in Re Kelsey Lynn Estes, Relator
07-17-00225-CV
| Tex. App. | Jul 19, 2017Background
- Estes and Guerrero were appointed joint managing conservators of their daughter R.C.E. in Carson County; Estes had the exclusive right to establish the child’s domicile.
- Guerrero filed a motion to modify (seeking permanent and temporary relief) in Carson County; a temporary-orders hearing occurred March 31, 2017.
- Estes timely moved to transfer venue to Gray County; Guerrero did not file a controverting affidavit, which statutorily required transfer within 21 days after the controverting-affidavit period.
- At the temporary hearing, evidence showed a small abscess on the child (investigated by CPS with no finding of neglect) and unsubstantiated allegations of parental methamphetamine use; the court ordered same-day hair follicle tests.
- The court later (May 31, 2017) entered temporary orders awarding Guerrero the exclusive right to designate the child’s primary residence; drug-test reports filed post-hearing were not authenticated or offered at a reconvened hearing.
Issues
| Issue | Plaintiff's Argument (Estes) | Defendant's Argument (Guerrero) | Held |
|---|---|---|---|
| Whether court had a mandatory duty to transfer venue to Gray County before entering temporary orders | Motion to transfer was timely and Guerrero failed to file controverting affidavit, so venue must have been transferred under Tex. Fam. Code §155.204(c) | Even if transfer was mandatory, the transferring court retained jurisdiction to enter temporary orders because no transfer order was entered or docketed | Court held transfer obligation did not render temporary orders void because the trial court retained jurisdiction absent an actual transfer order |
| Whether temporary orders changing who may designate the child’s primary residence were permissible under Tex. Fam. Code §156.006(b)(1) | No competent evidence showed the child’s present circumstances would significantly impair physical health or emotional development; therefore the statutory exception did not apply | Relied on drug-test results and argued parental drug use can justify severe remedies (e.g., termination), so temporary change was necessary to protect the child | Court held evidence insufficient to meet the high statutory standard of significant impairment; temporary order changing designation was an abuse of discretion |
| Whether the trial court relied on admissible evidence (drug test reports) to support its temporary order | Estes argued the drug reports were not authenticated, were not offered into evidence, and some were from tests not court-authorized | Guerrero urged court consideration of the drug results and the implication of parental drug use | Court found the drug-test reports were not properly authenticated/offered and, even if considered, did not establish significant impairment |
| Whether mandamus is appropriate remedy | Estes argued temporary orders are not appealable and she had no adequate remedy by appeal | Guerrero did not dispute mandamus appropriateness for challenging non-appealable temporary orders | Court concluded mandamus appropriate and conditionally granted relief to vacate the temporary order if the trial court fails to do so |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus standard and de novo review of legal questions)
- In re Labatt Food Serv., L.P., 279 S.W.3d 640 (Tex. 2009) (defer to factual findings with evidentiary support; legal questions reviewed de novo)
- In re Derzapf, 219 S.W.3d 327 (Tex. 2007) (mandamus as remedy for certain family-law interlocutory actions)
- In re Strickland, 358 S.W.3d 818 (Tex. App.—Fort Worth 2012) (temporary orders in modification suits are not interlocutory-appealable; mandamus appropriate)
- In re Ostrofsky, 112 S.W.3d 925 (Tex. App.—Houston [14th Dist.] 2003) (same)