in Re Outi Salminen

ACCEPTED 01-14-01021-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 1/15/2015 10:49:37 AM CHRISTOPHER PRINE CLERK NO. 01-14-01021-CV IN THE FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1' 1 COURT OF APPEALS 1/15/2015 10:49:37 AM CHRISTOPHER A. PRINE Clerk IN RE OUTI SALMINEN, Relator RELATOR'S MOTION FOR TEMPORARY RELIEF- EMERGENCY STAY TO THIS HONORABLE COURT: Comes Now Relator, Outi Salminen, and asks the Court for an emergency stay of Respondent's November 17, 2014, Order transferring custody of a child to a parent with whom the child has never resided. In support of its Motion, Relator would show the Couti as follows: A. Introduction 1. Relator is Outi Salminen, mother of the child; real party in interest is Milo Vassallo, father of the child; respondent is Hon. James Lombardino, trial comi judge of the 308 1" Judicial District Comi. 2. Relator filed her Petition for Writ of Mandamus on December 29, 2014. 3. Relator attaches a certificate of compliance certifYing that on January 15, 2015, she notified the real party in interest by facsimile, and notified the respondent by hand delivery that a motion for temporary relief would be filed. Tex. R. App. P. 52.10(a). 4. Relator is entitled to emergency relief because the underlying Order of the trial court would remove a twelve year old female child fi·om her mother, Outi Salminen, with whom she has continuously lived, and transfer the child to reside with her father, a man whom she has only seen no more than twenty-six (26) times in twelve (12) years. Given the potential traumatic effect of such action, Relator requests that the trial court's order be stayed until this Court determines if the order IS proper. 5. Specifically, the trial comt in the underlying proceeding at Cause No. 2014- 38918 in the 308 111 Judicial District Comt of Harris County, Texas issued an order titled "Temporary Orders" on November 17, 2014, which provided in relevant part that: IT IS ORDERED that Milo Vassallo is entitled to immediate physical custody of the child, [redacted]. IT IS FURTHER ORDERED that Outi Salminen shall immediately surrender the child to the custody of Milo Vassallo. (child's name omitted) ... IT IS ORDERED that Outi Salminen's visitation with the child shall be under the supervision of an adult selected by Milo Vassallo on dates and times agreed to in advance by Milo Vassallo. Salminen- Relator's Motion for Temporary Relief- Emergency Stay Page2 6. Prior to this Order, the real-party-in-interest, Milo Vassallo, had visited with the child no more than twenty-six (26) times over twelve (12) years. To suddenly, and without any transition period, force the minor female child into the primary custody of Milo Vassallo would be emotionally traumatic to the child. 7. Additionally, Respondent Lombardino has effectively denied Relator, Outi Salminen's any possession and visitation with the child by granting Milo Vassallo the right to determine if and when Relator will have visitation with the child. Respondent order that Relator may only have visitation solely at Milo Vassallo's discretion. This extraordinary shift in the custody of the child is not in the best interests of the child, who has been in the sole custody of Relator since her bitih and has never gone extended periods of time without contact with Relator. B. Arguments and Authorities 8. The Comi may grant temporary relief pending its determination of an original proceeding. Tex. R. App. P. 52.1 O(b ). 9. This emergency stay is necessary to maintain the status quo of the patties and to preserve the Comi's jurisdiction to consider the merits of the original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex.App.-San Antonio 1995, orig. proceeding). Salminen -Relator's Motion for Tempormy Relief- Emergency Stay Page3 10. No evidence was presented and Respondent made no finding that the child's present circumstances would significantly impair the child's physical health or emotional development. Therefore, no harm will result from staying the "Temporary Orders" of November 17, 2014, until this Court can consider the merits of the original proceeding. 11. The original proceeding before this Court goes to the heart of the issue of whether the trial court has jurisdiction to issue any temporary orders in the underlying cause. Should this Comi grant the mandamus, the trial comi would be limited in its ability to proceed in the case. C. Conclusion 12. The child has been in the sole custody of Relator for her entire life. There is no evidence that the child is in any danger or that the child's present circumstances would significantly impair her physical health or emotional development. 13. Pursuant to Texas Rule of Appellate Procedure 52.10(a), Relator requests this Comi to stay the trial court's ruling on Temporary Orders, and any fmiher proceedings by the trial comi, until such time as this Comi can mle as to the substantive and procedural deficiencies of the trial court's "Temporary Orders." D. Prayer 14. For the reasons stated in this motion, Relator asks the Court for an emergency stay to maintain the status quo of the parties and preserve the Comi's Salminen- Relator's Motion for Temporwy Relief Emergency Stay Page4 jurisdiction to consider the merits of Relator's original proceeding. submitted Y, S te Bar No. 1' 554600 Calli Baldwin State Bar No. 24073691 Judith Sadler State Bar No. 17511850 5300 Memorial Drive, Suite 900 Houston, Texas 77007 Tel: (713) 802-1777 Fax: (713) 802-1779 Counsel for Relator, Outi Salminen Certificate of Conference I certify that on January 14, 2015, I communicated with Laura Dale's office and Ronnie Harrison's office by facsimile and have attempted in good faith to reach an agreement to stay the tempormy orders in this matter. We have been unable to reach an agreement. Salminen- Relator's Motion for Temporary Relief Emergency Stay Page5 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Motion for Temporary Relief- Emergency Stay was served on this 15th day of January, 2015 to the following in the manner set forth below: Via Facsimile: 713-600-1718 Via Facsimile: 713-224-7950 Ms. Laura Dale Ronnie G. Harrison Laura Dale & Associates, P.C. The Harrison Law Office 1800 St. James Place, Suite 620 411 Fannin Street, Suite 350 Houston, Texas 77056 Houston, Texas 77002 Via Hand Deliverv Hon. James Lombardino 308 1h Judicial District Court Harris County, Texas 1115 Congress, 7th Floor Houston, Texas 77002 Salminen- Relator's Motion for Tempormy Relief- Emergency Stay Page6 Certificate of Compliance Under Texas Rule of Appellate Procedure 52.10(a), I hereby certify that on the 15th day of January, 2015, I notified the following individuals in the manner indicate below that a motion for temporary relief would be filed. Via Facsimile: 713-600-1718 Via Facsimile: 713-224-7950 Ms. Laura Dale Ronnie G. Harrison Laura Dale & Associates, P.C. The Harrison Law Office 1800 St. James Place, Suite 620 411 Fannin Street, Suite 350 Houston, Texas 77056 Houston, Texas 77002 Via Hand Deliverv Hon. James Lombardino 3081h Judicial District Court 201 Caroline Houston, Texas 77002 Salminen- Relator's Motion for Temporary Relief Emergency Stay Page 7