### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 20 - 00222 - CV

In re Michael L. Bird

OR I GINAL PROCEEDING FROM BELL COUNTY

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

R elator Michael L. Bird has filed a pro se petition for writ of mandamus comp l ai ning of three orders: (1) the temporary orders sign ed by a Housto n County district court in Sept ember 2017 and transferred to Bell County in 2019 , (2) an order signed by a Bell County district court in November or December 2019 , and (3) a protective ord er issued by a Houston C ounty court at la w in Fe b ruary 2019 in a se parate proceeding

. As explained b elow , we condit ionally grant partial mandamus relief

. See Tex. R. App. P. 52.8 (a)

.
PROCEDURAL SUMMARY In August 2006, the Houston C o unty district court signed a d iv orce decree that

aw ard ed Bird the right to desi gnate the primary re si dence of his daugh ter A.B. , who was born in November 2004

. Bird and his ex

- wife , real p arty in interest Ang e li que Ledesma , worked out an arrangement in whi ch A.B. would live with each pa rent for one year at a time , switch ing after each school yea r to live with the other parent

. Bird now lives in Bell County , and Ledesma lives in Houston County.2 In the summer of 201 6 , Bird decided to exercise his exclusive right to designate A.B. ’ s prim ar y residence and to keep her in Bell Cou nty for the school year , rathe r than continuing the year

- on/year

- off s chedule

. I n August 2016, Ledesma filed a petition to modify in Houston County seeking to be given the right to designate A.B. ’ s primary residenc e and asserting that A.B. was distressed by Bird ’ s change of plans

. 1 On August 17, Bird filed a motion to transfer , reciting that venue was p roper in Bell County because A.B. had lived there for more than six months before going to Houston County in June 20 1 6 for summer visitation with Ledes ma . S ee Tex. Fam. Code § 155 .20 1 (b) ( “ If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a s uit, on the timely motion of a party the court shall

. . . t ransfer the proceeding to another county in this state if the ch ild has resided in the other county for six months or longer. ” )

. Although i t does not a ppear that Ledesma responded with a controverting affidavit , s ee id . § 155.204(c) ( i f opposing party d oe s not file timely controverting affidavit , the proceeding shall be tran sferred without hearing to proper court ) , the Houston County district court denied Bird ’ s motion to transfer

.

In September 2016 , w hile the motion to transfer was pending , t he Houston County district cou rt h eld a hearing on t emporary orders and mad e a n oral ruling that “ [o]n a temporary basis, I ’ m going to leave her here ” in Houston County . Bird objected to the court ’ s ruling , arguing that the evidence was insufficien t to support the c hange

. For unknown re asons, th e court did not issue written tem porary orders until more than a year later, on September 18,

1 In July 2015, the police raided Ledesma ’ s house and arrested her husband on drug charges

. A.B. was with Bird at the time and stayed th ere through the s chool year , ret urn ing to Ledesma ’ s custody in Houston County in June 2016

. B ird assert s that A.B. only wen t to Ho uston County for summer visitation with Ledesma , but Ledesma ’ s affidavit filed wit h her petition to modify stated that it wa s not until July or August 2 016 t hat Bird informed her that he had decided that A.B. shoul d stay in Bell County for the 2016

- 2017 scho ol year.3

201 7

. In the written temporary orders, Ledesma was awarded the right to designate A.B. ’ s primary residence , and Bird was awarded v isitation under the standard poss ession order and ordered to pay $800 a month in child support.

Bird sought mandamus relief in the Tyler Court of Appeals, complaining of the Houston County district court ’ s denial of his motion to transfer and its temporar y orders , and i n January 2 019, the c ourt of a ppeals conditionally grant ed manda mus relief i n his favor

. See In re Bird , No. 12

- 18

- 00291

- CV, 2019 WL 210829 , at *3

- 4 (Te x. App.

— Tyler Jan. 16, 2019, orig. proceeding) (per curiam) (mem. op.). The court held t hat the d istrict c ourt abused its disc retion in denying Bird ’ s m otion to transfer venue and stat ed that because it was ordering the case transferred, it “ need not address Bird ’ s challenge to the temporary order .” Id . at * 4 . On Jan uary 28, 2019, the Hous t on County district court signed an order t ransfe rring the case t o Bell County.

Meanwhile, apparently on the same day the district court s igned its transfer order, Ledesma filed in a Houston County c ourt at l aw a n a pplication for a protecti ve order . T he

cou nty court issued a tw o - year prote ctive or der on F ebruary 11, 2019 , finding that Bird had committed family viol ence and w as likel y to do so again in the future. The order bar s Bird from going within 200 yards of Led esma ’ s home or A.B. ’ s school and bar s him from removing A.B. from Ledesma ’ s poss ession except as “ explicit ly authorized in a possession schedule ordered by ” the Bell C o unty courts. Bird filed a mot ion to vacate the protective order on April 16, 2019, and the county court declined to act becau se Bird was “ pa s t the time to file f or a n ew trial o r appeal

. ” Bird again sought mandamus relief , but t he Ty ler C ourt of A ppeals denied relief , explaining that Bird had an opport unity to appeal from the protective order but failed to do so. See In re Bird , No. 12

- 19

- 00184

- CV, 2019 WL 2710249, at *2

- 3 (Tex. App.

— Tyler June 28, 2019, orig. p roceeding) (mem. op.) (citing Tex. Fam. Code § 81.009 ). The cou rt also observed that Bird did4

not file his motion to vacate in the county court within th at court ’ s plenary p o wer . Id. at * 3 (citing Tex. Fam. C ode § 85.0 25(b) ).

Meanwhile, Led esma filed in Bell County a motion to enforce the temporary orders. A t the conclusion of a hearing held in November 2019, the Bell County district court
state d that it was declin ing to ho l d Bird in contempt but was gr ant ing judgment in favor of Ledesm a fo r $13,665.16 in child support and $3,500 in attorney ’ s fees

. The Bell C ounty court directed the parties to prepare an order for signature , but no such order appears in the mandamus record

. In December 2 019, Bird file d a mo tion to vacate the Bell Coun ty district court ’ s order , but he says no action has been taken on his motion

. 2

DISCUSSION In this mandamus , Bird asks us to : (1) vacate the Houston County district c ourt ’ s temporary orders , s igned in Sept ember 2017 ; (2) vacate the Bell County district c ourt ’ s November or December 2019 order ; and (3) grant relief from the Houston C ounty court at law ’ s Feb ruary 2019 protective order

.

T he protective ord er was issued in a suit separate from the SA PCR by the Houston County court at law , which is outside of our appel late district, and we there fore lack jurisdiction over that o rder

. S ee Tex. Gov ’ t Code § 22.221(b) ( court of appeals has mandamus jurisdiction over judge s “ in the court of appeals dist ri ct ” ) ; In re Washington , No. 03

- 19

- 0041 5

- CV, 2019 WL 2998588, at *1 (T ex. App.

— Austin July 9, 201 9 , orig. proceeding) (mem. op. ) ( “ This Court does not have mandamus jurisdiction over any court official s of Cooke County,

2 I n Feb ruary 2020, Bird filed in this Court a notice of appeal from the Bell County o rder on Ledesma ’ s motion t o enforce . That appeal is s till p ending

. Also i n Feb ruary 2 020, he filed in the Houston C ounty court at law a motion to dis solve the protective order , and Bird asserts that no action has been taken on that motion

.5

which lies outside of our appellate d istrict

. ” ) ; In re Mack , No. 03

- 19

- 0037 4

- CV, 2019 WL 2384153, at *1 (T ex. App.

— Aust in June 6, 201 9 , orig. proceeding ) (mem. op. ) ( “ This Court does not have mandamus jurisdiction over any court officials of Anderson County, which lies outside of our appell at e district. ” )

. N or has Bird demonstra ted that the exercise of our wr it power is necessar y to en force our appellate jurisdiction. S ee Mack , 2019 WL 2384153 , at *1

.

We next consider Bird ’ s challenge to the temporary orders, which were issued by the Houst on County district co urt and then transferred to our jurisdiction when the suit a f fecting the pare nt

- child relationship ( SAPCR ) was transferred to Bell County. M andamus is an appropriate remedy when a trial court abuses its discretion in issu ing temporary o rders in a SAPCR

. See, e.g. , I

n re Mays

- Hooper , 189 S.W.3d 777, 778 (Tex. 2006) (orig. proceedi ng) ; In re Lewin , 149 S.W.3d 727, 734 (Tex. Ap p.

— Austin 2004 , orig. proceeding ) ; In re Vernor , 94 S.W.3d 201, 209

- 10 (Tex. App.

— Austin 2002 , orig. proceeding )

.

Initially, we disagree with Bird that the temporary orders issued by Houston County and transfer red to Bell County ar e void . T he family code explicitly gives a transferring court jurisdiction to enter temporary order s “[d]uring the transfer of” a suit a ff ecting the parent

ch ild re lationship and that jurisdiction does not terminate until the case is docket ed in the transferee court. Tex. Fa m. Code § 155.005 ; se e In re Estes , No. 07

- 17

- 00225

- CV, 2017 WL 3122359, at *3 (Tex. App.

— Amarillo July 19, 2017 , orig. proceeding) (mem. op. ) (“A manda tory duty to do something is not the functional equivalent of actually doing that thing. Therefore, bec ause the trial court never entered an order transferring venue, . . . [the t rial court] retained jurisdiction to en ter temporary orders in ac cordance wi th the provisions of the Texas Family Code.”)

. B ecause th e Houston Co unty district court had jurisdiction to enter the temporary orders, t he orders are not void even if the cause should have bee n transferred to Bell6

Co u nty well before the written orders were signed

. See Tex. Fam. Code § 155.204(c) ; but see In

re L.C.R. , No. 01

- 19

- 00667

- CV, 2020 WL 3456595 , at *4 (Tex. App.

— Houston [1st D ist.] June 25, 2020 , orig. proceeding ) (mem. op.) ( trial court must transfer SA PCR i f mandatory

- transfer

r equirements are met, even if enforcement action is pending , and a cting on “ pending enforcement action before ordering mandatory transfer is an abuse of discretion ” ) ; Fitzgerald v. Fitzgerald , No. 14

- 12

- 00086

- CV, 2013 WL 269040, a t * 3 (Tex. App.

— Houston [14th Dist.] Jan. 24, 201 3, no pet. ) (mem. op.) (“the trial court had a st atutory, ministerial d uty to transfer venue

an d thus lacked discretion to make further rulings in the case” )

.

However, a lthough the Houston County d istrict co urt had jurisdiction to enter the temporar y orders, a review of the record shows that the court la cked sufficient evidence to support changi ng the right t o e stablish A.B. ’ s primary residence from Bird to Ledesma

.

A s relevant here, w hile a suit for modifica tio n is pending, a court may not rende r temporary order s changing the pe rson with the exclusive ri ght to designat e the child ’ s primary resid ence unless su ch a ch ange is in the child ’ s best interest and “ the order is necessary because the child ’ s present ci rcu mstances would significantly impair the child ’ s physical hea lth or emotional development

. ” Tex . Fam. Cod e § 156.006 (b)(1)

. 3 T he “ signifi cant impairmen t ” standard is a high one

— exceed ing the usual best

- interest standard

— and requires evidence of a paren t ’ s bad acts beyond a violation of a divorce decree or attempts to alienat e the ch ild from the oth er parent. See , e.g. , In re Coker , No. 03

- 17

- 00862

- CV, 2018 WL 700033, at *4 (Tex. A pp.

—

3 S ection 156.006(b)( 3) allows a trial c ourt to change the parent wi th pri mary - residence rights if the change is in the child ’ s be s t interest and “ the child is 12 ye ars of ag e or older and has expressed to the court in chambers

. . . the child ’ s preference ” of who should have primary

residence r ight s . Tex. Fam. Code § 156 .006(b )(3)

. However, because A.B. was eleven at the time of t he hearing on temporary orders , sec tion 156. 006(b)( 3) does not apply

.7

Austin Jan . 23, 2018 , orig. proceeding ) (mem. op. ) ; In re Charles , No . 0 3

- 17

- 00731

- CV, 2017 WL 5985524, at *4 (Tex. App.

— Austin Dec. 1, 2017 , orig. pr oceedi ng ) (mem. o p.)

.

During its hearing on temporary orders , th e court made the following statements:

“ I think that y ’ a ll both are good parents, and I think that y ’ all have d one an exceptional job ”;

“ [t] here are things that I have heard about dad ’ s household th at she like s and she doesn ’ t like ” ; “ I have heard things about mom ’ s household she likes and she doesn ’ t like, but th at ’ s an 1 1

- year old child ”; A.B. “ feels good at both ho useholds ”; A.B. “ wants to be at both places at the same time ” ; “ [b] oth households are appropria t e ” ; and , “ I think she feels that it ’ s mom ’ s tim e, because l ast year was dad ’ s time. ” The co urt concluded , “ On a temporary basis, I ’ m going to leave her he re . I ’ m going to let you sort out the visitation. ” For reasons that are not explained in the

recor d, the court did not sign its written temporary orders until about a year later, in September 2017 , changing the p arent with exclusive right to designate A.B. ’ s primary residen c e from Bird to Ledesma

. This is an unusual case . However, t he reporter ’ s record f rom the he aring on temporary orders establish e s that the Houston C o unty district court did not hear evidence t hat could su pport a primary

- residence change under section 156.006(b)(1)

. See Tex . Fam. Cod e § 156.006 (b)(1) ; Coker , 2018 WL 700033, at *4

- 6 ; In re Rusch , No. 03

- 18

- 00163

- CV, 2018 WL 2123384, at *7 (Tex. App.

— Aus tin May 9, 2018 , orig. proceeding ) (mem. op. )

. Indeed, the
court stated that both parents were appropriate , that the child was s afe and happy in both homes, and that both Bird and Ledesma were doing a good jo b as pa rents. G i ven the overall circumstances of this case and the lack of evidence that could support the m odifi cation of primary

- residence rights, we hold tha t the Houston C oun ty distr ict court abuse d its discretion in the portion of the temporary orders that chang ed th e award of those rights from Bird to Ledesma.8 As for the Bell County district court ’ s order , apparently ruling on Ledesma ’ s motion to enforce r elated to child sup port , Bird has not provided a written order and has only in cluded an excerpt from th e report er ’ s record from the November 25, 2019 hearing

— the final two pages in which the trial court ma k es its ruling stating that it would not find Bird in contempt but wou ld “ grant a judgment for $13,665.16 for child support due as of today's date 11/25/19. ” H owev er, because the Houston County court at law erred in changing the child ’ s primary residence, it follows that Bird s hould have continued as custodial parent and sho uld not have been ordered to pay child support to Ledesma.
CONCLUSION T he record es tablish es error amounting to an abuse of discretion in the tempora ry orders signed by the Housto n County district court in September 2017 , transferred to Bell County, an d ap parently made the basis of the Bell Co unty district court ’ s enforcement o rder. W e lack juris diction to address Bird ’ s complaints related to the pr otective order issued by the Houston County court at law

. We therefore conditionally grant relief in par t in the for m of
vacat ing th e portion s of the temporary orders that awarded the exclusive right t o designate A.B. ’ s primary residence to L e desma and ordered Bird to pay child support to Ledesma

. Given the circumstances of this c ase, we are confident that t he Bell County district court , to which

con ti nuing jurisdicti on was transferr ed , will consi der t he pet ition to modify and the parties ’ other motions and make appropriate orders in a timely manner

.

________________________________ __________ Jef f Rose , Chief Justice9

Before Chief Just ice Rose , Justices Baker and K elly Filed: December 3, 2020