in Re Kye Whitney Adams Johnson, Relator

• Court: Court of Appeals of Texas
• Decided: May 5, 2016
• Docket: 07-16-00123-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-16-00123-CV

IN RE KYE WHITNEY ADAMS JOHNSON, RELATOR

ORIGINAL PROCEEDING

May 5, 2016

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Relator Kye Whitney Adams Johnson seeks a writ of mandamus compelling

respondent, the Honorable Dan Mike Bird, Judge of the 46th District Court of Wilbarger

County, to vacate temporary orders in a suit for modification brought by real party in

interest Gordon Matthew Raymos. Johnson and Raymos are the parents of seven-

year-old K.K.R. Johnson argues the trial court abused its discretion because the

evidence at the temporary-orders hearing was insufficient to support a statutory

exception to the rule that a court may not render temporary orders changing the

designation of the person having the exclusive right to designate the primary residence of a child.1 Because we agree that the necessary evidentiary showing was not made,

we will conditionally grant the relief requested.

Background

By their 2010 divorce decree, Johnson and Raymos were appointed joint

managing conservators of K.K.R., with Johnson granted the exclusive right to designate

the child’s primary residence. A geographic restriction limited K.K.R.’s primary

residence to Wilbarger, Wichita, Hardeman, or Foard Counties. Raymos received

standard visitation orders. At the time, Johnson and Raymos each lived in Vernon in

Wilbarger County.

Evidence at the temporary-orders hearing showed in 2015 Johnson intended to

seek better employment in a city beyond the bounds of the decree’s geographic

restriction. On September 18, 2015, when Raymos attempted to pick K.K.R. up for

weekend visitation, he and Johnson argued over her relocation plans. As Raymos

prepared to back his vehicle from the driveway, Johnson prevented him from doing so.

K.K.R. was seated in the backseat. During her parents’ heated discussion she became

upset and cried. Raymos called the police and the trial court found Johnson was not

truthful with the investigating officer. Raymos left without K.K.R. The court also found

Johnson denied Raymos visitation on September 18.

Raymos recorded the September 18 events. The recording was admitted into

evidence at the temporary-orders hearing and played for the trial court. It is also part of

the mandamus record.

1 TEX. FAM. CODE ANN. § 156.006(b)(1) (West Supp. 2015).

2 With regard to the September 18 events, the trial court stated the following

among its findings of fact:

 When [K.K.R.] got in the car with her Father, she was glad to see him and ready to go out and eat;  [K.K.R.] never pushed the Mother’s agenda with the Father;  Mother then approached the pickup to block its path;  Mother began trying to push [K.K.R.] to ask the Father questions, and have the Father answer [K.K.R.] about questions being pushed by the Mother;  Mother wanted to talk about relocation, and put her foot under the vehicle's tire, saying if Father ran over her foot, he would go to jail;  [K.K.R.] cried hysterically; and  Mother kept yelling at Father and [K.K.R.], beat on the windows, and prevented Father from leaving with [K.K.R.] for his scheduled visitation.

The court further found that on September 18:

 Mother placed her perceived entitlement to obtain her own wishes ahead of the best interest of [K.K.R.], in that it was not in the best interest of [K.K.R.] for Mother to use [K.K.R.] as stated above.  Mother set a bad example for [K.K.R.].  Mother set and influenced [K.K.R.] against the Father.  Mother intentionally caused confrontations with the Father in [K.K.R.’s] presence.  The confrontation of September 18, 2015, was caused intentionally by Mother.  [K.K.R.] witnessed all this turmoil and chaos and [K.K.R.] was put right in the middle of it by her Mother.

3  The incident on September 18, 2015, was not an isolated event and, based upon the evidence, this has to be an ongoing problem.  Mother’s conduct placed [K.K.R.] in present circumstances that significantly impairs the child’s physical health.  Mother’s conduct put [K.K.R.] in present circumstances that significantly impairs the child’s emotional development.  Mother’s conduct clearly caused [K.K.R.] distress and would absolutely have damaging effects on the emotional development of [K.K.R.].  Mother's bursts of anger are emotionally damaging to [K.K.R.].

On September 27, without court approval or prior notice, Johnson and K.K.R.

moved outside the geographic restriction to Friendswood, Texas. She testified

Friendswood is a six-and-one-half to eight-hour drive from Vernon, depending on

conditions. Johnson acknowledged in court she was aware that relocating outside the

geographic restriction required court approval and prior notice.

On October 16, Raymos filed a motion to modify the decree, alleging a material

and substantial change of circumstances. Among other things, he sought appointment

as K.K.R.’s sole managing conservator. He requested a temporary orders hearing and

relief under temporary orders. Johnson answered, requested trial by jury, and, via a

counter-petition, sought expansion of the geographic restriction to include Harris County

and increased child support.

The temporary-orders hearing took place on December 29, 2015. According to

Raymos’s testimony, visitation with K.K.R. became more difficult after the move to

Friendswood. He explained that after traveling K.K.R. usually slept “a little later” the

4 following day. Johnson agreed in testimony that travel for weekend visitation meant

Raymos had less time with K.K.R.

Johnson presented evidence of K.K.R.’s environment in Friendswood. Johnson

has relatives in the area. She and her husband have one child with another expected.

The family lives in a three-bedroom brick home. There was evidence K.K.R. visited the

Houston Zoo and a Galveston beach. According to Johnson, K.K.R.’s activities in the

Friendswood area include playing at a community park and attending art shows, book

readings, a boat parade, fishing tournaments, and “all sorts of festivals.” At school,

K.K.R. is involved in music class and art. She enjoys the school library. Johnson has

found a pediatrician with whom she is pleased.

Temporary orders signed on March 232 granted Raymos the exclusive right to

designate the primary residence of K.K.R. in Wilbarger County. That same day

Johnson filed her petition in this court. At our request, Raymos filed a response.

Analysis

Through two issues Johnson contends the evidence at the temporary orders

hearing was insufficient to meet the standard of Family Code section 156.006(b)(1) and

therefore the temporary order changing the designation of the person who has the

exclusive right to designate the primary residence of K.K.R. from Johnson to Raymos

was an abuse of discretion for which no adequate remedy by appeal exists.

2 The order also states Johnson was in contempt for violating the geographic restriction, failing to give proper notice of her relocation, and denying Raymos visitation on two specified occasions during 2015.

5 Mandamus will issue only to correct a clear abuse of discretion or the violation of

a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer,

827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding); see In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding) (explicating adequate

remedy by appeal). We defer to a trial court’s factual determinations having evidentiary

support, but we review de novo the trial court’s legal determinations. In re Labatt Food

Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). “A trial court has no

‘discretion’ in determining what the law is or applying the law to the facts.” Walker, 827

S.W.2d at 840.

Because a trial court’s temporary orders are not appealable, mandamus is an

appropriate remedy. In re Strickland, 358 S.W.3d at 820 (citing In re Derzapf, 219

S.W.3d 327, 334-35 (Tex. 2007) (orig. proceeding) (per curiam)); In re Ostrofsky, 112

S.W.3d 925, 928 (Tex. App.—Houston [14 Dist.] 2003, orig. proceeding) (holding that

because temporary orders, entered while a motion to modify in a suit affecting the

parent-child relationship is pending, are not subject to interlocutory appeal, mandamus

is an appropriate means for challenging these orders).

During the pendency of a suit for modification, the Family Code generally

prohibits a trial court from issuing temporary orders changing the designation of the

person with the right to determine a child’s primary residence. TEX. FAM. CODE ANN. §

156.006(b). To this rule the statute provides three exceptions. TEX. FAM. CODE ANN. §

156.006(b)(1)-(3); see In re Rather, 2011 Tex. App. LEXIS 9625, at *6 (Tex. App.—

Houston 14th Dist. Dec. 8, 2011, orig. proceeding) (citing In re Sanchez, 228 S.W.3d

214, 218-19 (Tex. App.—San Antonio, 2007, orig. proceeding) (trial court’s ability to

6 change designation during pendency of suit for modification curtailed to a limited set of

circumstances)). Relying on the exception of subsection(b)(1), the trial court changed

the designation through temporary orders. This standard provides:

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 . . . the order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development[.]

TEX. FAM. CODE ANN. § 156.006(b)(1).

In her petition and reply to Raymos’s response, Johnson focuses her abuse of

discretion argument on the absence of evidence demonstrating that K.K.R.’s present

circumstances would significantly impair her physical health or emotional development.

She also points to an absence of evidence that K.K.R. was harmed by discussions

between Johnson and Raymos concerning Johnson’s intended move.

In his response Raymos details and relies on the evidence surrounding the

September 18 occurrence. He argues, “The evidence of the Mother’s conduct on

September 18, 2015 and before that date and the evidence of the effect that conduct

had on the child established that the Father met his burden before the trial court and

sufficiently supported the trial court’s decision.”

Raymos directs us to two cases he believes should guide our decision. In In re

Eckert, No. 09-06-00549-CV, 2007 Tex. App. LEXIS 527 (Tex. App.—Beaumont Jan.

25, 2007, orig. proceeding) (mem. op.) the father was sole managing conservator of an

eleven-year-old child. The terminally-ill mother lived in New York. Seeking to retain

7 possession of the child, the mother filed a motion to modify and sought temporary

orders. At the temporary-orders hearing the court heard evidence the father did not

allow the child to talk to the mother for three months and gave inadequate attention to

the child’s medical and dental treatment. 2007 Tex. App. LEXIS 527, at *3. The trial

court also conducted an unrecorded interview of the child in chambers which, the

appellate court explained, creates a presumption of facts supporting the trial court’s

ruling. Further, there was evidence the father “persistently obstructed communication

between the mother and the child while the child remained with him.” 2007 Tex. App.

LEXIS 527, at *4. In light of this fact and the mother’s terminal illness, the court found

the trial court could reasonably have determined that separation from the mother while

the case proceeded would significantly impair the child’s emotional development. 2007

Tex. App. LEXIS 527, at *4. Here, the record does not contain any evidence of

impairing conduct by Johnson in the child’s present circumstances.

The other case on which Raymos relies, In re A.D., 474 S.W.3d 715 (Tex. App.—

Houston [14th Dist.] 2014, no pet.), concerned Family Code section 156.102 which

applies in cases in which modification of the right to determine a child’s primary

residence is sought within one year of the final order. But to the point here, there was

evidence of ongoing impairing conduct by the child’s mother, who had the exclusive

right to designate the child’s primary residence under the decree, at the time temporary

orders transferred that right to the father. 474 S.W.3d at 724-25, 726. As noted, the

present record contains no such evidence.

We find In re Eckert and In re A.D. inapposite, but find the Fourteenth Court’s

opinion in In re Rather instructive. There, the mother possessed the right to designate

8 the child’s primary residence without a geographic restriction. Without proper notice

she moved the child from Houston to Fort Stockton because of her fiancé’s

employment. The father filed a motion to modify and at a temporary-orders hearing the

court granted the father the right to determine the child’s primary residence. 2011 Tex.

App. LEXIS 9625, at *1-2. At issue in the mandamus proceeding initiated by the mother

was whether the evidence presented at the temporary-orders hearing justified a finding

under section 156.006(b)(1) that the child’s present circumstances would significantly

impair either his physical health or his emotional development. 2011 Tex. App. LEXIS

9625, at *4. The hearing evidence focused on the mother’s pre-move conduct in

Houston. In conditionally granting the mother’s petition the court found the hearing

testimony was no evidence of the child’s present circumstances. The same is true in

this case. The only evidence of K.K.R.’s present circumstances was presented through

Johnson and tended to depict those circumstances as positive. Even if we were to

accept an inference that conduct like that Johnson exhibited on September 18

continued to occur after the move to Friendswood, there is no evidence that her inferred

conduct would significantly impair K.K.R.’s physical health or emotional development.

See Rather, 2011 Tex. App. LEXIS 9625, at *4 (rejecting similar inference-drawing); In

re Strickland, 358 S.W.3d at 822 (“Because each child’s circumstances are different,

conditions that could significantly impair the emotional development of one child may

not affect another child as strongly”).

We agree with the assessment expressed by the Waco court of appeals when it

noted that “[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

9 designate the primary residence of the child has been set very high by the Legislature in

requiring the finding of significant impairment.” In re Payne, No. 10-11-00402-CV, 2011

Tex. App. LEXIS 9611, at *6 (Tex. App.—Waco Dec. 2, 2011, orig. proceeding) (mem.

op.). We find there is no evidence establishing the subsection (b)(1) exception.

Accordingly we must conclude the trial court abused its discretion by rendering

temporary orders that changed from Johnson to Raymos the right to designate K.K.R.’s

primary residence. Johnson has no adequate remedy by appeal.

Conclusion

Having determined that Johnson is entitled to relief, we conditionally grant her

petition for writ of mandamus. We are confident the trial court will vacate that portion of

its March 23, 2016, temporary orders that grants Raymos the exclusive right to

designate the primary residence of K.K.R. The writ will issue only if the trial court fails

to do so.3

James T. Campbell Justice

3 The parties will understand that this opinion addresses only the relief granted by the temporary orders, and we express no opinion on either party’s entitlement to relief under the pending petition and counter-petition for modification.