in Re Holly Pacharzina and Jennifer A. Milch ( 2012 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00353-CV
In re Holly Pacharzina and Jennifer A. Milch
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Relators Holly Pacharzina and Jennifer A. Milch filed a petition for writ of mandamus
seeking relief from the district court’s May 15, 2012 temporary orders in cause number D-1-AG-07-
000852, In the Interest of R.A.P. and A.J.P. See Tex. R. App. P. 52.1, 52.10(a). For the reason set
forth below, we will conditionally grant the writ in part.
This proceeding arose after real party in interest Elliot Will, the father of R.A.P. and
A.J.P., the children affected by this case, filed a motion to modify the district court’s prior orders
governing custody of the children. After a hearing on Will’s motion to modify, at which there was
evidence presented regarding the children’s mother’s substance-abuse problems and the children’s
situation generally, the district court issued its May 15, 2012 temporary orders, finding that the
children’s circumstances had materially and substantially changed, temporarily modifying various
aspects of conservatorship, and transferring the case to Williamson County, Texas. Regarding
conservatorship, the district court’s temporary orders appointed Will temporary sole managing
conservator with the right to designate primary residence, appointed relators as temporary possessory
conservators, and appointed the children’s mother as a temporary possessory conservator with
supervised possession.1 The district court’s temporary orders also included a detailed possession
schedule and ordered drug testing of the children’s mother. Finally, the temporary orders ordered
that each “child’s name . . . is changed on a permanent basis” by adding their father’s surname, Will.
Relators filed a petition for writ of mandamus seeking to vacate the district court’s
May 15, 2012 temporary orders on the grounds that (1) there was no evidence of a material and
substantial change in the circumstances of the children, (2) the temporary orders improperly changed
the geographic restriction on the primary residence of the children, (3) the court improperly applied
a parental presumption, and (4) the temporary orders improperly determined conservatorship
matters that are reserved to a jury, including permanently changing the children’s legal names. We
granted relators’ request for temporary relief by staying the district court’s May 15, 2012 temporary
orders pending consideration of their petition and requested a response from real party in interest
Will, which we have since received.
We may issue a writ of mandamus to correct a trial court’s “clear abuse of discretion”
or violation of duty imposed by law where no “adequate” remedy by appeal exists. See Walker
v. Packer, 827 S.W.2d 833, 839 (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. Assuming a clear abuse of discretion in a temporary order in a suit
affecting the parent-child relationship, mandamus may lie on the basis that there are no appellate
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The prior conservatorship orders had appointed each of these parties as joint managing
conservators of the children.
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remedies that are considered adequate. See Tex. Fam. Code Ann. § 105.001(e) (“Temporary orders
rendered under this section are not subject to interlocutory appeal.”); Little v. Dagget, 858 S.W.2d
368, 369 (Tex. 1993) (orig. proceeding) (holding that mandamus was appropriate remedy because
temporary order granting visitation is not appealable).
As detailed above, the district court’s May 15, 2012 temporary orders include
provisions that permanently change the children’s names. A district court does not have the
authority under the family code to issue a temporary order that effects a permanent name change.
See Tex. Fam. Code Ann. §§ 105.001, 156.006 (West 2008). As such, the district court’s order
was an abuse of discretion. See Walker, 827 S.W.2d at 840. Accordingly, we conditionally grant
relators’ petition for writ of mandamus in part and direct the district court to vacate the name-change
provisions in its May 15, 2012 temporary orders. The writ will issue only if the district court fails
to take appropriate action in accordance with this opinion.
We deny relators’ petition for writ of mandamus as to the remainder of the
district court’s May 15, 2012 order. We likewise lift our stay as to all portions of the order other
than the name-change provision.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Filed: June 14, 2012
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