COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00236-CV
IN RE G.P. AND D.P. RELATORS
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ORIGINAL PROCEEDING
TRIAL COURT NO. 2011-71127-431
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OPINION
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In this original proceeding,1 relators G.P. and D.P. (Grandparents)2 seek a
writ of mandamus to compel respondent the Honorable Jonathan Bailey to set a
hearing and rule on their Amended Second Motion to Modify Temporary Orders.
We conditionally grant relief.
1
See Tex. R. App. P. 52.1.
2
Grandparents are the child’s paternal grandparents.
Background
In January 2013, the trial court rendered an agreed “Order Adjudicating
Parentage” of a female child, B.P. The order named the child’s father, M.P.
(Father), and her mother, M.L. (Mother), as joint managing conservators. The
order gave the parents similar rights and duties but did not state that either of
them had the exclusive right to designate the child’s primary residence. Rather,
the order stated only that the primary residence of the child must remain in
Denton County or contiguous counties. The order included a standard
possession order that entitled each parent to possession of the child at specific
times.
In June 2015, Grandparents filed a petition in another cause number (but
in the same court) asking to be named joint managing conservators of the child
together with Mother. Grandparents alleged that appointment of Father as a joint
managing conservator was not in the child’s best interest. They asked that either
they or Mother be given the exclusive right to designate the child’s primary
residence. They alleged that Father had a history of committing family violence
and asked the trial court to deny him access to the child. They also asked for the
entry of temporary orders. Later that month, the trial court consolidated
Grandparents’ petition into the original cause number.
In August 2015, the trial court signed “Temporary Orders in Suit to Modify
Parent-Child Relationship.” The court continued Mother and Father as temporary
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joint managing conservators of the child; named Grandparents as her temporary
possessory conservators; gave Mother, for the first time, the exclusive right to
designate her residence; and delineated periods of possession for Father,
Mother, and Grandparents.
In December 2015, Mother filed a motion to modify the August 2015
temporary orders, asking, among other requests, for Father’s visitation with the
child to be supervised. Mother alleged that Father had psychological issues that
should foreclose his right to unsupervised visitation.
Also in December 2015, Grandparents filed a motion to modify temporary
orders, contending that there had been a material and substantial change of
circumstances since the August 2015 order was signed. Grandparents asked to
be named temporary managing conservators of the child with the right to
determine her domicile. They asked for Mother and Father to be given periods of
access and possession. That month, the trial court signed an “Order Modifying
Temporary Orders.” In that order, the court took judicial notice of the motions
filed by Mother and Grandparents for modification of the temporary orders but
stated that the court’s docket did not “permit said motion[s] to be heard within the
next month.” The court also took judicial notice of a psychological evaluation of
Father and of counseling notes and recommendations and ordered that any
visitation between Father and the child be “continuously supervised.” In April
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2016, the trial court signed an order stating that Father may have unsupervised
visitation.
In May 2016, Grandparents filed a “Second Motion to Modify Temporary
Orders.” Grandparents alleged that both parents had “created an environment
that [was] not conducive to the child’s therapy” and had “ceased to have a
productive working relationship with the therapist.” Grandparents again asked to
be appointed temporary managing conservators with the right to determine
domicile and again asked the trial court to give the parents periods of access and
possession.
In June 2016, the trial court made the following docket entry:
Considered [Grandparents’] request for hearing on Second Motion to
Modify Temporary Orders. Court has continuing exclusive
jurisdiction as a result of the final order entered on 1/30/13 wherein
Mother and Father agreed to be [joint managing conservators] with
neither party having the exclusive right to designate the child’s
primary residence . . . . [Grandparents] filed original SAPCR petition
seeking [joint managing conservatorship] with Mother on 6/5/15, but
that suit was subsequently consolidated into this pending
modification suit . . . . [Temporary order] modified on 8/3/15 to name
[Grandparents] possessory conservators, parents to continue as
[joint managing conservators], but awarding Mother the exclusive
right to designate child’s primary residence . . . . [Grandparents’]
current motion requests that they be named temporary sole
managing conservators with the exclusive right to establish the
child’s primary residence . . . . Family code does not permit such
temporary orders because [Grandparents’] motion does not allege
basis for such modification under [family code section] 156.006(b)[3]
and does not include an affidavit required under 156.006(b-1).
Accordingly, the Court declines to set hearing on [Grandparents’]
motion. [Emphasis added.]
3
See Tex. Fam. Code Ann. § 156.006(b) (West Supp. 2016).
4
In June 2016, in response to the trial court’s e-mail about its docket entry,
Grandparents’ counsel sent an e-mail to the trial court and to all parties, arguing
that section 156.006 of the family code is inapplicable in this case because it
applies only to changing rights under final orders, not temporary orders. Counsel
stressed that Grandparents’ motion asks to modify temporary orders, not a final
order. Grandparents also filed a motion to reconsider, asking the court to set a
hearing on their Second Motion to Modify Temporary Orders. Grandparents
again contended that section 156.006 is not applicable here.
Also in June 2016, Grandparents filed their “Amended Second Motion to
Modify Temporary Orders.” In their amended motion, Grandparents alleged that
modification was necessary because the “child’s present circumstances would
significantly impair [her] physical health or emotional development.”
Grandparents again asked to be named temporary managing conservators with
right to determine domicile. Grandparents asked the trial court to set a hearing
on the motion, to which they attached an affidavit from D.P., the child’s
grandmother. In the affidavit, she stated that the child had not been taken to
court-ordered counseling sessions; that the counseling sessions were important
for the child’s mental health; and that under Mother’s care, the child was hungry
and had poor hygiene.
The trial court responded to Grandparents’ Amended Second Motion to
Modify Temporary Orders by sending an e-mail to the parties in which the court
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stated that its “position ha[d] not changed.” The trial court declined to set a
hearing on Grandparents’ amended motion.
Grandparents brought this petition for writ of mandamus, asking this court
to command the trial court to set a hearing on their Amended Second Motion to
Modify Temporary Orders. We requested a response to Grandparents’
mandamus petition from Mother and Father, and Father filed a response in
opposition to it. Grandparents filed a reply to Father’s response.
Section 156.006
Grandparents contend that the trial court abused its discretion by refusing
to set a hearing on their Amended Second Motion to Modify Temporary Orders.
To be entitled to mandamus relief, a relator generally must demonstrate that the
trial court clearly abused its discretion and that the relator has no adequate
remedy by appeal. In re State Farm Mut. Auto. Ins. Co., 483 S.W.3d 249, 260–
61 (Tex. App.—Fort Worth 2016, orig. proceeding). A trial court clearly abuses
its discretion if it reaches a decision so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law. Id. at 261. A relator may demonstrate an
inadequate remedy by appeal by showing that a trial court has refused to set a
hearing or rule on a proper motion. Eli Lilly & Co. v. Marshall, 829 S.W.2d 157,
158 (Tex. 1992) (orig. proceeding); In re Gerstner, No. 02-15-00315-CV, 2015
WL 6444797, at *2 (Tex. App.—Fort Worth Oct. 23, 2015, orig. proceeding)
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(mem. op.); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008,
orig. proceeding).
In its docket entry, the trial court relied on section 156.006 of the family
code as the basis for refusing to set a hearing on Grandparents’ modification
motion. Section 156.006, titled “Temporary Orders,” states in part,
(a) Except as provided by Subsection (b), the court may
render a temporary order in a suit for modification.[4]
(b) While a suit for modification is pending, the 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 under the final order unless the
temporary order is in the best interest of the child and:
(1) the order is necessary because the child’s
present circumstances would significantly impair the
child’s physical health or emotional development;
(2) the person designated in the final order has
voluntarily relinquished the primary care and possession
of the child for more than six months; or
(3) the child is 12 years of age or older and has
expressed to the court in chambers as provided by
Section 153.009 the name of the person who is the
child’s preference to have the exclusive right to
designate the primary residence of the child.
(b-1) A person who files a motion for a temporary order
authorized by Subsection (b)(1) shall execute and attach to the
motion an affidavit on the person’s personal knowledge or the
person’s belief based on representations made to the person by a
4
Section 156.001 of the family code, titled “Orders Subject to Modification,”
states, “A court with continuing, exclusive jurisdiction may modify an order that
provides for the conservatorship, support, or possession of and access to a
child.” Tex. Fam. Code Ann. § 156.001 (West 2014).
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person with personal knowledge that contains facts that support the
allegation that the child’s present circumstances would significantly
impair the child’s physical health or emotional development. The
court shall deny the relief sought and decline to schedule a hearing
on the motion unless the court determines, on the basis of the
affidavit, that facts adequate to support the allegation are stated in
the affidavit. If the court determines that the facts stated are
adequate to support the allegation, the court shall set a time and
place for the hearing.
Tex. Fam. Code Ann. § 156.006(a)–(b-1).
The trial court’s docket entry manifests its finding that Grandparents were
not entitled to a hearing on their Amended Second Motion to Modify Temporary
Orders because they did not plead one of the three grounds for modification
under section 156.006(b)(1)–(3). We conclude that the trial court’s finding is
clearly erroneous for two reasons.
First, applying the unambiguous and plain language of section 156.006 as
we must—see Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015);
Oncor Elec. Delivery Co. v. Giovanni Homes Corp., 438 S.W.3d 644, 649 (Tex.
App.—Fort Worth 2014, pet. denied)—we must conclude that its requirements for
changing the person who has the exclusive right to designate the child’s primary
residence apply only when that designation has been previously set through a
“final order.” See Tex. Fam. Code Ann. § 156.006(b). Here, as the trial court
acknowledged in its docket entry, the January 2013 final order—the only final
order entered in this case thus far—did not name a person who had the exclusive
right to designate the child’s residence. Rather, the trial court’s August 2015
temporary order was the first order to give any party the exclusive right to
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designate the child’s primary residence. Thus, there is no “final” designation to
change, and Grandparents are not required to plead and prove one of the three
circumstances described by subsection (b)(1)–(3). See id. § 156.006(b)(1)–(3);
see also Thottam v. Joseph, No. 01-13-00377-CV, 2015 WL 1632454, at *3 (Tex.
App.—Houston [1st Dist.] Apr. 9, 2015, pet. denied) (mem. op.) (stating that
section 156.006 limits a trial court’s authority to “temporarily modify designation
of a conservator who has exclusive right to establish ‘primary residence’ . . . in [a]
final order” (emphasis added)); In re Casanova, No. 05-14-01166-CV, 2014 WL
6486127, at *3 (Tex. App.—Dallas Nov. 20, 2014, orig. proceeding) (mem. op.)
(“[C]hapter 156 . . . does not apply to modifications of temporary orders.”); see
also Tex. Fam. Code Ann. § 105.001(a) (West 2014) (stating that a trial court
may modify a prior temporary order based on the “safety and welfare of the
child”); In re Herring, 221 S.W.3d 729, 731 (Tex. App.—San Antonio 2007, orig.
proceeding) (“Because the challenged order is an order modifying a prior
temporary order, [section] 105.001 of the Texas Family Code applies.”).
Second, even if subsection (b) applied, the trial court’s statement in its
docket entry that Grandparents did not “allege [a] basis for modification under
[section] 156.006” is no longer correct. In Grandparents’ Amended Second
Motion to Modify Temporary Orders, which they filed after the docket entry, they
alleged one of the three circumstances under that subsection—that the order is
necessary because the “child’s present circumstances would significantly impair
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[her] physical health or emotional development.” See Tex. Fam. Code Ann.
§ 156.006(b)(1). As required by section 156.006 (if it applied), Grandparents
also attached an affidavit supporting that allegation. See id. § 156.006(b-1).
Although subsection (b-1) allows a trial court to consider the adequacy of such
an affidavit to prove the significant impairment of a child, see id., the mandamus
record does not indicate that the trial court based its decision on refusing to set a
hearing on a review of the affidavit that Grandparents attached. Instead, in
response to the filing of Grandparents’ amended second motion and affidavit, the
trial court simply communicated to the parties that its “position ha[d] not
changed.”
For these reasons, we conclude that that trial court clearly abused its
discretion by refusing to set a hearing on Grandparents’ Amended Second
Motion to Modify Temporary Orders and that Grandparents have no adequate
remedy by an appeal.5 See State Farm Mut. Auto. Ins. Co., 483 S.W.3d at 260–
61; Eli Lilly & Co., 829 S.W.2d at 158.
5
In Father’s response to Grandparents’ mandamus petition, he argues, in
part, that awarding Grandparents the right to designate the child’s primary
residence is not in her best interest, that the affidavit filed by Grandparents in the
trial court is based on hearsay, and that Grandparents are “spending as much
money as necessary to ‘buy’ this child.” These arguments are not pertinent to
our decision to conditionally grant relief to Grandparents, and we do not address
them or offer any opinion on the merits of Grandparents’ motion. We deny
Father’s request for us to order Grandparents to place $50,000 in the trial court’s
registry.
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Conclusion
The trial court’s refusal to set a hearing on Grandparents’ Amended
Second Motion to Modify Temporary Orders was a clear abuse of discretion that
left Grandparents with no adequate remedy by appeal. Accordingly, we
conditionally grant Grandparents’ petition for writ of mandamus and order
respondent to hold a hearing and rule on the motion within thirty days. See
Gerstner, 2015 WL 6444797, at *2. We are confident that respondent will do so.
The writ will issue only if respondent fails to comply.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: August 17, 2016
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