in Re Tom Eckert ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-06-549 CV ____________________

IN RE TOM ECKERT

---

Original Proceeding

---

MEMORANDUM OPINION

Tom Eckert seeks a writ of mandamus to compel the trial court to vacate its temporary orders in a suit to modify the parent-child relationship. Because we conclude the Family Code authorizes temporary orders under the circumstances present in this case, we deny the petition and motion for temporary relief.

To establish his right to mandamus relief regarding the issuance of temporary orders in a child custody case, the relator must establish an abuse of discretion by the trial court. Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles." In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002). Section 156.006 of the Family Code describes the three circumstances that authorize a trial court to enter 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." Tex. Fam. Code Ann. § 156.006(b) (Vernon Supp. 2006). Such an order may be entered when (1) "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." Id.

Tom Eckert and Kathleen Van Volkenburg are the divorced parents of an eleven and one-half year old child. The child has, at various times, lived with the father in Texas and with the mother in New York. Eckert serves as sole managing conservator of the child. The previous year, the child lived with Van Volkenburg and the parties eventually executed a mediated agreement that required the child be returned to Texas for the 2006 school year. Seeking to retain possession of the child, Van Volkenburg filed a petition to modify the parent-child relationship. The trial court conducted a hearing on her request for temporary orders. At the time of the hearing, the child was a few months shy of his twelfth birthday. The trial court interviewed the child in chambers and no record was made of the interview. The trial court heard evidence that Van Volkenburg has terminal brain cancer. Eckert admitted he did not allow the child to talk to his mother for over three months. The trial court also heard testimony that Eckert failed to follow up on the child's medical and dental treatment.

The order signed by the trial court states that the order is being made for the safety and welfare of the child. The order states that conservatorship of the child remains the same as the prior order, but orders that the child reside with Van Volkenburg in New York. Thus, Section 156.006 of the Family Code applies. Although the child was not twelve years of age and could not designate the parent with whom he desired to reside, the trial court was authorized to interview the child. See Tex. Fam. Code Ann. § 153.009 (Vernon Supp. 2006). The judge interviewed the child in chambers, and the interview was not recorded. When the trial court bases its decision, at least in part, on an unrecorded interview, we must presume that facts existed to support the ruling. Ohendalski v. Ohendalski, 203 S.W.3d 910, 916 (Tex. App.-Beaumont 2006, no pet.). In addition, the testimony adduced at the hearing supports the trial court's implicit finding that the order is necessary under Section 156.006(b)(1). Given the testimony that the mother suffers from a terminal illness and that the father persistently obstructed communication between the mother and child while the child resided with him, the trial court could reasonably determine that being separated from his mother while the case proceeds would significantly impair the child's emotional development. Compare In re Ostrofsky, 112 S.W.3d 925, 931-32 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding) (Trial court abused its discretion by requiring placement of children in boarding school in the absence of evidence that parents' poor relationship significantly impaired children's emotional development.)

After reviewing the mandamus record and petition, we conclude that the relator has not demonstrated an abuse of discretion by the trial court. Accordingly, the petition for writ of mandamus is denied. All pending motions are denied as moot.

WRIT DENIED.

PER CURIAM

Opinion Delivered January 25, 2007

Before Gaultney, Kreger, and Horton, JJ.