Conditionally Granted in part, Denied in part, and Opinion Filed February 3, 2017




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        No. 05-16-00987-CV

                                 IN RE DAVID E. MARTIN, Relator

                  Original Proceeding from the 397th Judicial District Court
                                   Grayson County, Texas
                             Trial Court Cause No. 07-1232-397

                                           OPINION
                  Before Chief Justice Wright, Justice Lang, and Justice Brown
                                Opinion by Chief Justice Wright
       This petition for writ of mandamus concerns a Suit Affecting the Parent Child

Relationship (SAPCR) in which relator, the Father of the minor children, complains of the trial

court’s enforcement order and denial of Father’s motion to dismiss. After reviewing relator’s

petition, the record, and the response of the real parties in interest, we conditionally grant the

writ in part and deny in part.

                                 Factual and Procedural Background

       Relator David Martin is the biological father of minor children A.M. and E.M. Father

and the children’s mother divorced in 2007. Mother and Father were named joint managing

conservators for A.M. and E.M.        In 2012, Mother was killed in a car accident. After Mother

was killed, Father and the children’s maternal grandparents (real parties in interest Jerry and

Diane Byron) agreed to a November 5, 2012 judgment that designated Father as the sole
managing conservator. The agreed judgment also contains the following language regarding

Grandparents’ access to A.M. and E.M.:

       The parties agree and the Court finds that Respondents Jerry Byron and Diane
       Byron shall be entitled to no less than 35 hours of unsupervised visitation per
       month with the children to be scheduled subject to the discretion and agreement
       of all parties.

       Further, the Court finds that Respondents Jerry Byron and Diane Byron shall have
       notice of all extracurricular activities of the children, including but not limited to,
       school schedules, sports schedules and other activities that the children are
       involved with.

       In June 2015, Grandparents filed a petition to modify the parent–child relationship,

seeking to be appointed joint managing conservators with the right to designate the children’s

primary residence and for Father to be appointed joint managing conservator with standard

visitation rights. Grandparents also filed a motion for enforcement, claiming Father had failed to

comply with the monthly visitation requirement and the notification requirement of the 2012

judgment.    Father filed a motion to dismiss Grandparents’ modification suit, claiming

Grandparents failed to meet the statutory requirements for general standing under section

102.003 of the family code.      On January 11, 2016, the trial court signed (1) an order of

enforcement for possession, and (2) an order denying Father’s motion to dismiss. In the order of

enforcement, the trial court found Father had violated the 2012 judgment and found Father in

contempt for those violations. The trial court also ordered Grandparents to receive additional

periods of possession “to compensate for the periods of possession denied” by Father.

Specifically, the trial court ordered Grandparents to have the right to possession of the children

on the first and third weekends of each month until further order of the court.

       Father appealed the order of enforcement, and this Court dismissed the appeal for want of

jurisdiction. See In the Interest of A.M. and E.M., No. 05-16-00437-CV, 2016 WL 3264470

(Tex. App—Dallas June 13, 2016, no pet.) (mem. op.) (courts of appeals lack jurisdiction to


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review contempt orders on direct appeal; a party pursuing review of a contempt order that does

not involve confinement may seek review through a petition for writ of mandamus). Father then

filed this petition for writ of mandamus, alleging (1) the trial court abused its discretion by

entering the order for enforcement because the 2012 judgment was not sufficiently clear and

unambiguous to be enforced by contempt; (2) the trial court abused its discretion by awarding

additional periods of possession outside of the parameters allowed by the family code in the

enforcement order; (3) Grandparents lack standing to request conservatorship via modification of

grandparent access order under Chapter 156 of the Texas Family Code; and (4) Father does not

have an adequate remedy at law.

                                 Availability of Mandamus Relief

       Ordinarily to obtain mandamus relief, a relator must show both that the trial court has

clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential

Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (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 or if it clearly fails to analyze the law correctly or apply the law correctly

to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.

proceeding) (per curiam). Contempt orders are not appealable and, as such, no adequate remedy

by appeal exists. In re Braden, 483 S.W.3d 659, 662 (Tex. App.—Houston [14th Dist.] 2015,

orig. proceeding). Contempt orders are reviewed by petition for writ of mandamus or petition

for writ of habeas corpus. See In the Interest of A.M. and E.M., 2016 WL 3264470, at *1 (party

pursuing review of contempt order involving confinement may file petition for writ of habeas

corpus or file a petition for writ of mandamus for review of contempt order that does not involve

confinement). Here, the enforcement order does not order confinement and is, thus, reviewable

by mandamus.


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       Mandamus is also an available means to review the denial of Father’s motion to dismiss.

The denial of a motion to dismiss based on lack of standing is generally considered an incidental

ruling for which appeal is an adequate remedy. See, e.g., Zuffa, LLC v. HDNet MMA 2008 LLC,

262 S.W.3d 446, 451 (Tex. App.—Dallas 2008, no pet.) (applying general rule in a non-SAPCR

case). Due to the unique and compelling circumstances presented in a SAPCR action, however,

we join our sister courts in holding that mandamus relief is also an appropriate remedy for an

order denying a motion to dismiss for lack of standing in a SAPCR action. In re McDaniel, 408

S.W.3d 389, 396 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding) (mandamus relief is

an appropriate remedy in a challenge to an order denying a motion to dismiss for lack of standing

in a SAPCR case) (citing In re Roxsane R., 249 S.W.3d 764, 775 (Tex. App.—Fort Worth 2008,

orig. proceeding)); see also In re Derzapf, 219 S.W.3d 327, 334 (Tex. 2007) (orig. proceeding)

(exceptional circumstances presented by challenge to temporary orders in suit for access to

children support availability of mandamus review); Geary v. Peavy, 878 S.W.2d 602, 603 (Tex.

1994) (orig. proceeding) (mandamus review appropriate when trial court’s jurisdiction is

challenged in a proceeding involving child custody issues due to the unique and compelling

circumstances presented in a custody dispute); In re Shifflet, 462 S.W.3d 528, 541–42 (Tex.

App—Houston [1st Dist.] 2015, orig. proceeding) (no adequate remedy on appeal and

mandamus proceeding appropriate to seek relief from order granting motion to dismiss

intervention in SAPCR case for lack of standing); In re Sandoval, No. 04-15-00244-CV, 2016

WL 353010, at *2 (Tex. App.—San Antonio Jan. 27, 2016, orig. proceeding) (mem. op.)

(mandamus review appropriate when trial court's jurisdiction is challenged in a proceeding

involving child custody issues).

                         Enforceability of 2012 Judgment by Contempt




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       In his first and second issues, Father contends the trial court abused its discretion by

(1) enforcing the 2012 judgment because it was not specific enough to be enforceable by

contempt, and (2) awarding additional periods of possession outside the parameters of the family

code. To be enforceable by contempt, a judgment must set out the terms for compliance in clear

and unambiguous terms. Ex parte Brister, 801 S.W.2d 833, 834 (Tex. 1990) (orig. proceeding).

The order must unequivocally command the duty or obligation that the person charged with

contempt is accused of violating. Ex parte Padron, 565 S.W.2d 921, 921 (Tex. 1978) (orig.

proceeding). It must be sufficiently specific such that the person charged with obeying the order

will readily know exactly what duties and obligations are imposed by the order. Ex parte

Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). If the court’s order requires

inferences or conclusions about whether particular conduct is encompassed by the order and

concerning which reasonable persons might differ, the order is insufficient to support a judgment

of contempt. Id. at 260. And, if the judgment enforces the instructions of a party, rather than the

specific requirements of the court, a contempt order enforcing the judgment must be set aside.

Ex parte Brister, 801 S.W.2d at 834–35 (holding that any contempt order rendered by a court

must enforce the specific requirements of the court not the “cryptic instructions of a party given

with the court’s permission but without the certainty of detailed provisions of a decree”).

       Here, although the 2012 judgment is specific and clear regarding the amount of time

Grandparents are entitled to visit with the children, the judgment does not set out when such

visitation must occur. Rather, it allows for visitation only upon agreement of the parties.

Consequently, it is not enforceable by contempt. See id. at 834 (judgment unenforceable that

allowed modification of standard visitation with notice by father of his work schedule); see also

Roosth v. Roosth, 889 S.W.2d 445, 452 (Tex. App—Houston [14th Dist.] 1994, writ denied)

(father’s visitation subject to agreement of mother not enforceable by contempt). Because the

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2012 judgment is not enforceable by contempt, the trial court abused its discretion in rendering

the enforcement order and that order should be vacated. We, therefore, need not address Father’s

second issue regarding the trial court’s award of additional periods of possession to compensate

for Father’s violation of the 2012 judgment.

                                               Standing

       In his third and fourth issues, Father contends the trial court abused its discretion by

denying his motion to dismiss Grandparents’ petition for modification because they lack standing

to modify conservatorship. In particular, Father claims that because the 2012 judgment awarded

him sole managing conservatorship, and Grandparents do not have any enforceable rights under

the order, Grandparents lack standing to modify conservatorship. Grandparents respond that

they have standing to modify the 2012 judgment under section 156.002(a) of the family code.

       Section 156.001 of the family code provides that a court with continuing exclusive

jurisdiction may modify an order that provides for the conservatorship, support, or possession of

or access to a child. TEX. FAM. CODE ANN. § 156.001 (West 2014). Section 156.002(a) provides

a “party affected by an order may file a suit for modification in the court with continuing,

exclusive jurisdiction.” TEX. FAM. CODE ANN. § 156.002(a) (West 2014).

       The parties do not dispute that Grandparents were parties to the 2012 judgment, and the

judgment recites that “respondents, Jerry Byron and Diane Byron, appeared in person and

through attorney of record . . . .” To have standing, however, Grandparents must not only be

parties to the order, but also be affected by the order. In re S.A.M., 321 S.W.3d 785, 790 (Tex.

App—Houston [14th Dist.] 2010, no pet.). Although the term “affected” is not defined by

statute, the term is not ambiguous. Id. at 791. The plain and ordinary meaning of “affect” is “to

produce an effect upon.” Id. (quoting Affect, WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY (1993 ed.)). Here, the agreed order awards Grandparents the right to 35 hours


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visitation and the right to be notified regarding extracurricular activities. Thus, it clearly affects

Grandparents.    Because Grandparents are parties to a judgment that affects them, Father’s

contention that Grandparents lack standing under section 156.002 of the family code lacks merit.

                                   Right of Parental Presumption

       Father also contends in his third issue that allowing Grandparents to pursue this matter

denied Father his right of parental presumption. Father’s argument under this issue rests on

Texas precedent holding that a court cannot order a grandparent to have access when there is no

evidence that the child’s parent is unfit, no evidence that the child’s health or emotional well-

being will suffer if the court defers to the parent’s decisions, and no evidence that the parent

intended to exclude the grandparent’s access completely. See In re Mays-Hooper, 189 S.W.3d

777, 778 (Tex. 2006).      Here, Grandparents sought to modify an existing agreed order for

possession, alleged the circumstances of the children have materially and substantially changed

since the date of the rendition of the order to be modified, and argued that the children’s present

circumstances would significantly impair the children’s health or emotional development. See In

re M.P.B., 257 S.W.3d 804, 812 (Tex. App.—Dallas 2008, no pet.) (“the parental presumption

does not apply in a modification proceeding”). However, the trial court has not yet modified the

2012 judgment and the record has not yet been developed regarding the factors to be considered

for modification. Therefore, Father’s complaints regarding the legal presumption that it is in the

children’s best interest to be raised by a natural parent are not yet ripe.

                                             Conclusion

       Because we conclude that the trial court abused its discretion by enforcing the 2012

judgment by contempt, we conditionally grant relator’s petition for writ of mandamus in part and

direct the trial court to vacate the January 11, 2016 enforcement order. We deny relator’s

petition for writ of mandamus as to the trial court’s denial of relator’s motion to dismiss


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Grandparents’ motion to modify. A writ will issue only in the event the trial court fails to issue

the order as directed herein within fifteen days of the date of this opinion. Because we assume

the trial court will comply with this opinion, we direct the Clerk of this Court not to issue the

writ of mandamus unless information is received that the district court has not so complied.




                                                     /Carolyn Wright/
                                                     CAROLYN WRIGHT
                                                     CHIEF JUSTICE


160987F.P05




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