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In re Patranella

Court of Appeals of Texas, Ninth District, Beaumont
Nov 16, 2006
No. 09-06-442 CV (Tex. App. Nov. 16, 2006)

Opinion

No. 09-06-442 CV

Submitted on October 25, 2006.

Opinion Delivered November 16, 2006.

Original Proceeding.

Relator's petition for writ of mandamus is denied.

Before McKEITHEN, C.J., GAULTNEY and KREGER, J.J.


MEMORANDUM OPINION


Real Party in Interest Ryan Edward Stott filed suit against Relator Courtney Patranella to modify their divorce decree, seeking, among other things, the right as temporary conservator to establish the primary residence of his children. The trial court entered temporary orders granting Stott the right to establish the primary residence of their son, T.B.S., and Patranella the right to establish the primary residence of their daughter, S.L.Z.S. Patranella seeks mandamus relief from the trial court's temporary order granting Stott the right to establish T.B.S's primary residence.

Mandamus is intended to be an extraordinary remedy, available only in limited circumstances and when there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Mandamus is an appropriate means to challenge temporary orders entered while a motion to modify is pending in a suit affecting the parent-child relationship. In re Ostrofsky, 112 S.W.3d 925, 928 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding) (citing Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991)). Mandamus will lie only to correct a clear abuse of discretion. Walker, 827 S.W.2d at 840. A party alleging a trial court abused its discretion in resolving factual issues must show the trial court could have reasonably reached only one decision. Ostrofsky, 112 S.W.3d at 928 (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)) (orig. proceeding).

Patranella argues the trial court abused its discretion under section 156.006 of the Texas Family Code when it entered the temporary order depriving her of her rights under the final divorce decree to determine T.B.S.'s primary residence. Section 156.006 limits the circumstances in which a trial court may render a temporary order in a suit for modification:

(a) Except as provided by Subsection (b), the court may render a temporary order in a suit for modification.

(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:

(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 and the temporary order is in the best interest of the child; or

(3) the child is 12 years of age or older and has filed with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child and the temporary order designating that person is in the best interest of the child.

Tex. Fam. Code Ann. § 156.006 (Vernon Supp. 2006). Specifically, Patranella argues the trial court abused its discretion because there was no evidence T.B.S.'s present living environment might significantly impair his physical health or emotional development. Stott's mother, Carol Ann Mitchell, testified she has kept T.B.S. three or four days a week since he was born. She stated there were several occasions when Patranella would drop T.B.S. off to stay with her, and Mitchell would not hear from Patranella for days or weeks at a time. According to her, Patranella treated T.B.S. differently than S.L.Z.S. and it was her impression that Patranella does not necessarily want T.B.S. in her possession. On one occasion, Mitchell became concerned because T.B.S. could not eat but appeared hungry. She noticed him slobber. Patranella told Mitchell she had taken him to the doctor and that the doctor said he was okay. Stott took him to the doctor and learned T.B.S. suffered from a dislocated jaw.

Stott testified with respect to Patranella's not adequately potty-training T.B.S., and that T.B.S. consistently had accidents prior to T.B.S. coming to visit Stott. Patranella admitted she noticed T.B.S. had fewer accidents after staying with Stott. At the time of the hearing on Stott's suit for modification, T.B.S. was staying with him pursuant to an earlier agreement with Patranella.

Sufficient evidence existed supporting the trial court's finding. The trial court did not abuse its discretion in entering the temporary order awarding Stott the right to determine T.B.S.'s primary residence.


Summaries of

In re Patranella

Court of Appeals of Texas, Ninth District, Beaumont
Nov 16, 2006
No. 09-06-442 CV (Tex. App. Nov. 16, 2006)
Case details for

In re Patranella

Case Details

Full title:IN RE COURTNEY PATRANELLA

Court:Court of Appeals of Texas, Ninth District, Beaumont

Date published: Nov 16, 2006

Citations

No. 09-06-442 CV (Tex. App. Nov. 16, 2006)