Opinion
08-24-00342-CV
12-13-2024
IN THE INTEREST OF I.N.A.M., a Child,
Appeal from the 65th District Court of El Paso County, Texas (TC# 2022DCM0109)
Before Alley, C.J., Palafox, and Soto, JJ.
ORDER
Pursuant to Tex.R.App.P. 10.4 (a) the motion or matter ruled on through this Order may have been decided by a single Justice sitting on the panel.
Before the Court is Mya Nailah McClellan's Motion to Stay Enforcement of Trial Court's Orders Pending Appeal. On October 2, 2024, McClellan timely filed a notice of appeal challenging the trial court's Default Final Order in Suit Affecting the Parent-Child Relationship signed on July 10, 2024 (the Final Order). The Final Order recites that McClellan made a general appearance in the trial court, received notice of the trial setting, but she did not appear for trial. Regarding the child subject of the suit, it provides, among its terms, that Appellee Jorge Enrique Meza was appointed as sole managing conservator, with the exclusive right to designate primary residence of the child; while McClellan was appointed possessory conservator, with possession and access of the child limited to one supervised visit per week for two hours "depending on Project Amistad availability." McClellan's appellant's brief is due in this Court on or before January 22, 2025.
McClellan signs her motion as an unrepresented party. Tex.R.App.P. 9.1.
McClellan's motion seeks a stay of the enforcement of the trial court's orders, alleging the orders included in the Final Order place the child subject of the suit in "immediate and grave risk of harm." She further urges that a stay is essential to protect the child's safety and to preserve the purpose of this appeal. Citing to Rule 52.10 of the Texas Rules of Appellate Procedures, McClellan argues she may properly seek temporary relief from the challenged order pending the resolution of this appeal. See Tex. R. App. P. 52.10. (permitting, in an original proceeding petition for writ of mandamus, a relator to file a motion to stay any underlying proceedings or for any other temporary relief pending the court's action on the petition). We disagree.
Rule 52.10 applies to an original proceeding, not a direct appeal. To that extent, McClellan provides no authority for her request for relief. The Family Code, however, allows a trial court to hear matters on temporary orders while an appeal is pending. See Tex. Fam. Code Ann. § 109.001 ("Temporary Orders During Pendency of Appeal"). In suits affecting the parent-child relationship, on the motion of any party or on the court's own motion, after notice and hearing, the trial court retains jurisdiction to enter any order necessary and equitable. Id. § 109.001(a). The trial court is even permitted to "suspend the operation of the order or judgment that is being appealed." See id. § 109.001(a)(6). Section 109.001(b-2) limits the time frame within which the trial court can issue temporary orders in the proceeding on appeal. See id. 109.001(b-2) (stating the trial court retains jurisdiction to hear and sign a temporary order under this section until the 60th day after the date the appellant has filed the notice of appeal). However, the Family Code permits a trial court to issue temporary orders in a subsequently filed new modification proceeding. See Tex. Fam. Code Ann. § 156.004 (stating rules for an original lawsuit apply to a suit for modification); In re Reardon, 514 S.W.3d 919, 924 (Tex. App.-Fort Worth 2017, orig. proceeding) (stating a modification proceeding a separate original lawsuit). As the "court of continuing jurisdiction," the trial court is familiar with the background and circumstances of the parties and is best suited to hear evidence and make decisions concerning the welfare and safety of the child the subject of this proceeding.
In sum, although we lack authority in this instance to enter a stay of trial court orders, the Family Code includes provision permitting McClellan to seek relief in the trial court while the appeal remains pending. Accordingly, we deny McClellan's motion to stay the trial court's July 10 Order while this appeal remains pending. Due to the emergency nature of the motion, and in light of our disposition, we dispense with any requirement that Appellee provide a response. See Tex. R. App. P. 2.
IT IS SO ORDERED.