IN RE LISA DENISE SANTOS--Appeal from 214th District Court of Nueces County

 NUMBERS 13-05-428-CV

13-05-523-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: LISA DENISE SANTOS

On Petition for Writ of Mandamus

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Chief Justice Valdez

By this opinion we grant two separate petitions for writ of mandamus filed by relator, Lisa Denise Santos.

Background

Original Suit

Relator's daughter, I.E.T., was born on December 12, 2004. At the time of I.E.T.'s birth, relator was legally married to Adelfino Medina. On December 22, 2004, real-party-in-interest Michelle Moore, claiming to be I.E.T.'s paternal grandmother, filed a "Suit Affecting Parent Child Relationship" in Nueces County, Cause No. 04 07301 C, as well as a request for a temporary restraining order preventing relator and James Tankersley, Moore's son and I.E.T.=s father, from removing I.E.T. from Moore's possession. Moore was granted interim custody by the trial court.

At the same time, relator's divorce from Medina was pending in the 79th District Court of Jim Wells County as Cause No. 04 07 42658 CV. After granting Moore interim custody, respondent transferred Moore's suit to the 79th District Court.

First Petition for Writ of Mandamus

In an effort to regain lawful custody of her daughter, Lisa filed her first petition for writ of mandamus concerning this issue with this Court. We granted her petition and held that Moore lacked standing to assert custody over the child.[1] We therefore ordered the trial court to vacate its interim temporary orders and to dismiss the underlying proceeding for lack of jurisdiction.[2] We also noted that the 79th District Court of Jim Wells County, in which the divorce case between Medina and relator is proceeding, may adjudicate the paternity of I.E.T. and issue temporary orders relating to custody.[3]

Second Petition for Writ of Mandamus

In blatant disregard of the order of this Court, Moore sought out another district court, this time the 319th District Court of Nueces County, and requested a temporary restraining order against relator, while also filing a proceeding seeking to restrain relator from taking possession of her child. This proceeding was designated as Cause. No. 05-03094-G. Relator again filed a petition for writ of mandamus with this Court as well as a request for emergency relief staying all orders pending in the 319th District Court. We granted her request for emergency relief, requested a response from Moore, and will address her writ of mandamus here.

Third Petition for Writ of Mandamus

Despite the orders of this Court, Moore refused to turn the child over to relator. Relator then filed a writ of habeas corpus with the 214th District Court of Nueces County requesting possession of her child. The proceeding in the 214th District Court was designated as Cause No. 05-3089-F. The 214th District Court held an evidentiary hearing, entered a temporary order naming relator and Moore joint managing conservators of relator=s child, and transferred the habeas corpus proceeding to the 319th District Court.

By a third petition for writ of mandamus, relator requested this Court order the 214th District Court to vacate its temporary orders and grant her writ of habeas corpus.

Analysis

Generally, mandamus relief is only available when the petitioner can show (1) the trial court committed a clear abuse of discretion or the violation of a duty imposed by law and (2) the petitioner has no other adequate remedy. See Walker v. Packer, 827 S.W.2d 833, 839 40 (Tex. 1992). Mandamus is the appropriate vehicle to challenge the trial court's temporary orders in pending family law litigation, as temporary orders under the Texas Family Code are not subject to interlocutory appeal. See Tex. Fam. Code Ann. ' 105.001(e) (Vernon Supp. 2004 05); see also In re McCoy, 52 S.W.3d 297, 301 (Tex. App.BCorpus Christi 2001, orig. proceeding). Thus, as relator has no other adequate remedy, we must determine whether the trial court committed a clear abuse of discretion.

In our previous decision in this long chain of petitions, we concluded that Moore lacked standing to file these claims for the following two reasons:

(1) The Texas Family Code provides a specific list of parties who may initiate a suit affecting the parent child relationship; these parties include parents, a guardian, and a qualified government agency, among others. See Tex. Fam. Code Ann. ' 102.003 (a) (Vernon Supp. 2004 05). Moore, who claims to be the paternal grandmother of I.E.T., is not a person qualified to initiate a suit of this nature. See id.

(2) At the time of I.E.T.'s birth, her mother was legally married to Adelfino Medina. Under Texas family law, a man is legally presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. See id. ' 160.204(a) (Vernon Supp. 2004-05). There has been no adjudication establishing that Moore=s son is indeed I.E.T.=s father. Without an official adjudication of paternity, or a valid denial of paternity filed by the presumed father, the presumption that Medina is I.E.T.'s father must stand, and Moore therefore has no legal relationship to the child.

See In re Santos, No. 13 05 345 CV, 2005 Tex. App. LEXIS 4599 at *4 5 (Tex. App.BCorpus Christi June 16, 2005, orig. proceeding) (not designated for publication).

Since we reached these conclusions, there have been no fundamental changes in the relationship of the parties nor has there been an adjudication of paternity in anyone other than Medina. Therefore, our conclusion that Moore lacks standing to file these claims relating to this child in Nueces County still stands. We reiterate, however, that the 79th District Court of Jim Wells County, in which the divorce case between Medina and relator is proceeding, may adjudicate the paternity of I.E.T, see Tex. Fam. Code Ann. ' 160.610 (Vernon 2002), and may issue temporary orders relating to possession and custody. See Tex. Fam. Code Ann. '' 105.001, 156.006 (Vernon Supp. 2004 05).

Conclusion

In Cause No. 05-03094-G, we grant relator=s petition for writ of mandamus, and we accordingly order the Honorable Thomas Greenwell, presiding judge of the 319th District Court of Nueces County, to vacate his temporary restraining order entered on June 20, 2005, and we dismiss the underlying proceeding for lack of jurisdiction.

In Cause No. 05-3089-F, we grant relator=s petition for writ of mandamus, and we accordingly order the Honorable Jose Longoria, presiding judge of the 214th District Court of Nueces County, to vacate his interim temporary orders entered June 23, 2005, and we grant relator=s petition for writ of habeas corpus giving her possession of her child.

Furthermore, given that relator=s expenses in having to retain counsel and file pleadings in multiple courts have been solely caused by Moore=s intransigence and disregard for the previous judgment of this Court, we order that Moore pay all of relator=s court costs and attorneys fees incurred for Cause Nos. 04-07301-C, 05-03094-G and 05-3089-F. See Tex. R. App. P. 43.6.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this the 29th day of August, 2005.

[1]In re Santos, No. 13-05-345-CV, 2005 Tex. App. LEXIS 4599 at *4 - 5 (Tex. App.BCorpus Christi June 16, 2005, orig. proceeding) (not designated for publication).

[2]Id. at *6.

[3]Id. at *4 n.1.