Opinion
NUMBER 13-18-00549-CV
11-28-2018
IN RE KRISTI SHULLAW
On Petition for Writ of Mandamus.
DISSENTING MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Dissenting Memorandum Opinion by Justice Benavides
I respectfully disagree with the majority and would conditionally grant relief.
Mother sought emergency and mandamus relief from the trial court's oral order of alternate week possession of the eighteen-month old child. Mother argues that the order of possession contravenes the jury's verdict by effectively denying her the right to establish the child's primary residence, violates section 105.002 of the family code, and is not in the child's best interest. See TEX. FAM. CODE ANN. § 105.002 (West, Westlaw through 2017 1st C.S.).
A. Standard for Mandamus
Although a party's right to mandamus relief generally requires a predicate request for some action and a refusal of that request, on rare occasions the courts have relaxed this predicate when the circumstances confirm that the request would be futile and the refusal little more than a formality. In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding) (internal quotations omitted); see also In re Northern Gas Co., 327 S.W.3d 181, 189 (Tex. App.—San Antonio 2010, orig. proceeding) (granting relief).
After a four-day trial in June 2018, the jury found that Mother, as joint managing conservator, should determine the primary residence of the child, and there should be a geographic restriction to the State of Texas. The jury was advised that the Mother wished to be able to relocate to North Carolina where she has family or to Austin, Houston, or Dallas, but chose to allow Mother's relocation within the state of Texas.
The only issues before the jury were Mother's ability to relocate and which parent would have the ability to choose the child's primary residence.
Part of the jury's instruction, before the question on which parent should determine primary residence, was, "The best interest of the child shall always be the primary consideration in determining questions of conservatorship." We presume that the jury followed its instructions. In re J.F.C., 96 S.W.3d 256, 298 (Tex. 2002).
In the August 2018 hearing, Mother requested that the trial court grant judgment reflecting the jury's verdict and order standard possession for parents who live more than 100 miles apart or alternate weekend possession, although alternate weekend possession was difficult due to the distance. Father requested one week on/one week off. The trial court granted Father's request.
The trial court did not sign a judgment even though requested. The trial court then issued Findings of Facts and Conclusions of Law in September 2018. Yet there is still no written order signed by the trial court.
I would find that further request by Mother would be futile to establish this predicate for mandamus relief. Once a relator establishes that the trial court refused a request, the relator must show she is entitled to mandamus relief. The relator has the burden to establish that the trial court's act or refusal to act constitutes a clear abuse of discretion for which the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Relator has no adequate remedy by appeal because there is no written order. See TEX. R. APP. P. 25.1(b); 26.1; Ganesan v. Reeves, 236 S.W.3d 816, 817 (Tex. App.—Waco 2007, pet. denied) (dismissing appeal on the grounds there was no signed order); see also Nat'l Judgment Recovery Ctr., L.P. v. Colburn, No. 05-01375-CV, 2018 WL 1373905, at *1 ((Tex. App.—Dallas Mar. 19, 2018, no pet.) (mem. op.) (same).
B. Possession Order
"A child's best interest is always the primary consideration of the court in determining issues of possession and access." TEX. FAM. CODE ANN. § 153.002 (West, Westlaw 2017 through 1st C.S.). There is a rebuttable presumption that a standard possession order is in the best interest of a child and provides reasonable minimum possession of a child for a parent named as a joint managing conservator, although a trial court may deviate from the standard order if it is in the child's best interest. Id. §§ 153.193, 153.252, 153.256 (West, Westlaw 2017 through 1st C.S.). A standard possession order does not provide a fifty/fifty split of a child's possession between joint managing conservators, particularly when the parents live more than 100 miles apart.
I dissent from the majority's refusal to grant relief on the ground that the Mother's right to designate a child's primary residence is impaired by the visitation schedule granted by the trial court. In Albrecht v. Albrecht, the San Antonio Court of Appeals held that the trial court abused its discretion in ordering a fifty/fifty split of visitation when the jury assigned the father the right to determine the child's primary residence. 974 S.W.2d 262, 265 (Tex. App.—San Antonio 1998, no writ) (reversing order of visitation that provided for alternate six-month possession); but see In re W.B.B., No. 05-17-00384-CV, 2018 WL 3434588, at *3 (Tex. App.—Dallas July 17, 2018, no pet.) (mem. op.) (holding that alternate week visitation was not an abuse of discretion even when one parent had the exclusive right to designate primary residence). I find Albrecht persuasive and I disagree with the Dallas Court's determination in W.B.B.
The Albrecht Court held that the father who was granted the right to establish the child's primary residence was prevented from doing so due to the alternating six-month periods of possession, and that the periods of possession were not in the child's best interest. 974 S.W.3d at 265. "While the trial court has discretion to set the terms and conditions of possession, that discretion cannot be used to divide custody of a child when the jury has determined that the father will serve as primary care-giver." Id. Here as in Albrecht, "the court's order in the instant case specifies reasons for deviating from the standard possession order, [although] the terms and conditions of the order are not in the best interest of the child despite the trial court's findings." Id. The Albrecht court held that the best interest finding by the trial court was erroneous because the mother and father were unable to meaningfully cooperate in their child's upbringing which would place more stress on the child during a time that the child needed stability. Id. at 265-66. The Albrecht court also found that the trial court's possession order was unworkable because both parents worked, and the alternating periods of possession made stable child care difficult, which the appellate court held was not in the child's best interest. Id. at 266. The facts the Albrecht Court found persuasive, are paralleled here. Both parents are employed, however Mother requires child care services which are more difficult and expensive with alternating week possession. In effect, to provide continuity of care for their child Mother must pay for child care while Father exercises possession so that the child can return to the same child care situation every other week.
The trial court's findings of fact and conclusions of law here effectively held the fact that Mother worked to support her family against her by finding that she had to put the child "with strangers," even though the jury heard those facts and still gave her the right to establish residency and allowed her geographical restriction to extend throughout the State of Texas. The trial court's alternating possession order only compounds Mother's child care difficulties. Finally, the trial court's findings of fact and conclusions of law appear to reflect disagreement with the jury's verdict as to the geographic restriction, which parallels the trial court's apparent disagreement with the jury's verdict in Albrecht. See id. at 264.
The trial court's findings of fact include:
3. Immediately after the trial [Mother] moved with the child to Spring, Texas which is 241 miles from the residence of [Father].
4. It is in the best interest of the child that he have as much contact with both parents as possible since a child needs both a mother and a father.*
4(d). The father and his family are available all day as caretakers and are willing to personally take care for the child during father's periods of possession. No non-family child care need be employed in Corpus Christi.
4(e). . . . The mother insisted on only breast milk for the child although at one time in the child's very young life he was at 2% of the weight of most children his age.
4(k). The father's circumstances provide continuity and stability for the child in that the father is purchasing his home and is engaged to be married.
4(e). It is better for the child to be with his parent of the child's extended family than with strangers at a day care facility.
Based upon the facts presented in this case, I find that the trial court abused its discretion and circumvented the jury verdict.
I respectfully dissent and would conditionally grant relief.
GINA M. BENAVIDES,
Justice Delivered and filed the 28th day of November, 2018.
*The trial court's findings of fact include multiple findings that are numbered 4.