IN RE SUNNY J. WALTON
consists of: Willson, J., Bailey, J., and Countiss.
M. BAILEY, JUSTICE
before this court is the petition of Relator, Sunny J.
Walton, for a writ of mandamus. She asks us to review the
temporary orders entered by the Honorable Thomas Wheeler,
Judge of the 350th District Court, sitting for the 326th
District Court of Taylor County, naming Real Party in
Interest, Cody Walton, as the parent with the right to
designate the primary residence of their children, D.J.W. and
C.C.W. Relator contends that the evidence presented at the
hearing from which the temporary orders emanated is
insufficient to satisfy the statutory requirements permitting
the modification. See Tex. Fam. Code Ann. §
156.006(b)(1) (West Supp. 2016) (providing that a temporary
order must be in the best interest of the child and be
necessary because the child's present circumstances would
significantly impair the child's physical health or
emotional development). Specifically, Relator asserts that
"[t]he evidence presented at the de novo hearing is not
sufficient to show that the children's present
circumstances would significantly impair their physical
health or emotional development." For the reasons set
forth herein, we deny Relator's petition for writ of
is an 'extraordinary remedy, not issued as a matter of
right, but at the discretion of the court.'" In
re Reece, 341 S.W.3d 360, 374 (Tex. 2011) (orig.
proceeding) (quoting In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig.
proceeding)). To obtain relief by writ of mandamus, a relator
must establish that an underlying order is void or a clear
abuse of discretion and that no adequate appellate remedy
exists. Walker v. Packer, 827 S.W.2d 833, 839-40
(Tex. 1992) (orig. proceeding). An abuse of discretion occurs
when a trial court's ruling is arbitrary and
unreasonable, made without regard for guiding legal
principles or supporting evidence. Ford Motor Co. v.
Garcia, 363 S.W.3d 573, 578 (Tex. 2012).
petition is in the tenor of a challenge to the sufficiency of
the evidence underlying the trial court's finding
regarding changed circumstances and the best interests of the
child. "It is well established Texas law that an
appellate court may not deal with disputed areas of fact in
an original mandamus proceeding." In re
Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig.
proceeding) (quoting Brady v. Fourteenth Court of
Appeals, 795 S.W.2d 712, 714 (Tex. 1990) (orig.
proceeding)); In re M.C.W., 401 S.W.3d 906 (Tex.
App.-Amarillo 2013, orig. proceeding). Simply put, an
appellate court may not legitimately reconcile disputed
factual matters in a mandamus proceeding. See Hooks v.
Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex. 1991)
(orig. proceeding). If the record contains legally sufficient
evidence both against and in support of the trial court's
decision, then mandamus will not lie because weighing
conflicting evidence is a trial court function. In re
Pirelli Tire, L.L.C., 247 S.W.3d 670, 686 (Tex. 2007)
Relator suggests otherwise, we conclude there is evidence
that a rational factfinder could interpret as satisfying the
statutory requirements to the effect that the temporary
orders were necessary because the children's present
circumstances would significantly impair the children's
physical health or emotional development as required by
Section 156.006(b)(1). Dr. Marc Orner testified that he had
been D.J.W.'s counselor "for a period of time."
When asked what effect the announced move to Snyder would
have on D.J.W.'s "emotional or physical well-being,
" he stated: "I think it would be a pretty
debilitating effect." Dr. Orner equated the announced
move with the difficulty experienced "later on" by
military children "when they're forced to
move." He testified that, "[i]f you're being
forced to do something, there are emotional, psychological
ramifications no matter what it is we're forced to move
-- to do." Dr. Orner further opined that D.J.W. and
C.C.W. "need to be together wherever they are."
This testimony constituted some evidence that the
children's present circumstances, by virtue of the
announced move, would significantly impair their physical
health or emotional development.
the case in In re M.C.W., this proceeding presents a
disagreement about the quantum of weight that should be
assigned to different aspects of the evidence presented below
and the credibility of the witnesses. 401 S.W.3d at 907.
Resolution of those matters lay with the trial court.
Id. Furthermore, the extraordinary remedy of
mandamus is only issued at the discretion of an appellate
court. See In re Prudential, 148 S.W.3d at 138. In
light of the possibility of the children being required to
make multiple moves in a short period of time, we decline to
exercise our discretion to grant mandamus relief.
Relator's petition for writ of mandamus.
Wright, C.J., not participating.
majority declines to exercise this court's discretion
because "this proceeding presents a disagreement about
the quantum of weight that should be assigned to different
aspects of the evidence presented below and the credibility
of the witnesses." When Sunny J. Walton and Cody Walton
divorced, they agreed that their children, four-year-old
C.C.W. and eight-year-old D.J.W., would live with Sunny.
Eight months later, when Sunny announced her engagement and a
desire to move from Abilene to Snyder to be with her
fiancé, Cody, who had remarried and moved to Clyde,
filed a petition to modify the parent-child relationship and
requested that the children live with him. After the trial
court held a temporary-orders hearing and ruled in Cody's
favor, Sunny sought mandamus relief from this court.
defense of its position, the majority notes that a
psychologist, Dr. Marc Orner, who never prepared any custody
evaluations, never met or spoke to C.C.W., and only counseled
D.J.W. six or seven times following her parents' divorce,
gave an analogy and unsupported conclusions in support of
Cody's request. Dr. Orner claimed that the move was like
a forced military move, that the move would have a
"pretty debilitating effect" on D.J.W., and that
the two children "needed to be together." Dr. Orner
failed to explain how Sunny's move would have
significantly impaired C.C.W.'s or D.J.W.'s physical
health. Similarly, Dr. Orner failed to outline how the
contemplated move would have significantly impaired
C.C.W.'s or D.J.W.'s emotional development. In fact,
Dr. Orner opined that, if the children actually moved,
"they'll adapt" just as they "would adapt
to a new step-parent." Neither Dr. Orner nor Cody
adduced any evidence of specific allegations of physical or
emotional disease or illness in C.C.W. and D.J.W. that would
significantly impair their physical health or emotional
development due to Sunny's contemplated move. In re
Strickland, 358 S.W.3d 818, 820 (Tex. App.-Fort Worth
2012, orig. proceeding).
our sister courts have interpreted Section
156.006(b)(1) of the Texas Family Code to require
such evidence and held that emotional distress caused from
separation or loss is insufficient. Because Cody failed to
adduce any evidence that met Section 156.006(b)(1)'s
heightened standard, the trial court had no evidence upon
which to base its decision. As a result, the trial court
clearly abused its discretion when it entered the temporary
orders that gave Cody the right to designate the
children's primary residence. Faced with this dilemma and
with no adequate remedy by appeal, Sunny petitioned this
court, which should have exercised its discretion and
conditionally granted her relief. As I explain below, I