In the Interest of M.J.W., a Child v. the State of Texas ( 2024 )

AFFIRMED and Opinion Filed October 15, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01132-CV
IN THE INTEREST OF M.J.W., A CHILD
On Appeal from the 469th Judicial District Court
Collin County, Texas
Trial Court Cause No. 469-54222-2018
MEMORANDUM OPINION
Before Justices Smith, Garcia, and Kennedy
Opinion by Justice Smith
Appellant Mother appeals from the trial court’s October 17, 2023 denial of
her motion for enforcement of possession and access. Because we conclude that the
trial court did not abuse its discretion in denying Mother’s request for extra time, we
affirm.
Factual and Procedural Background
Mother and Father had one child together, M.J.W., who was born in 2009.
They divorced in May 2019. In November 2022, Mother filed a motion to modify
the parent-child relationship, and in February 2023, Father filed a counterpetition to
modify. According to the court’s docket sheet, the trial court held several hearings
on temporary orders and made rulings reflected in memorandum opinions. One such
memorandum opinion was entered May 23, 2023. Father filed a motion for
clarification of the May 23 memorandum opinion regarding temporary orders on
June 22, 2023.
On July 7, 2023, Father went to Mother’s home and picked up M.J.W. against
Mother’s wishes. M.J.W. then traveled with Father on vacation, and Father returned
M.J.W. to Mother’s home on July 22. While M.J.W. was gone, Mother filed a
petition for writ of habeas corpus, which the trial court heard and initially granted
but then subsequently dissolved. Mother filed an amended petition for writ of habeas
corpus, which according to Mother was granted on July 24, after M.J.W. had already
been returned. Mother also filed a motion for enforcement of possession and access,
followed by an amended motion, arguing that Father removed M.J.W. from
Mother’s possession on July 7 and did not return her until July 22 in violation of the
trial court’s May ruling, which Mother contended awarded her the month of July for
that year. Mother requested the court to order additional periods of possession and
access to make up for her lost time with M.J.W.
The court’s docket sheet shows that a temporary order was entered on August
2, 2023, which the parties agree corresponds with the May 2023 ruling. Neither the
May memorandum opinion, nor the temporary order entered on August 2, 2023,
were made part of the record on appeal; however, the trial court took judicial notice
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of its file at the October 11, 2023 hearing on Mother’s motion to enforce when
questions arose regarding the basis of Mother’s petitions for writs of habeas corpus.
After the hearing, the trial court denied Mother’s motion for enforcement of
possession and access, and this appeal ensued. In her single issue, Mother argues
that the trial court abused its discretion in not awarding her fourteen days of makeup
time when she was entitled to the entire month of July under the May memorandum
opinion and Father admitted he removed the child. Father did not file a responsive
brief.
Additional Periods of Possession or Access under Section 157.168
A trial court “may order additional periods of possession of or access to a
child to compensate for the denial of court-ordered possession or access.” TEX. FAM.
CODE ANN. § 157.168(a). The underlying order does not have to be “enforceable by
contempt to obtain other appropriate enforcement remedies.” Id. §§ 157.002(d),
157.162(a). However, it is purely within the discretion of the trial court whether to
grant a party additional periods of possession or access. In re K.S.L., No. 05-22-
00083-CV, 2023 WL 4486210, at *4 (Tex. App.—Dallas July 12, 2023, no pet.)
(mem. op.).
At the hearing on Mother’s motion for enforcement of possession, Mother
testified that the trial court’s May 2023 memorandum opinion “flipped the custody”
and awarded her expanded standard possession. She testified that, when the trial
court issued its May 2023 memorandum opinion, she immediately turned M.J.W.
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over to Father. It was her understanding that she was entitled to possession of
M.J.W. for the entire month of July. However, on July 7 at around 9:30 p.m., Father
went to Mother’s house and picked up M.J.W. He did not communicate with Mother
that he planned to pick up M.J.W. and Mother did not give M.J.W. permission to
leave. Mother saw that M.J.W. had gone to Father’s house through the tracking
device on M.J.W.’s phone, so she went to Father’s house in an attempt to regain
possession. The police were called, but they did not return M.J.W. to Mother.
M.J.W. then traveled with Father to New Mexico for vacation. Father
attempted to return M.J.W. on July 21, but Mother was getting re-married and was
unavailable. Mother was told M.J.W. could not come to the wedding but was
allowed to pick M.J.W. up July 22. As a result of the days she missed with M.J.W.,
Mother requested that the trial court award her fourteen days of makeup time over
Thanksgiving and Christmas break.
On cross-examination, Mother admitted that she had known about the trip—
it was on OurFamilyWizard1—and that M.J.W. had mentioned several times she was
going. Mother also acknowledged that the trip to New Mexico was an annual trip
that Father took. The evidence further showed that Mother sent a message on July
13 to Father through OurFamilyWizard stating she planned to exercise her summer
weeks from July 21 through July 28 and from August 4 through August 11. She
1
Father testified that he notified Mother of the trip on OurFamilyWizard in February 2023, before the
temporary orders hearing in May.
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requested Father to have M.J.W. at Mother’s house by “Monday” at 6 p.m., which
she explained at the hearing meant Monday, July 17. Mother also stated the
following in her message on OurFamilyWizard, “I will be keeping [M.J.W.] until
the temporary orders are signed by the court. It appears we are working under the
divorce decree still.” Father’s counsel asked her if she thought this message might
be confusing, but she responded, “No.” She explained on re-direct examination that
she sent the message on OurFamilyWizard after her petition for writ of habeas
corpus had been denied and she had been told that the only enforceable order was
the original decree. Father testified that the May memorandum opinion did not
specifically address extended summer possession, which is why he filed a motion
for clarification with the trial court in June.
Based on the record before us, we cannot conclude, that the trial court abused
its discretion by failing to award Mother an additional fourteen days of possession.
The evidence showed that the parties were somewhat confused as to what possession
order controlled and whether Father’s preplanned vacation was still allowed in July.
According to the parties, the trip was not discussed at the May hearing on temporary
orders, and it does not appear that summer possession was expressly addressed in
the May memorandum opinion. Under these circumstances, we conclude the trial
court did not abuse its discretion in denying Mother’s motion.
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Conclusion
We overrule Mother’s sole issue on appeal and affirm the trial court’s October
17, 2023 Order Denying Petitioner’s Motion for Enforcement and for Possession.
/Craig Smith/
CRAIG SMITH
JUSTICE
231132F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.J.W., A On Appeal from the 469th Judicial
CHILD, District Court, Collin County, Texas
Trial Court Cause No. 469-54222-
No. 05-23-01132-CV 2018.
Opinion delivered by Justice Smith.
Justices Garcia and Kennedy
participating.
In accordance with this Court’s opinion of this date, the trial court’s October
17, 2023 Order Denying Petitioner’s Motion for Enforcement of Possession and
Access is AFFIRMED.
It is ORDERED that appellee WILLIAM MCKINLEY WHALING recover
his costs of this appeal from appellant KELI JO WHALING.
Judgment entered this 15th day of October 2024.
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