                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-11-00501-CV

IN RE LORIN A. STRICKLAND
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                             ORIGINAL PROCEEDING

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                                      OPINION
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      This original proceeding concerns whether a trial court’s temporary order in

a modification proceeding fails to comply with section 156.006(b) of the family

code. Tex. Fam. Code Ann. § 156.006(b) (West Supp. 2011). Because we hold

that it does, we conditionally grant relief.

                                     Background

      Relator, Mother, and real party in interest, Father, were divorced on

January 29, 2010. The agreed decree named them joint managing conservators

of their two children. Additionally, the trial court named Mother the parent with

the exclusive right to designate the primary residence of the children.       The

decree did not contain any geographic limitation on Mother’s right to designate

the children’s primary residence.
      In November 2011, Father filed a petition to modify the parent-child

relationship and an application for a temporary restraining order. In the attached

affidavit, Father averred that Mother was planning to move to Florida before 2012

to live with her boyfriend, who intended to support the children. He also averred

that he wanted to prevent Mother from “removing the children from their schools

in Texas, their social functions in Texas, and their sports teams in Texas and

specifically their family in Texas, including” Father. The trial court granted Father

a temporary restraining order on November 22, 2011, restricting the children’s

residence to “Denton and contiguous counties within Texas.” The trial court also

set a hearing date for December 5, 2011.

      At the hearing, Father asked that a social study be prepared and that the

children not be allowed to move “until the [c]ourt renders a final decision that

social studies put in place.”    The trial court ordered that a social study be

prepared “as quickly as possible” and further stated, “I will order that the parties

remain in the area until the social study can be completed, and they not be

moved to any other location where they will not be available for purposes of

getting the information needed for the social study.”

      Mother subsequently filed a petition for writ of mandamus. We granted her

motion for emergency relief and stayed the trial court’s December 5, 2011 order

on December 12, 2011.

                                Standard of Review

      Mandamus relief is proper only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas,

290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding).




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      A trial court clearly abuses its discretion when 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 correctly analyze or apply the law. In re Olshan Found. Repair

Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding); Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With respect to the resolution of

factual issues or matters committed to the trial court=s discretion, we may not

substitute our judgment for that of the trial court unless the relator establishes

that the trial court could reasonably have reached only one decision and that the

trial court=s decision is arbitrary and unreasonable. In re Sanders, 153 S.W.3d

54, 56 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 839–40. In other

words, we give deference to a trial court=s factual determinations that are

supported by evidence, but we review the trial court=s legal determinations de

novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.

proceeding).

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

an appropriate means to challenge them. See In re Derzapf, 219 S.W.3d 327,

334–35 (Tex. 2007) (orig. proceeding); In re Russell, 321 S.W.3d 846, 853 (Tex.

App.––Fort Worth 2010, orig. proceeding [mand. denied]).

                                 Applicable Law

      Section 156.006 of the family code provides that

            (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:




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            (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.

Tex. Fam. Code Ann. § 156.006(b).

      A temporary order that deprives a custodial parent of any discretion

inherent in the right to determine the child’s primary residence has the effect of

changing the designation of the person with the exclusive right to designate the

child’s primary residence. In re Payne, No. 10-11-00402-CV, 2011 WL 6091265,

at *2 (Tex. App.––Waco Dec. 2, 2011, orig. proceeding) (mem. op.); In re

Winters, No. 05–08–01486–CV, 2008 WL 5177835, at *2 (Tex. App.––Dallas

Dec. 11, 2008, orig. proceeding) (mem. op.). The Dallas and Waco Courts of

Appeals, in similar factual circumstances, have both held that a trial court’s

temporary order imposing a geographic restriction on a child’s residence when

there is no geographic restriction in the decree is a change in the designation of

the person who has the exclusive right to designate the primary residence in

violation of section 156.006(b). Payne, 2011 WL 6091265, at *2; Winters, 2008

WL 5177835, at *3. We agree with the reasoning of these cases and hold that

the trial court’s order that the children remain “in the area” pending the



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preparation of social studies has the effect of changing the designation of the

parent with the primary right to determine the children’s residence under the

decree because it imposes a restriction whereas the decree has none. See Tex.

Fam. Code Ann. § 156.006(b); Payne, 2011 WL 6091265, at *2; Winters, 2008

WL 5177835, at *3.

      Thus, because we have determined that the trial court’s order does effect

such a change, we must determine whether any of the statutory exceptions

apply. The only exception that could apply in this case is subsection (b)(1):

whether “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).

      Father did not attach any evidence to his motion to modify, but he did

attach an affidavit to his request for a temporary restraining order, which was

filed about half an hour later. The affidavit alleges the following:

             . . . Respondent is currently unemployed and dating a man
      that is looking to support her financially. She has stated to both
      myself and the children on numerous accounts and against both
      mine and the children’s wishes that she plans on moving with the
      children to Florida prior to 2012, in order to be with her new
      boyfriend and for him to support her and the children. This would
      not be in the children’s best interests and would cause them harm.

             . . . . I wish more than anything to prevent Respondent from
      removing the children out of the state of Texas permanently.
      Specifically, I would like to prevent Respondent from removing the
      children from their schools in Texas, their social functions in Texas,
      and their sports teams in Texas and specifically their family in Texas,
      including myself. It is in the children’s best interest to remain in
      Texas and allowing them to move outside of Texas would cause


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      irreparable harm to the children’s emotional health. My children are
      actively involved in school related [sic] and have strong connections
      with their friends and family members that live close by.

             Both my children have a strong support system in the Dallas
      Fort-Worth area; they have 2 great grandmothers, 2 paternal
      grandparents, 2 aunts and an uncle, and their father. In Florida, the
      children do not have any such support system, as they will not know
      anyone. In addition, I am concerned because the Respondent has
      no job or source of income and is relying on her current boyfriend.
      Thus, if their relationship may end, my children would be residing
      with a parent with no income and further . . . Respondent may be
      forced to return back to Texas or to another state where she can
      have financial support.

             Moving with the children outside of Texas, and withdrawing
      the children from school is preventing them from attending any and
      all their regular social activities here in Texas and would cause
      irreparable damage to both children as they would be traumatized. I
      believe that this will have an extremely harmful effect on my
      children’s wellbeing and it is imperative to create a sense of stability
      and a lack of harm for [them]. It is in their best interest to remain
      here in Texas where their schools are located, their doctors are
      located, their family and friends are located, and their father is
      located.

The parties did not present any new evidence at the December 5 hearing; the

trial court only heard argument from counsel.

      Father did not allege that the children would suffer any significant

impairment of their physical development by moving out of state other than

speculation that they could be left without resources if relator’s relationship with

her boyfriend ended.1 He did allege that moving them would emotionally harm

the children; however, he did not allege any specific impairment to their

      1
       At the hearing, Mother’s counsel stated that Mother was moving to Florida
to get married.


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emotional development other than being separated from their family, friends, and

normal activities in Texas. Although this is evidence that the children will likely

experience emotional distress from separation and loss, it is not by itself

evidence of significant impairment of their emotional development as required to

trigger the statutory exception. See, e.g., In re Rather, No. 14-11-00924-CV,

2011 WL 6141677, at *2 (Tex. App.––Houston [14th Dist.] Dec. 8, 2011, orig.

proceeding) (mem. op.); In re Payne, 2011 WL 6091265, at *2; In re Winters,

2008 WL 5177835, at *3.

      Father contends that this case is unlike those cited above because in

those cases the parents were attempting to move within the State of Texas. But

section 156.006 does not distinguish between geographical restrictions within or

outside of the state, nor have we found any cases holding that a parent’s move

outside of the state constitutes significant impairment per se to a child’s

emotional development. Cf. Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex. App.–

–Fort Worth 1985, writ dism’d) (determining that evidence showing that the child

feared moving, that the child would not be able to see his younger sibling for

months or years because of the prohibitive cost of travel to Panama, and that a

psychologist concluded that moving the child away from his mother and sibling

could prove to be detrimental to his mental health was sufficient evidence of

significant impairment to require trial court to hold hearing on motion to modify).

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. Thus, specific allegations as to how a child’s emotional

development will be significantly impaired are statutorily required.      Father’s

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general allegations here do not show that the children’s present circumstances

would significantly impair their emotional development. Based on the prohibition

codified in family code section 156.006(b) precluding the trial court from issuing a

temporary order effecting a change in the designation of the person having the

right to designate the primary residence of the child, and the absence of

evidence triggering a statutory exception to this prohibition, we are compelled to

conclude that the trial court abused its discretion by ruling that the children must

remain “in the area” pending the preparation of a social study. See Tex. Fam.

Code Ann. § 156.006; In re Rather, 2011 WL 6141677, at *2; In re Payne, 2011

WL 6091265, at *2; In re Winters, 2008 WL 5177835, at *3.




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                                  Conclusion

      Having determined that Mother is entitled to relief, we conditionally grant

Mother’s petition for writ of mandamus, and we order the trial court to vacate its

December 5, 2011 ruling.2 Mandamus will issue only if the trial court fails to

comply with this order. Upon the trial court’s compliance with this order, our

December 12, 2011 stay order will automatically be lifted.




                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

MCCOY, J., dissents without opinion.

DELIVERED: January 10, 2012




      2
      Our ruling should not be construed as preventing the continuation of the
motion to modify proceeding; it applies to the December 5, 2011 temporary order
only.


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