                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                 NO. 02-16-00236-CV


IN RE G.P. AND D.P.                                                 RELATORS


                                      ------------

                            ORIGINAL PROCEEDING
                        TRIAL COURT NO. 2011-71127-431

                                      ------------

                                      OPINION

                                      ------------

      In this original proceeding,1 relators G.P. and D.P. (Grandparents)2 seek a

writ of mandamus to compel respondent the Honorable Jonathan Bailey to set a

hearing and rule on their Amended Second Motion to Modify Temporary Orders.

We conditionally grant relief.




      1
          See Tex. R. App. P. 52.1.
      2
          Grandparents are the child’s paternal grandparents.
                                    Background

         In January 2013, the trial court rendered an agreed “Order Adjudicating

Parentage” of a female child, B.P. The order named the child’s father, M.P.

(Father), and her mother, M.L. (Mother), as joint managing conservators. The

order gave the parents similar rights and duties but did not state that either of

them had the exclusive right to designate the child’s primary residence. Rather,

the order stated only that the primary residence of the child must remain in

Denton County or contiguous counties.           The order included a standard

possession order that entitled each parent to possession of the child at specific

times.

         In June 2015, Grandparents filed a petition in another cause number (but

in the same court) asking to be named joint managing conservators of the child

together with Mother. Grandparents alleged that appointment of Father as a joint

managing conservator was not in the child’s best interest. They asked that either

they or Mother be given the exclusive right to designate the child’s primary

residence. They alleged that Father had a history of committing family violence

and asked the trial court to deny him access to the child. They also asked for the

entry of temporary orders.        Later that month, the trial court consolidated

Grandparents’ petition into the original cause number.

         In August 2015, the trial court signed “Temporary Orders in Suit to Modify

Parent-Child Relationship.” The court continued Mother and Father as temporary




                                          2
joint managing conservators of the child; named Grandparents as her temporary

possessory conservators; gave Mother, for the first time, the exclusive right to

designate her residence; and delineated periods of possession for Father,

Mother, and Grandparents.

      In December 2015, Mother filed a motion to modify the August 2015

temporary orders, asking, among other requests, for Father’s visitation with the

child to be supervised. Mother alleged that Father had psychological issues that

should foreclose his right to unsupervised visitation.

      Also in December 2015, Grandparents filed a motion to modify temporary

orders, contending that there had been a material and substantial change of

circumstances since the August 2015 order was signed. Grandparents asked to

be named temporary managing conservators of the child with the right to

determine her domicile. They asked for Mother and Father to be given periods of

access and possession. That month, the trial court signed an “Order Modifying

Temporary Orders.” In that order, the court took judicial notice of the motions

filed by Mother and Grandparents for modification of the temporary orders but

stated that the court’s docket did not “permit said motion[s] to be heard within the

next month.” The court also took judicial notice of a psychological evaluation of

Father and of counseling notes and recommendations and ordered that any

visitation between Father and the child be “continuously supervised.” In April




                                         3
2016, the trial court signed an order stating that Father may have unsupervised

visitation.

       In May 2016, Grandparents filed a “Second Motion to Modify Temporary

Orders.” Grandparents alleged that both parents had “created an environment

that [was] not conducive to the child’s therapy” and had “ceased to have a

productive working relationship with the therapist.” Grandparents again asked to

be appointed temporary managing conservators with the right to determine

domicile and again asked the trial court to give the parents periods of access and

possession.

       In June 2016, the trial court made the following docket entry:

       Considered [Grandparents’] request for hearing on Second Motion to
       Modify Temporary Orders.             Court has continuing exclusive
       jurisdiction as a result of the final order entered on 1/30/13 wherein
       Mother and Father agreed to be [joint managing conservators] with
       neither party having the exclusive right to designate the child’s
       primary residence . . . . [Grandparents] filed original SAPCR petition
       seeking [joint managing conservatorship] with Mother on 6/5/15, but
       that suit was subsequently consolidated into this pending
       modification suit . . . . [Temporary order] modified on 8/3/15 to name
       [Grandparents] possessory conservators, parents to continue as
       [joint managing conservators], but awarding Mother the exclusive
       right to designate child’s primary residence . . . . [Grandparents’]
       current motion requests that they be named temporary sole
       managing conservators with the exclusive right to establish the
       child’s primary residence . . . . Family code does not permit such
       temporary orders because [Grandparents’] motion does not allege
       basis for such modification under [family code section] 156.006(b)[3]
       and does not include an affidavit required under 156.006(b-1).
       Accordingly, the Court declines to set hearing on [Grandparents’]
       motion. [Emphasis added.]

       3
           See Tex. Fam. Code Ann. § 156.006(b) (West Supp. 2016).

                                         4
      In June 2016, in response to the trial court’s e-mail about its docket entry,

Grandparents’ counsel sent an e-mail to the trial court and to all parties, arguing

that section 156.006 of the family code is inapplicable in this case because it

applies only to changing rights under final orders, not temporary orders. Counsel

stressed that Grandparents’ motion asks to modify temporary orders, not a final

order. Grandparents also filed a motion to reconsider, asking the court to set a

hearing on their Second Motion to Modify Temporary Orders.            Grandparents

again contended that section 156.006 is not applicable here.

      Also in June 2016, Grandparents filed their “Amended Second Motion to

Modify Temporary Orders.” In their amended motion, Grandparents alleged that

modification was necessary because the “child’s present circumstances would

significantly   impair   [her]   physical   health   or   emotional   development.”

Grandparents again asked to be named temporary managing conservators with

right to determine domicile. Grandparents asked the trial court to set a hearing

on the motion, to which they attached an affidavit from D.P., the child’s

grandmother. In the affidavit, she stated that the child had not been taken to

court-ordered counseling sessions; that the counseling sessions were important

for the child’s mental health; and that under Mother’s care, the child was hungry

and had poor hygiene.

      The trial court responded to Grandparents’ Amended Second Motion to

Modify Temporary Orders by sending an e-mail to the parties in which the court




                                            5
stated that its “position ha[d] not changed.” The trial court declined to set a

hearing on Grandparents’ amended motion.

      Grandparents brought this petition for writ of mandamus, asking this court

to command the trial court to set a hearing on their Amended Second Motion to

Modify Temporary Orders.         We requested a response to Grandparents’

mandamus petition from Mother and Father, and Father filed a response in

opposition to it. Grandparents filed a reply to Father’s response.

                                 Section 156.006

      Grandparents contend that the trial court abused its discretion by refusing

to set a hearing on their Amended Second Motion to Modify Temporary Orders.

To be entitled to mandamus relief, a relator generally must demonstrate that the

trial court clearly abused its discretion and that the relator has no adequate

remedy by appeal. In re State Farm Mut. Auto. Ins. Co., 483 S.W.3d 249, 260–

61 (Tex. App.—Fort Worth 2016, orig. proceeding). A trial court clearly abuses

its discretion if it reaches a decision so arbitrary and unreasonable as to amount

to a clear and prejudicial error of law. Id. at 261. A relator may demonstrate an

inadequate remedy by appeal by showing that a trial court has refused to set a

hearing or rule on a proper motion. Eli Lilly & Co. v. Marshall, 829 S.W.2d 157,

158 (Tex. 1992) (orig. proceeding); In re Gerstner, No. 02-15-00315-CV, 2015

WL 6444797, at *2 (Tex. App.—Fort Worth Oct. 23, 2015, orig. proceeding)




                                         6
(mem. op.); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008,

orig. proceeding).

      In its docket entry, the trial court relied on section 156.006 of the family

code as the basis for refusing to set a hearing on Grandparents’ modification

motion. Section 156.006, titled “Temporary Orders,” states in part,

            (a) Except as provided by Subsection (b), the court may
      render a temporary order in a suit for modification.[4]

            (b) 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:

                   (1) the order is necessary because the child’s
            present circumstances would significantly impair the
            child’s physical health or emotional development;

                   (2) the person designated in the final order has
            voluntarily relinquished the primary care and possession
            of the child for more than six months; or

                   (3) the child is 12 years of age or older and has
            expressed to the court in chambers as provided by
            Section 153.009 the name of the person who is the
            child’s preference to have the exclusive right to
            designate the primary residence of the child.

            (b-1) A person who files a motion for        a temporary order
      authorized by Subsection (b)(1) shall execute       and attach to the
      motion an affidavit on the person’s personal        knowledge or the
      person’s belief based on representations made      to the person by a

      4
        Section 156.001 of the family code, titled “Orders Subject to Modification,”
states, “A court with continuing, exclusive jurisdiction may modify an order that
provides for the conservatorship, support, or possession of and access to a
child.” Tex. Fam. Code Ann. § 156.001 (West 2014).


                                         7
      person with personal knowledge that contains facts that support the
      allegation that the child’s present circumstances would significantly
      impair the child’s physical health or emotional development. The
      court shall deny the relief sought and decline to schedule a hearing
      on the motion unless the court determines, on the basis of the
      affidavit, that facts adequate to support the allegation are stated in
      the affidavit. If the court determines that the facts stated are
      adequate to support the allegation, the court shall set a time and
      place for the hearing.

Tex. Fam. Code Ann. § 156.006(a)–(b-1).

      The trial court’s docket entry manifests its finding that Grandparents were

not entitled to a hearing on their Amended Second Motion to Modify Temporary

Orders because they did not plead one of the three grounds for modification

under section 156.006(b)(1)–(3). We conclude that the trial court’s finding is

clearly erroneous for two reasons.

      First, applying the unambiguous and plain language of section 156.006 as

we must—see Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015);

Oncor Elec. Delivery Co. v. Giovanni Homes Corp., 438 S.W.3d 644, 649 (Tex.

App.—Fort Worth 2014, pet. denied)—we must conclude that its requirements for

changing the person who has the exclusive right to designate the child’s primary

residence apply only when that designation has been previously set through a

“final order.” See Tex. Fam. Code Ann. § 156.006(b). Here, as the trial court

acknowledged in its docket entry, the January 2013 final order—the only final

order entered in this case thus far—did not name a person who had the exclusive

right to designate the child’s residence. Rather, the trial court’s August 2015

temporary order was the first order to give any party the exclusive right to


                                        8
designate the child’s primary residence. Thus, there is no “final” designation to

change, and Grandparents are not required to plead and prove one of the three

circumstances described by subsection (b)(1)–(3). See id. § 156.006(b)(1)–(3);

see also Thottam v. Joseph, No. 01-13-00377-CV, 2015 WL 1632454, at *3 (Tex.

App.—Houston [1st Dist.] Apr. 9, 2015, pet. denied) (mem. op.) (stating that

section 156.006 limits a trial court’s authority to “temporarily modify designation

of a conservator who has exclusive right to establish ‘primary residence’ . . . in [a]

final order” (emphasis added)); In re Casanova, No. 05-14-01166-CV, 2014 WL

6486127, at *3 (Tex. App.—Dallas Nov. 20, 2014, orig. proceeding) (mem. op.)

(“[C]hapter 156 . . . does not apply to modifications of temporary orders.”); see

also Tex. Fam. Code Ann. § 105.001(a) (West 2014) (stating that a trial court

may modify a prior temporary order based on the “safety and welfare of the

child”); In re Herring, 221 S.W.3d 729, 731 (Tex. App.—San Antonio 2007, orig.

proceeding) (“Because the challenged order is an order modifying a prior

temporary order, [section] 105.001 of the Texas Family Code applies.”).

      Second, even if subsection (b) applied, the trial court’s statement in its

docket entry that Grandparents did not “allege [a] basis for modification under

[section] 156.006” is no longer correct.      In Grandparents’ Amended Second

Motion to Modify Temporary Orders, which they filed after the docket entry, they

alleged one of the three circumstances under that subsection—that the order is

necessary because the “child’s present circumstances would significantly impair




                                          9
[her] physical health or emotional development.”        See Tex. Fam. Code Ann.

§ 156.006(b)(1). As required by section 156.006 (if it applied), Grandparents

also attached an affidavit supporting that allegation.      See id. § 156.006(b-1).

Although subsection (b-1) allows a trial court to consider the adequacy of such

an affidavit to prove the significant impairment of a child, see id., the mandamus

record does not indicate that the trial court based its decision on refusing to set a

hearing on a review of the affidavit that Grandparents attached.          Instead, in

response to the filing of Grandparents’ amended second motion and affidavit, the

trial court simply communicated to the parties that its “position ha[d] not

changed.”

      For these reasons, we conclude that that trial court clearly abused its

discretion by refusing to set a hearing on Grandparents’ Amended Second

Motion to Modify Temporary Orders and that Grandparents have no adequate

remedy by an appeal.5 See State Farm Mut. Auto. Ins. Co., 483 S.W.3d at 260–

61; Eli Lilly & Co., 829 S.W.2d at 158.




      5
        In Father’s response to Grandparents’ mandamus petition, he argues, in
part, that awarding Grandparents the right to designate the child’s primary
residence is not in her best interest, that the affidavit filed by Grandparents in the
trial court is based on hearsay, and that Grandparents are “spending as much
money as necessary to ‘buy’ this child.” These arguments are not pertinent to
our decision to conditionally grant relief to Grandparents, and we do not address
them or offer any opinion on the merits of Grandparents’ motion. We deny
Father’s request for us to order Grandparents to place $50,000 in the trial court’s
registry.


                                          10
                                    Conclusion

      The trial court’s refusal to set a hearing on Grandparents’ Amended

Second Motion to Modify Temporary Orders was a clear abuse of discretion that

left Grandparents with no adequate remedy by appeal.                Accordingly, we

conditionally grant Grandparents’ petition for writ of mandamus and order

respondent to hold a hearing and rule on the motion within thirty days. See

Gerstner, 2015 WL 6444797, at *2. We are confident that respondent will do so.

The writ will issue only if respondent fails to comply.


                                                     /s/ Terrie Livingston

                                                     TERRIE LIVINGSTON
                                                     CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: August 17, 2016




                                         11
