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noting that "by designating the child's 'primary residence,' the person with the right to do so has also identified in which public school the child has the right to enroll," but also cautioning against the conclusion that "the person with the exclusive right to designate the child's residence also necessarily has the exclusive right to choose the public school the child will attend"
Summary of this case from In re Interest of S.H.Opinion
NO. 03-14-00458-CV
08-08-2014
In re Scott Cole
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Relator Scott Cole filed a petition for writ of mandamus challenging the trial court's oral pronouncements regarding its intended ruling on Real Party in Interest Karen Kamen's motion for a temporary order that Kamen and Cole's children begin the upcoming academic school year by attending school in the Eanes Independent School District. For the reasons that follow, we will deny the petition for writ of mandamus.
Before divorcing in May 2013, Kamen and Cole resided in a home located in the Eanes Independent School District and their two children attended school in that district. After divorce proceedings commenced, Kamen and Cole signed a mediated settlement agreement which, among other things, (1) appointed both Kamen and Cole joint managing conservators of the children, (2) designated Cole as the joint managing conservator with the exclusive right to determine the children's primary residency within Travis County, Texas, and Dallas County, Texas, and (3) ordered that Kamen and Cole share "the right, subject to the agreement of the other parent conservator, to make decisions concerning the children's education," the exercise of which right required their concurrence. Thereafter, the trial court signed an Agreed Final Decree of Divorce that included these terms. By then neither Kamen nor Cole was residing in the Eanes District; Kamen was living in an apartment in south Austin and Cole had purchased property in Lakeway, which is in the Lake Travis Independent School District.
In April 2014, Kamen and Cole exchanged e-mails regarding their then-shared desire that the children continue attending school in the Eanes District. To accomplish this goal, Kamen, with Cole's knowledge and encouragement, requested a transfer that would permit the children to continue attending school in the Eanes District even though their primary residence was now outside that district. On May 29, 2014, Kamen informed Cole that the children's transfer had been approved, to which Cole responded that he had decided that "the best course" would be to have the children attend school in the Lake Travis District where he would be residing when school started in the fall. This, along with other events, prompted Kamen to file a request for a temporary order that the children continue to attend school in the Eanes District.
After conducting an evidentiary hearing on the matter, the trial court made the following oral ruling: "[I]f there is absolute proof that the transfer has been accepted, I am going to temporarily order these kids to go to the Eanes School District. . . . [] I think under these circumstances, the status quo of the children's best interest is going to be that the Court decided that they remain at Eanes to start school. But you have to show some proof that they have been accepted other than Ms. Kamen's word on the subject." The parties apparently agree that the transfer was in fact subsequently approved. Attached as an exhibit to the petition for writ of mandamus is what Cole represents is a copy of a letter from the Eanes District informing Kamen that her transfer request had been approved. The petition for writ of mandamus does not state whether this letter was filed with the trial court, and there is no indication that the trial court made any further oral or written orders. The day after Kamen forwarded the letter from the school district to Cole he filed this petition for writ of mandamus requesting that this Court "direct[] the trial court to withdraw its rendition, and prohibit the trial court from signing a written order, that [Cole] must enroll [the children] in the Eanes ISD."
It is debatable whether the trial court has actually rendered its decision on Kamen's request for a temporary order that the children attend school in the Eanes District in the fall. Rendition of a judgment or an order is the pronouncement by the court of its conclusions and decision on the matter submitted to it for adjudication. See Buffalo Bag Co. v. Joachim, 704 S.W.2d 482, 483 (Tex. App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.). A trial court renders judgment when it officially announces its decision either orally in open court or by a memorandum filed with the clerk of the court. See Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970) (orig. proceeding). If a trial court's order is adequately reflected in the reporter's record, a formal record is not essential to obtaining mandamus relief. In re Vernor, 94 S.W.3d 201, 201 n.8 (Tex. App.—Austin 2002, orig. proceeding). Here, the trial court stated that he was going to temporarily order that the children attend school in the Eanes District if he were "show[n] some proof that they are accepted." There is no indication that the court was ever supplied the proof he requested, thus the condition he imposed has not technically been met. Because neither party contends that mandamus is unavailable for this reason, however, we will address the merits of the mandamus petition.
Cole asserts that the trial court's order was an abuse of discretion because it had the "effect" of changing the designation of the person having the exclusive right to designate the children's primary residence in the absence of the evidence required to authorize such an order. See Tex. Fam. Code § 156.006(b). This section provides:
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:Tex. Fam. Code § 156.006(b). An order has the "effect of changing the designation" of the person with the exclusive right to designate the primary residence of the child when it effectively deprives that person of his discretion to designate the child's primary residence. See In re Levay, 179 S.W.3d 93, 96 (Tex. App.—San Antonio 2005, orig. proceeding); In re Ostrofsky, 112 S.W.3d 925, 929 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). For example, in In re Ostrofsky the court held that a trial court's order that the children attend boarding school until further order of the court deprived the mother of her right to designate the children's primary residence. 112 S.W.3d at 929. In In re Levay, the court held that an order that the child be admitted to a residential facility for an indefinite period of time and giving the residential facility the sole discretion to decide where the child would live had the effect of changing the designation of the person with the exclusive right to designate the child's primary residence from the child's father to the residential facility. 179 S.W.3d at 97.
(1) the order is 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; or
(3) the child is 12 years of age or older and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child.
In the present case, however, the trial court's order that the children attend school in the Eanes District does not have the effect of depriving Cole of his right to designate their primary residence. The evidence presented to the trial court demonstrated that the transfer Kamen requested was approved and the children would be permitted to attend Eanes Elementary School despite thefact that they did not live in the Eanes District. Thus, Cole's ability to designate the children's primary residence, which presumably is his home in Lakeway, was unaffected by the trial court's order that they attend school in the Eanes District. The transfer approval permitting the children to attend Eanes Elementary School was not conditioned on the children having any particular primary residence. Because Cole's ability to designate his home, or any other location in Travis County or Dallas County, as the children's primary residence is unaffected by the trial court's order that they attend school in the Eanes District, the order did not have the effect of changing the designation of the person with the exclusive right to designate the children's primary residence.
In support of his argument to the contrary, Cole relies on a clause in Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex. App.—El Paso 2002, no pet.), in which the El Paso Court of Appeals observed that one reason for the Family Code's recognition that a child has a "primary residence" is because "one parent must have the ability to determine residency for purposes of public school enrollment if the parents reside in different districts." Cole interprets this statement to mean that the person with the right to designate the child's primary residence necessarily has a correlative right to decide where the child will attend school. From this premise, Cole argues that the trial court has, by usurping his claimed right to decide where the children attend school, effectively deprived him of his exclusive right to designate the child's primary residence. We disagree. We do not read Doncer as holding that the right to determine a child's primary residence gives the person holding that right the absolute power to decide which public school that child will attend. Rather, the court simply noted that when a child spends time in households in different school districts, the child's "primary residence," as designated by the person with the right to do so, serves to identify which school district the child resides in for purposes of public-school enrollment. Thus, by designating the child's "primary residence," the person with the right to do so has also identified in which public school the child has the right to enroll. But the court did not go so far as to hold that the person with the exclusive right to designate the child's residence also necessarily has the exclusive right to choose the public school the child will attend. We do not agree that the phrase "ability to determine residency for purposes of public school enrollment" as used by the court in Doncer equates to the power to decide what public school a child shall attend. Rather, these are separate rights and, in the present case, have been allocated differently in the Agreed Decree of Divorce. While Cole has the exclusive right to designate the children's "primary residence," Kamen and Cole share the right to make decisions concerning the children's education and must concur in the exercise of that right. Any decision regarding the children's education proposed by one parent is "subject to the agreement of the other parent."
Moreover, even if the phrase could be interpreted as Cole advocates, the referenced language is more in the nature of dicta than a direct holding, and is susceptible of varying interpretations. --------
The trial court's decision to order that the children attend school in the Eanes District did not have the effect of changing the designation of the person with the exclusive right to designate the children's primary residence. We therefore need not address Cole's argument regarding the absence of the evidence that section 156.006(b) requires in order to authorize such a change. The trial court did not abuse its discretion by ordering that the children attend school within the Eanes District. We deny the petition for writ of mandamus. See Tex. R. App. P. 52.8(a). The motion for emergency stay is dismissed as moot.
/s/_________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin Filed: August 8, 2014