Opinion
No. 11-16-00230-CV
02-28-2017
IN RE SUNNY J. WALTON
Original Mandamus Proceeding
DISSENTING MEMORANDUM OPINION
The majority declines to exercise this court's discretion because "this proceeding presents a disagreement about the quantum of weight that should be assigned to different aspects of the evidence presented below and the credibility of the witnesses." When Sunny J. Walton and Cody Walton divorced, they agreed that their children, four-year-old C.C.W. and eight-year-old D.J.W., would live with Sunny. Eight months later, when Sunny announced her engagement and a desire to move from Abilene to Snyder to be with her fiancé, Cody, who had remarried and moved to Clyde, filed a petition to modify the parent-child relationship and requested that the children live with him. After the trial court held a temporary-orders hearing and ruled in Cody's favor, Sunny sought mandamus relief from this court.
In defense of its position, the majority notes that a psychologist, Dr. Marc Orner, who never prepared any custody evaluations, never met or spoke to C.C.W., and only counseled D.J.W. six or seven times following her parents' divorce, gave an analogy and unsupported conclusions in support of Cody's request. Dr. Orner claimed that the move was like a forced military move, that the move would have a "pretty debilitating effect" on D.J.W., and that the two children "needed to be together." Dr. Orner failed to explain how Sunny's move would have significantly impaired C.C.W.'s or D.J.W.'s physical health. Similarly, Dr. Orner failed to outline how the contemplated move would have significantly impaired C.C.W.'s or D.J.W.'s emotional development. In fact, Dr. Orner opined that, if the children actually moved, "they'll adapt" just as they "would adapt to a new step-parent." Neither Dr. Orner nor Cody adduced any evidence of specific allegations of physical or emotional disease or illness in C.C.W. and D.J.W. that would significantly impair their physical health or emotional development due to Sunny's contemplated move. In re Strickland, 358 S.W.3d 818, 820 (Tex. App.—Fort Worth 2012, orig. proceeding).
Five of our sister courts have interpreted Section 156.006(b)(1) of the Texas Family Code to require such evidence and held that emotional distress caused from separation or loss is insufficient. Because Cody failed to adduce any evidence that met Section 156.006(b)(1)'s heightened standard, the trial court had no evidence upon which to base its decision. As a result, the trial court clearly abused its discretion when it entered the temporary orders that gave Cody the right to designate the children's primary residence. Faced with this dilemma and with no adequate remedy by appeal, Sunny petitioned this court, which should have exercised its discretion and conditionally granted her relief. As I explain below, I respectfully dissent.
See TEX. FAM. CODE ANN. § 156.006(b)(1) (West Supp. 2016).
I. Background Information
Sunny and Cody agreed that Sunny, as a joint managing conservator, would designate the children's primary residence and that Cody, also a joint managing conservator, would pay $2,000 per month in child support. Eight months later, Cody changed his mind; he wanted the rights switched so that Sunny had to pay child support and he could designate the children's primary residence. Cody claimed that Sunny's recent engagement and "contemplated" move from Abilene to Snyder, where her fiancé worked and lived, were not in the children's best interest and constituted a present circumstance that significantly impaired or endangered the children's physical health or significantly impaired their emotional development. An associate judge held a hearing on Cody's petition and ruled in Cody's favor; Sunny appealed to the district court.
See id.
A. Evidence at De Novo Hearing
A month later, at the time of the de novo hearing, Sunny still taught at the same public elementary school in Abilene that D.J.W. attended; Sunny had not gotten a teaching job in or near Snyder and had not yet moved to Snyder. Sunny testified that her fiancé, whose family owned an oil-field supply business in Snyder, worked there and lived there and that she wanted to move there. She said that, if she moved, she would bring C.C.W., and D.J.W. to Abilene to visit friends and family. She also would make sure that the children felt safe, secure, and loved in their new family. Cody, a financial planner with Edward Jones, testified that it would be hard for him to visit the children in Snyder. Cody also said that the move would have a negative effect on the children because they had no extended family in Snyder.
Dr. Orner testified at the de novo hearing on Cody's behalf. Dr. Orner admitted that he had never met or spoken to C.C.W. He also never prepared any custody evaluations, but he explained that, during counseling sessions, D.J.W. told him that she was unhappy about the contemplated move to Snyder. She did not want to lose her friends. Dr. Orner opined that D.J.W. thought of herself as an "Abilenian" and felt "grounded" there, although she told him that she wanted to be a Clyde cheerleader and to live with Cody in Clyde. Dr. Orner believed that D.J.W. felt a sense of "permanency" in Clyde. Dr. Orner thought that the children should live together and believed that a forced move, like a military move, would have a "pretty debilitating effect" on D.J.W. but that the children would "adapt" if they moved.
B. The Trial Court's Ruling
After the de novo hearing, Respondent, the Honorable Thomas Wheeler, Judge of the 350th District Court of Taylor County, sitting for the 326th District Court of Taylor County, approved the associate judge's order. A little more than a month later, the respondent entered temporary orders that gave Cody the right to designate the children's primary residence and ordered Sunny to pay $280 per month in child support.
II. Issue Presented
Sunny asserts that the trial court failed to follow Section 156.006(b)(1) of the Texas Family Code and abused its discretion when it entered a temporary order that Cody had the right to designate the children's primary residence. See FAM. § 156.006(b)(1).
III. Standard of Review
"Mandamus relief is available if the trial court abuses its discretion, either in resolving factual issues or in determining legal principles, and there is no other adequate remedy by appeal." In re Ostrofsky, 112 S.W.3d 925, 928 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)). Because a trial court's temporary orders are not appealable, mandamus is an appropriate means to challenge the trial court's entry of a temporary order. In re Derzapf, 219 S.W.3d 327, 334-35 (Tex. 2007) (orig. proceeding); see also FAM. § 105.001(e) (West 2014) (provides that "[t]emporary orders rendered under this section are not subject to interlocutory appeal"). In this case, this court reviews the trial court's decision under a "clear abuse of discretion" standard. Walker, 827 S.W.2d at 839; see In re Ostrofsky, 112 S.W.3d at 928 (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). "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 Strickland, 358 S.W.3d at 820; see also Walker, 827 S.W.2d at 839-40; Johnson, 700 S.W.2d at 917.
This court defers to a trial court's factual findings, and we will not substitute our judgment for that of the trial court unless the relator establishes that the trial court reasonably could only have reached one decision and that the trial court's ruling was arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 839-40. This court completes a de novo review of the trial court's legal decisions. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
IV. Analysis
When a trial court determines child custody, the primary concern will be the best interest of the child. FAM. § 153.002. However, Section 156.006 has an additional, heightened requirement. See id. § 156.006(b)(1); In re Ostrofsky, 112 S.W.3d at 929. The heightened requirement prevents the trial court from changing the person who can designate the children's primary residence unless (1) that change is in the children's best interest and (2) the order is necessary because "the child[ren]'s present circumstances would significantly impair the child[ren]'s physical health or emotional development." FAM. § 156.006(b)(1).
In In re Ostrofsky, the court noted similar language in Section 156.006(b)(1) and what is now Section 156.102(b)(1) of the Texas Family Code and conditionally granted relief because there was no evidence to support the trial court's order to send the children to boarding school. 112 S.W.3d at 930-32. The In re Ostrofsky court also cited an unpublished opinion, In re Escamilla, in which the San Antonio court conditionally granted relief. 112 S.W.3d at 930 (citing In re Escamilla, No. 04-02-00258-CV, 2002 WL 1022945 (Tex. App.—San Antonio May 22, 2002, orig. proceeding) (not designated for publication)). The In re Escamilla court held that the mother's living arrangements and parenting skills were no evidence of significant impairment of the children's physical health or emotional development. 2002 WL 1022945, at *2.
A. Was Sunny's contemplated move a "present circumstance" under Section 156 .006(b)(1)?
Sunny argues that Cody presented no evidence that the children's "present circumstances" were any different than the circumstances that existed at the time that the final divorcee decree was entered—that she lived in Abilene with the children and worked as a public school teacher in Abilene. Black's Law Dictionary defines "present" as "[n]ow existing; at hand. . . . Being considered; now under discussion." BLACK'S LAW DICTIONARY 1374 (10th ed. 2014). Black's also defines "circumstance" as "[a]n accompanying or accessory fact, event, or condition, such as a piece of evidence that indicates the probability of an event." Id. at 296. One of our sister courts has interpreted "present circumstances" to include a pending move from Texas to another state. See In re Strickland, 358 S.W.3d at 822-23. At the time of the de novo hearing, Sunny had not yet moved to Snyder, still held her current teaching job at the same school, and still resided in Abilene, as did the children, all of which were the same circumstances present when the trial court entered the agreed divorcee decree. Nonetheless, Sunny was in the process of moving, and her "contemplated move," as in In re Strickland, could be considered a present circumstance; however, Cody's desire to have the children move to Clyde, which is not in the same town or in the same county as Abilene, falls within the same ambit. See In re Strickland, 358 S.W.3d at 820.
B. Cody presented no evidence that Sunny's contemplated move to Snyder endangered or significantly impaired C.C.W.'s and D.J.W.'s physical health.
Sunny asserts that there was no evidence that her contemplated move or her current living conditions, as a present circumstance, resulted in significant impairment of C.C.W.'s or D.J.W.'s physical health. "Significant" means "having or expressing a meaning," "full of meaning," or "important; momentous." WEBSTER'S NEW WORLD COLLEGE DICTIONARY 1351 (5th ed. 2014). "Significant" also means "[e]mbodying or bearing some meaning; having or expressing a sense . . . [o]f special importance; momentous, as distinguished from insignificant." BLACK'S LAW DICTIONARY 1594. "Impairment" means to "make worse, less, . . . reduce an ability or function." WEBSTER'S NEW WORLD COLLEGE DICTIONARY 728. Black's defines "impairment" as "[t]he quality, state, or condition of being damaged, weakened, or diminished; . . . a condition in which a part of a person's mind or body is damaged or does not work well, esp[ecially] when the condition amounts to a disability." BLACK'S LAW DICTIONARY 869. "Physical" relates to one's body, while "disability" is defined as the "inability to perform some function." Id. at 559, 1331. "'[E]ndanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." In re Ostrofsky, 112 S.W.3d at 929-30 (quoting Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Such a finding requires that "the child's present living environment may endanger the child's physical health." Id. at 930 (quoting FAM. § 156.102(b)(1)).
A review of the record yields no evidence that described any significant impairment or endangerment of the children's physical health because Sunny contemplated a move to Snyder. The record reflects that Cody adduced no evidence about Snyder or the local school system; he also did not testify about any contemplated housing arrangements or any description of the living environment in Snyder. He also did not assert that the children lacked friends in Snyder. He simply testified that no extended family lived near Snyder. However, Cody failed to note whether he referred to his relatives, Sunny's relatives, or her fiancé's relatives. He also did not describe any physical ailments suffered by C.C.W. or D.J.W. that resulted from Sunny's contemplated move.
Dr. Orner offered no opinions about C.C.W. and did not opine that D.J.W. suffered from any physical conditions, ailments, or illnesses that significantly impaired her physical health. In fact, Dr. Orner testified that, if the children moved, they would "adapt" just as they would "adapt to a new step-parent," and he described Sunny as an excellent parent, whom the children loved. In addition, Cody conceded that he did not claim that Sunny was a bad mother. Based on the evidence presented, the trial court could not have reasonably concluded that Sunny's contemplated move significantly impaired or endangered the children's physical health. Therefore, the only remaining basis that the trial court could have had for its temporary orders was that Sunny's contemplated move to Snyder created a significant impairment to the children's emotional development.
C. Cody presented no evidence that Sunny's contemplated move caused any specific emotional disease, illness, or deterioration that would significantly impair C.C.W.'s emotional development.
Sunny asserts that Cody presented no evidence that C.C.W. suffered from significant impairment of his emotional development because of a contemplated move by Sunny and the children to Snyder. Mental impairment means "[a] mental or psychological disability, such as an intellectual disability, emotional or mental illness, organic brain syndrome, or specific learning disability." BLACK'S LAW DICTIONARY 1135-36. Dr. Orner admitted that he had never met C.C.W. or talked with him, nor did Dr. Orner testify as to how the move would affect C.C.W. Dr. Orner merely stated that he thought the children should live together. In addition, Cody never mentioned any specific illness, ailment, or emotional deterioration with respect to C.C.W. due to a move to Snyder or Clyde. Based on the evidence in this case, Cody failed to prove how the contemplated move to Snyder would significantly impair C.C.W.'s emotional development. Consequently, the only remaining rationale left for the trial court's temporary orders would be that it found evidence of significant impairment of D.J.W.'s emotional development that also significantly impaired C.C.W.'s emotional development.
D. Cody adduced no evidence that Sunny's contemplated move created any specific emotional disease, illness, or deterioration that significantly impaired D.J.W.'s emotional development and that also caused significant impairment of C.C.W.'s emotional development.
Sunny asserts that Cody presented no evidence that D.J.W. suffered from significant impairment of her emotional development because of a contemplated move to Snyder or that D.J.W.'s condition significantly impaired C.C.W.'s emotional development. Cody never testified about specific allegations of emotional illness or disease that significantly impaired D.J.W. or how any impairment significantly affected D.J.W. Instead, he relied on Dr. Orner's testimony. Dr. Orner testified that he had visited with D.J.W. Dr. Orner explained that D.J.W. was unhappy about the move; D.J.W. believed that she would lose everything that she had in Abilene—her friends and her environment. In In re Strickland, the father alleged that moving the children to Florida would emotionally harm the children; "however, he did not allege any specific impairment to their emotional development other than being separated from their family, friends, and normal activities in Texas." In re Strickland, 358 S.W.3d at 822 (emphasis added). The court in In re Strickland ultimately concluded that the trial court abused its discretion when it entered a temporary restraining order by which it required the children to remain in Texas pending the preparation of a social study. Id. at 823. In reaching its conclusion, the court stated, "Although [the move] 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." Id. at 822 (emphasis added).
Dr. Orner testified that D.J.W. thought of herself as an "Abilenian," but she also told him that she wanted to be a Clyde cheerleader and that she felt a sense of "permanency" there. Relying on In re Strickland, the Fourth Court of Appeals recently held in In re Montemayor that "evidence of the emotional distress resulting from separation and loss caused by a move is not, by itself, evidence of significant impairment of a child's physical health or emotional development." In re Montemayor, No. 04-16-00222-CV, 2016 WL 3440130, at *2 (Tex. App.—San Antonio June 22, 2016, orig. proceeding) (mem. op.) (emphasis added) (citing In re Strickland, 358 S.W.3d at 820). In In re Montemayor, the father testified that moving their child to Dallas from Laredo would be "emotionally and psychologically distressing" for their child and that he was concerned that the child would lack familial support in Dallas. Id. at *1. The mother testified that she had accepted employment in Dallas due to higher pay and an opportunity for advancement. Id. The parties and the trial court discussed the move in terms of whether it was in the "best interest of the child." Id. The Fourth Court of Appeals explained that the parties only addressed the best interest of the child and that there was no evidence introduced about whether the plan to move to Dallas would significantly impair the child's physical health or emotional development. Id. at *1-2.
Dr. Orner never met C.C.W. or talked with him, and although Dr. Orner believed that the move would have a "pretty debilitating effect" on D.J.W., he testified that she and C.C.W. would "adapt" if they moved. In fact, D.J.W. had already been enrolled in three different schools in Abilene prior to the de novo hearing, and the record does not indicate any impairment of physical or emotional development from those school changes. Furthermore, Dr. Orner did not explain how, specifically, the debilitation would manifest itself physically or emotionally in D.J.W. or how her specific and significant impairments would significantly impair C.C.W.'s emotional development.
Although the record reflected evidence that D.J.W. could experience emotional distress from separation and loss, that fact, alone, is no evidence of significant impairment of her 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.) (holding that trial court abused its discretion when there was no evidence presented of significant impairment of child's physical health or emotional development from a move to Fort Stockton from Houston); In re Payne, No. 10-11-00402-CV, 2011 WL 6091265, at *2 (Tex. App.—Waco Dec. 2, 2011, orig. proceeding) (mem. op.) (holding that trial court abused its discretion when there was no evidence of bad parenting or lack of parenting skills and no evidence of significant impairment of physical health or emotional development; trial court's desire to avoid a second move was insufficient to meet the "very high" standard for changing the parent who designates the child's primary residence); In re Winters, No. 05-08-01486-CV, 2008 WL 5177835, at *3 (Tex. App.—Dallas Dec. 11, 2008, orig. proceeding) (mem. op.) (holding that trial court abused its discretion because evidence of distance to travel for visitation and evidence that mother's boyfriend "slept a lot" when the child was at home was insufficient to prove significant impairment of child's physical health or emotional development). The record reflects that Cody failed to adduce any evidence to prove how Sunny's contemplated move to Snyder resulted in any specific emotional trauma that significantly impaired or endangered D.J.W.'s emotional development and specifically how her condition would have impaired emotional development in C.C.W.
E. Because Cody produced no evidence of specific allegations of physical disease or emotional trauma that would significantly impair the physical health or emotional development of C.C.W and D.J.W., cases cited by the majority are either inapplicable or, in the case of In re M.C.W., distinguishable.
The majority asserts that Cody and Sunny presented disputed facts about the children's physical health and emotional development such that this court is precluded from addressing disputed facts. The majority refers to In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding), but that case involved a mandamus proceeding in which the trial court had not held a hearing. In re Angelini is not applicable to this case, where the court held an evidentiary hearing. The majority also cites In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 686 (Tex. 2007), and In re M.C.W., 401 S.W.3d 906 (Tex. App.—Amarillo 2013, orig. proceeding), in support of its position. In re Pirelli Tire involved a mandamus proceeding on a motion to dismiss for forum non conveniens, in which the Texas Supreme Court conditionally granted mandamus relief because the trial court clearly abused its discretion when it denied the motion to dismiss. 247 S.W.3d at 679. Again, this is not the case before us.
In In re M.C.W., the Amarillo court of appeals declined to grant mandamus relief. The court held that, because the trial court heard evidence at the temporary-orders hearing of a child's frequent absences from school due to multiple moves, the relator's use of alcohol, and the loss of stability, a rational factfinder could have found that Section 156.006(b) had been satisfied. In re M.C. W., 401 S.W.3d at 906-07. But In re M.C.W. is distinguishable because in that case, unlike Sunny's case, the petitioner adduced evidence of the ex-spouse's use of alcohol combined with numerous moves that caused excessive school truancy, which resulted in instability in the child's life and environment. Id. None of those facts, or anything remotely similar, are present in the case before us. Sunny's case is more similar to In re Montemayor, In re Strickland, In re Rather, In re Payne, In re Winters, and In re Ostrofsky, where the courts described the lack of evidence on significant impairment of physical health or emotional development. In re Montemayor, 2016 WL 3440130, at *2; In re Strickland, 358 S.W.3d at 822; In re Rather, 2011 WL 6141677, at *2; In re Payne, 2011 WL 6091265, at *2; In re Winters, 2008 WL 5177835, at *3; and In re Ostrofsky, 112 S.W.3d at 929.
V. Conclusion
The parties agreed to, and the trial court approved, the arrangement at the time of the divorce that Sunny would designate the children's primary residence. Because Cody sought to change that arrangement eight months after the divorce, he had to prove his desired change was necessary because to continue the children's present circumstances would significantly impair their physical health or emotional development. See FAM. § 156.006(b)(1). The majority holds that Dr. Orner's conclusory statements about "pretty debilitating effect" and "needed to be together," along with an analogy about a military move, meet the heightened standard in Section 156.006(b)(1). But Dr. Orner never explained how the contemplated move specifically caused physical or emotional disease or illness that would significantly impair C.C.W.'s or D.J.W.'s physical health or emotional development. Without evidence of specific allegations of physical or emotional disease or illness that would result in significant impairment of both children, Dr. Orner's testimony is no evidence; just as in In re Montemayor, In re Strickland, In re Rather, In re Payne, In re Winters, and In re Ostrofsky, there was no evidence to meet the "very high" standard in Section 156.006(b)(1).
See In re Payne, 2011 WL 6091265, at *2.
The majority writes that it is concerned "[i]n light of the possibility of the children being required to make multiple moves in a short period of time," and so declines to exercise discretion. However, to depart from sensible precedent from five of our sister courts, without an informative and persuasive discussion about the need for such a departure in a case of first impression in our court, is to invite future error and uncertainty with all of the attendant expense to the courts and parties, not to mention the costs to children. Because of the lack of evidence in the record of specific allegations of physical or mental illness in C.C.W. and D.J.W. that would significantly impair their physical health or emotional development, I would do as our five sister courts have done and exercise discretion to grant relief. Because the trial court clearly abused its discretion and because Relator has no adequate remedy by which to appeal, I would conditionally grant relief to Relator. Therefore, I respectfully dissent.
MIKE WILLSON
JUSTICE February 28, 2017 Panel consists of: Willson, J.,
Bailey, J., and Countiss. Wright, C.J., not participating.
Richard N. Countiss, Retired Justice, Court of Appeals, 7th District of Texas at Amarillo, sitting by assignment.