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In re Charles

Court of Appeals of Texas, Third District, Austin

December 1, 2017

In re China Charles

         ORIGINAL PROCEEDING FROM BELL COUNTY

          Before Justices Puryear, Field, and Bourland

          MEMORANDUM OPINION

          David Puryear, Justice

         Relator China Charles filed a petition for writ of mandamus complaining of the trial court's temporary order related to child custody. See Tex. R. App. P. 52. As explained below, we conditionally grant mandamus relief. See id. 52.8(c).

         Standard of Review

         A party seeking mandamus relief must show that the trial court clearly abused its discretion and that the party has no adequate remedy by appeal. In re Southwestern Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding)); In re Serio, No. 03-14-00786-CV, 2014 WL 7458735, at *1 (Tex. App.-Austin Dec. 23, 2014, orig. proceeding) (mem. op.). Because a trial court's temporary orders are not appealable, mandamus is an appropriate vehicle for a challenge to such an order. See Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993) (orig. proceeding) (per curiam); Serio, 2014 WL 7458735, at *1 (citing In re Derzapf, 219 S.W.3d 327, 334-35 (Tex. 2007) (orig. proceeding) (per curiam)). We will not grant extraordinary relief unless the temporary order amounted to an abuse of discretion under section 156.006(b) of the family code. Serio, 2014 WL 7458735, at *1.

         Under section 156.006, when a petition seeking modification of an order related to the parent-child relationship is pending, the trial court "may not render a temporary order" that changes which parent has the right to designate the child's primary residence unless the temporary order is in the child's best interest and, in relevant part, "the order is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development." Tex. Fam. Code § 156.006(b). Further, a person who seeks a temporary order changing that designation must attach to his motion an affidavit

that contains facts that support the allegation that the child's present circumstances would significantly impair the child's physical health or emotional development. The court shall deny the relief sought and decline to schedule a hearing on the motion unless the court determines, on the basis of the affidavit, that facts adequate to support the allegation are stated in the affidavit.

Id. § 156.006(b-1).

         Factual and Procedural Summary

         Charles and real party in interest Michael Winfree are the parents of C.S.C., a daughter who was born in August 2013. In January 2014, the trial court signed an order governing child support and the child's custody, giving Charles the right to determine C.S.C.'s primary residence and establishing a visitation schedule for Winfree. In January 2016, the trial court signed an order modifying the original order, making findings related to Winfree's child-support obligations and minor changes to his visitation arrangements. In a note hand written by the trial court, the order stated that C.S.C.'s primary residence would be kept "in Bell or any contiguous county."

         In August 2017, Winfree filed a petition to modify, seeking the right to designate C.S.C.'s primary residence. Winfree alleged that the circumstances of the child or one of the parents had materially and substantially changed and that the current order was unworkable because Charles had refused to comply with the child-possession exchanges and because "it has become more and more obvious for a number of additional reasons that it is not in the best interest of [C.S.C.] for [Charles] to have primary custody." Winfree further alleged that Charles had withdrawn the child from day care and had refused to tell him who was currently providing childcare and asserted that the requested changes were in C.S.C.'s best interest. The affidavit attached to Winfree's petition recited the same assertions but did not provide any specific factual allegations.

         The trial court held a hearing in September 2017, and both Winfree and Charles appeared pro se.[1] At the conclusion of the hearing, the court signed a temporary order allowing Winfree to designate the child's primary residence. It is from this order that Charles seeks relief.

         At the hearing, Winfree testified that Charles had moved to Arlington, violating the limitation that she stay in Bell County or a contiguous county, that Charles had hidden the child from Winfree, and that Charles would not tell Winfree where C.S.C. was or let him speak to her. Winfree testified that in early August, Charles had sent him a text message two hours before his Thursday night visitation informing him that she was moving to Arlington and that the child would be starting school there the following Monday. Winfree testified that he texted back to ask where the child would be living and what school she would attend and that Charles did not answer those questions and instead told him to refer to the court order. Winfree answered several questions from the trial court, stating that he had been regularly exercising his visitation rights since the modified order in 2016, including the full month of July 2017, just before Charles moved to Arlington. He had not been able to have visitations since Charles moved and he testified that Charles's withholding of C.S.C. ruined a surprise ...


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