                                 IN THE
                         TENTH COURT OF APPEALS



                                   No. 10-11-00402-CV

                        IN RE AMANDA KAYE PAYNE


                                Original Proceeding



                         DISSENTING OPINION


      I respectfully dissent. I do not agree that the temporary order entered by the trial

court had “the effect of changing the designation of the person who has the exclusive

right to designate the primary residence of the child …” See TEX. FAM. CODE ANN.

156.006 (b) (Vernon Supp. 2011).

      The record reflects that three weeks before the temporary hearing, the mother of

the children, Amanda, became engaged followed by a wedding four days before the

temporary hearing. She lives with her new husband in Leon County, where she has

continuously lived with the children since her divorce from the children’s father, Chris.

The children have lived in Leon County their entire lives. Amanda’s father, a former
Leon County sheriff, and Amanda’s mother also live in Leon County and have been

child care providers for the children on an as needed basis.

       Amanda testified that she intends to move to Abilene although she has not given

Chris the 60 day notice required in the divorce decree.

       The temporary order entered by the trial court is as follows:

              After my conference with the children, reviewing applicable law
       and considering the sworn testimony on August 3, 2011, It Is Ordered that
       the residence of the children be restricted to Leon County pending final
       hearing on this cause.

              SO ORDERED

       The order does not give Chris or any third party the exclusive right to designate

the children’s primary residence, nor does it in any way reduce the currently ordered

amount of time that Amanda has with the children. It merely requires the children’s

residence be established in the mother’s current home county pending a final hearing.

       The temporary order in this case can be factually distinguished from the

temporary order in both the Levay case and the Ostrofsky case cited by the majority. In

the Levay case, the trial court ordered that the child be admitted to a residential facility

for an indefinite period of time at the discretion of the facility. In the Ostrofsky case, the

trial court ordered that the children enter a boarding school and remain at a boarding

school until further order of the court and that the custodial parent have no possession

of the children other than certain holidays despite the decree that gave her the exclusive

right to determine the children’s primary residence.




In re Payne                                                                             Page 2
       Because I feel that the temporary order in this case that requires the children’s

residence be established in the county in which they currently reside does not have the

effect of changing the designation of the person who has the exclusive right to designate

their residence, I dissent.




                                                      AL SCOGGINS
                                                      Justice

Dissenting opinion delivered and filed December 2, 2011




In re Payne                                                                        Page 3
