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In re Doyle

Court of Appeals of Texas, Twelfth District, Tyler

January 15, 2020

IN RE: BONNIE B. DOYLE, RELATOR

          ORIGINAL PROCEEDING

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

          MEMORANDUM OPINION

          Greg Neeley Justice

         Bonnie Doyle seeks mandamus relief from the trial court's temporary orders awarding Bennie Doyle exclusive occupancy of their residence.[1] We deny the writ.

         Background

         Bonnie and Bennie began living together as husband and wife in November 2010. They were formally married in December 2012. Bonnie filed a petition for divorce in March 2017. In May, Respondent conducted a hearing on temporary orders after which Respondent awarded Bonnie temporary exclusive use of the residence located on Joe Pool Lane. The parties purchased the residence in June 2012. Shortly after the hearing, the parties attempted to reconcile, and Bennie moved back into the home until March 2019. In April, Bennie filed a first amended counterpetition for divorce, in which he requested that the residence be sold and that Respondent make appropriate orders regarding the use and enjoyment of the residence. Bennie filed a motion to modify temporary orders on August 23, 2019.

         In September 2019, at a hearing on Bennie's motion to modify temporary orders, Respondent heard evidence that Palm Harbor Homes made an offer to purchase the residence. There was also evidence that the home was deteriorating and experiencing flooding issues and that Bonnie did not cooperate with the maintenance and repair attempts. As a result, Respondent found that the value of the residence would continue to depreciate if Bonnie continued to reside there. Respondent appointed a receiver, ordered Bonnie to vacate the premises by October 1, 2019, and awarded Bennie exclusive occupancy of the residence starting October 1, 2019, during the pendency of the case or until the property is sold. This original proceeding followed.[2]

         Prerequisites to Mandamus

         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). Mandamus relief is available only if the relator establishes that the trial court abused its discretion and no adequate appellate remedy exists. In re State, 355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Review by mandamus of temporary orders under subchapter F of the family code is proper because those orders, other than an order appointing a receiver, are not subject to interlocutory appeal under the family code. See Tex. Fam. Code. Ann. § 6.507 (West 2006); In re Vitol, Inc., No. 14-10-00049-CV, 2010 WL 308792, *1 (Tex. App.-Houston [14th Dist.] 2010, orig. proceeding) (per curiam) (mem. op.).

         Abuse of Discretion

         Bonnie contends Respondent abused his discretion when he issued the temporary orders and awarded Bennie exclusive occupancy of the residence during the pendency of the divorce. Specifically, she urges that Section 6.501 of the Texas Family Code does not authorize a trial court to evict a spouse from her residence.[3]

         Applicable Law

         A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., L.C., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding); Walker, 827 S.W.2d at 839. This standard has different applications in different circumstances. Walker, 827 S.W.2d at 839. When reviewing the trial court's resolution of factual issues or matters committed to its discretion, we may not substitute our judgment for that of the trial court. Id. Thus, we cannot set aside the trial court's finding unless it is clear from the record that the trial court could have reached only one decision. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). Our review of the trial court's determination of the legal principles controlling its ruling is much less deferential. Walker, 827 S.W.2d at 849. This is because a trial court has no discretion in determining what the law is or applying the law to the facts. Id.

         Under Section 6.501 of the family code, after a petition for divorce has been filed, the court may grant a temporary restraining order (TRO) without notice to the adverse party for the preservation of property and for the protection of the parties. Tex. Fam. Code Ann. ยง 6.501(a) (West Supp. 2019). However, the TRO may not include a provision excluding a spouse from a ...


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