In re Lee

          Original Mandamus Proceeding ^[1]

          Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

          MEMORANDUM OPINION

          Luz Elena D. Chapa, Justice

         During the pendency of a suit for modification of the parent-child relationship, the trial court entered temporary orders that lifted a geographical restriction imposed on the children's mother. Because we conclude the mother did not satisfy her statutory burden, we conditionally grant the petition for writ of mandamus.

         BACKGROUND

         Relator and the real party in interest are the divorced parents of three children. The middle child ("J.A.L.") has several severe physical disabilities. Under the July 11, 2018 divorce decree, the parents were appointed joint managing conservators of the children and the mother (hereinafter, "Natalie") was given the exclusive right to designate the children's primary residence. However, the decree required the children's primary residence to be within the North East Independent School District.^[2] Under the decree, relator was required to move from Guadalupe County to the North East Independent School District in Bexar County by June 1, 2019 or the geographical restriction would be lifted. Relator complied with the decree and moved to a house approximately a half mile from the children's school by the end of May 2019. Relator also was required to pay child support.

         On March 6, 2019, Natalie filed an original petition to modify the parent-child relationship. In her petition, Natalie asked the divorce decree be modified to deny relator access to the children or allow only supervised access. Natalie alleged relator "has a history or pattern of past or present child neglect or physical abuse directed against" J.A.L. Natalie requested temporary orders appointing her sole managing conservator and appointing relator temporary possessory conservator. On that same date, Natalie also filed a motion for temporary orders asking she be appointed temporary sole managing conservator, relator be denied access to the children or allowed only supervised access, and relator be ordered to pay child support. Relator filed an answer and a counter-petition to modify the parent-child relationship.

         The trial court conducted a hearing on May 8, 2019 at which time Natalie asked the court to lift the geographical restriction to allow her and the children to move to Florida. On June 28, 2019, the trial court signed temporary orders that, among other things, lifted the geographical restriction. On June 28, relator filed his petition for writ of mandamus and a motion for emergency relief in which he stated his summer visitation would end on July 7, 2019 at which time he believed Natalie would move with the children to Florida. This court issued a stay and requested a response. Natalie filed a response, to which relator replied.

         STANDARD OF REVIEW

         Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "A trial court has no 'discretion' in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Also, legal and factual sufficiency challenges to the evidence are relevant factors in assessing whether the trial court abused its discretion. In re Rogers, 370 S.W.3d 443, 445 (Tex. App.-Austin 2012, orig. proceeding). "Thus where, as here, an abuse-of-discretion standard applies, we must engage in a two-pronged inquiry, asking (1) whether the trial court had sufficient information on which to exercise its discretion; and, if so, (2) whether the trial court erred in its application of discretion based on that information." Id.

         Because temporary orders in suits affecting the parent-child relationship are not appealable, a petition for writ of mandamus is an appropriate means to challenge them. Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding) (per curiam); In re Herring, 221 S.W.3d 729, 730 (Tex. App.-San Antonio 2007, orig. proceeding).

         ANALYSIS

         The Texas Family Code provides, in relevant part, as follows:

While a suit for modification is pending, the court may not render a temporary order that has the effect of creating a designation, or changing the designation, of the person who has the exclusive right to designate the primary residence of the child, or the effect of creating a geographic area, or changing or eliminating the geographic area, within which a conservator must maintain the child's primary residence, under the final order unless the temporary order is in the best interest of the child and the order is necessary ...