                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00403-CV


IN RE E.M.                                                           RELATOR




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                          ORIGINAL PROCEEDING
                      TRIAL COURT NO. 231-445474-08

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                        MEMORANDUM OPINION1

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      Relator E.M. (Father) seeks a writ of mandamus directing Respondent

Associate Judge Lindsay DeVos to withdraw or to stay a December 15, 2014

temporary order she signed in connection with a separate order transferring Real

Party in Interest’s (Mother’s) modification suit to Hidalgo County, Texas.2 The


      1
      See Tex. R. App. P. 47.4.
      2
      We requested a response from Mother, but her attorney subsequently
attempted to file with this court a motion to withdraw as counsel in this
proceeding. Although we rejected the motion for failure to comply with the rules
temporary order changed the designation of the person who has the exclusive

right to designate the primary residence of the children from Father to Mother,

but the temporary order did not contain all of the statutory findings required to

support a temporary order changing the designation of the person who has the

exclusive right to designate the primary residence of the children. See Tex. Fam.

Code Ann. § 156.006(b) (West 2014) (providing that in modification suit a 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 unless it is in the best interest of the child and certain circumstances are

proved); In re Davila, No. 04-13-00103-CV, 2013 WL 1192617, at *3 (Tex.

App.—San Antonio, Mar. 22, 2013, orig. proceeding) (holding that trial court

abused its discretion by modifying conservatorship in a temporary order without

making requisite findings under family code section 156.006).

      Although temporary orders may be issued in connection with a transfer

order, the case being transferred here is a child custody modification suit;

therefore, the trial court was required to comply with section 156.006(b). See

Tex. Fam. Code Ann. §§ 155.005(a) (West 2014), .006(b).               We hold that

Respondent abused her discretion by issuing a temporary order in connection

with a child custody modification suit that she ordered transferred to Hidalgo

County because that temporary order changed the designation of the person who

of appellate procedure and an amended motion has yet to be filed, we proceed to
address Father’s issues in the absence of a response.

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has the exclusive right to designate the primary residence of the children from

Father to Mother without making the requisite findings required by section

156.006(b). See, e.g., In re Davila, 2013 WL 1192617, at *3.

      Father timely filed a request for a de novo hearing of Respondent’s

temporary order in front of the referring judge and that hearing is scheduled for

next week.    Father argues, however, that because Respondent abused her

discretion by entering the temporary order and because the temporary order,

which changes the designation of the person who has the exclusive right to

designate the primary residence of the children, became effective prior to the

date scheduled for the de novo hearing, he has no adequate remedy at law and

is entitled to a stay of Respondent’s temporary order until the de novo hearing is

concluded. See Tex. Fam. Code Ann. § 201.013(a) (West 2014). We agree. In

custody cases, temporary orders are not appealable but are subject to

mandamus relief. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig.

proceeding) (holding mandamus relief from temporary orders was appropriate

because “the trial court’s issuance of temporary orders [was] not subject to

interlocutory appeal”). We sustain Father’s first issue.

      Father also complains in his second issue that the referring judge stated

on the record that he did not intend to conduct the de novo hearing within the

thirty-day statutory time period but intended only to swear-in witnesses and to

then continue the hearing. We do not know what will happen at the upcoming de

novo hearing scheduled before the referring judge.         Consequently, Father’s

                                         3
request for mandamus relief on this issue is premature. See, e.g., Patterson v.

Planned Parenthood of Houston & S.E. Tex., Inc., 971 S.W.2d 439, 442 (Tex.

1998) (explaining that an action is not ripe for judicial review if it involves

“uncertain or contingent future events that may not occur as anticipated, or

indeed may not occur at all”). We overrule Father’s second issue.

      Having determined that Respondent abused her discretion by issuing a

temporary order in connection with a child custody modification suit that she

ordered transferred to Hidalgo County because the temporary order changed the

designation of the person who has the exclusive right to designate the primary

residence of the children from Father to Mother without making the requisite

findings required by section 156.006(b) and having sustained Father’s first issue,

we conditionally grant a writ of mandamus directing Respondent to stay the effect

of her December 15, 2014 temporary order changing the designation of the

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

children from Father to Mother until the referring court completes its de novo

review of this ruling. We are confident that Respondent will promptly stay her

December 15 temporary order and our writ will issue only if she does not.


                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: January 9, 2015


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