## In the Court of Appeals Seco nd Appellate District of Texas at Fort Worth

___________________________ No. 02

- 24

- 00183

- CV

___________________________

Original Proceeding 271st District Court of Wise County, Texas Trial Court No. CV

- 22

- 08

- 593

Before Sud de rth, C .J. ; Kerr and Wallach, JJ. Memorandum Opinion by J ustice Wallach 

### I N RE 

### A.B. , Relator2 MEMORAN DUM OPINION Relator A.B. (Father) filed thi s petition for writ of man d amus se eking to compel the trial court to va cate both i ts written tempo rary restraining order prohibiting Father f rom changing the primary residence of P.B. (Child) and its oral temporary inju nction to the same effect

. 1 Real Party in Interest S.B. (Mother) w as giv en an opportunity to file a response by noon on April 29, 2024. She filed neither a
response nor a requ e st for more time by that deadline. Because the agreed divorce
d ecree did not prohi bit Father from chang ing Child ’ s primary residence an d because
Mother did not show that the move woul d significantly i mpair the chil d ’ s ph y sical health or emotional develop m ent, we conditionally grant Father ’ s pet ition.
I. BACKGROUND
Father and Mother entered an agreed divo rce decree that t he trial court signed on February 1 3, 2024

. The couple had one child, eight

- year

- old Child

. The t rial court ap p ointed Fa ther and Mother as joint managi ng con servators , and it accorded F ather the exclusive right to designate Child ’ s primar y residence
within Wise County an d contiguous counties until modified by a court order or by the partie s ’ filed wri tten agreement
. The decree, however, provided for an exception: “ It
is further ordered that th is geographic restriction on the residence of [Chil d] shall be
lif ted if, at the time [ Father ] wi s h es to remove [ Child ] fro m Wise Co unty and

1 As of the date of th is opinion, the t rial court ’ s temp orary restraining order had not yet expired and a written temporary injunction had not yet been sig ned. See Tex. R . Civ. P . 6 80.3 cont iguous counties f or th e purpo se of chan ging the primar y residence of [ Child ], [ Mother ] does not reside in Wise Cou nt y or contiguous counties. ” At the time the parties entered the agreement , F a ther and C h ild lived in Wise County , and Mother
lived in Ve rnon in Wilbarger Coun ty
. 2
Two months after the trial court signed the agreed decre e , on April 11, 202 4 , F ather ac cepted a better

- paying job in Oreg on and resigned from his j ob in Texas.
Father then filed with the cou rt on April 12 a request for a change of address

. Mot h e r resp onde d by filing on April 15 an emergency pet ition in a suit to modify the pare nt

– child relationsh ip

. I n her supporting af fidavit, Mother acknowledg ed living in Vernon

. A nd on April 16 , Mother obtained a tempor ary

restr aining order pro hibiting Father from r emovi ng Child from Wise County for
p urposes of changing her pri mary residence.
On April 22, the trial court conducted a hearing at which M o ther indicated that
she lived in Vernon in Wilbarger County

. Mother agreed that she did not pay child support and tha t Fat her was Child ’ s prim ary financial sup po rt
. Mother acknowledged
that Father was “ a good dad, ” that Father took care of Child, and that he provided Child with stability, consistency, and a routine. Mother also agreed that she was able
to communicate wit h Chi ld regularly. M other opposed the idea o f moving Child to

2 We take judicial notice that Wilbar ger County is not a county contiguous with Wise County. S ee Tex. R. Evid. 201.4 Oregon because i t would make visitations more difficu lt , because most of Child ’ s family was in Texas, and because she thought Child ’ s gra des would suffer.
D uring the April 22 hearing, Father tes tif ie d that he had enrolled Child in an Oregon school, had found a pediatrician for her, and had signed a one

- year lease on a
residence. Father was supposed to report to work in Oregon on April 22. Due to the Texas proceedings, Fathe r had to use vacation t ime. Fa ther was concerned that he
would lose hi s job if he did not report by the following week. He al so said that h is girlfriend planne d to move to Oreg on , as did his oldest daughter once she gradu ated from high school in Michigan

. Father offered to pay t he co st of travel required for
Child to visit M other once a month.
A t the close of the April 22 h ea ring , the trial court orally granted a temporary injunction prohibiting Father from removing Child from Wise County or any contiguous co unty for purposes of chang ing her primary residence.
II. DISCUSSIO N
Because a t rial court ’ s temporary orders are not appealable, mandamus is an appropriate m anner to challenge them. In re Strickland , 358 S. W.3d 818, 820 (Tex. App.

— Fo rt Worth 2012, orig. proceeding.). The part y see king mandamus relief must also show that the trial court clearly abused its disc ret ion. In re Allstate Indem . Co. , 622 S.W.3d 870, 875 (Tex. 2021) (orig. proceeding). F ather meets both requirem ents
. Because Mother did not l ive in Wise County or a co n tiguo us county, Father
had no geo graphic restriction unde r the terms of th e divorce decree. And M o ther did5 n ot show that the move would “ significantly impair [Child ’ s] physical health or emotional development. ” See Tex. F am. Co de Ann. § 156.006 (a), (b)(1) ; In r e S.B. , No.
02

- 23

- 00390

- CV, 2023 WL 8112897, at *2 (Tex. App.

— For t Worth Nov. 22, 2023, orig. proceeding); In re Walser , 648 S.W.3d 442, 446 (Tex. App.

— San Antonio 2021, orig. proceeding) ; Strickland , 358 S.W.3d at 821. Accordingly, w e hold that the t rial
court abused its discretion

. I II
. C ONCLUSION
W e conditionally g rant the writ o f mandamus . The trial court is ordered to
vacate its April 16, 202 4 temporary restraining order and its April 22, 2024 oral

te mporary injunction. In re State e x rel. Skurka , 512 S.W.3d 444, 451 (Tex. App.

— Corpus Chris ti

– Edinburg 2016, orig. proceeding) (stat in g that m andamus may be based on an oral ruling ) ; In re Bledsoe , 41 S.W.3d 807, 811 (Tex. App.

— Fort Worth 2001, orig. proceeding) (same)

. Our writ will issu e only if the tria l court fails to comply

.

/s/ Mike Wallach M ike Wallach Justice
Delivered: April 29, 2024