in Re Stephanie Rose

• Court: Court of Appeals of Texas
• Decided: May 30, 2018
• Docket: 10-18-00148-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00148-CV

IN RE STEPHANIE ROSE

Original Proceeding

MEMORANDUM OPINION

In this proceeding the trial court has rendered a temporary order that places a

geographic restriction on where Stephanie Rose, the parent who had the unrestricted

right to determine the primary residence of the children pursuant to the parties' divorce

decree, could designate as the children’s domicile. 1 The temporary order was requested

only four months after the divorce decree was signed. Because this is a memorandum

opinion and to expedite its issuance, and because the parties and the trial court are

1 The divorce decree uses the term “primary residence” whereas the trial court’s order uses the term “domicile.” For purposes of only this opinion and the conditional relief granted the terms used herein are based on the document being referenced and as being somewhat interchangeable herein; ordinarily they are not interchangeable. familiar with the evidence presented at the hearing, 2 that evidence will not be repeated

or even summarized herein. Moreover, the law is well established and the parties

understand and have adequately briefed the issues presented in this mandamus

proceeding.

We do not believe that this case is legally or factually distinguishable from In Re

Payne, No. 10-11-00402-CV, 2011 Tex. App. LEXIS 9611 (Tex. App.—Waco, Dec. 2, 2011,

orig. proceeding) (mem. op.). While the distance the mother has moved is substantially

further, North Scituate, Rhode Island, rather than Abilene, Texas, that difference is

immaterial to the result. While in this proceeding, there are allegations based on meager

and conflicting evidence of the mother attempting to alienate the father from his children

in the past, there is no evidence to support an allegation or finding that “the order is

necessary because the children’s present circumstances would significantly impair the

children’s physical health or emotional development.” In Re Payne, 2011 Tex. App. LEXIS

9611 at *4; see also TEX. FAM. CODE ANN. § 156.006(b)(1).

Based on the law and analysis as more fully described and discussed in In Re Payne,

we conditionally grant Stephanie Rose’s petition for a writ of mandamus. We direct the

trial court to vacate the temporary orders rendered on April 13, 2018. A writ of

2Although the Relator attacks the trial court’s decision to proceed with the temporary hearing because the affidavit required by the Texas Family Code was insufficient, we hold that issue is moot because the hearing has been held, is completed, and a ruling announced. We express no opinion on the sufficiency of the affidavit.

In re Rose Page 2 mandamus will issue only if Respondent fails to withdraw the order purporting to restrict

the domicile of the children to Bell, Coryell, and surrounding counties within fourteen

days after the date of this opinion. The order of this court which stayed the effect of the

temporary order is ordered dissolved upon the trial court’s signing of the order which

withdraws the order creating the geographic restriction.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition conditionally granted Opinion delivered and filed May 30, 2018 [OT06]

In re Rose Page 3