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In re Coker

Court of Appeals of Texas, Third District, Austin

January 23, 2018

In re Monte Charlene Diggs Coker

         ORIGINAL PROCEEDING FROM BURNET COUNTY

          Before Chief Justice Rose, Justices Goodwin and Field

          MEMORANDUM OPINION

          Melissa Goodwin, Justice

         Relator Monte Charlene Diggs Coker filed a petition for writ of mandamus complaining of the trial court's temporary orders that restrained her from removing her three youngest children from Burnet County or any county contiguous to Burnet County for the purpose of establishing the children's primary residence. Because we conclude that the trial court abused its discretion, we conditionally grant mandamus relief. See Tex. R. App. P. 52.8(c).

         Background

         In the underlying proceeding, real party in interest William Diggs Jr. filed a petition to modify the parent-child relationship on October 5, 2017, seeking to modify the parties' final decree of divorce that the trial court signed on July 26, 2017. The final divorce decree approved and incorporated the parties' mediated settlement agreement (MSA) that was signed by the parties on January 31, 2017. At the time of the divorce, the parties had fifteen children and six of the children were minors.

         The MSA granted Coker the right to determine the primary residence of the three youngest children and Diggs the right to determine the primary residence of the other three minor children. Consistent with the MSA, the final decree granted Coker the exclusive right to designate the primary residence of the three youngest children without regard to geographic location and granted the same right to Diggs as to the other three minor children. At all relevant times, Diggs lived in Burnet County. At the time that the parties entered into the MSA, Coker was living in Amarillo, Texas, but she had moved to Temple, Texas, in a county contiguous to Burnet County, before the trial court signed the final decree. The final decree generally provides for access and possession based on the parties living within 100 miles of each other. See Tex. Fam. Code § 153.312 (addressing possession for parents who reside within 100 miles of each other).

         In the petition to modify, Diggs sought to enjoin Coker "from removing the children the subject of this suit from Burnet County or any county contiguous thereto for the purpose of establishing the primary residence of the children." Among the relief he requested, he sought temporary orders to prohibit Coker "from removing the children from Burnet County or any county contiguous thereto for the purpose of establishing their primary residence." Diggs filed the petition to modify after receiving notice from Coker around October 1, 2017, that she was moving back to Amarillo with the three youngest children. Coker was served with the petition to modify on October 11, 2017, but by then, she already had signed a lease for a home in Amarillo and moved with the three children from Temple to Amarillo.[1]

         The trial court held a hearing on October 16, 2017, to consider temporary orders. At the time of the hearing, the three youngest children were in Amarillo staying with Coker's sister, who lived there. The parties and their 15-year-old daughter, who lived with Diggs, testified. Diggs testified that he was seeking a temporary injunction to require Coker to remain in Central Texas primarily so that the three youngest children could be together with their siblings and not "eight hours apart, " he could see the children, and the children would not be subject to spending "countless hours" in the car driving back and forth from Amarillo.[2] Concerning the provision in the divorce decree that grants Coker the exclusive right to designate the primary residence of the three youngest children without regard to geographic location, Diggs testified that "[i]t was an emotional mistake" and that he "wished [he had] never signed" the MSA that allowed the children to be apart. He also testified that the children's uninsured medical expenses would increase if they lived in Amarillo because they would be out of his insurance network.

         Coker testified that she and the three youngest children lived in Amarillo at the time the parties signed the MSA but that she and the three children had moved to Temple by the time that the divorce decree was signed. She further testified that she told Diggs in August 2017 that she was considering moving back to Amarillo with the three children; that her current husband accepted a job in Amarillo at the beginning of October 2017; and that his job would provide health insurance for the three youngest children in Amarillo. She also testified that she needed to work, that she had a job interview in Amarillo a few days after the hearing for a job that would pay well, and that she had family who lived in Amarillo and were available to help her care for the children while she was working. The evidence was that many relatives, including the three youngest children's siblings, lived in Central Texas but that Coker had "a lot of extended family" in Amarillo.

         The parties also presented conflicting testimony about the three youngest children's desires concerning moving to Amarillo. Diggs testified that the children "[were] not excited about being so far away" and that one of them was "full of anger" because he could not be with his brothers. The parties' daughter who lived with Diggs testified that the siblings have a "very, very strong" relationship; that she thought it was "important" for the three youngest children "to grow up around an environment where they have [their siblings]"; and that it was "hard" for the siblings to be around Coker's current husband, explaining that "nobody want[ed] to have a relationship with him at all." Coker, however, testified that: (i) the three youngest children "want[ed] to live" in Amarillo; (ii) that the children had cousins with whom they were close in Amarillo, along with aunts and uncles, and were "happy" living in Amarillo; and (iii) that the children were afraid to tell Diggs that they wanted to live in Amarillo.

         At the conclusion of the hearing, the trial court made its ruling on the record in relevant part:

I'm going to make a finding that it would be in the children's best interest for them to live within 50 miles of Burnet County, and I'm going to grant the TRO. . . . But, Mrs. Coker, you took some drastic steps, I think, for what-I'm not sure I can even understand your reason. I'm not sure what the attraction in Amarillo is, but I would think, as a parent and a mother, you would want your children to be able to spend as much time as they can together, and that just further separates the family and I can't do that in their best interest. It's just not in me to say that I think it's in their best interest for them to stay in Amarillo away from their father and away from their other siblings. So I'm going to order that they be returned here within 50 miles of this county and not be taken any farther away than that within-let's see, today's Monday. By Friday they need to be back.

         On December 18, 2017, the trial court signed temporary orders consistent with its oral ruling at the hearing.[3] The trial court restrained Coker from removing the three youngest children from Burnet County or any county contiguous thereto "for the purpose of establishing the primary residence of the children" until further order of the trial court or from establishing the children's primary residency more than 100 miles from Diggs's residence. In the orders, the trial court found that the temporary injunction was in the children's best interest. The trial court also found that an affidavit with an exhibit that Diggs signed on December 9, 2017, "state[d] facts that show that the actions of Monte Coker will significantly impair ...


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