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In re Ellis

Court of Appeals of Texas, Twelfth District, Tyler

June 12, 2019



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          James T. Worthen, Chief Justice.

         Relator, Apollonia Ellis, filed this original proceeding to challenge Respondent's temporary order.[1] We deny the writ.


         Real Party in Interest, Joshua Moore, and Ellis are the parents of A.J.E. In March 2014, Respondent signed an order in suit affecting the parent-child relationship, which appointed Ellis and Moore joint managing conservators and gave Ellis the exclusive right to designate A.J.E.'s primary residence. On April 26, 2018, Moore filed a motion to modify seeking appointment as the person with the right to designate the primary residence.

         On May 9, Respondent held a hearing on the motion. During the hearing, Ellis testified to meeting Daniel Torres in November 2017, marrying him on February 14, 2018, and moving to Austin, where Torres lived, at the end of March 2018. She verbally gave Moore notice of her intent to move. On March 22, she offered Moore a week-on week-off rotating weekly schedule. She found a job in Austin sooner than expected, so she left A.J.E. with Moore. She agreed that A.J.E. needs consistency and stability, which is why she left him with Moore. That March, she saw A.J.E. once and testified to calling him approximately every other day, but she could not recall how many days in April she called him. She saw A.J.E. once in March and on the weekend of April 21. Ellis did not want A.J.E. to be removed from his speech therapy program in the middle of the school year, but she wanted A.J.E. to stay in Austin once school ended. She believed it would benefit A.J.E. to be in Austin to receive therapy.

         Ellis testified that A.J.E. is attached to her and is uncomfortable and crying when he has to go with Moore, but she does not believe he is in any harm with Moore. She denied alienating A.J.E., actively discouraging him from leaving for visitations with Moore, or telling A.J.E. that he did not have to listen to Moore and that Moore was not his family or his father. She testified that she does not like Moore and he is physically abusive. Ellis also acknowledged a preexisting history with the Department of Family and Protective Services. She testified to being arrested for abandonment and neglect because she was working and attending school and her other son wandered off while she was sleeping. Witnesses testified that she is a good mother.

         Moore testified that Ellis left A.J.E. with him on March 5 and that his cellular telephone records reflect that Ellis called one time in March and twelve times in April. He testified to receiving notice via a text message that she was moving. A.J.E. initially asked about Ellis, but later stopped asking. After Moore filed the motion to modify, Ellis began calling two to three times a day. He testified that A.J.E. is four, is autistic, attends school, and is doing great in school. He testified to previously spanking A.J.E., but now only utilizes timeout because of a doctor's recommendation. According to Moore, Ellis led A.J.E. to believe that Moore is physically abusive and encourages him not to see Moore. He also testified that Ellis routinely curses at him. Moore denied physically abusing Ellis. Nor has a protective order been filed against him. Moore's wife testified that A.J.E.'s grades are consistent and he has a "very strong bond" with Moore. She testified to witnessing Ellis curse at Moore in front of A.J.E. She also testified that Ellis tells A.J.E. that he does not have to listen to Moore or do what Moore says and that Moore is not his father.

         At the end of the hearing, Moore's counsel asked that the parties be appointed joint managing conservators, neither parent establish A.J.E.'s residence, A.J.E. complete schooling in Nacogdoches County, Ellis have standard possession until the end of the school year, the parties exercise week-on week-off visitation thereafter, and a social study or child custody evaluation be conducted with the cost to be shared equally between the parties. Ellis, who acted pro se at the hearing, indicated her desire to have a standard possession order and appeared agreeable to meeting halfway so that Moore could have custody every other week. She wanted to take A.J.E. home with her for the weekend, but Respondent stated that A.J.E. was still in school. Ellis declined to see A.J.E. for dinner before returning to Austin because it would not be good for him and would hurt him.

         On May 11, Respondent signed a letter to the parties, in which he stated that the parents are both loving and "mostly appropriate" as to raising A.J.E. He also recognized "evidence of inappropriate behavior, particularly foul language and put-downs in the presence of the child." Respondent expressed concern over Ellis moving to Austin with her husband, who she had known a short time and with whom there is a "significant communication issue."[2] For these reasons, and because Ellis left A.J.E. with Moore and wanted him to complete the school year, Respondent found that the "temporary order should require the child to remain with Mr. Moore until school is out, then proceed to live in both homes, on a week on and week off basis." Respondent stated that the parties could exchange the child in Marquez, Texas at 6:00 p.m. on Saturdays, or the parties may agree otherwise. Respondent also ordered a custody evaluation, with each party paying his or her share.

         On June 6, Respondent signed a temporary order, which requires that A.J.E. remain in Moore's possession until completion of the school year, at the conclusion of which, the parties will exchange A.J.E. on a weekly basis beginning on the first Saturday at the end of the regular school term. The order gives Ellis possession of A.J.E. during the first week-long period of possession and provides that the parties exchange A.J.E. in Marquez at 6:00 p.m. each Saturday, but that they may modify the order by agreement. The order further requires a child custody evaluation and report, the cost of which the parties split equally. Respondent ordered that neither party pay child support.

         In August, Moore filed a motion for additional temporary orders and requested a temporary restraining order. On August 29, Ellis's counsel proposed that the temporary restraining order be extended, the hearing thereon reset, and Ellis receive standard possession pending the temporary orders hearing. Moore's counsel agreed. On October 2, the parties' respective counsel signed another Rule 11 agreement that required the parties to continue operating under standard visitation, except that drop off and pick up would occur at 8:00 p.m. in Marquez and Ellis would receive Thanksgiving break and the first half of Christmas break, complete the child custody evaluation, proceed to mediation before a final hearing, and cancel the hearing scheduled for October 3. On January 28, 2019, the child custody evaluation was completed. This proceeding followed.

         Prerequisites ...

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