in Re T.R.L.

Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions
filed July 28, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00230-CV
IN RE T.R.L., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
311th District Court
Harris County, Texas
Trial Court Cause No. 2016-56370
MAJORITY OPINION
On March 31, 2022, Mother filed a petition for writ of mandamus in this court.
See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition,
relator asks this court to compel the Honorable Germaine J. Tanner, presiding judge
of the 311th District Court of Harris County, to vacate her January 31, 2022 order in
a suit affecting the parent-child relationship. We deny the petition.
BACKGROUND
Mother and Father have one child. The trial court, in a July 21, 2017 final
order in a suit affecting the parent-child relationship, named Mother and Father joint
managing conservators of the child, with Mother having the exclusive right to
designate the primary residence of the child. Father had a possession order, which
the parties rarely followed; Mother allowed Father to have the child anytime he
asked.
In April 2020, during the early stage of the COVID pandemic, Mother and
Father agreed to a “week-to-week” visitation schedule with the child staying with
each parent on alternating weeks “during the pandemic or until the summer or until
we saw fit for something to change.” As an educator, Mother was deemed essential
personnel and was working from home. According to Mother, Father, who is a co-
pastor at the church his father founded, was not working. Father testified that the
basis of the week-to week schedule was so that the child could be with Father while
Mother was at work. Father testified about his workdays and during the week and
on Sundays. The child was attending a private school associated with the church.
The child’s school closed after the pandemic started and remained closed through
the 2020‒2021 school year.
The week-to-week possession lasted until September 2020. Mother and
Father agreed to the child living with Father during the week and with Mother on
the weekends. The parties changed the schedule because Mother was physically
returning to the school where she worked. The child’s school was not opening in
September 2020 and the child could be with Father while Mother was working.
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The child’s school did not reopen in September 2020 and there was no virtual
instruction. Father arranged for and paid $1,000 a month for one-on-one tutoring
for the child with one of the school’s teachers. The child was the only student
physically at the school and the tutoring took place until the end of the school year
in May 2021.
Also, in September 2020, Mother moved in with her mother (“Grandmother”).
Mother was not involved in picking up or dropping off the child for weekend
possessions. Father picked up the child from school and dropped him off with
Grandmother for Mother’s weekend possessions. Grandmother took the child to
school during Mother’s periods of possession. Prior to the pandemic, Father had
been providing a driver to take the child to and from school but after the child’s
school closed, there was no need for a driver to transport the child. Father arranged
for the child to participate in extracurricular activities, which included baseball and
karate. Father took the child to his activities and paid for them.
Before the pandemic, Mother and Father each took the child to his doctor
appointments. However, during the pandemic, only Father took the child to his
doctor appointments and made medical decisions about the child. Father also
continued to provide the child’s health insurance. Mother took the child to a tutor,
who worked pro bono, every other Saturday, but did not tell Father. Mother attended
some of the child’s baseball games and “did fun activities” with the child when she
had him on weekends.
Father had the child start his day by listening to the Book of Proverbs in the
car on the way to school. Father and the child had lunch together at school. After
school, the child did chores with Father to earn 30 minutes of time on the iPad while
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Father cooked dinner. Afterwards, Father and the child played and said prayers at
the end of the day.
There were weekends that Mother was not with the child and would delegate
the child’s care to her family. Mother told Father to ask Grandmother about the
possession schedule. Father continued to pay child support while the child was
living with him during the week. Mother paid Grandmother rent. However,
Grandmother did not ask Mother for money “for all the things I’m doing for my
grandson[.]”
Grandmother contacted Father when the child wanted to go to camp; Father
did not respond to Grandmother. However, Father enrolled the child in and paid for
summer camps. Mother testified that Father’s enrolling the child in summer camps
prevented the parties from going back to the “week-to-week” schedule: “In May of
2021 we were trying to do — go back to the week on/week off; but his dad kept
enrolling him into summer camps, which was taking him away from me during the
week.” Mother had the child every weekend during the summer of 2021 that child
was not enrolled in summer camps. Mother did not know for how many weeks
Father had enrolled the child in summer camps.
On September 3, 2021, Father filed a petition to modify the parent-child
relationship and requested temporary orders naming him the conservator with the
exclusive right to designate the primary residence of the child. Father alleged that
Mother had voluntarily relinquished the primary care and possession of the child for
more than six months. After Father had filed the modification proceeding, Mother
decided she wanted to return to the schedule that was in place prior to the pandemic
with Father having the child every other weekend and every other Thursday. Mother
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had voluntarily agreed to the child living with Father during week for over a year
but stated that she would not have agreed to that arrangement but for the pandemic.
Mother testified that the parties’ possession agreement superseded the 2017 order
until Father filed the modification suit.
The trial court held an evidentiary hearing on Father’s request for temporary
orders hearing on January 13, 2022. The trial court signed temporary orders on
January 31, 2022, finding that Mother had voluntarily relinquished the primary care
and possession of the child for at least six months and the new order is in the best
interest of the child. The trial court appointed Mother and Father temporary joint
managing conservators with Father having the exclusive right to designate the
primary residence of the child within Harris County. The trial court further ordered
the parties would have possession of the child at mutually agreeable times agreed to
in advance or, in the absence of mutual agreement, by the terms of the possession
order set forth in the temporary orders. The trial court also ordered that any
provision in the 2017 order would remain in full force and effect unless specifically
modified by the temporary orders.
STANDARD OF REVIEW
To obtain mandamus relief, a relator generally must show both that the trial
court clearly abused its discretion and that the relator has no adequate remedy by
appeal. In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding). Trial
courts have no discretion in determining what the law is or applying the law to the
facts. In re Allstate Indem. Co., 622 S.W.3d 870, 875‒76 (Tex. 2021) (orig.
proceeding). An appellate court may not substitute its judgment for the trial court’s
determination of factual or other matters committed to the trial court’s discretion,
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even if the mandamus court would have decided the issue differently. In re State
Farms Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig. proceeding); see also C.J.C.,
603 S.W.3d at 811 (“[A]n appellate court should defer to the trial court’s factual
determinations supported by the record.”). The relator must establish that the trial
court could reasonably have reached only one decision, but did not reach that
decision. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding);
see also In re Texan Millwork, 631 S.W.3d 706, 711 (Tex. 2021) (orig. proceeding)
(per curiam) (explaining that trial court abuses its discretion when decision is
contrary to only permissible view of evidence).
Temporary orders, entered while a motion to modify in a suit affecting the
parent-child relationship is pending, are interlocutory with no statutory appeal. In
re Ostrofsky, 112 S.W.3d 925, 928 (Tex. App.—Houston [14th Dist.] 2003, orig.
proceeding). Therefore, temporary orders are subject to mandamus review. Dancy
v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding) (per curiam).
ANALYSIS
Mother contends that the trial court abused its discretion by finding that she
had relinquished possession of the child. While a suit for modification is pending, a
court has continuing, exclusive jurisdiction to modify an order that provides for the
conservatorship, support, or possession of and access to a child, including rendering
temporary orders pending resolution of a modification suit. See Tex. Fam. Code
Ann. § 156.006(a). The court “may not render 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” unless, for purposes of this proceeding, the
following condition is met: “the person designated in the final order has voluntarily
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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. Id. §156.006(b)(2).
“Relinquish” ordinarily means an act of giving up or giving over possession or
control of. In re Rampy, No. 03-09-00208-CV, 2009 WL 10720707, at *4 (Tex.
App.—Austin May 26, 2009, orig. proceeding) (mem. op.) (citing Webster’s Third
New Int’l Dictionary 1918 (1986)).
The testimony of Mother and Father establishes that they rarely followed the
2017 final order as to possession and that they further agreed in September 2020 that
Father would have possession of the child during the week and Mother would have
possession of the child on weekends. This agreement lasted for over a year and
according to Mother, superseded the 2017 final order. It was not until after Father
had filed the modification action and the child had resumed in-person learning that
Mother wanted to return to the possession schedule that the parties had been using
by agreement before the pandemic.
The evidence presented at the hearing showed that Father continued to pay
child support while the child was living with him during the week. Father arranged
for the child to receive educational instruction during the pandemic and paid $1,000
a month for that instruction. Father enrolled the child in extracurricular activities
and summer camps and also paid for those activities. Mother did not pick up the
child for weekend possessions or return him afterwards. She also did not take the
child to or pick him up from school. Mother no longer took the child to his doctor
appointments. Mother did not pay Grandmother for all that she was doing for the
child. Mother delegated the possession schedule to Father and Grandmother.
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Mother did not bear financial responsibility for the child and was not involved in
making day-to-day decisions for the child.
This is sufficient to establish that Mother relinquished possession of the child.
See Leighton v. Court, 773 S.W.2d 63, 64‒65 (Tex. App.—Houston [14th Dist.]
1989, no writ) (holding that mother voluntarily relinquished primary care and
possession of child where parents had affirmative agreement that child would live
with father for at least “a year” while she pursued plans to become a stewardess);
Bolden v. Clapp, 751 S.W.2d 674, 676‒677 (Tex. App.—Tyler 1988, orig.
proceeding) (holding that mother, who was appointed managing conservator in
divorce decree, voluntarily gave up care, control, and possession of child when
mother moved to Dallas to attend school and left child in Tyler; grandmothers
primarily handled child’s day-to-day care with father’s participation; and temporary
orders merely maintained status quo).
It is undisputed that Mother and Father reached a mutual agreement for Father
to have possession of the child during the week. Mother believed that the
arrangement was in the best interest of the child. The dissent, however, argues that
Mother’s relinquishment of possession of the child was “forced” due to the
pandemic. A parent may face a change in her personal circumstances as the result
of events beyond her control such as illnesses, job changes, or family emergencies,
which may compel that parent to “relinquish” control and possession of her child.
Although COVID altered the lives of many people, it did not “force” changes in
circumstances any more than other life events.
The record shows that, after the child began to live with Father, Father
continued to have financial responsibility for the child, along with Grandmother, and
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made most decisions for the child and Mother showed no interest in returning to the
pre-April 2020 possession schedule until Father sought to have the trial court enter
a new order based on the possession schedule followed by the parties after
September 2020. Under these circumstances, the trial court could have concluded
that Mother voluntarily relinquished control and possession
Mother has not shown that the only decision the trial court could have reached
was that she had not voluntarily relinquished control and possession of the child.
See Texan Millwork, 631 S.W.3d at 711; Walker, 827 S.W.2d at 840. We hold that
the trial court did not abuse its discretion by appointing the Father the joint managing
conservator with the exclusive right to designate the primary residence of the child.
CONCLUSION
Relator has not established that she is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Wise, Poissant, and Wilson. (Poissant, J., dissenting).
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