in Re J.W. ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00419-CV
___________________________
IN RE J.W., RELATOR
Original Proceeding
Trial Court No. 15-02463-16
Before Sudderth, C.J.; Kerr and Pittman, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Relator J.W. (Father) filed a mandamus petition challenging the trial court’s
temporary orders requiring him to enroll his three children in school in Keller ISD, a
district in which neither parent lives. Father contends that the temporary orders
violate family code section 156.006(b) because they have the effect of changing his
designation in the final divorce decree as the parent with the exclusive right to
designate the children’s primary residence while a modification suit is pending. See
Tex. Fam. Code Ann. § 156.006(b). We will conditionally grant relief. See Tex. R. App.
P. 52.8(c).
Background
Mother and Father divorced in April 2016. The agreed divorce decree named
them joint managing conservators of their three children who were six, four, and two
years old at the time. Father was designated as the conservator with “the exclusive
right to designate the primary residence of the children without regard to geographic
restriction.” Mother had possession of the children on Tuesdays and every other
weekend during the school year, and the parties had a two-week-on-two-week-off
summer possession schedule.
The decree granted each parent the independent right to make decisions
regarding the children’s education. Father homeschooled them, but during the
summer of 2018, Mother became increasingly concerned that the children were
behind academically so she had them tested. According to her, she and Father
2
discussed the situation and agreed that the children needed to be enrolled in school
and that they would change to a week-on-week-off possession schedule once school
started.
Father lives in Northwest ISD and enrolled the children in an elementary
school in the district. They were set to start school there on August 27, 2018. Mother,
who lives in Birdville ISD, decided that she wanted to enroll the children in an
elementary school in Keller ISD near her house. According to Mother, even though
neither she nor Father lives in that district, she could enroll her children there because
Keller has open enrollment.
School started in Keller ISD on August 15, 2018. Two days before, Mother
moved to modify the parent-child relationship. That same day, the trial court entered
a temporary restraining order giving Mother possession of the children and restraining
Father from taking any action to remove or unenroll the children from Keller ISD or
to enroll the children in any other school district. The children started school in Keller
on Wednesday, August 15. Later that day, the trial court vacated the restraining order,
and the children went back to Father on Thursday and Friday. The next week, Mother
had possession, and she sent the children to school in Keller that week. The following
Monday, Father had possession, and the children were dropped off at an elementary
school in Northwest ISD for their first day of school there.
On the children’s first day at Northwest ISD, the trial court held a lengthy
evidentiary hearing at which Mother, Father, and Father’s mother testified. Mother
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testified that when she had the children tested at Sylvan Learning Center at the end of
July, they tested below grade level. According to Mother, the oldest child, who was
eight years old at the time of the hearing and starting the third grade, was “having a
hard time with math to the point of being frustrated, not wanting to try it.”1 The
middle child, who was six and entering the first grade, was functioning as a “mid-
kindergarten aged child” and could not read. It was Mother’s understanding that the
child “should be reading above his grade level. So he should be reading about almost
at a second grade level.” The youngest child, who had just turned five and was going
into kindergarten, “was testing at a preK level” and, other than the letters A and B
and the numbers 0 and 1, did not know his letters or numbers. Mother wanted the
children to go to school in Keller ISD because she feared that if the children went to
school in Northwest ISD, Father would pull them out of school and homeschool
them; according to Mother, he had pulled the oldest child out of public school after
kindergarten and believed that “home-schooling was the way to go because that’s how
he was raised.”
Father stated that he intended to keep the children in school in Northwest ISD.
He agreed that they were slightly behind and that “they are a little bit lower” than he
preferred. He admitted that the middle child struggled with reading. He also conceded
1
In her affidavit attached to her motion to modify, Mother stated that the
oldest child was functioning at a second-grade level. There was no evidence at the
hearing regarding that child’s functioning grade level.
4
that the youngest child had trouble identifying letters and numbers other than A, B, 0,
and 1 but testified that the child could say the ABCs and could count. Father’s mother
did not agree that the children were behind in school.
Mother also expressed concern with the children’s hygiene and living
conditions when they were in Father’s possession. Mother was not sure whether
Father was living with his parents in Denton or was living in his house in Justin
(which, according to Mother, was uninhabitable because it was undergoing
renovations and was without running water for a time because a pipe had burst).
Mother also stated that Father did not ensure that the children were bathed or that
their hair and teeth were brushed and did not treat one of the children’s eczema.
Father countered that he was no longer living with his parents but was back at his
home in Justin, which had been renovated to a point where it was habitable and had
running water. He contended that he made sure that the child’s eczema was treated
and that the children bathed and brushed their teeth. He complained that they were
dirty when they returned from Mother.
There was also testimony regarding Father’s 24-hours-on-48-hours-off work
schedule (he’s a fireman). Because of his schedule, the children are left in the care of
his mother or a friend from Father’s church when he is working. In contrast, Mother’s
work schedule allows her to spend time with the children each day, and the children
are enrolled at an after-school program at Mother’s workplace, where she coaches
gymnastics.
5
At the hearing’s conclusion, the trial court ordered that the children be enrolled
in the elementary school in Keller that they had attended the week before and
modified the possession schedule to week-on-week-off. But the trial court made clear
that Father remained the parent with the right to designate the children’s primary
residence.
Father moved for reconsideration, and after a hearing, the trial court denied his
motion. The trial court signed temporary orders reflecting its rulings and found that
the orders “are necessary because the children’s present circumstances would
significantly impair the children’s physical health or emotional development, and the
requested temporary orders are in the best interest of the children.”
Standard of Review
Because temporary orders are not appealable, mandamus is an appropriate
means to challenge them. In re Strickland, 358 S.W.3d 818, 820 (Tex. App.—Fort
Worth 2012, orig. proceeding). We grant the extraordinary relief of mandamus only
when the trial court has clearly abused its discretion and the relator lacks an adequate
appellate remedy. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig.
proceeding). A trial court abuses its discretion when it reaches a decision so arbitrary
and unreasonable this it is a clear and prejudicial error of law or if it fails to correctly
analyze or apply the law to the facts. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302–
03 (Tex. 2016) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.
1992) (orig. proceeding). With respect to the resolution of fact issues, we may not
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substitute our judgment for the trial court’s and may not disturb the trial court’s
decision unless it is arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex.
2004) (orig. proceeding). In other words, we defer to a trial court’s factual
determinations that have evidentiary support, but we review the trial court’s legal
determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)
(orig. proceeding).
Temporary Orders in Modification Suits
Family code section 156.006(b) limits a trial court’s discretion to render
temporary orders while a modification suit is pending. A trial court cannot 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
unless that temporary order is in the child’s best interest and the child’s present
circumstances would significantly impair the child’s physical health or emotional
development. Tex. Fam. Code Ann. § 156.006(b)(1).2
Section 156.006 imposes a high burden on the movant to present evidence that
a child’s present circumstances are significantly impairing his or her physical health or
emotional development. See In re Poteet, No. 02-13-00107-CV, 2013 WL 1830281, at
2
Two other statutory circumstances authorize such a temporary order, but
neither is relevant to this case. See Tex. Fam. Code Ann. § 156.006(b)(2)–(3).
7
*2 (Tex. App.—Fort Worth May 2, 2013, orig. proceeding) (mem. op.); see also In re
Serio, No. 03-14-00786-CV, 2014 WL 7458735, at *2 (Tex. App.—Austin Dec. 23,
2014, orig. proceeding) (mem. op.) (“Texas courts have recognized that the
‘significant impairment’ standard in section 156.006(b)(1) is a high one, requiring
evidence of bad acts that are more grave than violation of a divorce decree or
alienation of a child from a parent.” (citations omitted)); Strickland, 358 S.W.3d at
822–23 (“[S]pecific allegations as to how a child’s emotional development will be
significantly impaired are statutorily required.”); In re Payne, No. 10-11-00402-CV,
2011 WL 6091265, at *2 (Tex. App.—Waco Dec. 2, 2011, orig. proceeding) (mem.
op.) (“[T]he standard for making a modification in 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 has been set very high by the Legislature
in requiring the finding of significant impairment.”).
Discussion
Father asserts that the trial court abused its discretion by entering temporary
orders requiring the children to attend a specific school in Keller ISD. He argues that
the orders violated section 156.006(b)(1) because the trial court effectively changed his
designation as the person with the exclusive right to designate the children’s primary
residence without any evidence that the children’s present circumstances would
significantly impair their physical health or emotional development.
8
The temporary orders do not change Father’s designation as the person with
the exclusive right to designate the children’s primary residence; they affect only the
school the children attend. But because the orders dictate that the children must
attend a specific elementary school in Keller ISD, they have the effect of creating a
geographic area in which Father must maintain the children’s residence because they
create a geographic limitation whereas the decree has none. See Tex. Fam. Code Ann.
§ 156.006(b); see also Serio, 2014 WL 7458735, at *1 (“Although the order expressly
affects only the school the children attend, [Father] acknowledges that the court’s
temporary order effectively deprives [Mother] of any discretion inherent in her right
to determine their children’s primary residence, which correspondingly has the effect
of changing her designation as the person with the exclusive right to designate the
children’s primary residence.”); Strickland, 358 S.W.3d at 821 (“A temporary order that
deprives a custodial parent of any discretion inherent in the right to determine the
child’s primary residence has the effect of changing the designation of the person with
the exclusive right to designate the child’s primary residence.”).
Mother contends that the temporary orders do not have the effect of changing
Father’s designation or creating a geographic area within which Father must maintain
the children’s primary residence, relying primarily on In re Cole, No. 03-14-00458-CV,
2014 WL 3893055 (Tex. App.—Austin Aug. 8, 2014, orig. proceeding) (mem. op.). In
that case, the decree gave the father, who lived in Travis County, the exclusive right to
designate the children’s primary residence within Travis or Dallas County. Id. at *1.
9
The appellate court concluded that temporary orders requiring the children to attend
school in Eanes ISD (which is in Travis County but the district in which neither
parent lived) did not have the effect of changing the father’s designation of the person
with the exclusive right to designate the children’s residence because the father’s
“ability to designate his home, or any other location in Travis County or Dallas
County, as the children’s primary residence is unaffected by the trial court’s order that
they attend school in the Eanes District.” Id. at *2.
We question the reasoning in Cole because it seems that the father’s ability to
designate the children’s primary residence in Dallas County would indeed be affected
by an order requiring the children to attend school about 200 miles away. Regardless,
the legislature has since amended section 156.006(b) to insert the phrases “creating a
designation, or” and “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.” See Act of May 11, 2017, 85th Leg., R.S., ch. 91, § 1, sec.
156.006(b), 2017 Tex. Sess. Law Serv. 201, 201 (current version at Tex. Fam. Code
Ann. § 156.006(b)). Because the legislature has expanded the type of temporary order
that requires additional findings under section 156.006(b), Cole is inapposite.
Because we have determined that the temporary orders have the effect of
creating a geographic area in which Father must maintain the children’s residence, we
must determine whether the evidence supports the trial court’s finding that the
children’s present circumstances significantly impaired their physical health or
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emotional development. See Tex. Fam. Code Ann. § 156.006(b)(1). As noted, the
“significant impairment” standard is high. See Poteet, 2013 WL 1830281, at *2;
Strickland, 358 S.W.3d at 822–23. “To establish ‘significant impairment’ of the
children’s physical health or emotional development, the movant must present
evidence of bad acts or omissions committed against the children.” In re Eddins,
No. 05-16-01451-CV, 2017 WL 2443138, at *4 (Tex. App.—Dallas June 5, 2017, orig.
proceeding) (mem. op.).
Here, even if we accept Mother’s testimony as true, the children’s
circumstances did not significantly impair their physical health or emotional
development. See, e.g., In re Charles, No. 03-17-00731-CV, 2017 WL 5985524, at
*4 (Tex. App.—Austin Dec. 1, 2017, orig. proceeding) (mem. op.) (concluding that
evidence regarding mother’s interference with father’s visitation and communications
with the child; the child’s dirty, ill-fitting, or damaged clothes and shoes; the child’s
poor hygiene; and a “bad case of scabies,” which allegedly occurred about eight
months before the modification petition was filed, did not rise to the level of
significant impairment); In re Kyburz, No. 05-15-01163-CV, 2015 WL 6935912, at
*2 (Tex. App.—Dallas Nov. 10, 2015, orig. proceeding) (mem. op.) (determining that
evidence that CPS had investigated because children were dirty, had bugs in their hair,
and were injured in mother’s home; that father had witnessed children being
disheveled, “snotty,” and wearing clothes that did not fit; and that mother might be
forced to move was insufficient to show significant impairment); In re Rather, No. 14-
11
11-00924-CV, 2011 WL 6141677, at *2 (Tex. App.—Houston [14th Dist.] Dec. 8,
2011, orig. proceeding) (mem. op.) (holding that evidence that father’s relationship
with son might be adversely affected by mother’s move, that mother’s home was
messy and unsanitary, that child was not always appropriately dressed for cold
weather, and that child was sometimes not properly supervised was insufficient to
show significant impairment); In re Escamilla, No. 04-02-00258-CV, 2002 WL 1022945,
at *2 (Tex. App.—San Antonio May 22, 2002, orig. proceeding) (not designated for
publication) (concluding that complaints about mother’s attention to children’s
schooling and general appearance amounted to differences in child-rearing methods
and preferences and did not support temporary orders changing person with right to
designate children’s primary residence). While it does appear that the children were
slightly behind academically and that Father did not keep them as clean as Mother
would have liked, the evidence in this case does not satisfy the “significant
impairment” standard set out by the legislature in section 156.006(b)(1).
It is worth noting, however, that the children’s first week at school in Keller
was a success. As Mother observed:
The first change [in their behavior and demeanor] was confidence. All of
them were lacking confidence in that they were even smart enough to do
school. That was a concern that I really had. Second was they became so
excited about all the friends they were having. [One child] went and
joined book club. [Another child] went and joined . . . game club. They
were just having a blast. They were interacting. It was the first time that
they saw school as a positive thing and not as punishment.
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We recognize that the trial court’s temporary orders might have been an attempt to
maintain the status quo pending final trial. 3 But here, there was no evidence of
significant impairment. Because section 156.006(b) precludes a trial court from issuing
an order effecting a change in the designation of the person having the right to
designate the children’s primary residence without evidence triggering a statutory
exception to this prohibition, the trial court abused its discretion by effectively
creating a geographic area in which Father must maintain the children’s primary
residence. See Tex. Fam. Code Ann. § 156.006(b); Strickland, 358 S.W.3d at 821–23.
We therefore sustain Father’s issue. 4
Conclusion
Having determined that Father is entitled to relief, we conditionally grant his
mandamus petition, and we direct the trial court to vacate its August 27, 2018 order
designating school attendance and the section of its November 28, 2018 temporary
3
And we hope and trust that the parents in this case can reach a workable
arrangement regarding the children’s schooling that is in their best interest. If the
children continue to attend school in Keller ISD, they face a thirty-minute commute
from Father’s house to school. They face an identical commute from Mother’s house
if they attend school in Northwest ISD.
4
Father also complains that the trial court abused its discretion by expressly
declining to change Father’s primary-conservatorship designation despite making a
significant-impairment finding. Because we have determined that the trial court’s
temporary orders were an abuse of discretion, we need not address this argument. See
Tex. R. App. P. 47.1.
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orders entitled “Children’s School.” 5 The writ will issue only in the unlikely event that
the trial court fails to comply with our directive.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: May 23, 2019
5
In his prayer, Father asks us to order the trial court to vacate the November
28, 2018 temporary orders in their entirety to restore the divorce decree’s access and
possession schedule. But outside of his “Summary of Argument” and “Statement of
Facts” sections in his mandamus petition, Father does not attack the week-on-week-
off possession schedule in the temporary orders or provide any argument or authority
that such a possession schedule violates section 156.006. See Tex. R. App. P. 52.3(h)
(stating that a mandamus petition “must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the appendix or
record”). Mother pointed this out in her response, but Father did not address her
contention in his reply. Father also does not attack sundry other provisions in the
temporary orders that were not in the decree. Accordingly, we will not compel the
trial court to vacate the temporary orders in their entirety. See In re TCW Glob. Project
Fund II, Ltd., 274 S.W.3d 166, 171 (Tex. App.—Houston [14th Dist.] 2008, orig.
proceeding [mand. denied]) (holding that relators waived an argument by not briefing
the argument in their mandamus petition); In re Akin Gump Strauss Hauer & Feld, LLP,
252 S.W.3d 480, 495 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding)
(holding that relator waived an argument by not briefing the argument in its
mandamus petition).
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