### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00862- CV

In re Monte Charlene Diggs Coker

ORI GINAL P ROCEEDI NG F ROM B URNET COUNTY

M E M O R A N D U M O P I N I O N

Relator Monte Charlene Dig g s Coker fi l ed a petition for writ of mandamus complaining of the trial court’s temporar y order s that restra ined her from removin g h er t h ree
y oung est children from Bur net County or any county contig uous to B urnet County for the purpose of establishing the children’ s primary residenc e. Be cause we conclude that the trial court abused its discretion, we conditionally g rant manda

mus relief. See Tex. R. App. P . 52.8(c)

.
Background
I n the underly ing proce eding , rea l party in interest Wil liam Dig g s J r. filed a petition
to modify the pare nt-child rela tionship on October 5, 2 0 1 7 , seeking to modify the parties’ final decr ee of divorce that the trial court signe d on J uly 26, 2017. The final divorce decr ee approve d and incorpora ted the parties’ mediated settlement ag ree ment (MSA) that was signe d by the parties on J anuar y 31, 2017. At the time of the divorce , the parties had fiftee n children and six of the children

wer e minors.The MSA g rante d Coker t h e ri ght to deter mine the primary residenc e of the three
y oung est children and Dig g s the right to deter mine the prim ary residenc e of the ot her three minor children. Consist ent with the MSA, the final decr ee g rante d Coker the exclusive rig ht to desig nate the primary residenc e of the three y oung est children without reg ard to g eog raphic loca tion and
g rante d the s am e ri ght to Dig g s as to the other three minor children. At all rele vant times, Dig g s lived in Bur

net County

. At the time that the parties enter ed i n t o t h e M S A, Coker was living in Amarillo, Texas, but she had moved to Temple, Texas, in a county contiguous to Bur net County , befor e the trial court signed t h e final decr ee. The final decr ee g ener ally provides for acc ess and possession based on the parties living within 100 miles of eac h other. See Tex. Fam. Code § 153.312 (addr essing possession for par ents who re side within 100 mil es of e ach othe r).

I n the petition to modify , Dig g s soug ht to enjoin Coker “fr om removing the children the subject of this suit from Bur net County or any co u n t y contig uous there to for the purpose of establishing the primary residenc e of the child ren.” Among the relief he reque sted, he soug ht temporar y order s to prohibit Coker “fr om removing the children from Bur net County or any county contig uous there to for the purpose of establishing their primary residenc e.” Dig g s filed the petition to modify afte r re ceiving notice fr om Coker ar ound October 1, 2017, that she was moving back to Amarillo with the three y oung est children. Coker was serve d with the petition to modify on October 11, 2017, but by then, she alre ady had sign ed a l ease for a home in Amarillo and moved with the three children f

rom Temple to Amar illo. 1

The parties prese nted conflicting evidenc e conce rning Coker’s knowledg e of the substance 1 of Dig g s’s petition to modify prior to October 11, 2017. Acc ording to Dig g s, C o k er k new the substance of

the petition prior to signing the l ease and movi ng with the three y oung est children to 2The trial court held a hear ing on October 16, 2017, to consider temporar y order s. At the time of the hear ing, the three y oung est children wer e in Amarillo stay ing with Coker’s sister, who lived there

. The parties and their 15-y ear -old daug hter, who lived with Di g g s, testified. Dig g s testified that he was seeking a temporar y i n j u n ct i o n to require Coker to rema in in Central Texas primarily so that the three y oung est ch i l d re n could be toge ther with their siblings and not “eig ht hours apar

t,” he could see the children, and the children would not be subject to spending “countless hours” in the car driving back and forth from Amarillo. Concerning the provisi on in t h e d i v o rce 2
decr ee that g rants Coker the exclusive rig ht to desig nate the primary residenc e of the three y oung est children without reg ard to g eog raphic location, Dig g s testified that “[i] t was an emotional mistake” and that he “wished [he had] never signe d” the MSA that allowed the children to be apar t. He also testified that the chil dren’ s uninsured medical expenses would incre ase if they lived in Amarillo beca use they would be out of his insuranc e networ k.

Amarill o . C o k er , howeve r, testified that she did not know “that [Digg s] was try ing to keep [her] from moving ” until she was se rved w ith a copy of the pe tition on October 11, 2017. Dig g s testified when asked what was the “primar y rea son” for seeking temporar y order s 2 to prohibit Coker from moving to Amarillo with the three y oung est children:

The primary rea son is pretty simple. I t’s not about leg al maneuve ring , it’s not about filing motions, y ou know, when y ou file them, when y ou don’t file them, when y ou g ive notice, when y ou don’t g ive notice. I t’s about three littl e bitty kids.

. . . I t’s about three littl e bitty kids that are not g oing to want to be in a car moving back and forth from Amarillo, Texas. I t doesn’ t m at t er if it’s twice a month or if it’s once a month. I t’s about so much more than leg al maneuve ring

. I t’s about so much more than filin g m o t i o n s . I t ’s about the rest of their life. I t’s about them wanting to be around their siblings and g row up around their siblings, because the b o nd betwee n these siblings is so much strong er than even bonds betwee n pare nts. They just want to be toge ther. That’s a ll they want. They want to be with e ach other, they want to be tog ether

. 3Coker testified that she and the three y oung est children lived in Amarillo at the time

the parties signe d the MSA but that she and the three children had moved to Temple by the time that the divorce decr ee was signe d. She further testified that she told Dig g s in Aug ust 2017 that she was considering moving back to Amarillo with the t hree children; that her curre nt husband acce pted a job in Amarillo at the beg inning of October 2017; a nd that his job would provide health insuranc e for the three y oung est children in Amarillo. She also testified that she neede d to work, that she had

a job inter

view in A marillo a few day s afte r the hear ing for a job tha t w ould pa y well, and that she had family who lived in Amarillo and wer e available to help her car e for the children while she was working

. The evidenc e was that many re l atives, including the three y oung est children’ s siblings, lived in Central Texas but that Coker had “ a lot of extended family ” in Amar illo.

The parties also prese nted conflicting testimony about the three y oung est children’ s desires conce rning moving to Amarillo. Dig g s testified that the children “[were ] not excited about being so far awa

y ” and that one of them was “f u l l o f anger ” beca

use he could not be with his brothers. The parties’ daughte r who li ved with Dig g s testified that the siblings ha ve a “ very , very strong ” rela tionship; that she thought it was “important” for the three y oung est children “to g row up around a n environment whe re the y have [their siblings]”; and that it wa s “har d” for the siblings to b e around Coker’s current husband, explaining t hat “nobody want[ed] to have a relationship wi t h
him at all.” Coker, howeve r, testified that: (i) the th re e y o ung est children “wa nt[ ed] to live” in Amarillo; (ii) that the children had cousins with whom they wer e close in Amarillo, along with aunts and uncles, and wer e “happy ” living in Amarillo; and (iii) that the children wer e afr aid to tell Dig g s that they wanted to live in Amar illo.

4At the conclusion of the hear ing, the trial court m ade its ruling on the rec ord in

rele vant par

t:
I ’m g oing to make a finding that it would b e i n the children’ s best interest for them to l i v e wi t hin 50 miles of Bur net County , and I ’m g oing to g rant the TRO.

. . . But, Mrs. Coker, y ou took some drastic steps, I think, for what—I ’m not sure I can even underst an d y our rea son. I ’m not sure wh at t h e attraction in Amarillo is, but I would think, as a pa

rent a nd a mother, y ou would want y our childre n to be able to spend as much time as they can toge ther, and that just further separ ates the family and I can’ t do that in their best interest. I t’s just not in me to sa

y that I think it’s in the ir best interest for them to sta y in Amarillo awa

y from their fathe r and awa y from their other siblings. So I ’m g oing to order that they be returne d here within 50 miles of this county and not be taken any far ther awa y than that within—let’s see, toda y ’s Monday . By

Fr iday they need to be back.

On Dec ember 18, 2017, the trial court signe d temporar y order s consistent wi th it s o r al ruling at the hea

ring

. The trial c ourt restra ined Coker f rom removing the three y oung est children 3
from Bur net County or any county contig uous there to “ for the pur pose of e stablishing the pr imary residenc e of the children” until further order of th e trial court or from establishing the children’ s primary residenc y more than 100 miles from Dig g s’s residenc e. I n the order s, the trial court found that the tempora

ry injunction was in the children’ s best interest. The trial court a lso found that an aff idavit w ith a

n exhibi t tha t D igg s signe d on Dec ember 9, 2017, “state[d] facts that show that the actions of Monte Coker will signific antly impair the emotional development of t he children” and,

Prior to the trial court’s entry of the temporar y order s, Coker filed a previous petition f or 3 writ of mandamus conce rning the trial cour t’s oral ruling , and this Court denied that petition. See In re Coker , No. 03-17-00750- CV, 2017 WL 5559948 (Tex. App.—Aust in Nov. 16, 2017, orig

. proce eding ) (mem. op.)

. 5there fore , that it “[had] authority to hear this matter pursuant to Section 156.006 and 156.102 of the

Texas Family

Code.”
I n the aff idavit, Dig g s aver

red that Coker was “attempting to shut [hi m] out from the lives of the three children who primarily reside with he r”; that she intends to limit c ommunication betwee n him and the three children; that she “intends to disrupt and destroy the rela tionship betwee n the three y oung er children and [hi m] as their fathe r”; and that the “ac tions of Monte Coker if allowed to continue will significa

ntly impair the emotional deve lopment of the childre n.” He also ave rre d that the children wer e not attending public school and that they wer e “not consistently being home schooled” by Coker. He also expressed conce rn as to the children’ s sleep schedule , explaining that he had f ound that one or more of the c hildren had just woken up a t noon on se vera l occa sions and

on ot h er o cc asions wer e awake after midnight. He concluded that the “failure of Monte Coker to provide a consistent schedule for the children, and the failure to provide proper schooling indicates that her a ctions will significa ntly impair the emoti onal development of t he childre n.” The exhibi t attache d to the aff

idavit was of text messag es exchang ed betwee n the parties in which Coker ref ers to Digg s as a “ horrible f

ather ” and a

“dea d beat.”

Discussion
Stand ard of Review

A party seeking mandamus relief must show that the trial court clearl y abused its discretion and that the party has no adequate remedy by appea l. In re Southw estern Bell Tel. Co. , 226 S.W .3d 400, 403 (Tex. 2007) (orig

. proce eding ) (citing In re Pr u den t i a l Ins. Co. of Am. , 148 S.W .3d 124, 135–36 (Tex. 2004) (o ri g. proce eding )); In re Serio , No. 03-14-00786- CV,

62014 WL 7458735, at *1 (Tex. App.—Austin Dec

. 23, 2014, orig

. proce eding ) (mem. op.). Be cause

a trial co u rt ’s temporar

y order s are not appea lable, mandamus is an appropr iate vehicle for a challeng e to such an order

. See In re Derzapf , 2 1 9 S

. W

. 3 d 3 2 7 , 334–35 (Tex. 2007) (orig

. proce eding ); In re Se rio , 2014 WL 7458735, at *1.

Did the trial court abus e its discre tion by entering the tem porary order s?

I n this orig inal proce eding , Coker contends in two issues that the trial cour t a bused its discre t i o n b y : (i ) hol ding a hearing and entering temporar y order s when Digg s did not file t he require d aff

idavit under section 156.102 of the Texas Fa mily Code, see Tex. Fam. Code § 156.102, and (ii) enter ing temporar y order s that had the eff

ect of chang ing the desig nation of the person who had the exclusive r ight to de signa te the primary residenc e of the three y oung est children. Be cause it is di spositive, we limit our analy sis to the second issue. 4

Relator’s second issue is based on section 156.006 of the Texas Family Code, which addre sses temporar

y order s when a suit for modification is pending

. See id

. § 1 5 6

. 0 0 6

. Section 156.006(b) limit s the tri al co u rt ’s d iscretion to rende r temporar y order s that have “the eff ect of

We expressly

do not decide if

section 156.102 of the Texas F amily Code applies whe n a 4 party is seeking to modify the desig nation of the person with the rig ht to deter mine a child’s primary residenc e withi n a y ear o f a d i v o rce decr ee by means of a request for temporar y order s. See In re Aguirre , No. 03-06-00403- CV, 2006 Tex. App. L EXI S 11203, at *12 n.4 (Tex. App.—Austin Aug

. 25, 2006, orig

. proce eding ) (mem. op.) (expressly not deciding if section 156.102 applied when party soug ht to, in eff

ect, modify desig nation of person with rig ht to deter mine chil d ’s re s idence within one y ear of divorce decr ee by means of temporar y order s); see also Tex. Fam. Code § 156.102 (addr essing modification of exclusive rig ht to deter mine primary residenc e of child within one y ear of orde r or MSA; re quiring party filing suit to attach aff idavit tha t c ontains, along with supporting fac ts, specifie d alleg ations; and requirin g co u rt to deny relief reque sted and to ref use to schedule hear ing f or modification under

section without compliant aff idavit). 7“cr eating , or chang ing the desig nation, of the person who has the exclusi v e ri gh t t o desig nate the

primary residenc e of the child, or the eff ect of cre ating a g eog raphic are a, or chang ing or eliminating the g eog raphic are a, within which a conser vator must maintain the child’s primary residenc e.” See id. § 156.006(b). The trial court is prohibited from rende ring these ty pes of temporar

y order s unless 5
it is in the best in t er es t o f the child and, rele vant here , “the order is nece ssary beca use the child’s
prese nt circ umstances would signific antly im p ai r t h e child’s phy sical health or emotional development.” Id. § 156.006(b)( 1). 6

“Te x as courts have reco gn i z ed that the ‘sig nificant impairment’ standard in section 156.006(b)( 1) is a high one,” and that this standard require s “e v i dence of bad acts that

are more g rave than violation of a divorce decr ee or alienat i o n o f a ch ild from a pare nt.”
In re S er i o , 2 014 WL 7458735, at *2 (citing In re Payne , No. 10-11-00402- CV,
2011 Tex. App. L EXI S 9611, at *6 (Tex. App.—Waco Dec

. 2, 2011, orig

. proce eding ) (mem. op.);
In re C.S. , 264 S.W .3d 864, 874–75 (Tex. App.—Waco 2008, no pet.)); see In re Charles , No. 03- 17-00731-CV, 2017 Tex. App

. L EXI S 11234, at *10–12 (Tex. App.—Austin Dec

. 1, 2017, orig

. proce ed i n g ) (mem. op.) (discussing signific ant impairment standard under section 156.006(b)) ; In re Eddins , 2017 Tex. App. L EXI S 5140, at *17–19 (Tex. App.—Dallas J une 5, 2017, orig

.
Section 156.006(b) was amende d in 2017 to insert the phrase s “cr eating a desig nation” and 5 “or the eff

ect of cre ating a g eog raphic are a, or chang ing or eliminating the g eog raphic are a, within which a conser

vator must maintain the child’s primary residence

. ” S ee Act of May 11, 2017, 85th L eg ., R.S., ch. 91, § 1, 2017 Tex. Gen. L aws 201, 201. Be cause the modification suit was filed in October 2017, the amendments apply here

. See id. §§ 2–3 (providing that chang es to law applied to suit for modification pending befor e trial c ourt or filed a fter Septe mber 1, 2017). Coker has not challeng ed the trial court’s finding that the temporar y orders wer e in the 6 children’ s best interest. See Tex. Fam. Code § 156.006(b) (re quiring that temporar y order be in best interest of c hild). 8proce eding ) (mem. op. ) (c o ncluding that evidenc e prese nted at hear ing was insufficient to

establi s h s u b s t antial impairment of children’ s phy sical health or emotional development under section 1 5 6

. 0 0 6 and that trial court abused its discretion in issuing temporar y order s that chang ed desig nation of pare nt w ith r ight to de signa te children’ s primary residenc e); In re W inters , No. 05-08-01486- CV, 2008 WL 5177835, at *3 (Tex. App.—Dallas Dec

. 1 1 , 2 0 0 8 , o r ig

. p r ocee ding) (mem. op.) (conc luding that trial court abused discretion in issuing tempor a r y o r d e r a n d c o n d it io n ally
g ranting man d am us relief “bec ause rec ord [di d] not support the trial judge ’s decision to chang e rela tor’s rig ht to designa te [child] ’s primary residenc e”)

. Fur ther, specifi c al l eg ations as to how a child’s emotional development will be signific antly imp ai re d ar e statutorily require d under section 156.006(b). See In re Strickland , 358 S.W .3d 818, 822–23 (Tex. App—For t Worth 2012, orig

. proce eding ) (obser ving that “conditions that could sig nificantly impair the emotional deve lopment of one c hild may not a ffe ct another child as strong ly ” and requiring “spec i fi c all eg ations as to how a child’s emotional development will be signific antly impaired” under s ection 156.006(b)) ; see also In re Clayborn , No. 02-12-00299- CV , 2012 Tex. App. L EXI S 7155, at *7–8 (Tex. App.—For t Worth Aug

. 24, 2012, orig

. proce eding ) (mem. op.) (conc luding that fathe r’s g ener al alleg ations that child “wa s depre ssed when she had to leave him and that he believe[d] th at s h e n ee d [ ed ] counseling to deal with the divorce and custody proce eding s” did no t s h ow that child’s prese nt circ umstances would signific antly

impair emotional deve lopment). Under the terms of the MSA and the final divorce decr ee, Coker was g rante d the rig ht
to desig nate the primary residenc e of the three y oung est children without reg ard to g eog raphic

9restric tion. I n conflict with these provisions, the trial court’s temporar y order s restra ined Coker from removing the children from Burnet Count y or a contig uous county for the purpose of establishing their primary residenc e or from establishing their primary re s i d ence more than 100 miles from Dig g s’s residenc e. Thus, the t empora ry o rd er s had the eff

ect of chang ing the person who had the exclusive rig ht to desig nate the primary residenc e of the three y oung est children and of chang ing the
g eog raphic are a within which the children’ s primary residenc e was require d to be maintained. See
Tex. Fam. Code § 156.006(b); In re Davila , 510 S.W .3d 455, 458 (Tex. App.—San Antonio 2013,

o ri g . proce eding ) (obser

ving that temporar

y order that deprive s custodial pare nt of discret i o n i n deter mining child’s primary residenc e had eff ect of chang ing desig nation of person with exclusive rig ht to desig nate primary residenc e); In re W inter s, 2008 WL 5177835, at *1–3. The dispos itive issue then is whether t h e ev i d en ce befor e the trial court supports that the temporar y order s wer e

nece ssary beca

use the three y oung est children’ s “pre sent circ umstances would signific antly impair the [children]’s phy sical health or emotional development.” See Tex. F am. Code § 156.006(b)( 1).

I n its temporar

y order s, the trial court found that Dig g s’s aff idavit that was signe d on Dec ember 9, 2017, stated “fa cts that show that the actions of Monte Coker will signific antly impair the em otional development of the children.” But, even if we consider and take as true Dig g s’s

aver ments in his aff

idavit that was filed afte r the October hear ing, that evidenc e does not support the trial court’s finding of signific ant impairment. Dig g s’s g ener al alleg ations that Coker’s actions, if allowed to continue, would signific antly impair the emotional development of the children wer e not sufficie nt to satisfy the standard. See In re Strickland , 358 S.W .3d at 8 2 2

– 2 3 ; In r e Clayborn , 2012 Tex. App. L EXI S 7155, at *7–8. And his specific alleg ations that the children’ s schedule had

10not been consistent and that Coker was attempting t o l imit his communications and destroy and

disrupt his rela tionship with the children at best s u p p o rt i mplied finding s that Coker soug ht to alienate the children from Dig g s or that she occa sionally did not proper ly supervise the children, which w o u ld n o t b e s u f

f ic ie n t to s a

ti s f y th e s ta n d a r d

. S e e I n r e Ch a r le

s , 2 0 1 7 T e x. A

p p . L E X I S 1 1 2 3 4 , at *11 (conc luding that evidenc e, including evidenc e of interfe renc e with communications, did “not rise to the level of showing ‘sig nificant impairment’”) ; In re Serio , 2014 WL 7458735, at * 1–2 (explaining that, even if evidenc e supported finding s that mother had attempted to alienate children
fr o m fathe r and preve nt them from having ongoing rela tionship with fathe r, such evidenc e wo u l d
not sati s fy signific ant-impairment standard and concluding that rec ord did not contain evidenc e of “ser io u s ac ts or omissions ” to imply finding of signific ant impairment); In re Rather , No. 14-11-00924- CV, 2 0 11 WL 6141677, at *2 (Tex. App.—Houston [14t h Dist.] Dec

. 8, 2011, orig

. proce eding ) (mem. op.) (conc luding that evidenc e that fathe r’s rela tionship with son might be adver sely aff

ecte d by mother’s move and that chil d was sometimes not proper ly supervised was insufficient to show circ umstances that signific antly impaired child’s health or development) ; In re Escamilla , No. 04-02-00258- CV, 2002 WL 1022945, at *2 (Tex. App.—San Antonio May 22, 2002, orig

. proce eding ) (mem. op.) (conc luding that compl aints about mother’s attention to children’ s schooling and g ener al appea ranc e amounted to differ ence s in child-re aring methods and pref ere nces and did not support temporar y order s chang ing person with rig ht t o d es i gn ate children’ s primary residenc e).
As to the evidenc e that Dig g s prese nted at the hear ing in October 2017, we simil arly conclude that it did not support the trial court’s temporar y order s. Dig g s’s testimony about the three

11y oung est children’ s desire not to move and his conce rns about being eig ht hours apar t from them and subjecting them to spending “coun t l es s h o urs” in the car and his daug hter’s testimony that it was “important” for the children to be near their siblings wer e not evidenc e of bad acts by Coker “more
gra v e” than a violation of the divorce decr ee or alienation of the children from Dig g s. See In r e Serio , 2014 WL 7458735, at *2 (re quiring “evide nce of bad acts that are more g rave than violation of a divorce decr ee or alienation of a child from a pare nt” t o s upport “nec essar y finding s that children’ s emotional development, in their prese nt circ umstan c e s , w o u ld b e s ig n if ic a n tl y impa ired” ). On this recor d, we conclude that the trial court was without evidentiary support for its finding of signific ant impairment and, thus, that it abused its discretion in rende ring the temporar y order s that restra ined Coker from removing the three y oung est children from Bur net County or any county contig uous to Bur

net County for the purpose of establishing the children’ s primary residenc e and restra ined her from establishing the three y oung est children’ s primary residenc e more than 100 miles from Dig g s’s reside nce. See Tex. F am. Code § 156.006(b) ; In re Se rio , 2014 WL 7458735,
at *1–2 (conditionally g ranting mandamus relief and concluding that issuance of temporar y order s which eff ectively chang ed person with exclusive rig ht to desig nate children’ s primary residenc e was abuse of discretion, explaining that rec ord did not “conta in evidenc e of rela tor’s ser i o u s ac t s o r omissions from which we may imply the nece ssary finding s that t h e children’ s emotional development, in their pr esent c ircumstance s, would be sig nificantly impaired” ).

Conclusion
Be cause we have conclude d that the trial court abused its discretion in rende ring the temporar y order s, we conditionally g rant Coker’s reque sted relief and direc t the trial court to vacate

12its tempora ry order s of Dec ember 18, 2017. Writ will issue only in the unlikely event that the trial court doe s not act in ac corda nce w ith this opinion.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Filed: January

23, 2018

13