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In re Estes

Court of Appeals of Texas, Seventh District, Amarillo

July 19, 2017

IN RE KELSEY LYNN ESTES, RELATOR

         Original Proceeding Arising From Proceedings Before the 100th District Court Carson County; Trial Court Cause No. 11591; Honorable Stuart Messer, Presiding

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

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice

         Relator, Kelsey Lynn Estes, seeks a writ of mandamus compelling respondent, the Honorable Stuart Messer, Judge of the 100th District Court of Carson County, to vacate temporary orders in a suit for modification brought by real party in interest Jared W. Guerrero. Estes and Guerrero are the parents of two-year-old R.C.E. Estes contends the trial court abused its discretion because it had a mandatory duty to transfer venue to Gray County before entering those temporary orders. She also contends the evidence at the temporary-orders hearing was insufficient to support a statutory exception to the rule that a court may not render temporary orders changing the designation of the person having the exclusive right to designate the primary residence of a child.[1] Because we agree that the necessary evidentiary showing was not made, we will conditionally grant the relief requested.

         Background

         Estes and Guerrero were never married; however, in June 2015, the 100th District Court of Carson County issued an order appointing them as joint managing conservators of R.C.E., with Estes having the exclusive right to establish the child's domicile, without regard to geographic location. Guerrero was given visitation rights according to a standard possession order and he was ordered to pay child support and medical support.

         On March 14, 2017, Guerrero filed, in the 100th District Court, a motion to modify in suit affecting the parent-child relationship. In addition to seeking permanent relief, the motion sought temporary orders concerning the immediate possession of the child and the right to establish the child's primary residence.[2] Notwithstanding the absence of an affidavit required by the Texas Family Code as a prerequisite to scheduling a hearing on temporary orders, a hearing on Guerrero's request for temporary orders was scheduled for March 31, 2017. On March 24, 2017, Estes filed a motion to transfer venue to Gray County, contending the child and both parents resided in that county during the six-month period preceding the commencement of the motion to modify. Guerrero never filed an affidavit controverting the motion to transfer. Estes also filed an answer to Guerrero's motion to modify and an objection to the temporary order hearing.

         A temporary order hearing was held on March 31, 2017. Testimony at that hearing established that the child had a non-suspicious, "pinky-finger-sized" abscess on her bottom for which both parents had sought medical treatment. Otherwise, the testimony tended to establish that the child was a well-nourished, happy little girl, currently being potty trained. The child was on track developmentally and, other than the abscess, was a healthy child, current on her vaccinations. Based on a report filed by Guerrero, CPS investigated the matter concerning the abscess and found no basis for an allegation of child neglect or endangerment. Other than the abscess, the only testimony concerning the child's mental health or emotional development was vague accusations that Estes associated with persons of questionable character and that she exhibited behaviors Guerrero and his wife associated with the use of methamphetamine. During her testimony, Estes specifically denied using methamphetamine. At the conclusion of that hearing, the trial court ordered both parties to submit to a "ten-panel hair follicle drug test" that same day. He further indicated that he would withhold his ruling on Guerrero's request for temporary orders until he received those results. Without reconvening a hearing or receiving any other admissible evidence, [3] on May 31, 2017, the trial court entered temporary orders granting Guerrero the exclusive right to designate the primary residence of R.C.E. Estes filed her petition for writ of mandamus on June 30, 2017, and, at our request, Gurrero filed a response on July 17, 2017.

         Analysis

         Through three issues, Estes contends the trial court abused its discretion by (1) failing to transfer the case to Gray County, (2) entering a temporary order that changed the designation of the person with exclusive right to establish the child's domicile, and (3) entering a temporary order after expiration of the time for the mandatory venue transfer. Estes further alleges she has no adequate remedy by appeal.

         Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding); In re Johnson, No. 07-16-00123-CV, 2016 Tex.App. LEXIS 4827, *6 (Tex. App-Amarillo May 5, 2016, orig. proceeding). Accordingly, we defer to a trial court's factual determinations having evidentiary support, but we review de novo the trial court's legal determinations. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding); In re Johnson, 2016 Tex.App. LEXIS 4827, at *6. "A trial court has no 'discretion' in determining what the law is or applying the law to the facts." Walker, 827 S.W.2d at 840; In re Johnson, 2016 Tex.App. LEXIS 4827, at *7.

         Because a trial court's temporary orders are not appealable, mandamus is an appropriate remedy. In re Strickland, 358 S.W.3d 818, 820 (Tex. App.-Ft. Worth 2012) (orig. proceeding) (citing In re Derzapf, 219 S.W.3d 327, 334-35 (Tex. 2007) (orig. proceeding) (per curiam)); In re Ostrofsky, 112 S.W.3d 925, 928 (Tex. App.-Houston [14 Dist.] 2003, orig. proceeding) (holding that because temporary orders, entered while a motion to modify in a suit affecting the parent-child relationship is pending, are not subject to interlocutory appeal, mandamus is an appropriate means for challenging these orders).

         During the pendency of a suit for modification, the Texas Family Code generally prohibits a trial court from issuing temporary orders changing the designation of the person with the right to determine a child's primary residence. Tex. Fam. Code Ann. § 156.006(b) (West Supp. 2016). There are three statutory exceptions to this rule. Id. at § 156.006(b)(1)-(3). See In re Johnson, 2016 Tex.App. LEXIS 4827, at *7. Although the trial court did not specify the basis of its ruling, under the facts of this case, the only exception applicable would be subsection (b)(1). That subsection provides:

While a suit for modification is pending, the court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless the temporary order is in the best interest of the child and . . . the order is necessary because the child's present ...

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