Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re McPeak

Court of Appeals of Texas, Fourteenth District

April 13, 2017

IN RE AMY MCPEAK, Relator

         ORIGINAL PROCEEDING WRIT OF MANDAMUS 300th District Court Brazoria County, Texas Trial Court Cause No. 88736-F

          Panel consists of Justices Christopher, Busby, and Jewell.

          OPINION

          J. Brett Busby, Justice

         This is 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 Family Code.

         On 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 Orders.

         We 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.

         I. Factual and Procedural Background

         In 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 2016.

         Father 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.

         At some 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.

         The 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).

         II. Mandamus Standard

         To 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).

         A 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 a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.