                                  IN THE
                          TENTH COURT OF APPEALS



                                No. 10-11-00402-CV

                         IN RE AMANDA KAYE PAYNE


                                Original Proceeding


                          MEMORANDUM OPINION


         Amanda Payne seeks a writ of mandamus to compel the trial court to withdraw

a temporary order entered in a custody modification proceeding that restricted the

residence of her two children to Leon County. TEX. FAM. CODE ANN. § 156.006 (West

2011).    Because we find that the trial court abused its discretion in making the

temporary order, we conditionally grant relief.

         Donald Christopher Payne and Amanda Kaye Payne were divorced in 2006.

Their divorce decree named them joint managing conservators of the children and

Amanda was named the parent with the right to designate the children’s domicile

without a geographical restriction. Amanda became involved in a relationship earlier

in 2011, became engaged in July, and got married shortly after being served with the
papers in this modification proceeding in late July. When Amanda became engaged,

she gave notice at her job and decided to move to Abilene with her now-husband

because he has children that he has possession of every other week that is limited to

Taylor County. Upon hearing of this possible move from a third person, Chris filed this

modification action and sought temporary orders to either place the children with him

or to restrict the children’s residence to Leon County. The trial court granted the

geographical restriction after a hearing.

Propriety of Mandamus

       Mandamus is the appropriate mechanism to challenge temporary orders made

while a child custody modification suit is pending because such orders are interlocutory

and not appealable. In re Mays-Hooper, 189 S.W.3d 777, 778, 49 Tex. Sup. Ct. J. 502 (Tex.

2006) (orig. proceeding); Little v. Daggett, 858 S.W.2d 368, 369, 36 Tex. Sup. Ct. J. 1054

(Tex. 1993) (orig. proceeding); In re Levay, 179 S.W.3d 93, 95 (Tex. App.—San Antonio

2005, orig. proceeding). Generally, a writ of mandamus will issue only to correct a clear

abuse of discretion when there is no adequate remedy by appeal. Walker v. Packer, 827

S.W.2d 833, 839-40, 35 Tex. Sup. Ct. J. 468 (Tex. 1992) (orig. proceeding). ‚A trial court

has no ‘discretion’ in determining what the law is or applying the law to the facts,‛ and

‚a clear failure by the trial court to analyze or apply the law correctly will constitute an

abuse of discretion.‛ Id. at 839. Moreover, ‚*a+ trial court abuses its discretion if it acts

in an arbitrary or unreasonable manner, without reference to any guiding rules or



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principles.‛ In re Nitla S.A. de C.V., 92 S.W.3d 419, 422, 45 Tex. Sup. Ct. J. 571 (Tex. 2002)

(orig. proceeding).

Modifications of Custody

       In a suit for modification of a custody order, pursuant to section 156.006(b) of the

Family Code a trial court may not enter any temporary order that has the effect of

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

primary residence of a child under a final divorce decree unless at least one of three

enumerated conditions exists:

   (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 and the
       temporary order is in the best interest of the child; or

   (3) the child is 12 years of age or older and has filed with the court in writing
       the name of the person who is the child's preference to have the exclusive
       right to designate the primary residence of the child and the temporary
       order designating that person is in the best interest of the child.

TEX. FAM. CODE. ANN. § 156.006. In order to determine whether a temporary order

effectively changes the person with the exclusive right to designate a child’s primary

residence, we examine the temporary order in relation to the final order previously

rendered.     In re Sanchez, 228 S.W.3d 214, 217 (Tex. App.—San Antonio 2007, orig.

proceeding). 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



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changing the designation of the person with the exclusive right to designate the child's

primary residence. In re Winters, No. 05-08-01486-CV, 2008 Tex. App. LEXIS 9183 at *6

(Tex. App.—Dallas Dec. 11, 2008, orig. proceeding) (mem. op.); see In re Sanchez, 228

S.W.3d at 217; see also In re Levay, 179 S.W.3d at 96; In re Ostrofsky, 112 S.W.3d 925, 929

(Tex. App.—Houston *14th Dist.+ 2003, no pet.). The trial court’s temporary order

restricting the residence of the children to Leon County pending a final hearing

deprives Amanda of her exclusive right under the divorce decree to designate the

primary residence of the children without regard to geographical location.

       No party contends in the trial court or here that the provisions of section

156.006(b)(2) and (b)(3) apply in this case. For section 156.006(b)(1) to apply, the district

court must have heard evidence sufficient to find that ‚the order is necessary because

the child*ren+’s present circumstances would significantly impair the child*ren+’s

physical health or emotional development.‛ See TEX. FAM. CODE ANN. § 156.006(b)(1).

There was no such evidence presented.

       Both parents testified at the hearing and the trial court interviewed the children

outside of the presence of the parties. Amanda did not tell the children of the possible

move, rather Chris told the children that they were moving to Abilene when he found

out that it was a possibility during his summer possession. Initially the children were

‚crying‛ and ‚shocked‛ at the idea of moving at that time; by the time of the temporary

hearing they were looking forward to the move but sad at leaving their friends and



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family, which included an extensive extended family. There was no evidence of bad

parenting or bad acts directed at the children by either party, and the trial court

admitted as such several times during the hearing. Both parents agreed that there were

no issues with the parenting skills of either parent or step-parent nor was there any

question regarding the safety of the children based on their prior history. Rather, the

trial court’s motivation seemed to be based, at least in part, on avoiding a second move

back to Leon County in the event the modification was granted at the final hearing.

This would be reasonable to consider if the only standard were the best interest of the

child. However, the standard for making a modification in 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 has been set very high by the Legislature in

requiring the finding of significant impairment. The evidence before the trial court was

insufficient to establish significant impairment. The trial court abused its discretion in

restricting the residence of the children to Leon County.

Conclusion

       We conditionally grant Amanda Payne’s mandamus petition. A writ will issue

only if Respondent fails to withdraw her order restricting the residence of the children

to Leon County within fourteen days after the date of this opinion.




                                         TOM GRAY
                                         Chief Justice


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Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Scoggins dissenting)
Writ Conditionally Granted
Opinion delivered and filed December 2, 2011
[OT06]




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