in Re David Elliott

• Court: Court of Appeals of Texas
• Decided: July 27, 2015
• Docket: 09-15-00262-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-15-00262-CV _________________

IN RE DAVID ELLIOTT

________________________________________________________________________

Original Proceeding ________________________________________________________________________

MEMORANDUM OPINION

David Elliott petitioned for a writ of mandamus compelling the 356th

District Court of Hardin County, Texas, to vacate the temporary orders signed on

June 25, 2015, in a recently-commenced divorce case. See generally Tex. Gov’t

Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. Elliott asks this

Court to compel the trial court to sign temporary orders that provide for a standard

possession order that includes summer visitation and additional “makeup

visitation” in Virginia where he resides. Elliott filed a motion requesting that this

Court award him a six-week visitation period in Virginia and additional visitation

for missed Spring visitation previously agreed to by the parties, as temporary relief pending the determination of the merits of his mandamus petition. See generally

Tex. R. App. P. 52.10(a).

Elliott contends there is insufficient evidence in the record of the hearing on

temporary orders to rebut the presumption that a standard possession order should

be entered. See generally Tex. Fam. Code Ann. §§ 105.001(g); 153.252 (West

2014). After considering the mandamus petition and the response filed by the real

party in interest, the temporary nature of the orders at issue, and the records

submitted by the parties for review by this Court (which does not include

everything the trial court considered in reaching the decision regarding the

temporary orders at issue), we conclude that the relator has not established that the

trial court clearly abused its discretion. See Tex. Fam. Code Ann. § 153.253 (West

2014). Accordingly, we deny the petition for writ of mandamus and the motion for

temporary relief. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on July 15, 2015 Opinion Delivered July 24, 2015

Before McKeithen, C.J., Horton and Johnson, JJ.