in Re Amanda Kaye Payne ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00402-CV
IN RE AMANDA KAYE PAYNE
Original Proceeding
MEMORANDUM OPINION
Amanda Payne seeks a writ of mandamus to compel the trial court to withdraw
a temporary order entered in a custody modification proceeding that restricted the
residence of her two children to Leon County. TEX. FAM. CODE ANN. § 156.006 (West
2011). Because we find that the trial court abused its discretion in making the
temporary order, we conditionally grant relief.
Donald Christopher Payne and Amanda Kaye Payne were divorced in 2006.
Their divorce decree named them joint managing conservators of the children and
Amanda was named the parent with the right to designate the children’s domicile
without a geographical restriction. Amanda became involved in a relationship earlier
in 2011, became engaged in July, and got married shortly after being served with the
papers in this modification proceeding in late July. When Amanda became engaged,
she gave notice at her job and decided to move to Abilene with her now-husband
because he has children that he has possession of every other week that is limited to
Taylor County. Upon hearing of this possible move from a third person, Chris filed this
modification action and sought temporary orders to either place the children with him
or to restrict the children’s residence to Leon County. The trial court granted the
geographical restriction after a hearing.
Propriety of Mandamus
Mandamus is the appropriate mechanism to challenge temporary orders made
while a child custody modification suit is pending because such orders are interlocutory
and not appealable. In re Mays-Hooper, 189 S.W.3d 777, 778, 49 Tex. Sup. Ct. J. 502 (Tex.
2006) (orig. proceeding); Little v. Daggett, 858 S.W.2d 368, 369, 36 Tex. Sup. Ct. J. 1054
(Tex. 1993) (orig. proceeding); In re Levay, 179 S.W.3d 93, 95 (Tex. App.—San Antonio
2005, orig. proceeding). Generally, a writ of mandamus will issue only to correct a clear
abuse of discretion when there is no adequate remedy by appeal. Walker v. Packer, 827
S.W.2d 833, 839-40, 35 Tex. Sup. Ct. J. 468 (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.‛ Id. at 839. Moreover, ‚*a+ trial court abuses its discretion if it acts
in an arbitrary or unreasonable manner, without reference to any guiding rules or
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principles.‛ In re Nitla S.A. de C.V., 92 S.W.3d 419, 422, 45 Tex. Sup. Ct. J. 571 (Tex. 2002)
(orig. proceeding).
Modifications of Custody
In a suit for modification of a custody order, pursuant to section 156.006(b) of the
Family Code a trial court may not enter any temporary order that has the effect of
modifying the designation of the person who has the exclusive right to designate the
primary residence of a child under a final divorce decree unless at least one of three
enumerated conditions exists:
(1) the order is necessary because the child's present circumstances would
significantly impair the child's physical health or emotional development;
(2) the person designated in the final order has voluntarily relinquished the
primary care and possession of the child for more than six months and the
temporary order is in the best interest of the child; or
(3) the child is 12 years of age or older and has filed with the court in writing
the name of the person who is the child's preference to have the exclusive
right to designate the primary residence of the child and the temporary
order designating that person is in the best interest of the child.
TEX. FAM. CODE. ANN. § 156.006. In order to determine whether a temporary order
effectively changes the person with the exclusive right to designate a child’s primary
residence, we examine the temporary order in relation to the final order previously
rendered. In re Sanchez, 228 S.W.3d 214, 217 (Tex. App.—San Antonio 2007, orig.
proceeding). A temporary order that deprives a custodial parent of any discretion
inherent in the right to determine the child’s primary residence has the effect of
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changing the designation of the person with the exclusive right to designate the child's
primary residence. In re Winters, No. 05-08-01486-CV, 2008 Tex. App. LEXIS 9183 at *6
(Tex. App.—Dallas Dec. 11, 2008, orig. proceeding) (mem. op.); see In re Sanchez, 228
S.W.3d at 217; see also In re Levay, 179 S.W.3d at 96; In re Ostrofsky, 112 S.W.3d 925, 929
(Tex. App.—Houston *14th Dist.+ 2003, no pet.). The trial court’s temporary order
restricting the residence of the children to Leon County pending a final hearing
deprives Amanda of her exclusive right under the divorce decree to designate the
primary residence of the children without regard to geographical location.
No party contends in the trial court or here that the provisions of section
156.006(b)(2) and (b)(3) apply in this case. For section 156.006(b)(1) to apply, the district
court must have heard evidence sufficient to find that ‚the order is necessary because
the child*ren+’s present circumstances would significantly impair the child*ren+’s
physical health or emotional development.‛ See TEX. FAM. CODE ANN. § 156.006(b)(1).
There was no such evidence presented.
Both parents testified at the hearing and the trial court interviewed the children
outside of the presence of the parties. Amanda did not tell the children of the possible
move, rather Chris told the children that they were moving to Abilene when he found
out that it was a possibility during his summer possession. Initially the children were
‚crying‛ and ‚shocked‛ at the idea of moving at that time; by the time of the temporary
hearing they were looking forward to the move but sad at leaving their friends and
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family, which included an extensive extended family. There was no evidence of bad
parenting or bad acts directed at the children by either party, and the trial court
admitted as such several times during the hearing. Both parents agreed that there were
no issues with the parenting skills of either parent or step-parent nor was there any
question regarding the safety of the children based on their prior history. Rather, the
trial court’s motivation seemed to be based, at least in part, on avoiding a second move
back to Leon County in the event the modification was granted at the final hearing.
This would be reasonable to consider if the only standard were the best interest of the
child. However, the standard for making a modification in a temporary order that has
the effect of changing the designation of the person who has the exclusive right to
designate the primary residence of the child has been set very high by the Legislature in
requiring the finding of significant impairment. The evidence before the trial court was
insufficient to establish significant impairment. The trial court abused its discretion in
restricting the residence of the children to Leon County.
Conclusion
We conditionally grant Amanda Payne’s mandamus petition. A writ will issue
only if Respondent fails to withdraw her order restricting the residence of the children
to Leon County within fourteen days after the date of this opinion.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Scoggins dissenting)
Writ Conditionally Granted
Opinion delivered and filed December 2, 2011
[OT06]
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