PROCEEDING WRIT OF MANDAMUS 300th District Court Brazoria
County, Texas Trial Court Cause No. 88736-F
consists of Justices Christopher, Busby, and Jewell.
Brett Busby, Justice
a divorce and child custody case involving relator Amy McPeak
(Mother), real party-in-interest James McPeak (Father), and
three children. On November 22, 2016, Mother and Father
executed and the trial court approved Agreed Temporary
Orders, which, among other things, ordered Mother to move the
children to Brazoria County (where Father lived) or
contiguous counties by January 1, 2017, and if Mother failed
to comply, the children would be turned over to Father's
possession (Temporary Orders). On January 19, 2017, the
presiding judge of the 300th District Court of Brazoria
County signed orders denying Mother's motion for the
court to confer with the oldest child and declining to
further consider Mother's motion to modify the Temporary
Orders. The judge specified that he declined to further
consider the motion to modify because Mother did not file an
affidavit that complied with the section 156.102 of the Texas
February 8, 2017, Mother filed a petition for writ of
mandamus in this Court. See Tex. Gov't Code Ann.
§ 22.221 (West 2004); see also Tex. R. App. P.
52. In the petition, Mother asks this Court to compel the
trial judge to (1) vacate his January 19, 2017 orders, (2)
confer with the oldest child, and (3) modify the Temporary
conclude that Mother is entitled to relief because a motion
to modify temporary orders is governed by section
105.001 of the Texas Family Code, not section 156.102.
Section 156.102 only applies to a motion to modify a
final order that designates the person having the
exclusive right to designate the primary residence of a
child. The Temporary Orders were not final orders.
Accordingly, the trial court abused its discretion by
declining to further consider Mother's motion to modify
the Temporary Orders based on its erroneous legal conclusion
that Mother was required to comply with the inapplicable
section 156.102. The trial court also abused its discretion
by denying Mother's motion to confer with the oldest
child, who was age 13, as required by section 153.009(a) of
the Texas Family Code. We therefore conditionally grant the
petition for writ of mandamus in part.
Factual and Procedural Background
February 2016, Mother separated from Father and moved with
their three children to a home near the marital home in
Brazoria County. Mother later moved with the children to
Thorndale, Texas, which lies in Milam and Williamson
counties, about 40 miles northeast of Austin. The children
have been enrolled in school in Thorndale since September
filed for divorce in October 2016. The trial court held a
hearing on temporary orders, which Mother attended. Mother,
who was not represented by an attorney, and Father, who was
represented by an attorney, executed Agreed Temporary Orders.
The trial court approved the orders on November 22, 2016.
Among other things, the Temporary Orders required Mother to
move the children to Brazoria or contiguous counties by
January 1, 2017, and if Mother failed to comply, the children
would be turned over to Father's possession. Thus, the
Temporary Orders required Mother and the children to leave
their new home and school in Thorndale.
point after the Temporary Orders were signed, Mother obtained
a job in Thorndale. Mother then retained an attorney to
represent her. On November 29, 2016, Mother filed a motion to
set aside the Temporary Orders. On December 8, Mother filed a
motion to modify the Temporary Orders, requesting that the
Agreed Temporary Orders be set aside or that the geographic
restriction in the orders be set aside and/or modified to
include Mother's county of residence. On December 28,
Mother filed a motion asking the trial court to confer with
the oldest child, who was 13 years old, pursuant to section
153.009 of the Texas Family Code.
trial court heard these motions on January 18, 2017, but
stopped the hearing because Mother had failed to file an
affidavit that complied with section 156.102 of the Texas
Family Code. On January 19, 2019, the trial court: (1) signed
an order stating that the court declined to consider further
evidence or testimony and declined to further consider
Mother's motion to modify (Order Declining to Consider),
and (2) signed an order denying Mother's motion to confer
with the oldest child (Order Denying Motion to Confer).
obtain mandamus relief, a relator generally must show both
that the trial court clearly abused its discretion and that
the relator has no adequate remedy by appeal. In re
Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). A trial court clearly abuses its
discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of
law or if it clearly fails to analyze the law correctly or
apply the law correctly to the facts. In re Cerberus
Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding) (per curiam). The appellate court reviews
the trial court's application of the law de novo. See
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
challenge to temporary orders in a suit affecting the
parent-child relationship is allowed through mandamus, as
there is no adequate remedy by appeal. See Little v.
Daggett, 858 S.W.2d 368, 369 (Tex. 1993) (orig.
proceeding). Because a trial court's temporary orders in