in Re Kenneth Hickman-Bey, Relator

• Court: Court of Appeals of Texas
• Decided: August 5, 2010
• Docket: 07-10-00224-CV
• Status: Published

Opinion

NO. 07-10-0224-CV

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL B

                                                               AUGUST 5, 2010

                                            ______________________________

                                                In re: KENNETH HICKMAN-BEY,

                                                                                                            Relator

                                           _______________________________

                                   On Original Proceeding for Writ of Mandamus

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

            Pending before the court is the application of Kenneth Hickman-Bey, for a writ of mandamus.  He asks us to order the Honorable Ron Enns, 69th District Court, to schedule a hearing and act upon various motions pending in a suit he initiated.  The motions include “Plaintiff’s Motion for Partial Summary Judgment,” and “Plaintiff’s Motion for Change of Venue.”  We dismiss the petition as moot.

            On June 22, 2010, we directed Judge Enns to respond to relator’s petition for mandamus.  On July 14, 2010, Judge Enns filed his response wherein he granted relator’s motion for teleconferencing regarding his “unresolved pleadings.”  A copy of the document evincing the action is attached to this opinion as Exhibit A.       

            Accordingly, we do not reach the merits of the issues raised, and the petition for writ of mandamus is dismissed as moot.  See In re Duncan, 62 S.W.3d 333, 334 (Tex. App.–Houston [1^st Dist.] 2001, orig. proceeding).   This dismissal is without prejudice to the relator’s right to seek a writ of mandamus should unreasonable delay arise in the scheduling of the teleconference and ruling upon the aforesaid motions and pleadings.

                                                                                    Per Curiam

soNormal align=center style='text-align:center;mso-pagination:widow-orphan; mso-layout-grid-align:auto;text-autospace:ideograph-numeric ideograph-other'>

 

            When Appellant filed suit in Lubbock County, he also filed an Affidavit of Inability to Pay Costs.  This document implicates chapter 13 of the Texas Civil Practice and Remedies Code which permits dismissal of a case if the action is frivolous or malicious.  Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(2) (West 2002).[3]  An action may be frivolous or malicious if the action's realistic chance of ultimate success is slight, the claim has no arguable basis in law or fact, or the party cannot prove a set of facts in support of the claim.  Id.  at § 13.001(b).

            A dismissal under § 13.001(a)(2) is reviewed for abuse of discretion.  Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex.App.--Austin 2002, no pet.).  Additionally, in matters involving custody, control, or possession of minor children, we give wide latitude to a trial court's decision.  See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).  In such circumstances, a trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles.  Worford v. Stamper, 801 S.W.2d  108, 109 (Tex. 1990). 

Here, the trial court's dismissal order recites that Appellant made allegations in his petition that were false.  According to that order, the trial court found Appellant knew or should have known both Wilson's and Washington's current addresses.  Furthermore, it appears Appellant misrepresented his relationship to the child and the child's residence.  Accordingly, we note Appellant faced a substantial obstacle in establishing his standing to bring a suit for custody of N.W.  See Tex. Fam. Code Ann. § 102.003(a) (West 2008).   

Furthermore, this case involves a nonparent, Appellant, seeking custody over a parent, Wilson.  Appellant acknowledges in his brief the presumption that a parent be appointed sole managing conservator unless doing so would significantly impair the child's physical or emotional development.  See Tex. Fam. Code Ann. § 153.131 (West 2008).  The presumption that the best interest of a child is served by appointing a natural parent over a nonparent as managing conservator is deeply embedded in Texas law.  Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990).  "Close calls" in which a nonparent and parent are seeking conservatorship "go to the parent."  In re B.B.M., 291 S.W.3d 463, 469 (Tex.App.--Dallas 2009, pet. denied).  Despite Appellant's allegations of Wilson's unfit conduct as a mother, the record reflects that the Texas Department of Protective and Regulatory Services investigated Wilson and found that the Department's services were unnecessary. 

Given Appellant's false allegations and misrepresentations to the trial court, together with his slight chance of success as a nonparent in a custody dispute against a parent, we conclude the trial court did not abuse its discretion in finding Appellant's claim to be frivolous or malicious.  Accordingly, the trial court did not err in dismissing Appellant's action pursuant to § 13.001(a)(2).  Appellant's contentions are overruled.

Conclusion

We, therefore, affirm the trial court's order rescinding its previous temporary order.  Because a dismissal pursuant to § 13.001(a) is without prejudice, Mullins v. Estelle High Security Unit, 111 S.W.3d 268, 273-74 (Tex.App.--Texarkana 2003, no pet.), we reform the order of dismissal so as to delete the reference to dismissal "with prejudice" and affirm that order as reformed.   

                                                                                      Patrick A. Pirtle

                                                                                            Justice

---

[1]Due to the procedural posture of this case, the limited facts presented here were gleaned from the pleadings of the parties and the Clerk's Record.

[2]Although not named as a Respondent in Appellant's original petition, Washington was served by publication and named as a Respondent in the Temporary Order in Suit Affecting the Parent-Child Relationship entered by the trial court on April 12, 2010.  

[3]For convenience, future references to sections of the Texas Civil Practices and Remedies Code will subsequently be cited as A§ ___.@