Opinion
NO. 01-21-00248-CV
05-24-2021
IN RE VICTORIA BROWNING, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Victoria Browning, seeks mandamus relief from the trial court's May 6, 2021 order which, pending a hearing on Eric Duane Adams's "Motion to Modify Temporary Orders," granted extraordinary relief, that (1) permitted Adams to retrieve the two children of their now-dissolved marriage and "have the right to keep the children until a hearing can be had[,]" and (2) excluded Browning from "possession of or access to the children . . . until a hearing is held[.]" Browning contends that the trial court abused its discretion in ordering, ex parte, a change in the parties' existing, final custody order, under which she had the right to determine the children's primary residence. We agree and conditionally grant Browning's petition for writ of mandamus.
The underlying case is In the Interest of E.L.A. and E.D.A, No. 16-FD-3363, pending in County Court at Law No. 1 of Galveston County, the Honorable John Grady, presiding.
BACKGROUND
Browning and Adams were divorced on May 8, 2019, and share custody of two minor children, E.L.A. and E.D.A. The "Agreed Final Decree of Divorce" appointed Browning and Adams joint managing conservators. Browning had the exclusive right to designate the children's primary residence and Adams had the right of possession on alternating weekends, Thursdays, and various holidays.
In August 2020, Browning filed a "Petition to Modify the Parent-Child Relationship," seeking to limit Adams's access to their daughter, E.L.A. On October 27, 2020, the parties reached a mediated settlement that temporarily reduced father's possession, ordered counseling for E.L.A., and appointed a parenting facilitator for the parties. The mediated settlement was reduced to Agreed Temporary Orders in November 2020.
Unhappy with the way the Mediated Settlement was being implemented, Adams, on April 23, 2021, filed his "First Amended Counter-Petition to Modify the Parent-Child Relationship" seeking conservatorship of the children. On the same date he filed a "Motion to Modify Temporary Orders with Request for Extraordinary Relief." Specifically, Adams requested the trial court to (1) "Issue an Order attaching to the bodies of the children . . . and allowing Eric Duane Adams to retrieve the children from any location where the children are found[,] and (2) "Issue an order excluding Victoria Browning from possession of or access to the children[.]" And, in his prayer, Adams requested that the trial court "enter extraordinary relief, immediately restraining [Browning]."
On May 6, 2021, without first holding a hearing, the trial court signed an "Order Setting Hearing on Motion to Modify Temporary Orders." The trial court's order set a hearing date of June 3, 2021, and contained the following extraordinary relief:
The order was filed with the district clerk on May 6, 2021 and the judge's signature appears thereon. However, the order itself is not dated.
IT IS ORDERED THAT
Taking Children Into Possession of Eric Duane Adams: IT IS ORDERED that Eric Duane Adams may immediately retrieve the children . . . from Victoria Browning or from any location where the children are found and IT IS ORDERED that Eric Duane Adams shall have the right to keep the children until a hearing can be had.
Excluding child from Counterrespondent: IT IS ORDERED that Counterrespondent, Victoria Browning, is immediately excluded from possession of or access to the children . . . . IT IS ORDERED that Victoria Browning shall not have possession of or access to the children . . . until a hearing is held and additional precautions are put in place by this Court.
On May 14, 2021, Victoria filed a "Petition for Writ of Mandamus and Request for Immediate Temporary Relief." This Court requested a response from Adams, which was filed May 21, 2021.
MANDAMUS
In her petition, Browning alleges that the trial court "abused its discretion granting ex parte [Adams's] [M]otion for Temporary Orders absent notice and a hearing[.]" Browning argues, among other things, that the trial court clearly abused its discretion by not complying with Section 156.006 of the Texas Family Code, which provides in pertinent part:
(b) While a suit for modification is pending, 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 . . . under the final order unless the temporary order is in the best interest of the child and:
(1) the order is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development[.]
(b-1) A person who files a motion for a temporary order authorized by Subsection (b)(1) shall execute and attach to the motion an affidavit on the person's personal knowledge or the person's belief based on representations made to the person by a person with personal knowledge that contains facts that support the allegation that the
child's present circumstances would significantly impair the child's physical health or emotional development. The court shall deny the relief sought and decline to schedule a hearing on the motion unless the court determines, on the basis of the affidavit, that facts adequate to support the allegation are stated in the affidavit. If the court determines that the facts stated are adequate to support the allegation, the court shall set a time and place for the hearing.TEX. FAM. CODE § 156.006(b), (b-1) (emphasis added).
Standard of Review
Mandamus is an extraordinary remedy that is available only when the trial court has clearly abused its discretion and there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36, 137 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion when it acts "without reference to guiding rules or principles or in an arbitrary or unreasonable manner". In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (per curiam) (orig. proceeding). 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 Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding).
Analysis
Section 156.006(b) of the Family Code limits a trial court's authority to issue temporary orders that have "the effect" of changing the person with the exclusive right to designate primary residence under a final order. TEX. FAM. CODE § 156.006(b); In re Levay, 179 S.W.3d 93, 95 (Tex. App.—San Antonio 2005, orig. proceeding). To determine if temporary orders effectively change the person with the exclusive right to designate primary residence, we examine the temporary orders in relation to the final order. See In re Ostrofsky, 112 S.W.3d 925, 929 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). This determination does not turn on the trial court's characterization of its ruling, but on the substance of the temporary orders. In re Davila, 510 S.W.3d 455, 458 (Tex. App.—San Antonio 2013, orig. proceeding); see Ostrofsky, 112 S.W.3d at 929 (holding that temporary order changed person with exclusive right to determine primary residence even though not expressly stated in order). When the temporary orders "deprive[]" a custodial parent "of any discretion inherent in the right to determine the [child's] primary residence," they have "the effect" of changing the designation of the person with the exclusive right to designate a child's primary residence. In re Levay, 179 S.W.3d at 96; In re Ostrofsky, 112 S.W.3d at 929. Thus, the first issue this Court must decide is whether the trial court's orders in this case have the effect of changing the person with the exclusive right to designate the child's primary residence.
The record shows that the final order in this case provides that "VICTORIA ANN BROWNING, as parent joint managing conservator, shall have . . . the exclusive right to designate the primary residence of the children within Galveston County, Texas and counties contiguous to Galveston County, Texas[.]" --------
In re Sanchez, 228 S.W.3d 214, 217—18 (Tex. App.—San Antonio 2007, orig. proceeding) addressed a very similar situation. In Sanchez, the agreed final order between the parties gave Sanchez the "exclusive right to designate the primary residence" of the minor child "without regard to geographic location." Id. at 216. Holmes, the father of the child in the case, filed motion to modify the final order, seeking primary custody of the child. Id. After a hearing, the trial court awarded Holmes possession of the child "during the week" and limited Sanchez's possession to weekends. Id. The temporary orders continued in effect "until further order of the court," placed conditions on Sanchez's right to possession, and granted Holmes "sole discretion" to determine whether the child would be placed in day care. Id. The appellate court noted that "[u]der the final order, Sanchez had greater possession and access to [the child] than Holmes and unrestricted authority to establish the child's primary residence anywhere," and, "[a]s a practical matter, Sanchez no longer has the right to take [the child] to another city and establish the child's main residence there." Id. at 218. The appellate court concluded that "the substantial reduction in Sanchez's overall possession time, the restrictions placed on her possession rights, and the indefinite duration of the temporary orders, operate to deprive Sanchez of any discretion inherent in her right to designate [the child's] principal residence." Id.; see also Levay, 179 S.W.3d at 96-97 (holding that temporary orders placing child in residential facility indefinitely deprived custodial parent of any discretion inherent in exclusive right to determine child's residence); Ostrofsky, 112 S.W.3d at 929 (holding that temporary orders requiring children to attend boarding school deprived custodial parent of discretion inherent in right to determine primary residence).
The orders in this case are even more restrictive of Browning's rights than the orders in Sanchez, Levay, and Ostrofsky because they completely deprive Browning of possession or access to the children and are applicable "until a hearing is held and additional precautions are put in place by [the trial court]." As such, the orders "effectively change the designation of the person with the exclusive right to designate primary residence under the final order." See Sanchez, 228 S.W.3d at 218, Levay, 179 S.W.3d at 96-97; Ostrofsky, 112 S.W.3d at 929.
Having held that the orders granting "extraordinary relief" "effectively change the designation of the person with the exclusive right to designate primary residence under the final order," we conclude that Family Code section 156.006 applies. Thus, we turn to the issue of whether the trial court abused its discretion in the manner in which it applied section 156.006.
In Sanchez, Levay, and Ostrofsky, the appellate court next considered the issue of whether, after having held a hearing, the trial court abused its discretion in finding, or failing to consider, whether the party seeking the orders had shown that the requested order was "necessary because the child's present circumstances would significantly impair the child's physical health or emotional development[.]" See TEX. FAM. CODE § 156.006 (b)(1). We do not reach that issue here because the record shows that the trial court did not hold a hearing, as required by section 156.006(b-1), before entering the orders challenged in this mandamus. See TEX. FAM. CODE § 156.006(b-1) ("If the court determines that the facts stated [in the affidavit requesting an order under § 156.006(b)(1) are adequate to support the allegation, the court shall set a time and place for the hearing"). And, there is no provision in section 156.006 that permits "an 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" to be issued ex parte.
CONCLUSION
Because the temporary orders of the trial court granting "extraordinary relief" have the effect of depriving Browning of her right to determine the children's primary residence, and the trial court did not afford Browning a hearing before doing so, we conditionally grant Browning's petition and direct the trial court to withdraw the portions of its May 6, 2021 that grant "extraordinary relief."
Only if the trial court fails to comply will we issue the writ.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Landau and Countiss.