Wednesday, October 12, 2011

Modification of temporary order without notice undone by court of appeals in mandamus proceeding

EXCERPT OF OPINION BY JUSTICE BARNARD - SAN ANTONIO COURT OF APPEALS

In a suit affecting the parent-child relationship, the trial court may make a temporary order for the safety and welfare of the child, including an order modifying a prior temporary order. TEX. FAM. CODE ANN. § 105.001(a) (West 2008). A temporary order for the conservatorship of the child may not be rendered without notice and a hearing. TEX. FAM. CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730.

The challenged order in the underlying proceeding is an order modifying a prior temporary order. See TEX. FAM. CODE ANN. § 105.001(a). Therefore, Michelle was entitled to notice and an adversary hearing before the entry of a new temporary order modifying the custody of K.R.A. See TEX. FAM. CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. The parties agree that the only motion set for the hearing on August 30, 2011 was the reconsideration of the motion to strike Michelle’s plea in intervention. Nicole did not file and serve on Michelle any pleading asking the court to give her temporary custody. Also, there is nothing in the record suggesting the new temporary order was prompted by an emergency.

However, Nicole and Judge Arteaga each contend in their responses to this court that because Michelle’s motion for reconsideration of the motion to strike Michelle’s plea in intervention was set for a hearing, Michelle was on notice that the temporary orders could be modified, and, therefore, she should have been prepared for such a hearing. However, notice of the motion for reconsideration of the motion to strike Michelle’s plea in intervention did not confer on Michelle notice of the modification of temporary orders. First, the motion to reconsider was not ruled on at the hearing; therefore, there was no immediate reason to enter new temporary orders removing K.R.A. from Michelle’s home. Also, even if the trial court had granted the motion for reconsideration and struck Michelle’s plea in intervention, she would not be testifying or seeking any relief in the form of a modified temporary order because she would no longer be a party to the case. Therefore, she would have no reason to object to the lack of notice. Based on the foregoing, we do not find merit to Nicole and Judge Arteaga’s argument that by virtue of the motion to reconsider the motion to strike Michelle’s intervention pending before the trial court that Michelle was on notice that a modification of the temporary orders was before the trial court.

Judge Arteaga further contends Michelle failed to preserve her complaint because her conclusory and general statement that she needed more time and would like to call witnesses was insufficient to put the trial court in the position of having adequate facts to address relator’s complaint. However, the record clearly reveals Michelle objected to the lack of notice and hearing regarding the temporary orders. When Judge Arteaga first informed the parties she would be considering sua sponte whether to modify the temporary orders, Michelle’s counsel responded, “Judge, there’s no motion for temporary orders on file. We have no notice and that would be a very real violation to my client’s right to due process - - to conduct a temporary orders hearing today. . . . There’s nothing in there about temporary orders. We’re not ready for that. . . .We are not prepared to proceed on that today.” Counsel later reiterated, “We are not ready. We have received no notice. We have no witnesses.” Clearly, the record reveals Michelle objected to the lack of notice and a proper hearing regarding the modification of temporary orders.

Finally, Judge Arteaga contends Michelle was afforded the opportunity to present evidence, and chose not to. However, without having notice that the existing temporary orders would be modified, Michelle was clearly not prepared to present such evidence regarding the safety and welfare of the child and to rebut Nicole’s testimony in response to Judge Arteaga’s questions. See TEX. FAM. CODE ANN. § 105.001(a), (b).

As a result of the foregoing, we conclude the trial court abused its discretion in failing to provide Michelle with notice prior to modifying the existing temporary orders. See TEX. FAM.

CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. Accordingly, we do not find it necessary to address Michelle’s remaining issues presented to this court.

CONCLUSION

Based on the foregoing analysis, we hold the trial court clearly abused its discretion in modifying the existing temporary orders without notice and a hearing. Accordingly, we conditionally grant the petition for writ of mandamus. The trial court is ordered to withdraw the August 30, 2011 order modifying the existing temporary orders. The writ will issue only if the trial court fails to comply within fourteen days.

Marialyn Barnard, Justice

SAN ANTONIO COURT OF APPEALS - 04-11-00641-CV - DECIDED 10/12/2011

CRITERIA FOR MANDAMUS RELIEF 
[Order by appellate court directing trial court judge to change or set aside order that is otherwise not appealable or cannot be appealed immediately] 

Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy at law.  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (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.”  Walker, 827 S.W.2d at 840.  

Because temporary orders in suits affecting the parent-child relationship are not appealable, mandamus is an appropriate remedy when a trial court abuses its discretion.   See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding);  In re Herring, 221 S.W.3d 729, 730 (Tex. App.—San Antonio 2007, orig. proceeding).

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