COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00403-CV
IN RE E.M. RELATOR
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ORIGINAL PROCEEDING
TRIAL COURT NO. 231-445474-08
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MEMORANDUM OPINION1
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Relator E.M. (Father) seeks a writ of mandamus directing Respondent
Associate Judge Lindsay DeVos to withdraw or to stay a December 15, 2014
temporary order she signed in connection with a separate order transferring Real
Party in Interest’s (Mother’s) modification suit to Hidalgo County, Texas.2 The
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See Tex. R. App. P. 47.4.
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We requested a response from Mother, but her attorney subsequently
attempted to file with this court a motion to withdraw as counsel in this
proceeding. Although we rejected the motion for failure to comply with the rules
temporary order changed the designation of the person who has the exclusive
right to designate the primary residence of the children from Father to Mother,
but the temporary order did not contain all of the statutory findings required to
support a temporary order changing the designation of the person who has the
exclusive right to designate the primary residence of the children. See Tex. Fam.
Code Ann. § 156.006(b) (West 2014) (providing that in modification suit a court
may not render a temporary order that has the effect of changing the designation
of the person who has the exclusive right to designate the primary residence of
the child unless it is in the best interest of the child and certain circumstances are
proved); In re Davila, No. 04-13-00103-CV, 2013 WL 1192617, at *3 (Tex.
App.—San Antonio, Mar. 22, 2013, orig. proceeding) (holding that trial court
abused its discretion by modifying conservatorship in a temporary order without
making requisite findings under family code section 156.006).
Although temporary orders may be issued in connection with a transfer
order, the case being transferred here is a child custody modification suit;
therefore, the trial court was required to comply with section 156.006(b). See
Tex. Fam. Code Ann. §§ 155.005(a) (West 2014), .006(b). We hold that
Respondent abused her discretion by issuing a temporary order in connection
with a child custody modification suit that she ordered transferred to Hidalgo
County because that temporary order changed the designation of the person who
of appellate procedure and an amended motion has yet to be filed, we proceed to
address Father’s issues in the absence of a response.
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has the exclusive right to designate the primary residence of the children from
Father to Mother without making the requisite findings required by section
156.006(b). See, e.g., In re Davila, 2013 WL 1192617, at *3.
Father timely filed a request for a de novo hearing of Respondent’s
temporary order in front of the referring judge and that hearing is scheduled for
next week. Father argues, however, that because Respondent abused her
discretion by entering the temporary order and because the temporary order,
which changes the designation of the person who has the exclusive right to
designate the primary residence of the children, became effective prior to the
date scheduled for the de novo hearing, he has no adequate remedy at law and
is entitled to a stay of Respondent’s temporary order until the de novo hearing is
concluded. See Tex. Fam. Code Ann. § 201.013(a) (West 2014). We agree. In
custody cases, temporary orders are not appealable but are subject to
mandamus relief. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig.
proceeding) (holding mandamus relief from temporary orders was appropriate
because “the trial court’s issuance of temporary orders [was] not subject to
interlocutory appeal”). We sustain Father’s first issue.
Father also complains in his second issue that the referring judge stated
on the record that he did not intend to conduct the de novo hearing within the
thirty-day statutory time period but intended only to swear-in witnesses and to
then continue the hearing. We do not know what will happen at the upcoming de
novo hearing scheduled before the referring judge. Consequently, Father’s
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request for mandamus relief on this issue is premature. See, e.g., Patterson v.
Planned Parenthood of Houston & S.E. Tex., Inc., 971 S.W.2d 439, 442 (Tex.
1998) (explaining that an action is not ripe for judicial review if it involves
“uncertain or contingent future events that may not occur as anticipated, or
indeed may not occur at all”). We overrule Father’s second issue.
Having determined that Respondent abused her discretion by issuing a
temporary order in connection with a child custody modification suit that she
ordered transferred to Hidalgo County because the temporary order changed the
designation of the person who has the exclusive right to designate the primary
residence of the children from Father to Mother without making the requisite
findings required by section 156.006(b) and having sustained Father’s first issue,
we conditionally grant a writ of mandamus directing Respondent to stay the effect
of her December 15, 2014 temporary order changing the designation of the
person who has the exclusive right to designate the primary residence of the
children from Father to Mother until the referring court completes its de novo
review of this ruling. We are confident that Respondent will promptly stay her
December 15 temporary order and our writ will issue only if she does not.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DELIVERED: January 9, 2015
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