concerning the welfare of the
child.
Whatever harm might befall this child because of the
mother not showing up for a drug test or not—or being 15
minutes late or not sending 24 hours’ notice is far offset
by the damage caused to the emotional and mental
stability of this child because of the ongoing continuous
serious conflict between the mother and the father.
Therefore, under section 157.374 of the Family Code, the
Court is authorized to enter a Temporary Order, and the
Court is going to enter a Temporary Order, to the effect
that we are now in Step 4 of the Order that was entered
on October 28th.
That means that [Mother] now has unsupervised
possession pursuant to the standard possession order.16
The trial court signed an order (referred to in this petition as the
Order) stating that Mother’s visitation with the child “shall be in accordance
with Step 4 visitation” under the Judgment.17 Mother now has unsupervised
overnight possession without having completed the conditions precedent set
by the MSA and Judgment.
Evidence at the Hearing
Evidence of Step 2. Mother testified that she was in Step 2 under the
Order18 and that she had advised Father of that fact.19 She testified that
16
R.300
17
App.1; R.121.
18
R.139.
5
Father refused to permit her possession rights under Step 2.20 No one
testified that Mother was in Step 4.
Evidence of Child Welfare. No one testified that there existed any
“serious immediate concern” about with the child’s welfare. Indeed, no one
testified to any real concern with the child’s welfare. A visitation supervisor
testified that the child was “torn” between the parents—but said nothing
linking this to the Judgment or mentioning any serious immediate concern
about it.21
Evidence of Testing Compliance. Mother initially testified that she had
taken and passed “many” random drug tests, both at SurScan and other
places,22 and that she had complied with the testing requirements.23 But on
cross-examination, Mother could not say when she first took any drug test or
confirm that it was by the deadline set in the Judgment.24 Indeed, Mother
could not say when she ever had taken any drug test.25
Despite her original testimony about passing unspecified drug tests at
unspecified times, Mother admitted to using drugs until entering rehab in
19
R.132-34.
20
See, e.g., 134-35, 143-44.
21
R.221.
22
R.141.
23
R.142, 177.
24
R.177-78.
25
R.178.
6
June 2014—nearly six months after she was to start mandatory testing under
the Judgment.26 Mother admitted to using drugs “in January, February,
March” of 2014.27 In an earlier hearing, Mother’s own lawyer confirmed
that Mother did not take her first drug test under the Judgment until June
2014.28
Ultimately, when asked directly, Mother confirmed that she had not
taken the random drug tests required by the Judgment:
Q: No. Did you do random monthly tests at SurScan?
A: No.29
This confirmed an earlier statement by Mother’s lawyer that Mother had not
taken the required random drug tests.30
Finally, Father testified to never having seen the results of any test at
SurScan, or any evidence of Mother’s compliance with the testing
provisions.31
26
R.181-83, 187.
27
R.183.
28
R.314.
29
R.189.
30
R.316.
31
R.293.
7
Argument
Mandamus issues to correct a clear abuse of discretion for which the
relator lacks an adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d
833, 839-40 (Tex. 1992). “A trial court has no ‘discretion’ in determining
what the law is or applying the law to the facts. Thus, a clear failure by the
trial court to analyze or apply the law correctly will constitute an abuse of
discretion, and may result in appellate reversal by extraordinary writ.” Id. at
840 (citations omitted).
Because temporary orders in a suit affecting a parent child relationship
are not appealable, mandamus is an appropriate remedy when a trial court
abuses its discretion. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991)
(per curiam) (citation omitted); In re Herring, 221 S.W.3d 729, 730 (Tex.
App.—San Antonio 2007, orig. proceeding) (citation omitted).
1. The trial court abused its discretion in entering temporary orders
without any supporting pleading, notice, or opportunity for a
hearing.
In a suit affecting the parent-child relationship, the trial court is
authorized to make temporary orders for the safety and welfare of the
children. TEX. FAM. CODE ANN. §105.001(a) (West 2014). But except in
specified situations not present here, such orders may not be rendered
8
“except after notice and a hearing.” Id. § 105.001(b). A trial judge may not
issue temporary orders without the required notice. See, e.g., Whatley v.
Bacon, 649 S.W.2d 297, 299 (Tex. 1983) (discussing predecessor statute).
Here, Father lacked any notice concerning entry of temporary orders.
Mother’s pleading did not request temporary orders and the notice of
hearing made no reference to temporary orders. Even during the hearing,
neither Mother nor the trial court made any mention of the possibility of
temporary orders until the conclusion of the evidence. Under these
circumstances, Father simply had no idea that he needed to present evidence
weighing against temporary orders. To the contrary, Father was on notice
only of the need to disprove the enforcement allegations.
The San Antonio Court of Appeals considered a similar situation
recently in In re Bustos, No. 04-14-00755-CV, 2014 WL 7339259, at *1 (Tex.
App.—San Antonio, Dec. 23, 2014, no pet. h.) (mem. op.) (citation
omitted). There, the trial court, sua sponte, entered temporary orders without
any pleadings requesting or supporting such relief, and without any advance
notice. The court of appeals conditionally granted mandamus relief,
concluding that the trial court abused its discretion in entering the temporary
9
orders “without proper notice to [Father] and an opportunity for a full
adversary hearing.” Id. at *3 (citation omitted).
This case is similar. Neither Mother’s pleadings nor the notice of
hearing informed Father of the need to put on evidence in opposition to
temporary orders. So far as Father knew, the only thing he needed to rebut
was a contempt finding. The trial court abused its discretion by signing the
Order without any pleadings to support it, without any notice to Father that
it was contemplated, and without Father being afforded the opportunity for
an adversary hearing on it.
2. The trial court abused its discretion in entering the Order under a
provision limited to habeas corpus proceedings.
The trial court signed the Order under Section 157.374 of the Family
Code, authorizing a court to “render an appropriate temporary order if there
is a serious immediate question concerning the welfare of the child.” TEX.
FAM. CODE ANN. §157.374 (West 2014). But Section 157.374 is part of
Chapter 157, Subchapter H of the Family Code, concerning habeas corpus
proceedings. It authorizes a trial judge to issue a temporary order “in a
habeas corpus proceeding . . . .” Whatley, 649 S.W.3d at 299; see generally In
re Lee, 411 S.W.3d 445, 457-57 (Tex. 2013) (referencing a trial court’s ability
10
to protect the safety and welfare of a child “through habeas corpus
proceedings”).
Nothing in Section 157.374 suggests that it applies to non-habeas
proceedings. Instead, Section 105.001 of the Family Code governs temporary
orders in a SAPCR proceeding. TEX. FAM. CODE ANN. §105.001 (West
2014). The trial court abused its discretion by granting temporary orders
under the habeas corpus provisions of the Family Code in a SAPCR.
3. The trial court abused its discretion in signing the order without
any supporting evidence.
To determine whether the trial court abused its discretion in a family
law case, this court considers whether the trial court (1) had sufficient
evidence upon which to exercise its discretion and (2) erred in its exercise of
that discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.―Dallas 2009, no
pet.) (citations omitted). Traditional sufficiency standards of review are part
of this assessment, coming into play with regard to the first question. Moroch
v. Collins, 174 S.W.3d 849, 857 (Tex. App.―Dallas 2005, pet. denied)
(citations omitted). This court then determines whether, based on the
elicited evidence, the trial court made a reasonable decision. Id.
In examining legal sufficiency, this court reviews the evidence in the
light most favorable to the judgment to determine whether the trier of fact
11
could reasonably have formed a firm belief or conviction that its finding was
true. Id. at 858 (citation omitted). In examining factual sufficiency, this court
determines “whether, based on the entire record, a fact finder could
reasonably form a firm conviction or belief that the allegations in the petition
were proven.” Id. (citations omitted).
Even if the trial court had the power to enter the temporary order, it
abused its discretion by doing so in the absence of any supporting evidence.
The provision relied upon by the trial court, Section 157.374, requires a
finding of “a serious immediate question concerning the welfare of the
child.” TEX. FAM. CODE ANN. §157.374 (West 2014). The Supreme Court of
Texas has held that application of this provision contemplates a situation
“where the child was in imminent danger of physical or emotional harm and
immediate action was necessary to protect the child.” McElreath v. Stewart,
545 S.W.2d 955, 958 (Tex. 1977) (citations omitted).
The trial court simply heard no evidence raising any immediate
question concerning the child’s welfare. Indeed, very little was said about the
child during the hearing. At best, the trial court heard a visitation supervisor
say the child was torn between his parents. No evidence suggested that this
resulted in “a serious immediate question concerning the welfare of the
12
child.” This evidence “falls far short of the necessary statutory requisites of
immediacy and seriousness.” Id. at 958.
Independently, the trial court also lacked any evidence by which it
could have concluded that Mother’s possession rights were in Step 4 under
the Judgment. The evidence conclusively established that Mother was not in
Step 4. Mother admitted to using drugs until June 2014. Her lawyer also
admitted, on the record, that Mother did not take her first drug test until
June 2014 (and, even then, it was not the required random test). By the
terms of the Judgment, even if Mother’s non-compliant June test started the
provisions of Step 1, she could not possibly enter Step 4 until at least March
2015.32
Of course, the trial court’s order also lacked sufficient supporting
evidence because there is no evidence—literally none—that Mother ever
exited Step 1. The order establishes SurScan as the exclusive testing
provider. Mother admitted under cross-examination that she has not
undergone the required random drug testing at SurScan. This testimony
conclusively establishes Mother’s failure to comply with the Judgment in a
matter sufficient to permit her to exit Step 1. The trial court abused its
32
The Judgment requires Mother to remain in Step 1 for ten weeks, in Step 2 for three
months, and in Step 3 for three months. Assuming a start date of July 1, 2014, this would
mean Mother could not enter Step 4 until March 2015 at the earliest.
13
discretion by declaring Mother to be in Step 4 when the evidence established
that she is not.
4. The trial court abused its discretion in modifying the Judgment.
The real truth, as the record makes fairly clear, is that the trial court
just changed its mind about the MSA and Judgment, concluding they were
not in the best interest of the child. The trial court stated on the record its
belief that the Judgment’s requirements were too difficult and Mother never
would be able to comply with them.33 Casting aside the parties’ mediated
settlement agreement and the Judgment, the trial court simply “declared”
Mother’s way to full standard visitation.
Once the Judgment became final, the trial court lost plenary power to
modify it by any means. TEX. R. CIV. P. 329b(d). The Judgment became final
well in advance of the enforcement hearing. For better or worse, the
Judgment required Mother to fulfill certain conditions to obtain standard
visitation with the child. As the evidence at the hearing established, Mother
failed to comply with those conditions. By simply “declaring” Mother to be
in step four, the trial court impermissibly modified the Judgment.
33
R.273.
14
Even had the Judgment not been final the trial court could not have
modified the provision concerning the various steps. The Judgment was
based on an MSA. Even before the Judgment became final, the trial court
would have lacked the authority to reject the MSA based on a best interest
analysis. In re Lee, 411 S.W.3d at 470-71, 477-78.
Prayer
The trial court abused its discretion in entering the Order. As a result,
Relators ask that this Court grant a writ of mandamus and direct the trial
court to dissolve the Order.
Respectfully submitted,
/s/Charles “Chad” Baruch
Texas Bar Number 01864300
THE LAW OFFICE OF CHAD BARUCH
3201 Main Street
Rowlett, Texas 75088
Telephone: (972) 412-7192
Facsimile: (972) 412-4028
Email: baruchesq@aol.com
Counsel for Relator
15
Certificate of Compliance
This brief was prepared using Microsoft Word for Mac. Relying on the
word count function in that software, I certify that this brief contains 2,822
words (exclusive of the caption, identify of parties and counsel, table of
contents, index of authorities, statement of the case, statement of issues,
signature, proof of service, certificate of compliance, and certificate of
service).
/s/Charles “Chad” Baruch
Attorney for Relators
Certificate of Service
The undersigned counsel of record certifies that a true copy of this
instrument was served in accordance with Rule 9.5 of the Texas Rules of
Appellate Procedure on each party or that party’s lead counsel on January
22, 2015, as follows:
Charles C. Phillips
Philips & Epperson, LP
2301 Virginia Parkway
McKinney, Texas 75071
By email to:
rcollins@philipsandepperson.com
The Honorable Raymond Wheless
Judge, 366th Judicial District Court
2100 Bloomdale Road, Suite 30146
McKinney, Texas 75071
By regular mail
/s/Charles “Chad” Baruch
Attorney for Relator
16
Rule 52.3(j) Certification
The undersigned counsel of record certifies that he has reviewed this
petition, as well as the record, and concluded that every factual statement in
this petition is true, correct, and based on competent evidence included in
the appendix or record. The undersigned counsel of record further certifies
that the pleadings, orders, and judgment contained in the appendix are true
and correct copies of the originals.
/s/Charles “Chad” Baruch
Attorney for Relator
17
1
Filed: 12/19/2014 2:44:40 PM
Andrea S. Thompson
District Clerk
Collin county, Texas
By Tina Chandler Deputy
Envelope 10: 3551192
CAUSE NO. 366-55837-2009
IN THE INTEREST OF § IN THE DISTRICT COURT
§
H.W.G. §. 366TH JUDICIAL DISTRICT
§
A CHILD § COLLIN COUNTY, TEXAS
ORDER CONCERNING VISITATION
On December 19, 2014, the Court heard this case·. After hearing evidence
and argument of counsel, the Court find~ that EMILY C. STEPHENS has satisfied
all prerequisites to advance to Step 4 visitation as outlined in the parties' prior
order.
IT IS THEREFORE ORDERED that effective December 19, 2014, the
visitation of EMILY C. STEPHENS with the child the subject of this suit shall be
in accordance with Step 4 visitation as outlined in the Order in Suit to Modify
Parent-Child Relationship entered on or about October 28, 2014.
IT IS FURTHER ORDERED that all terms of the prior order not modified
herein shall remain in full force and effect.
12/19/2014
SIGNED on _ _ _ _ ___;~ 2014.
~· ~
ruDGEP:JI-D_rn_G_____________
ORDER CONCERNING VISITATION SOLO PAGE
2
NO. 366-55837-2009
IN THE INTEREST OF § IN THE DISTRICT COURT .
§
§ 366TH JUDICIAL DISTRICT
§
A CHILD § COLLIN COUNTY, TEXAS
ORDER IN SUIT TO MODIFY PARENT-CHILD RELATIONSHIP
On this day the Court heard this case.
Appearances
:i ,J ' ' Petitioner, MICHAEL GIBB, did not appear in person but has agreed to the
terms of this order as evidenced by Petitioner's signature and that of his attorney,
Howard Shapiro, below.
Respondent, EMILY STEPHENS, has made a general appearance and has
agreed to the terms of this order, to the extent permitted by law, as evidenced by
Respondent's signature, and that of her attorney of record, Kristy Blanchard, below.
Also appearing was Charity Borserine, appointed by the Court as amicus
attorney to assist the Court in protecting the best interests of the child the subject of
this suit. The amicus attorney has agreed to the terms of this order, as evidenced by
the signature of the amicus attorney below.
ORDER IN SUIT TO MODIFY
!?¥\RENT-CHILD RELATIONSHIP-Page 1
~bn~ent by Person with Right to. Designate Primary Residence
1'·1
'
EMILY STEPHENS, who has the exclusive right to designate the residence
of the child under the most recent final order, has consented to the terms of this order
as evidenced by EMILY STEPHENS's signature below.
Jurisdiction
·1'i' : The Court, after examining the record and the evidence and argument of
counsel, finds that it has jurisdiction of this case and of all the parties and that no
other court has continuing, exclusive jurisdiction of this case. All persons entitled
to citation were properly cited.
Jury
.A jury was waived, and all questions of fact and of law were submitted to .') f
the Court.
Record
The making of a record of testimony was made by Nicki Garcia, the Court
Reporter for the 366th Judicial District Court.
Child
The Court finds that the following child is the subject of this suit:
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 2
)_;'<'
. ~ ..
Name:
I ,,..
Sex: Male
Birth date:
Home state: Texas
Social Security number:
Findings
The Court finds that the material allegations in the petition to modify are true
and that the requested modification is in the best interest of the child. IT IS
6RDERED that the requested modification is GRANTED.
Parenting Plan
The Court finds that the provisions in these orders relating to the rights and
duties of the parties with relation to the child, possession of and access to the child,
child support, and optimizing the development of a close and continuing relationship
·'
l5:etween each party and the child constitute the parties' agreed parenting plan.
Conservatorship
The Court finds that the following orders are in the best interest of the child.
,, IT IS ORDERED that MICHAEL GIBB and EMILY STEPHENS are
appointed Joint Managing Conservators of the following child:
IT IS ORDERED that, at all times, MICHAEL GIBB, as a parent joint
managing conservator, shall have the following rights:
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 3
,· '
) ·..
1. the right to receive information from any other conservator of the child
concerning the health, education, and welfare of the child;
2. the right to confer with the other parent to the extent possible before
making a decision concerning the health, education, and welfare of the child;
3. the right of access to medical, dental, psychological, and educational
records of the child;
,,; 4 the right to consult with a physician, dentist, or psychologist of the
child;
5. the right to consult with school officials concerning the child's welfare
and educational status, including school activities;
6. the right to attend school activities;
7. the right to be designated on the child's records as a person to be notified
in case of an emergency;
8. the right to consent to medical, dental, and surgical treatment during an
emergency involving an immediate danger to the health and safety of the child; and
9. the right to manage the estate of the child to the extent the estate has
been created by the parent or the parent's family.
IT IS ORDERED that, at all times, EMILY STEPHENS, as a parent joint
managing conservator, shall have the following rights:
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 4
1. the right to receive information from any other conservator of the child
concerning the health, education, and welfare of the child
2. the right to confer with the other parent to the extent possible before
making a decision concerning the health, education, and welfare of the child;
3. the right of access to medical, dental, psychological, and educational
records of the child;
``(''i·l·l·
~
.. ,I , 1... · I
4 e the right to consult with a physician, dentist, or psychologist of the
child;
5. the right to consult with school officials concerning the child's welfare
and educational status, including school activities;
6. the right to attend school activities;
i.''.·'....
. ',. ~ 7. the right to be designated on the child's records as a person to be
nbtified in case of an emergency, except during periods of supervised possession
under Step 1 ofthis Order.
8. the right to consent to medical, dental, and surgical treatment during an
emergency involving an immediate danger to the health and safety of the child; and
9. the right to manage the estate of the child to the extent the estate has
been created by the parent or the parent's family.
IT IS ORDERED that, at all times, MICHAEL GIBB and EMILY
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 5
\
STEPHENS, as parent joint managing conservators, shall each have the following
duties:
1. the duty to inform the other conservator of the child in a timely manner
of significant information concerning the health, education, and welfare of the child;
and
2. the duty to inform the other conservator of the child if the conservator
resides with for at least thirty days, marries, or intends to marry a person who the
conservator knows is registered as a sex offender under chapter 62 of the Code of
Criminal Procedure or is currently charged with an offense for which on conviction
the person would be required to register under that chapter. IT IS ORDERED that
this information shall be tendered in the form of a notice made as soon as practicable,
but not later than the fortieth day after the date the conservator of the child begins to
r€side with the person or on the tenth day after the date the marriage occurs, as'
appropriate. IT IS ORDERED that the notice must include a description of the
offense that is the basis of the person's requirement to register as a sex offender or
of the offense with which the person is charged. WARNING: A
CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C
MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS
NOTICE.
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 6
IT IS ORDERED that, during his periods of possession, MICHAEL GIBB, as
parent joint managing conservator, shall have the following rights and duties:
1. the duty of care, control, protection, and reasonable discipline of the
.. :i,.
child;
2. the duty to support the child, including providing the child with
clothing, food, shelter, and medical and dental care not involving an invasive
procedure;
3. the right to consent for the child to medical and dental care not
: );1
involving an invasive procedure; and
4. the right to direct the moral and religious training of the child.
IT IS ORDERED that, during her periods of possession, EMILY STEPHENS,
ftS parent joint managing conservator, shall have the following rights and duties:
1. the duty of care, control, protection, and reasonable discipline of the
child;
2. the duty to support the child, including providing the child with
clothing, food, shelter, and medical and dental care not involving an invasive
procedure;
3. the right to consent for the child to medical and dental care not
involving an invasive procedure; and
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 7
j···
'
4. the right to direct the moral and religious training of the child.
IT IS ORDERED that MICHAEL GIBB, as a parent joint managing
conservator, shall have the following rights and duty:
1. the exclusive right to designate the primary residence ofthe child within
Collin County, Texas, or a county contiguous to Collin County, Texas;
2. the exclusive right, after conferring with the other conservator, to
consent to medical, dental, and surgical treatment involving invasive procedures;
3. the exclusive right, after conferring with the other conservator, to
consent to psychiatric and psychological treatment of the child;
4. the exclusive right to receive and give receipt for periodic payments for
the support of the child and to hold or disburse these funds for the benefit of the
child;
5. the independent right, after conferring in advance with the other
conservator, to represent the child in legal action and to make other decisions of
>'
substantial legal significance concerning the child;
6. the independent right, after conferring m advance with the other
conservator, to consent to marriage and to enlistment in the armed forces of the
United States;
.:•\.
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PARENT-CHILD RELATIONSHIP-Page 8
7. the exclusive right, after conferring with the other conservator, to
make decisions concerning the child's education;
8. except as provided by section 264.0111 of the Texas Family Code, the
independent right, after conferring in advance with the other conservator, to the
'·
services and earnings of the child;
9. except when a guardian of the child's estate or a guardian or attorney ad
litem has been appointed for the child, the independent right, after conferring in
advance with the other conservator, to act as an agent of the child in relation to the
child's estate if the child's action is required by a state, the United States, or a foreign
g~.:Jvermnent; and
10. the independent duty to manage the estate of the child to the extent the
estate has been created Michael Gibb or his family.
IT IS ORDERED that EMILY STEPHENS, as a parent joint managing
conservator, shall have the following rights and duty:
the independent right, after conferring m advance with the other
conservator, to represent the child in legal action and to make other decisions of
substantial legal significance concerning the child;
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 9
2. the independent right, after conferring in advance with the other
conservator, to consent to marriage and to enlistment in the armed forces of the
United States;
3. except as provided by section 264.0111 of the Texas Family Code, the
independent right, after conferring in advance with the other conservator, to the
; i'.
s~rvices and earnings of the child;
4. except when a guardian of the child's estate or a guardian or attorney ad
litem has been appointed for the child, the independent right, after conferring in
advance with the other conservator, to act as an agent of the child in relation to the
alnilq's estate if the child's action is required by a state, the United States, or a foreign
g0vemment; and
5. the independent duty to manage the estate of the child to the extent the
estate has been created by Emily Stephens or her family.
;;c.· ! The Court finds that, in accordance with section 153.001 of the Texas Family
Clode, it is the public policy of Texas to assure that children will have frequent and
continuing contact with parents who have shown the ability to act in the best interest
of the child, to provide a safe, stable, and nonviolent environment for the child, and
to encourage parents to share in the rights and duties of raising their child after the
parents have separated or dissolved their marriage. IT IS ORDERED that the
bRbER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 10
~fin{ary residence of the child shall be Collin County, Texas, or a county contiguous
;':''
to Collin County, Texas, and the parties shall not remove the child from Collin
County, Texas, or a county contiguous to Collin County, Texas for the purpose of
changing the primary residence of the child until modified by further order of the
court of continuing jurisdiction or by written agreement signed by the parties and
p.aed ·with the court.
·.,) / .
IT IS FURTHER ORDERED that MICHAEL GIBB shall have the exclusive
right to designate the child's primary residence within Collin County, Texas, or a
county contiguous to Collin County, Texas.
IT IS FURTHER ORDERED that this geographic restriction on the residence
pfthe child shall be lifted if, at the time MICHAEL GIBB wishes to remove the
child from Collin County, Texas, or a county contiguous to Collin County, Texas
for the purpose of changing the primary residence of the child, EMILY STEPHENS
does not reside in Collin County, Texas, or a county contiguous to Collin County,
Texas.
'llbssession and Access
1. Modified Standard Possession Order
IT IS ORDERED that each conservator shall comply with all terms and
conditions of this Modified Standard Possession Order. IT IS ORDERED that this
'
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 11
Modified Standard Possession Order is effective immediately and applies to all
periods of possession occurring on and after the date of the Mediated Settlement
filed I this cause. IT IS, THEREFORE, ORDERED:
(a) Definitions
1. In this Modified Standard Possession Order "school" means the
primary or secondary school in which the child is enrolled or, if the child is not
j3nrolled in a primary or secondary school, the public school district in which the
child primarily resides.
2. In this Modified Standard Possession Order "child" includes each
child, whether one or more, who is a subject of this suit while that child is under the
~ge of eighteen years and not otherwise emancipated.
:.·'
r~c (b) Mutual Agreement or Specified Terms for Possession
IT IS ORDERED that the conservators shall have possession of the child at
times mutually agreed to in advance by the parties, and, in the absence of mutual
agreement, it is ORDERED that the conservators shall have possession of the child
under the specified terms set out in this Modified Standard Possession Order.
:: (c) Approved Supervisors for Supervised Possession and Access
IT IS ORDERED that any of the following may be used as supervisors during
the supervised possession and access that EMILY STEPHENS
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 12
shall be solely responsible for the cost of said supervisor:
a. Hannah's House, on-site or at an off-site location with an
employee ofHannah's House
b. Misty Lewis
c. Meghan 0' Shea
:31 d. Rebecca Martin
e. Randy Nabors (Sierra Investigations)
f. A Family Affair on-site, or at an off-site location with an
employee of A Family Affair
Supervised periods of possession will be supervised by the supervisors
designated in this Order. . Supervised visitations may take place at an offsite
location selected by EMILY STEPHENS and the supervisor. The supervisor will
supervise throughout the entire period of possession of by
EMILY STEPHENS in accordance with the provisions ofthis Order.
(d) Drug Testing
IT IS ORDERED that EMILY STEPHENS shall submit to the
following drug testing requirements:
';
1. Testing facility will be Surscan.
2. SurScan rules will determine what is a "no show."
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 13
3. A "no show" or diluted sample will be deemed a positive test
result.
4. EMILY STEPHENS will submit to random standard 10 panel
monthly drug tests at the requests of SurScan.
5. EMILY STEPHENS will submit to quarterly standard 10 panel
hair testing, with the initial test to take place no later than
February 5, 2014.
6. EMILY STEPHENS will be subject to the SurScan Randoni
Drug Testing policies.
7. EMILY STEPHENS will be responsible for the cost of drug
testing billed by SurScan.
8. The attorneys for MICHAEL GIBB and EMILY STEPHENS
will be authorized to receive the results of each drug test;· and
EMILY STEPHENS shall execute such documents and sign any
releases necessary to provide the test results to MICHAEL GIBB
and/or counsel for MICHAEL GIBB and EMILY STEPHENS at
the time of each test.
9. The obligation to submit to drug testing will end after two (2}
consecutive years of testing without a positive finding, which
1\
ORDER IN SUIT TO MODIFY
~4v~ ~(A~ ?.q,-zott
PARENT-CHILD RELATIONSHIP-Page 14
two year period will begin on the date of entry of this Order, and
10. A positive finding on a drug test will return EMILY STEPHENS
to the beginning of Step 1 possession rights until she advances
out of Step 1 as set forth in this Order.
(e) Supervised Possession and Access for Emily Stephens Step 1
IT IS ORDERED that Emily Stephens shall have supervised possession and
access to the child as follows:
Step 1 will continue for ten (10) consecutive weeks beginning January 29,
2014 and will require EMILY STEPHENS to exercise every period of possession
during that ten (10) week period. EMILY STEPHENS may consent to the maternal
grandparents being present with EMILY STEPHENS during no more than three (3)
;visits during a consecutive ten (1 0) week period. These possession rights are subject
to the drug testing requirements described herein. Neither EMILY STEPHENS not
her parents may be denied any possession with the child due to any of the drug
testing requirements. However, a positive test result, pursuant to Surscan rules and
this Order:
., 1. During Step 1 will return EMILY STEPHENS to the beginning of a ten
(1 0) consecutive week period of possession under the Step 1 possession
schedule, upon completion of the on-going ten (10) consecutive week
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 15
period of possession currently being exercised by EMILY STEPHENS,
and
2. During Steps 2 through 4 will immediately return EMILY STEPHENS to
the beginning of a ten (1 0) consecutive week period of possession under
Step 1.
The maternal grandparents may not participate in more than three (3) visits
during any of the ten ( 10) consecutive week periods of possession, even if EMILY
STEPHENS is required to re-start Step 1. Each ten (1 0) consecutive week period
of possession will be completed prior to beginning another ten (1 0) consecutive
week period of possession.
1. Weekend Visitation - EMILY STEPHENS will have the right to
supervised possession of the child on Saturdays following the first,
third, and fifth Friday of each month, beginning at 2:00p.m. and ending
cl 1· that day at 5:00p.m. Said visit will be supervised at all times. EMILY
STEPHENS must be present with the child during the entire visit during
this Step 1. The conservator can agreeto change the time if the period
of possession is in conflict with the child's regular extracurricular
activity. These periods of possession shall not interfere with
l ~ .' MICHAEL GIBBS~ or summer possession. Any period of
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 16
possession for EMILY STEPHENS under Step ·1, which is missed due
to MICHAEL GIBB's ~summer possession will be made-up
"11'\`` Q~d tLpCJl!\
on another date.
2. Thursday Visitation - EMILY STEPHENS will have supervised
.,
possession of the child on Thursdays preceding the second and fourth
Friday of each month, beginning at 2:30 p.m. and ending that day at
5:30p.m. Said visit will be supervised at all times by employees of
Hannah's House or A Family Affair or one of the supervisors
designated in this Order. These periods of visitation will not interfere
with MICHAEL GIBBS periods of extended summer possession. Any
period of possession for EMILY STEPHENS under Step 1, which is
missed due to MICHAEL GIBB' S extended summer possession will be
l'uud-u_``J``
made-up orl'a'uotfier date.
3. Telephone Visitation - EMILY STEPHENS shall have the right to
telephone visitation with the child on Wednesday of each week from
7:00p.m. to 7:30pm. EMILY STEPHENS shall leave a message on
MICHAEL GIBB's personal cellular telephone setting forth the
number that she is calling from and MICHAEL GIBB shall return the
call within 15 minutes. If EMILY STEPHENS is in a facility and has
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 17
provided MICHAEL GIBB notification that she is in such facility,
MICHAEL GIBB shall answer all calls between 7:00 and 7:30p.m. on
Wednesdays during such time period.
4. Lunch at Child's School- Following a hair test result with a negative
finding, EMILY STEPHENS shall have the right to have lunch with the
child one time per month, with appropriate notice/contact with the
school/daycare in accordance with school policy for parents, and may
bring the grandparents with her to have lunch with the child in
accordance with school policy.
5. Attendance at Activities- Following a hair test result with a negative
finding, EMILY STEPHENS shall have the right to attend the child's
school functions and extracurricular activities, and may bring anyone
with her that EMILY STEPHENS wishes to attend said events.
In the event EMILY STEPHENS has a conflict on any period of possession
for work, or the child's activities conflict with any period of possession, or
MICHAEL GIBB's summer possession conflicts with a period of possession, the
parties will re-schedule EMILY STEPHENS visitation, to a mutually agreed upon
day and time. EMILY STEPHENS shall give MICHAEL GIBB 24 hours advance
notice of any work conflict which will necessitate changing a period of possession,
ORnER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 18
b'r of her intent not to exercise a period of possession. Notice shall be provided
through Our Family Wizard.
(f) Possession and Access for Emily Stephens Step 2
After completion of Step 1, EMILY STEPHENS shall have the following
periods of possession of the child for Step 2 during the subsequent three (3) month
period as stated below. These possession rights are subject to the drug testing
requirements described herein.
1. Weekend Visitation - EMILY STEPHENS shall have the right to
possession of the child on Saturdays following the first, third and fifth
Friday of each month, beginning at 10:00 a.m. and ending that day at
pt· · 4:00p.m. EMILY STEPHENS must be present with the child during
the entire visit during this Step 2. These periods of possession shall
not interfere with MICHAEL GIBB's periods of extended summer
possession. Any period of possession for EMILY STEPHENS under
Step 2, which is missed due to MICHAEL GIBB's extended summer
possession will be made-up on another mutually agreed upon date. ,'
2. Telephone Visitation - EMILY STEPHENS shall have the right to
telephone visitation with the child on Wednesday of each week from
7:00p.m. to 7:30pm. EMILY STEPHENS shall leave a message on
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 19
MICHAEL GIBB 's cellular telephone setting forth the number that she
is calling from and MICHAEL GIBB shall return the call within 15
minutes. If EMILY STEPHENS is in a facility and has provided
MICHAEL GIBB notification that she is in such facility, MICHAEL
GIBB shall answer all calls between 7:00 and 7:30p.m. on Wednesdays
during such time period.
3. Lunch at Child's School- Under Step 2, EMILY STEPHENS shall
have the right to have lunch with the child at any time, with appropriate
notice/contact with the school/daycare in accordance with school policy
for parents, and may bring the grandparents with her to have lunch with
the child in accordance with school policy.
4. Attendance at Activities - Under Step 2, EMILY STEPHENS shall
have the right to attend the child's school functions and extracurricular
activities, and may bring anyone with her that EMILY STEPHENS
wishes to attend said events.
In the event EMILY STEPHENS has a conflict on any period of possession
for work, or the child's activities conflict with any period of possession, or
MICHAEL GIBB 's extended summer possession conflicts with a period of
possession, the parties will re-schedule EMILY STEPHENS visitation, to a mutually
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 20
agreed upon day and time. EMILY STEPHENS shall give MICHAEL GIBB 24
hours advance notice of any work conflict which will necessitate changing a period
of possession.
(g) Possession and Access for Emily Stephens Step 3
After completion of Step 2, EMILY STEPHENS shall have the right to
possession of the child under Step 3 during the subsequent three (3) month period as
stated below. The possession rights are subject to the drug testing requirements
described herein.
1. Weekend Visitation - EMILY STEPHENS shall have the right to
possession of the child on each Saturday and Sunday following the first,
third, and fifth Friday of each month, beginning at 9:00 a.m. on
ht · Saturday and ending at 6:00 p.m. on Saturday, and beginning at 9:00
a.m. on Sunday and ending at 6:00p.m. on Sunday. These periods of
possession shall not interfere with MICHAEL GIBBS periods of
extended summer possession. Any period of possession for EMILY
STEPHENS under Step 3, which is missed due to MICHAEL GIBB's
:,:( extended summer possession will be made-up on another mutually
agreed upon date.
2. Telephone Visitation - EMILY STEPHENS shall have the right to
ORDER IN SUIT TO MOD1FY
PARENT-CHILD RELATIONSHIP-Page 21
telephone visitation with the child on Wednesday of each week from
7:00p.m. to 7:30pm. EMILY STEPHENS shall leave a message on
,•:..
MICHAEL GIBB 's personal cellular telephone setting forth the
number that she is calling from and MICHAEL GIBB shall return the
call within 15 minutes. If EMILY STEPHENS is in a facility and has
provided MICHAEL GIBB notification that she is in such facility,
MICHAEL GIBB shall answer all calls between 7:00 and 7:30p.m. on
Wednesdays during such time period.
3. Lunch at Child's School - Under Step 3, EMILY STEPHENS shall
have the right to have lunch with the child at any time, with appropriate
notice/contact with the school/daycare in accordance with school policy
for parents, and may bring the grandparents with her to have lunch with
the child in accordance with school policy.
4. Attendance at Activities - Under Step 3, EMILY STEPHENS shall
have the right to attend the child's school functions and extracurricular
activities, and may bring anyone with her that EMILY STEPHENS
wishes to attend said events.
In the event EMILY STEPHENS has a conflict on any period of possession
for work, of the child's activities conflict with any period of possession, or
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 22
MICHAEL GIBB's extended summer possessiOn conflicts with a period of
possession, the parties will re-schedule EMILY STEPHENS visitation, to a mutually
agreed upon day and time. EMILY STEPHENS shall give MICHAEL GIBB 24
hours advance notice of any work conflict which will necessitate changing a period
of possession.
(h) Possession and Access for Emily Stephens Step 4
After completion of Step 3, EMILY STEPHENS shall have the right to
possession of the child under Step 4 as follows. These possession rights are subject
to the drug testing requirements described herein.
1. Weekend Visitation - EMILY STEPHENS shall have the right to
possession of the child beginning at 6:00 p.m. on the first, third and
fifth Friday of each month and ending on the immediately following
Sunday at 6:00 p.m. These periods of possession shall not interfere
J 11 • with MICHAEL GIBBS periods of holiday or extended summer
possessiOn.
2. Weekends Extended by Holiday - Except as otherwise explicitly
provided in this Modified Standard Possession Order, if a weekend
period of possession by EMILY STEPHENS begins on a Friday that
,•, is a student holiday or teacher in-service day during the regular school
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 23
term, as determined by the school in which the child is enrolled, or a
federal, state, or local holiday during the summer months when school
is not in session, or if the period ends on or is immediately followed by
a Monday that is such a holiday, that weekend period of possession
shall begin at the time the child's school is regularly dismissed on the
Thursday immediately preceding the Friday holiday, student holiday or
teacher in-service day or end at 6:00 p.m. on that Monday holiday,
student holiday or teacher in-service day, as applicable. These periods
of possession shall not interfere with MICHAEL GIBBS periods of
holiday or summer possession.
3. Mid-Week/Thursday possession- EMILY STEPHENS shall have
the right to possession of the child beginning at 6:00p.m. on Thursday
of each week during the regular school term and ending at 8:00p.m. on
that day.
4. Lunch at Child's School- Under Step 4, EMILY STEPHENS shall
have the right to have lunch with the child at any time, with appropriate
notice/contact with the school/daycare in accordance with school policy
for parents and may bring the grandparents with her to have lunch with
the child in accordance with school policy.
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 24
5. Extended Summer possession by EMILY STEPHENS for Summer
of 2015- In addition to regular weekend periods of possession set forth
above, EMILY STEPHENS shall have the right to designate one seven
(7) day period of exclusive possession by EMILY STEPHENS,
beginning no earlier the day after the child's school is dismissed for the
summer vacation and ending no later than seven days before school
resumes at the end of the summer vacation in that year, provided that
EMILY STEPHENS shall provide MICHAEL GIBB with twenty one
(21) days advance written notice of her intention to exercise this period
of possession and the dates of such period of possession. Said period
of possession shall begin and end at 6:00p.m. and shall not interfere
with Father's Day.
6. Extended Summer possession by EMILY STEPHENS for 2016 and
Future Years - With Written Notice by April 1 - If EMILY
STEPHENS gives MICHAEL GIBB written notice by April 1i
specifying an extended period of periods of summer possession of that
year, EMILY STEPHENS shall have possession of the child for thirty
(30) days beginning no earlier than the day after the child's school is
dismissed for the summer vacation and ending no later than seven days
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 25
before school resumes at the end of the summer vacation in that year,
to be exercised in no more than two separate periods of at least seven
(7) consecutive days each, as specified in the written notice. These
periods of possession shall begin and end at 6:00 p.m. and shall not
interfere with Father's Day Weekend.
- Without Written Notice by April l, 2016 or Future Years - If
EMILY STEPHENS does not give MICHAEL GIBB written notice by
April 1 of a year specifying an extended period or periods of summer
possession for that year, EMILY STEPHENS shall have possession of
the child for thirty (30) consecutive days in that year beginning at 6:00
''
p.m. on July 1 and ending at 6:00p.m. on July 31.
7. Spring Break in Even-Numbered Years- In even-numbered years,
beginning at the time the child's school is regularly dismissed on the
day the child is dismissed from school for the school's spring vacation
and ending at 6:00 p.m. on the day before school resumes after that
vacation.
8. Thanksgiving in Odd-Numbered Years - In odd-numbered years,
EMILY STEPHENS shall have the right to possession of the child
beginning at 6:00p.m. on the day the child is dismissed from school for
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 26
the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday
}'
following Thanksgiving.
9. Mother's Day- EMILY STEPHENS shall have the right to possession
of the child each year, beginning at 6:00p.m. on the Friday preceding
-Mother's Day and ending at 6:00p.m. on Mother's Day, provided that
if EMILY STEPHENS is not otherwise entitled under this Modified
Possession Order to present possession of the child, she shall pick up
the child from MICHAEL GIBB's residence and return the child to that
same place.
10. Child's Birthday - If a parent is not otherwise entitled under this
Modified Possession Order to present possession of the child on the
child's birthday, that parent shall have possession of the child beginning
at 6:00p.m. and ending at 8:00p.m. on that day, provided that that
parent picks up the child from the other parent's residence and returns
the child to that same place.
11. Christmas Holidays in Even-Numbered Years- In even-numbered
years, EMILY STEPHENS shall have the right to possession of the
child beginning at 6:00 p.m. on the day the child is dismissed from
school for the Christmas school vacation and ending at noon on
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 27
December 28.
Christmas Holidays in Odd-Numbered Years - In odd- numbered
years, EMILY STEPHENS shall have the right to possession of the
child beginning at noon on December 28 and ending at 6:00p.m. on the
day before school resumes after that Christmas school vacation.
Notwithstanding the periods of possession ORDERED for EMILY
STEPHENS under Step 1 through Step 4, it is explicitly ORDERED that MICHAEL
GIBB shall have a superior right of possession of the child as follows:
1. Spring Break in All Odd-Numbered Years- In odd-numbered years,
beginning at 6:00p.m. on the day the child is dismissed from school for
the school's spring vacation and ending at 6:00p.m. on the day before
school resumes after that vacation.
2. Summer Weekend Possession by MICHAEL GIBB in All Years
while EMILY STEPHENS is Under Step 1 - 3 Visitation - If
MICHAEL GIBB gives EMILY STEPHENS written notice 30 days in
advance of his elected one-week period of summer possession,
MICHAEL GIBB may elect one seven (7) day period of extended
summer possession during the summer school vacation. Any period
of possession for EMILY STEPHENS which is missed due to
ORDER IN SUIT TO MODIFY
PARENT-CHILD RELATIONSHIP-Page 28
MICHAEL GIBB' s period of extended summer possession, will be
made up on another mutually agreed upon date.
2. Summer Weekend Possession by MICHAEL GIBB in All Years
while EMILY STEPHENS is Under Step 4 Visitation- IfMICHAEL
GIBB gives EMILY STEPHENS written notice by April 15 of a year,
MICHAEL GIBB shall have possession of the child on any one
weekend beginning at 6:00p.m. on Friday and ending at 6:00p.m. on
the following Sunday, during any one period of the extended summer
possession by EMILY STEPHENS in that year, provided that
MICHAEL GIBB picks up the child from EMILY STEPHENS and
returns the child to that same place.
3. Extended Summer Possession by MICHAEL GIBB in All Years
while EMILY STEPHENS is Under Step 4 Visitation- IfMICHAEL
GIBB gives EMILY STEPHENS written notice by April 15 of a year
or gives EMILY STEPHENS fourteen days' written notice on or after
April 16 of a year, MICHAEL GIBB may designate one weekend,
beginning no earlier than the day after the child's school is dismisse815 S.W.2d 548 (Tex. 1991), D-1069, Dancy v. Daggett
Page 548
815 S.W.2d 548 (Tex. 1991)
Leonard Charles DANCY, Sr., Relator,
v.
The Honorable Allen J. DAGGETT, Judge, Respondent.
No. D-1069.
Supreme Court of Texas.
September 18, 1991
Gerald E. Bourque, Houston, for relator.
Ivy V. Ricketts, Houston, for respondent.
Page 549
ON MOTION FOR REHEARING
PER CURIAM.
We grant Relator's motion for rehearing and issue the following opinion.
Leonard Dancy seeks mandamus relief from temporary orders issued in his divorce
proceeding. We conditionally grant the requested relief.
The 310th Judicial District Court, Daggett, J., set a hearing on temporary orders in Dancy's
divorce action for April 16, 1991. After that setting, Dancy's counsel, Gerald Bourque, received
notice of an April 16, 1991 hearing in federal court on a separate matter: a criminal case in which
Bourque was the defendant's counsel of record. Bourque promptly filed a motion to reset the
hearing in the divorce case, attaching a copy of the notice he had received from the federal court.
Bourque appeared as scheduled at the April 16 hearing in federal court. On the same date,
Judge Daggett reset the hearing in the divorce case for 9:00 a.m. on April 17.
On the morning of April 17, Bourque's secretary informed the 310th Judicial District Court that
the federal case had been continued, and that Bourque would be unable to appear for the hearing
in the divorce action. Subsequently, the judge in the federal case telephoned Judge Daggett and
informed him that Bourque's attendance was still required in federal court. Nonetheless, Judge
Daggett refused to postpone the hearing. At the close of the hearing, Judge Daggett awarded
Dancy's wife custody of the couple's children and possession of the family home, and ordered
Dancy to pay approximately $1,000 per month in child support and spousal maintenance.
After the trial court overruled his motion for rehearing, Dancy sought mandamus relief in the
court of appeals. The court of appeals noted its strong disapproval of the trial court's actions, but
still denied leave to file, stating, "We do not have the discretion to find that the trial court abused
his discretion." 809 S.W.2d 629, 630 (citing Hooks v. Fourth Court of Appeals, 808 S.W.2d 56
(1991)).
In Hooks, we held that "a court of appeals does not possess independent discretion to grant
or deny mandamus against a trial court." 808 S.W.2d at 59 (emphasis added). Rather, "[a]ny
discretion is vested in the trial court, and the question before this court is whether the court of
appeals erred in granting the writ of mandamus." Id. (citing Johnson v. Fourth Court of Appeals,
700 S.W.2d 916, 917-18 (Tex.1985)). Our holding in Hooks did not alter the long-standing rule that
mandamus may issue to correct a clear abuse of discretion by a trial court. See, e.g., Crane v.
Tunks, 160 Tex. 182, 328 S.W.2d 434, 440 (1959).
In the present case, the trial court's actions violated local rules regarding conflicts in docket
settings, [1] and effectively deprived Dancy of representation at the hearing on his divorce case.
Under these circumstances, we hold that the trial court abused its discretion by refusing to
continue the proceedings until such time as Dancy's counsel was available. We further hold that
mandamus is an appropriate remedy under these facts, since the trial court's issuance of
temporary orders is not subject to interlocutory appeal. See Tex.Fam.Code § 11.11(g).
Page 550
Pursuant to Rule 122 of the Texas Rules of Appellate Procedure, without hearing oral
argument, a majority of the court conditionally grants the writ of mandamus. The writ will issue only
if the trial judge refuses to set aside the disputed orders in accordance with this opinion.
---------
Notes:
[1] Rule 4(b) of the Second Administrative Judicial District provides in part:
Attorney assigned to two courts for the same date:
(1) Whenever an attorney has two or more cases on trial dockets and is set for trial at the same
time, it shall be the duty of that attorney to bring the matter to the attention of the judges
concerned immediately upon learning of the conflicting settings.
(2) Insofar as practicable, judges should attempt to agree on which case has priority, otherwise the
following priorities shall be observed by judges of the respective courts.
(i) Criminal cases have priority over civil cases.
....
Additionally, Rule 11 of the Judicial District Court of Harris County Family Trial Division states that
"[n]o case shall lose its position on the trial docket for the week because counsel is engaged in
another trial but the case shall remain on the docket until such time as counsel is available."
---------
In re Bustos, 122314 TXCA4, 04-14-00755-CV
IN RE Oscar BUSTOS
No. 04-14-00755-CV
Court of Appeals of Texas, Fourth District, San Antonio
December 23, 2014
Original Mandamus Proceeding.[1]
Sitting: Catherine Stone, Chief Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice.
MEMORANDUM OPINION
Catherine Stone, Chief Justice
On October 29, 2014, relator Oscar Bustos filed this mandamus proceeding complaining the
trial court abused its discretion by sua sponte issuing temporary orders in the underlying suit for
modification of conservatorship, possession, and access. The challenged temporary orders
changed the parent with the exclusive right to determine the primary residence of the children.
Bustos complains the trial court's oral ruling is not supported by any written pleadings. We agree
and conditionally grant mandamus relief.
BACKGROUND
Bustos and real party in interest, Erika Vasquez, were divorced in 2008. Under the final
decree of divorce, Bustos and Vasquez were named joint managing conservators of their two
children. In 2011, a modification of the final decree was entered continuing the parents as joint
conservators and designating Bustos as the conservator with the exclusive right to determine the
primary residence of the children. The 2011 Order granted Vasquez possession of and access to
the children under a standard possession order. Vasquez was also ordered to pay child support to
Bustos.
In August 2014, Vasquez took possession of the children and failed to return them to
Bustos's care. On October 8, 2014, after unsuccessfully attempting to locate the children, Bustos
filed an application for writ of attachment in an effort to have the children returned to him. Bustos
also filed a motion to modify the existing conservatorship order in which he sought to be named
the children's sole managing conservator and to have Vasquez's access to the children restricted.
He also requested temporary orders while the modification was pending, including a temporary
restraining order. A judge signed an ex parte temporary restraining order and an order directing
the clerk to issue a writ of attachment. The order set a hearing for October 22 on Bustos's writ of
attachment and request for temporary orders.
On October 22, Vasquez appeared at the courthouse with the children for the scheduled
hearing. The writ of attachment was executed by a sheriff's deputy at that time, and the children
were taken to a "safe room" located in the courthouse.
At the hearing, the judge and an amicus attorney each interviewed the children outside the
presence of their parents.[2] During discussion between the court and the parties, Bustos's
attorney repeatedly pointed out that the hearing was set on his writ of attachment and request for
temporary orders, and that Vasquez had no pleadings on file. Based on the judge's questioning of
the parties and interview of the children, and considering the recommendation of the amicus
attorney, the judge stated that she would deny Bustos's request for sole managing
conservatorship, ordered the children to be placed with their mother, who was to enroll them in
school, and gave Vasquez the exclusive right to determine the children's primary residence. The
court suspended Vasquez's child support obligation and ordered Bustos to begin paying child
support as of November 1. When Bustos's lawyer asked to clarify whether she would be permitted
to call any witnesses, the trial judge decided to recess the hearing in the interest of time. The
lawyer again objected on the record to the trial court's sua sponte orders.
The hearing was re-convened on the following day for the purpose of allowing Bustos to call
witnesses. Bustos's counsel passed the request to call witnesses based on the trial court's rulings
of the previous day.[3] At the conclusion of the hearing, the trial court issued an oral ruling
"procedurally" granting Bustos's writ of attachment, but placing the children in the possession and
primary care of Vasquez, appointing an amicus attorney, ordering supervised visitation for Bustos,
ordering counseling for the children, and requiring Bustos to pay child support beginning in
November.
ANALYSIS
Mandamus will issue only to correct a clear abuse of discretion for which the relator has no
adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). "A trial
court has no 'discretion' in determining what the law is or applying the law to the facts, " and "a
clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of
discretion." Walker, 827 S.W.2d at 840. Because temporary orders in a suit affecting a parent child
relationship are not appealable, mandamus is an appropriate remedy when a trial court abuses its
discretion. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding); In re
Herring, 221 S.W.3d 729, 730 (Tex. App.—San Antonio 2007, orig. proceeding).
In this proceeding, Bustos contends the trial court abused its discretion by sua sponte
modifying the 2011 Order designating him as the parent with the right to determine the primary
residence of the children when there were no pleadings requesting or supporting such relief.
Because of the lack of any pleadings requesting that Vasquez be given possession with the right
to determine primary residence, Bustos asserts he was never put on notice of the need to present
evidence necessary to the trial court's determination and to rebut Vasquez's testimony at the
hearing.
In a suit affecting the parent child relationship, the trial court is authorized to make temporary
orders for the safety and welfare of the children, including an order that modifies a prior temporary
order. Tex. Fam. Code Ann. §105.001(a) (West 2014). Such temporary orders may include an
order for temporary conservatorship, support, or the payment of reasonable attorney's fees and
expenses. Tex. Fam. Code Ann. §105.001(a)(1), (2), (5) (West 2014). Such temporary orders may
not include a temporary order which has the effect of changing the party with the right to determine
primary residence during a pending modification, except in limited circumstances. See Tex. Fam.
Code Ann. § 156.006(b) (West 2014).
The challenged order in this proceeding is an order modifying an existing order for
conservatorship, access, and support. Therefore, Bustos was entitled to notice and a full
adversary hearing before the entry of temporary orders. Tex. Fam. Code Ann. § 105.003(b) (West
2014) (providing for notice to parties whose rights and duties may be affected). The only matters
set for hearing on October 22 were Bustos's application for writ of attachment and his motion for
temporary orders seeking to limit Vasquez's possession of and access to the children. Vasquez
had not filed or served any pleading asking the court to give her temporary custody of the children
or seeking to change the right to determine primary residence. See In re Chester, 357 S.W.3d
103, 107 (Tex. App.—San Antonio 2011, orig. proceeding).
The record reveals that Bustos repeatedly objected to the lack of notice at the hearing on
October 22. When the hearing resumed the following day, the trial court stated on the record that
Bustos was given the opportunity to call witnesses and present evidence at the hearing, but chose
not to. Without proper notice that the existing orders might be modified to give Vasquez the right to
determine primary residence, Bustos had no reason to be prepared to present evidence in his
defense or to rebut Vasquez's testimony. See Chester, 357 S.W.3d at 107; see also Tex. Fam.
Code Ann. § 105.001(a), (b).
We conclude the trial court abused its discretion in entering the challenged temporary orders
— which significantly modified the existing orders for conservatorship and access — without
proper notice to Bustos and an opportunity for a full adversary hearing. See Tex. Fam. Code Ann.
§ 105.001(a), (b), (h); Chester, 357 S.W.3d at 107; Herring, 221 S.W.3d at 730. Having concluded
the trial court abused its discretion in entering the challenged orders on the basis of lack of notice,
we do not find it necessary to address the remaining issues presented to this court.[4]
CONCLUSION
Based on the foregoing analysis, we hold the trial court clearly abused its discretion in
modifying the existing orders for conservatorship, access, and support, as well as the designation
of the person with the right to determine the children's primary residence, without proper notice
and a full evidentiary hearing. Accordingly, we conditionally grant the petition for writ of mandamus
and order the trial court to withdraw its orders orally pronounced on October 22 and 23, 2014,
modifying the existing 2011 Order governing conservatorship, possession, and access to the
children. The writ will issue only if we are advised the trial court has failed to comply with this
court's orders.
---------
Notes:
[1] This proceeding arises out of Cause No. 2007CI07181, styled In the Interest of E.B. and O.S.B.
II, Minor Children, pending in the 285th Judicial District Court, Bexar County, Texas, the
Honorable Antonia Arteaga presiding.
[2] It does not appear that a record of these interviews was made.
[3] We note that the trial court's sua sponte ruling stated on October 23 was the same ruling
previously announced on October 22. Given the court's ruling on October 22, counsel for Bustos
stated she had no reason to believe that witnesses were needed the following day when the
hearing resumed.
[4] The trial court stated her belief that, after interviewing the children, she could not return the
children to Bustos because of a fear of abuse. While such an order may be permitted under
section 156.006(b)(1) of the Texas Family Code, there must be pleadings and notice to support
such an order. See Tex. Fam. Code Ann. §§ 156.006(b)(1) (permitting a change in the exclusive
right to determine primary residence when such an order is in the child's best interest and "is
necessary because the child's present circumstances would significantly impair the child's physical
health or emotional development"). Alternatively, the proper authorities could have been contacted
to report suspected abuse or neglect. See Tex. Fam. Code Ann. § 261.101 (West 2014).
---------
545 S.W.2d 955 (Tex. 1977), B--6345, McElreath v. Stewart
Page 955
545 S.W.2d 955 (Tex. 1977)
Jean C. McELREATH, Relator,
v.
Wells STEWART, Judge, Court of Domestic Relations, Respondent.
No. B--6345.
Supreme Court of Texas.
January 26, 1977
Page 956
William E. Wright, Houston, for relator.
Wells Stewart, pro se.
McGEE, Justice.
This is an original mandamus proceeding where Jean C. McElreath, relator, seeks a writ of
mandamus compelling Wells Stewart, Judge of the Court of Domestic Relations Number One of
Harris County, to vacate his order denying relator's writ of habeas corpus and to issue the
requested writ. The primary question presented in this case is whether the trial court judge was
justified in his denial of habeas corpus relief based on the 'serious immediate welfare' provision of
section 14.10(c) of the Texas Family Code, despite a valid judgment giving custody to the party
seeking the writ of habeas corpus. We hold that in this case reliance on section 14.10(c) was
unjustified and the writ of habeas corpus should have been issued.
Jean and Ross McElreath were divorced February 7, 1976 in the Court of Domestic Relations
Number One of Harris County, Texas. Jean McElreath (Jean) was given custody of the three
minor children and Ross McElreath (Ross) was required to make child support payments.
Subsequent to the divorce decree, the two older children left Jean and began to live with their
father, Ross. Jean and the youngest child moved to San Antonio where Jean attended law school.
In 1974 Ross filed suit in San Antonio to modify the previous order of the domestic relations court
in Harris County. On July 24, 1974 the district court in San Antonio, after determining that no other
court had continuing jurisdiction, denied Ross' motion to modify the Harris County court's order.
The court also denied Ross' motion to be appointed managing conservator of Gregory McElreath
(Gregory). Pursuant to the order of the district court in San Antonio, Jean was to continue as
managing conservator and continue to receive child support payments from Ross. Jean and
Gregory moved to Austin and in the summer of 1976 Gregory traveled to Houston to visit his
father. Under the terms of the 1974 order, Ross was required to return Gregory to his mother in
Austin 'at least twenty days prior to the commencement of school.' Jean allowed Gregory to
remain with his father longer than specified in the court order so Gregory could complete a
vacation to Disneyworld in Florida. Jean expected Gregory to return to Austin on August 22, 1976
and when Gregory failed to arrive on the bus, Jean telephoned Gregory's father in Houston. Jean
was informed by Gregory's stepmother that Ross was out of town but had instructed that Gregory
was not to be returned to Austin.
Jean filed her application for writ of habeas corpus, writ of attachment and temporary
restraining order in the Domestic Relations Court Number One of Harris County on August 25,
1976. Judge Stewart issued the writ of attachment but voided it the next day. A hearing was then
commenced on the application for writ of habeas corpus. Jean submitted into evidence the 1974
district court order giving her custody of Gregory and denying Ross' motion to be appointed
managing conservator. The trial court advised Jean that evidence would be heard concerning the
immediate welfare of
Page 957
the child pursuant to section 14.10(c) of the Texas Family Code. The scope of the hearing which
followed greatly exceeded the narrow considerations necessary to determine the applicability of
section 14.10(c). It is fair to say that the proceeding resembled a full-fledged hearing to modify the
custody of a child. During the hearing the trial court was informed that Gregory, who had become
14 years of age, had signed an affidavit under section 14.07 of the Family Code, stating that he
wished to live with his father. On August 30, 1976 Ross filed a motion to be appointed temporary
managing conservator and to either abate the child support payments or have the payments made
to himself as temporary managing conservator. The trial court granted Ross' motion on September
13, 1976 making Ross temporary managing conservator and withdrawing the writ of attachment.
Jean filed a writ of mandamus with this court on November 17, 1976, to which Judge Stewart
made no response.
It is our opinion that the trial court erred in expanding the scope of the habeas corpus hearing
to include matters which did not concern the immediate welfare of the child as provided in section
14.10 of the Texas Family Code. The Family Code provides:
' § 14.10. Habeas Corpus.
(a) If the right to possession of a child is presently governed by a court order, the court in a habeas
corpus proceeding involving the right to possession of the child shall compel return of the child to
the relator if and only if it finds that the relator is presently entitled to possession by virtue of the
court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree
determining managing conservatorship, possession, or support of or access to the child unless it
finds that the previous order was granted by a court of another state or nation and that:
(1) the court did not have jurisdiction of the parties; or
(2) the child has been within the state for at least 12 months immediately preceding the filing of the
petition for the writ.
(c) The court may issue any appropriate temporary order if there is a serious immediate question
concerning the welfare of the child.
(d) While in this state for the sole purpose of compelling the return of a child through a habeas
corpus proceeding, the relator is not amenable to civil process and is not subject to the jurisdiction
of any civil court except the court in which the writ is pending and in that court only for the purpose
of prosecuting the writ.
(e) If the right to possession of a child is not governed by a court order, the court in a habeas
corpus proceeding involving the right of possession of the child shall compel return of the child to
the relator if, and only if, it finds that the relator has a superior right to possession of the child by
virtue of the rights, privileges, duties, and powers of a parent as set forth in Section 12.04 of this
code.
(f) The court shall disregard any motion for temporary or permanent adjudication relating to the
possession of the child in a habeas corpus proceeding brought under Subsection (e) of this
section unless at the time of the hearing an action is pending under this chapter, in which case the
court may proceed to issue any temporary order as provided by Section 11.11 of this code.'
This court has recently held that where there is a valid existing judgment of child custody, the
issues of best interest of the child and right of possession should not be re-litigated in a habeas
corpus proceeding. Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976). The order of the trial
court in this case provides in pertinent part:
Page 958
'Upon consideration of the evidence and the wishes of the minor child, the court was of the opinion
that the best interests of the child would best be served if the application for writ was denied and
the court thus rendered its decision denying the subject application for writ of habeas corpus in
open court on August 30, 1976.
'In response to the cross motion of respondent Ross McElreath for 'Appointment as Temporary
Managing Conservator,' the court finds, pursuant to the authority of § 14.10(c), TEXAS FAMILY
CODE ANN. (1975), that there is a serious immediate question concerning the welfare of the child
in question and that the best interests of the child shall be served by granting said cross motion. It
is, accordingly, ORDERED that Ross McElreath be, and he is hereby, named Temporary
Managing Conservator of the child, Gregory Cornelius McElreath, and shall possess all rights and
privileges attendant thereto. It is further ORDERED thereto that any and all obligations of the said
Ross McElreath to pay child support, as heretofore ordered with reference to the support of the
said child, and which may accrue during the pendency of this Order, shall be paid to himself as
Temporary Managing Conservator of the child.'
It is evident that the order contemplated more than the immediate welfare of the child and this
was error. Standley v. Stewart, supra.
The only relevant distinction in the Standley case and the situation here is that in Standley the
trial court specifically stated that it was not acting under the provisions of section 14.10(c). 539
S.W.2d at 883. The order of the trial court in our case expressly states that it was acting pursuant
to section 14.10(c), but we hold that the trial court's reliance on that section was not justified in this
case. This court recognizes that a trial court can exercise great discretion in issuing orders for the
immediate protection of a child and it is not the intention of this court to usurp the discretionary
power of trial courts in such situations. There are no cases discussing the degree of seriousness
or immediacy which would allow a court to issue a temporary order under section 14.10(c). There
are cases, however, which discuss the situations necessary to issue temporary custody orders.
This court has held that if the safety and well-being of a child are in jeopardy, a trial court may
enter an order vesting temporary custody in a party other than the child's legal custodian. Page v.
Sherrill, 415 S.W.2d 642, 645 (Tex.1967). The court contemplated a situation where the child was
in imminent danger of physical or emotional harm and immediate action was necessary to protect
the child. 415 S.W.2d at 645; See Brown v. Brown, 500 S.W.2d 210, 214 (Tex.Civ.App.--
Texarkana 1973, no writ); Rodriguez v. Vela, 488 S.W.2d 872, 876--877 (Tex.Civ.App.--San
Antonio 1972, no writ) (concurring and dissenting opinions); Widner v. Pixley, 439 S.W.2d 403,
406--407 (Tex.Civ.App.--Beaumont 1969, no writ).
The record in this case discloses nothing which could make Gregory's situation serious and
immediate. Gregory's father and stepmother both testified that Gregory would be hurt and upset if
he returned to his mother. In chambers, Gregory testified that it would hurt him to return to his
mother because he did not want to live with her. Gregory's reasons for not wanting to return to his
mother were because his mother gave him more responsibilities than his father, she nagged him,
and sometimes made him mad. There is absolutely no contention that Gregory is not loved and
well cared for by his mother. We hold that the situation in this case falls far short of the necessary
statutory requisites of immediacy and seriousness.
This court is empowered to issue a writ of mandamus when a trial court acts beyond its power
and in so doing vacates or
Page 959
changes a final adjudication. Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976); McHone v.
Gibbs, 469 S.W.2d 789 (Tex.1971).
A writ of mandamus will issue directing Judge Stewart to set aside his order of September 13,
1976 and to issue the writ of habeas corpus.
649 S.W.2d 297 (Tex. 1983), C-1812, Whatley v. Bacon
Page 297
649 S.W.2d 297 (Tex. 1983)
Frazier B. WHATLEY, Relator,
v.
Hon. O'Neal BACON, Judge, Respondent.
No. C-1812.
Supreme Court of Texas.
April 20, 1983
Page 298
Delmar Shelley Hilliard, Newton, for relator.
Bill A. Martin, Newton, Richard C. Hile, Jasper, for respondent.
KILGARLIN, Justice.
This is an original mandamus proceeding. Relator, Frazier Whatley, requests this Court to
direct the Honorable O'Neal Bacon, Judge of the 1st Judicial District Court of Newton County, to
vacate his order appointing Louis and Betty Knighton, maternal grandparents, as temporary
managing conservators of Whatley's children, Loyd Lee Whatley, Ray Ferguson Whatley, and
Charles Brian Whatley. Whatley also requests this Court to direct Judge Bacon to dissolve two
writs of habeas corpus ordering Whatley to turn over his children to the Knightons. We agree that
Judge Bacon improperly issued the temporary order and the writs of habeas corpus and,
therefore, conditionally grant the writ of mandamus.
On May 14, 1981, the children's mother, Mary Whatley, sued Frazier Whatley for divorce in
the 310th District Court of Harris County, Texas. Thereafter, Mary Whatley filed another petition for
divorce on July 9, 1981, in the 1st District Court of Newton County, Texas. The Whatleys
apparently reconciled for a brief time. Later, however, Mary and the children moved back to
Newton County where the Knightons resided. On December 17, 1981, Frazier Whatley filed yet
another petition for divorce in the 309th District Court of Harris County, Texas. Mary Whatley died
on February 4, 1982. Prior to her death there had been no orders entered in any of the three
divorce actions.
Two days after their daughter's death, the Knightons filed an application for writ of habeas
corpus and a request for writ of attachment in Judge Bacon's court under the divorce action
originally filed by Mrs. Whatley in Newton County. Judge Bacon ordered the writ of attachment that
same day, so the sheriff took the three children and delivered them to the Knightons. Frazier
Whatley was served at graveside during his wife's funeral ceremonies; he was ordered to have the
three children in court on February 16, 1982, the date scheduled for the hearing on the Knightons'
application for writ of habeas corpus.
On the day of the hearing, the Knightons filed an original petition affecting the parent-child
relationship and application for relief under section 11.11 of the Texas Family Code. Whatley was
never served with a copy of that instrument. Ten minutes after the Knightons had filed their suit,
Judge Bacon held a hearing on both the applications for the writ of habeas corpus and temporary
relief under section 11.11. Judge Bacon proceeded, notwithstanding the fact that Whatley had no
notice of the suit affecting the parent-child relationship and was not present at the hearing.
Whatley did not attend, thinking that the hearing's only purpose was for him to turn over the
children, which he had already done.
Judge Bacon issued temporary orders on February 24, 1982, reciting the February 16 hearing
on the habeas corpus application and the application for temporary relief under section 11.11. The
temporary orders named the Knightons as managing conservators of Whatley's children.
On or about February 15, 1982, Frazier Whatley filed an application for writ of habeas corpus
in the 246th District Court of Harris County. A hearing was set for March 16, 1982; the Knightons
were served and were present in court. On March 22, 1982, Judge John W. Peavy, Jr. signed an
order that the three children be returned to Whatley. The Knightons complied and Whatley took
possession of the boys.
Thereafter, on April 6, 1982, the Knightons filed a second application for writ of habeas corpus
in Judge Bacon's court in Newton County, requesting return of the children. After conducting a
hearing, Judge Bacon again issued a writ of habeas corpus. Whatley returned the children to the
Knightons on April 20, 1982.
Page 299
The issue presented by this case is whether Judge Bacon had the authority to issue any
orders affecting possession of Whatley's children. At the outset, we note that there is a distinction
in this case between granting temporary orders and issuing writs of habeas corpus. We consider
each separately.
The Knightons urge that Judge Bacon had the power to issue temporary orders for three
reasons. First, the Knightons contend that Judge Bacon had jurisdiction over the children pursuant
to the divorce action that Mrs. Whatley had filed in Newton County. Although the Family Code
authorizes a district judge to issue temporary orders affecting the possession of children in a
divorce suit, [1] that provision is not applicable to the instant case. Death of a party abates a
divorce action and its incidental inquiries of property rights and child custody. Garrison v. Texas
Commerce Bank, 560 S.W.2d 451 (Tex.Civ.App.--Houston [1st Dist.] 1977, writ ref'd n.r.e.); Parr v.
White, 543 S.W.2d 445 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.). The proper
procedural disposition of a divorce action when one of the parties dies is dismissal. Ex parte
Cahill, 286 S.W.2d 210 (Tex.Civ.App.--Beaumont 1955, no writ).
In the instant case, Judge Bacon issued all the temporary orders after the death of Mrs.
Whatley. Accordingly, the February 24 order appointing temporary managing conservators could
not have been issued pursuant to an underlying divorce suit because the divorce action in Newton
County was abated on February 4, 1982, the date of Mrs. Whatley's death. Similarly, the writ of
attachment was not properly issued pursuant to the divorce suit.
Second, the Knightons urge that Judge Bacon could have issued a valid temporary order
appointing managing conservators pursuant to the suit affecting the parent-child relationship.
Section 11.09 of the Texas Family Code provides that a parent whose rights have not been
terminated or as to whom service of process has not been waived is entitled to service of citation
on the filing of a petition in a suit affecting the parent-child relationship. Further, section 11.11(b) of
the Family Code provides that an order for temporary conservatorship of a child may not be
entered except after notice and a hearing. In the instant case, Judge Bacon's February 24 order
recited that Whatley had been served with notice of the Knightons' suit. However, the district clerk
of Newton County subsequently gave testimony in an April 16, 1982, hearing that Whatley had not
been served. Absent proper notice as required by section 11.11(b), Judge Bacon was not entitled
to issue temporary orders pursuant to the Knightons' suit at the February 24 hearing.
Third, the Knightons contend that Judge Bacon had the power to issue temporary orders
pursuant to the application for writ of habeas corpus filed on February 6, 1982, by virtue of section
14.10(c) of the Texas Family Code. While it is true that a trial judge may issue a temporary order
in a habeas corpus proceeding pursuant to section 14.10(c), that section requires that there must
be a "serious immediate question concerning the welfare of the child." This Court previously has
held that an order made pursuant to section 14.10(c) must include a court's finding of a serious
and immediate question as is required by the plain language of the statute. McElreath v. Stewart,
545 S.W.2d 955, 958 (Tex.1977).
In the instant case, Judge Bacon's February 24 order does not mention section 14.10(c) nor
does the order include a fact finding of "a serious immediate question concerning the welfare of
the children," as we required in McElreath. Moreover, we have not been presented with a
Statement of Facts of the February 16 hearing and have no way of knowing what evidence was
adduced at that time. The Knightons' application for writ of habeas corpus filed on February 6
does not make any allegation that there existed a serious immediate question concerning the
welfare of the Whatley children. Therefore, we conclude that the
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February 24 order appointing the Knightons as temporary managing conservators was not
properly made pursuant to section 14.10(c) of the Texas Family Code.
Having concluded that Judge Bacon's temporary orders affecting possession of the children
are invalid, we next consider the effect of the three writs of habeas corpus issued in this case.
Texas Family Code section 14.10 governs the issuance of all three writs of habeas corpus.
Therefore, we judge the validity of the writs by considering whether they conform to at least one of
the criteria set out in that section.
First, we examine the writ of habeas corpus issued by Judge Bacon on February 6, 1982.
Section 14.10(e) of the Texas Family Code provides that if the right to possession of a child is not
governed by court order, the court shall compel return of the child to the relator if it finds that the
relator has a superior right to possession of the child by virtue of the rights set forth in section
12.04 of the Family Code. [2] We are of the opinion that section 14.10(e) applies to Judge Bacon's
first writ because there were no existing court orders affecting the right to possession of the
children at the time the Knightons applied for a writ of habeas corpus, other than the invalid
temporary orders issued by Judge Bacon. Therefore, the Knightons were not entitled to
possession of the children because they had no parental rights pursuant to section 12.04.
Next, we consider the effect of the writ of habeas corpus issued by Judge Peavy in Harris
County on March 22, 1982. Similar to Judge Bacon's first writ, we are of the opinion that 14.10(e)
applies to the writ issued by Judge Peavy. The difference between the two writs, however, is
significant. Unlike the Knightons, Whatley, as the sole parent, was entitled to possession of the
children pursuant to section 12.04. Therefore, Whatley was entitled to a writ of habeas corpus
under section 14.10(e).
Finally, we consider the validity of Judge Bacon's second writ of habeas corpus issued on
April 19, 1982. By the time Judge Bacon issued this final writ of habeas corpus, Harris County
District Judge Peavy had issued a valid habeas corpus order restoring possession of the children
in Whatley. Accordingly, section 14.10(a) of the Texas Family Code applies. Section 14.10(a)
provides that when the right to possession of a child is governed by a prior court order, the court in
a habeas corpus proceeding shall compel the return of a child to the relator, in this case the
Knightons, if and only if it finds that the relator is presently entitled to possession by virtue of the
court order. Clearly, in the instant case, Whatley and not the Knightons was entitled to possession
of the children by virtue of the Harris County court's writ of habeas corpus. Like Judge Bacon's
February 6 and 24 orders, the order of April 19, 1982, makes no pretense of invoking the powers
of section 14.10(c). There being a prior valid order governing possession of the children, a writ of
habeas corpus cannot be used as a vehicle for redetermination of the right to possession of
children. Standley v. Stewart, 539 S.W.2d 882 (Tex.1976).
We conditionally grant the writ of mandamus to compel Judge Bacon to vacate his temporary
orders of February 6, 1982, and February 24, 1982, and to dissolve his writs of habeas corpus
issued on February 6, 1982, and April 19, 1982. The writ of mandamus will issue only if Judge
Bacon does not comply with this directive.
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Notes:
[1] Tex.Fam.Code Ann. § 11.11(a).
[2] Section 12.04 simply delineates the rights, privileges, duties and powers of a parent.
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