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In re O'Neal

Court of Appeals of Texas, Seventh District, Amarillo

December 23, 2013



Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


Brian Quinn Chief Justice

Pending before the court is Makila Laine O'Neal's (Makila) petition for writ of mandamus wherein she asks that we issue a Writ of Mandamus "commanding the trial court to vacate the temporary order which effectively changed the person with the exclusive right to designate the primary residence of the child, expanded Real Party in Interest's access to the child and awarded possession on a week to week basis, and which decreased the support to half of what is set forth by the child support guideline statute." We conditionally grant the writ of mandamus in part and deny it in part.


Makila divorced Justin Wayne O'Neal (Justin) on October 16, 2009 and pursuant to the divorce decree was given exclusive right to establish the residence and make educational decisions for the only child of the marriage, S.B.O. On June 13, 2011, Justin filed a motion to modify the divorce decree by requesting that the trial court appoint him "as the person who has the right to designate the primary residency of the child." He, further, requested temporary orders based on necessity "because the child's present circumstances would significantly impair the child's physical health or emotional development, and the requested temporary order is in the best interest of the child." Justin, also, requested an injunction preventing either parent from "consuming alcohol within the 12 hours before or during the period of possession of or access to the child." Makila filed a general denial and subsequently countersued for a change in venue, for reimbursement of medical and dental care for the child and increase in child support. On September 24, 2013, the trial court held a hearing for temporary relief. After hearing evidence and argument of counsel, the trial court expanded visitation to every other week for Justin, restricted the geographical location of the child to Hardeman County and calculated child support based on Justin's gross income and then split the calculation in half since the parties were sharing custody. Makila then filed this petition for writ of mandamus.

Standard of Review

Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding). A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With respect to the resolution of factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court unless the relator establishes that the trial court could reasonably have reached only one decision and that the trial court's decision is arbitrary and unreasonable. Id. at 839-40. This burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam). We give deference to a trial court's factual determinations, but we review the trial court's legal determinations de novo. In re Labatt Food Serv., LP., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). A trial court abuses its discretion if it incorrectly interprets or improperly applies the law. In re Dep't of Family & Protective Services., 273 S.W.3d 637, 642-43 (Tex. 2009) (orig. proceeding); Walker, 827 S.W.2d at 840.

Because a trial court's temporary orders are not appealable, mandamus is an appropriate means to challenge them. See, e.g., In re Derzapf, 219 S.W.3d 327, 334-35 (Tex. 2007) (orig. proceeding) (granting mandamus relief and directing trial court to vacate its temporary orders granting grandparents access to grandchild); Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993) (orig. proceeding) (holding that mandamus is an appropriate remedy because a temporary order granting visitation is not appealable).

Issues One, Two and Three - Trial Court Abused Its Discretion

In her three issues, Makila contends that the trial court abused its discretion by temporarily modifying 1) visitation rights and child support obligations established in the final decree, sua sponte and 2) Makila's right to designate the child's primary residence when the trial court found that the existing circumstances did not significantly impair the child's physical health or emotional development. Justin filed no response to the application for writ of mandamus or to these arguments.

a. Visitation and Child Support

According to Makila, the trial court sua sponte modified the child support obligations (that is, reduced them) and visitation rights (that is, increased them) of Justin even though Justin had not pled for any such modifications. That constituted an abuse of discretion. We disagree.

Per the final divorce decree, Justin had been awarded visitation. Generally speaking, that visitation was to occur every other weekend. He was also ordered to pay approximately $623 per month in child support. His subsequent petition to modify the decree and allow him to designate the child's primary residence said nothing about changing visitation or child support. Before the motion could finally be heard, the trial court ...

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