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Chapter 4

Chapter 4 

Divorce—Temporary Orders

§ 4.1Temporary Orders Generally

If the domicile and residency requirements are not met, any temporary orders the court renders will fail an appellate challenge. Section 6.301 of the Texas Family Code pro­vides that a suit for divorce may not be maintained in Texas unless at the time the suit is filed either the petitioner or the respondent has been (1) a domiciliary of Texas for the preceding six-month period and (2) a resident of the county in which the suit is filed for the preceding ninety-day period. See Tex. Fam. Code § 6.301.

Numerous courts have held that Code section 6.301 is not jurisdictional, but it controls a petitioner’s right to sue for divorce; in other words, it is a mandatory requirement that cannot be waived. In re Paul, No. 10-16-00004-CV, 2016 WL 2609599, at *2 (Tex. App.—Waco May 5, 2016, orig. proceeding) (mem. op.). Because section 6.301 is mandatory and cannot be waived, if a court abuses its discretion in determining that the ninety-day residency requirement was met, any judgment, including temporary orders, the court renders would eventually be reversed. To avoid the waste of public and private resources invested into the proceedings, an appellate court may grant a petition for mandamus that effectively vacates all the trial court’s findings and temporary orders. See In re Paul, 2016 WL 2609599, at *4.

Property and Parties:      During the pendency of a suit for divorce, the parties may request many types of relief relating to the property of the parties and protection of the parties from the court, and the court may grant such relief as deemed equitable and nec­essary. On the motion of a party or on the court’s own motion after notice and hearing, the court may render an appropriate order, including:

1.Temporary injunctions for the preservation of assets and protection of the par­ties.

2.Temporary orders for spousal support.

3.Temporary orders for the payment of community debt.

4.Orders for interim attorney’s fees and expenses.

5.Discovery orders and an order setting the deadline for the filing of the parties’ sworn inventories.

6.Orders for appraisal of assets.

See Tex. Fam. Code § 6.502(a).

Children:      In a suit affecting the parent-child relationship, the court may make or modify a temporary order for the safety and welfare of the child, including orders—

1.for the temporary conservatorship of the child,

2.for the temporary support of the child,

3.restraining a party from disturbing the peace of the child or another party,

4.prohibiting a person from removing the child beyond a geographical area iden­tified by the court, or

5.for payment of reasonable attorney’s fees and expenses.

Tex. Fam. Code § 105.001(a).

In addition, the court may make orders for—

1.psychological evaluation of the parties, relative to the issues of conservatorship and possession of the children (see Tex. R. Civ. P. 204.4);

2.preparation of a child custody evaluation relative to the issues of conservator­ship of, possession of, and access to the children (see Tex. Fam. Code § 107.103); and

3.appointments of representatives for children in a conservatorship dispute (see Tex. Fam. Code § 107.001 et seq.).

An order may not be entered for temporary conservatorship of a child (except in an emergency order sought by a governmental entity under chapter 262), for temporary support of a child, or for payment of reasonable attorney’s fees and expenses, except after notice and hearing. Tex. Fam. Code § 105.001(b), (h). Absent a finding supported by evidence that the safety and welfare of a child will be significantly impaired by the appointment of a parent as the child’s managing conservator, the parent’s decision regarding whether the child will have any contact with third parties is a fundamental right of a parent, and it is unconstitutional for the trial court to enter temporary orders appointing third parties as temporary possessory conservators. In re Aubin, 29 S.W.3d 199, 203–04 (Tex. App.—Beaumont 2000, orig. proceeding).

A temporary order in a suit affecting the parent-child relationship rendered in accor­dance with Family Code section 105.001 is not required to include a temporary parent­ing plan. The court may not require the submission of a temporary parenting plan in any case or by local rule or practice. Tex. Fam. Code § 153.602.

Child Custody Evaluation:      In a suit affecting the parent-child relationship, the court may order the preparation of a child custody evaluation regarding (1) the circumstances and conditions of the child, a party to the suit, and, if appropriate, the residence of any person requesting conservatorship of, possession of, or access to the child and (2) any issue or question relating to the suit at the request of the court before or during the eval­uation process. Tex. Fam. Code § 107.103(a).

Child custody evaluations are discussed in section 40.19 in this manual.

Parent Education and Family Stabilization Course:      In a suit affecting the parent-child relationship, the court may order the parties to attend a parent education and fam­ily stabilization course if the court determines that the order is in the best interest of the child. Tex. Fam. Code § 105.009(a). For additional information on this topic, see sec­tion 40.24 in this manual.

Counseling:      While a divorce suit is pending, the court may, in its discretion, direct the parties to counsel with a person named by the court. Tex. Fam. Code § 6.505(a). If the parties ordered to counseling are the parents of a child under eighteen years of age, the counseling shall include counseling on issues that confront children who are the subject of a suit affecting the parent-child relationship. Tex. Fam. Code § 6.505(e).

Mental Health Evaluation:      Additionally a party may request mental health evalua­tions of the parties, relative to the issues of conservatorship and access to children. See Tex. R. Civ. P. 204.4. For additional information on discovery, see chapter 5 of this manual.

Appointments in Suits Affecting the Parent-Child Relationship:      In a suit in which the best interests of a child are at issue, other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child, the court may appoint one of the following: an amicus attor­ney, an attorney ad litem, or a guardian ad litem. Tex. Fam. Code § 107.021(a). For additional information on such appointments, see chapter 13 of this manual.

Appeal of Temporary Orders:      An order issued under Family Code chapter 6, sub­chapter F, except an order appointing a receiver, is not subject to interlocutory appeal. Tex. Fam. Code § 6.507. Temporary orders in suits affecting the parent-child relation­ship entered under section 105.001 are not subject to interlocutory appeal. Tex. Fam. Code § 105.001(e). Matters relating to receiverships and injunctions against third par­ties have special rules and, in certain instances, can be appealed. See Querner v. Querner, 668 S.W.2d 801, 802 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.) (per curiam). Since temporary orders are not subject to an interlocutory appeal, mandamus is an appropriate remedy when a court abuses its discretion. Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding) (per curiam); In re Cooper, 333 S.W.3d 656 (Tex. App.—Dallas 2009, orig, proceeding); In re Lemons, 47 S.W.3d 202, 203–04 (Tex. App.—Beaumont 2001, orig. proceeding) (per curiam). For additional informa­tion on mandamus issues, see chapter 27 of this manual.

Transfer:      During the transfer of a suit affecting the parent-child relationship from a court with continuing, exclusive jurisdiction, the transferring court retains jurisdiction to render temporary orders. Jurisdiction terminates when the transferee court dockets the case. Tex. Fam. Code § 155.005; see also Bigham v. Dempster, 901 S.W.2d 424, 430 (Tex. 1995) (orig. proceeding). The definition of “docketing” should be consistent with the purpose of expediting the transfer process. A transfer case is “docketed” when the traditional legal meaning of the event has occurred, rather than when all certified document copies have been ministerially sent (expressly by the clerk, not someone else). The jurisdiction of the court does not turn on whether, or with what diligence, a clerk performs a ministerial duty to forward court documents. Bigham, 901 S.W.2d at 430–31.

Stay for Military Service:      A stay may be granted under certain circumstances to a party who is in military service or has separated from service within ninety days. See the discussion at section 19.4 in this manual.

§ 4.2Temporary Restraining Orders and Temporary Injunctions

After a suit for divorce is filed, on the motion of a party or on the court’s own motion, the court may grant a temporary restraining order without notice to the adverse party for the preservation of the property and for the protection of the parties as necessary. Tex. Fam. Code § 6.501(a).

A temporary restraining order may not include a provision concerning a requirement, appointment, award, or other order listed in section 64.104 of the Texas Civil Practice and Remedies Code (concerning receiverships) or include a provision that excludes a spouse from occupying the residence where that spouse is living (except as provided in a protective order under title 4), prohibits a party from spending funds for reasonable and necessary living expenses, or prohibits a party from engaging in acts reasonable and necessary to conduct that party’s usual business and occupation. Tex. Fam. Code § 6.501(b). Only in the context of a temporary ex parte protective order under Family Code section 83.006 may the court exclude a spouse from the marital residence. See Tex. Fam. Code § 83.006. For additional information about protective orders, see chap­ter 17 of this manual.

COMMENT:      Although not mandated by statute, many courts have local rules requir­ing that restraining orders be mutual, restraining both the petitioner and the respondent from the enumerated acts pending a hearing. Because these requirements vary by county, and even by court within the same county, the local rules should be checked before a temporary restraining order is requested.

A temporary restraining order or temporary injunction may be granted in a divorce case without an affidavit or verified pleading stating specific facts showing that immediate and irreparable injury, loss, or damage will result before notice and hearing. Tex. Fam. Code § 6.503(a)(1).

Temporary restraining orders may likewise be issued without notice and hearing in suits affecting the parent-child relationship restraining any party from disturbing the peace of the child or another party or prohibiting a person from removing the child beyond a geographical area identified by the court. Tex. Fam. Code § 105.001(a)(3), (a)(4), (b).

A temporary restraining order or temporary injunction need not define the injury, state why it is irreparable, state why the order was granted without notice, or include an order setting the cause for trial on the merits with respect to the ultimate relief sought and in most situations may be granted without an affidavit or verified pleading. Tex. Fam. Code §§ 6.503(a), 105.001(b). However, a verified pleading or an affidavit in accor­dance with the Texas Rules of Civil Procedure is required to obtain an order attaching the body of a child, taking a child into the possession of the court or of a person desig­nated by the court, or excluding a parent from possession of or access to a child. Tex. Fam. Code § 105.001(c). A parent’s rights to the companionship, care, custody, and management of a child are constitutional interests far more precious than any property right, and the trial court must strictly comply with the Family Code when restricting a parent’s access to the child. In re Barrera, No. 03-18-00271-CV, 2018 WL 1916023, at *2 (Tex. App.—Austin Apr. 23, 2018, orig. proceeding) (mem. op.).

A typical temporary injunction can result in a criminal violation of federal law by a per­son subject to the injunction who possesses firearms or ammunition. If applicable, the federal law makes it unlawful for the person to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition that has been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 922(g). The statute applies to a person who is subject to a court order that—

1.was issued after a hearing of which the person received actual notice and at which the person had an opportunity to participate;

2.restrains the person from harassing, stalking, or threatening an intimate partner of the person or a child of the intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

3.either includes a finding that the person represents a credible threat to the phys­ical safety of the intimate partner or child or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate part­ner or child that would reasonably be expected to cause bodily injury.

18 U.S.C. § 922(g)(8).

While a suit for dissolution of a marriage is pending and on the motion of a party or on the court’s own motion after notice and hearing, the court may render an appropriate order, including the granting of a temporary injunction for the preservation of the prop­erty and protection of the parties as deemed necessary and equitable, including prohib­iting an act described in Family Code section 6.501(a). Tex. Fam. Code § 6.502(a)(9). Section 6.501(a), dealing with temporary restraining orders in divorce proceedings, authorizes orders prohibiting one or both parties from threatening the other, by tele­phone or in writing, to take unlawful action against any person, intending by this action to annoy or alarm the other; intentionally, knowingly, or recklessly causing bodily injury to the other or to a child of either party; or threatening the other or a child of either party with imminent bodily injury. Tex. Fam. Code § 6.501(a)(2), (a)(4), (a)(5). The federal firearms and ammunition possession prohibition can apply to a person who is the subject of a Texas temporary injunction including any of those prohibitions. United States v. Emerson, 270 F.3d 203, 263–64 (5th Cir. 2001). The temporary injunc­tion must still meet the standards of section 922(g)(8). Section 922(g)(8)(A) requires an actual hearing with prior notice and an opportunity to participate, and section 922(g)(8)(C)(ii) requires that the order “explicitly” prohibit the use (actual, threatened, or attempted) of physical force that would reasonably be expected to cause bodily injury. Emerson, 270 F.3d at 261–62. Texas law regarding these temporary injunctions meets the general minimum standards for the application of section 922(g)(8)(C)(ii). Emerson, 270 F.3d at 262.

While a suit for a qualified domestic relations order or similar order (QDRO) for spou­sal maintenance or child support is pending, on a party’s motion or the court’s own motion and after notice and hearing, the court may render an appropriate order for the preservation of the pension, retirement plan, or other employee benefits and protection of the parties as the court considers necessary. Such an order may include the granting of a temporary restraining order and temporary injunction and is not subject to interloc­utory appeal. Tex. Fam. Code §§ 8.353, 157.503. See chapter 25 of this manual for a discussion of the use of QDROs for spousal maintenance or child support.

A temporary injunction prohibiting allegedly defamatory speech is an unconstitutional prior restraint. Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983) (per curiam). Although a permanent injunction requiring the removal of posted speech that has been adjudicated defamatory is not a prior restraint on free speech, an injunc­tion prohibiting future speech based on that adjudication is an infringement on free-speech rights. Kinney v. Barnes, 443 S.W.3d 87, 101 (Tex. 2014).

A court may not prohibit a person from executing a new will or a codicil to an existing will or from revoking an existing will or codicil in whole or in part. Any part of a court order that purports to do so is void. Tex. Est. Code § 253.001.

§ 4.3Extension and Expiration of Temporary Restraining Order

Every temporary restraining order granted without notice shall expire, by its terms, within such time after signing, not to exceed fourteen days, as the court fixes. Before the temporary restraining order expires, the court for good cause shown may extend the order for a like period. Also, if the party against whom the order is directed consents, the order may be extended for a longer period. The reasons for any extension must be entered of record. No more than one extension may be granted unless subsequent exten­sions are unopposed. Tex. R. Civ. P. 680; In re Hallas, No. 03-22-00413-CV, 2022 WL 3650090 (Tex. App.—Austin Aug. 25, 2022, orig. proceeding) (mem. op.) (trial court erred by granting multiple extensions of temporary restraining order without consent of opposing party). Thus, if service on the respondent or the person sought to be restrained is not had within fourteen days of the date of the signing of the restraining order, the order will ordinarily expire by operation of law, unless the court has fixed an earlier date for its expiration.

§ 4.4Hearing on Temporary Injunction

If a temporary restraining order is granted without notice, the application for a tempo­rary injunction shall be set for a hearing at the earliest possible date and takes prece­dence over all matters except older matters of the same character. Tex. R. Civ. P. 680.

Every restraining order must include an order setting a certain date for hearing on the temporary or permanent injunction sought. When the application for a temporary injunction comes on for a hearing, the party who obtained the restraining order shall proceed with the application for temporary injunction and, if he does not do so, the court will dissolve the temporary restraining order. Tex. R. Civ. P. 680.

§ 4.5Dissolution or Modification of Temporary Restraining Order

On two days’ notice to the party who obtained the temporary restraining order without notice (or on such shorter notice to that party as the court may prescribe), the adverse party may appear and move for dissolution or modification of the temporary restraining order. In that event, the court will hear and determine the motion as expeditiously as the ends of justice require. Tex. R. Civ. P. 680.

§ 4.6Form and Scope of Injunction or Restraining Order

Every order granting an injunction and every restraining order—

1.must state the order is necessary and equitable (see Tex. Fam. Code §§ 6.501, 6.502);

2.must set forth the reasons for its issuance;

3.must be specific in its terms;

4.must describe in reasonable detail (not by reference to the complaint or other document) the act or acts sought to be restrained; and

5.is binding only on the parties to the action; on their officers, agents, servants, employees, and attorneys; and on those persons in active concert or participa­tion with them who receive actual notice of the order by personal service or otherwise.

Tex. R. Civ. P. 683.

Every temporary restraining order shall include an order setting a certain date for hear­ing on the temporary or permanent injunction sought. Tex. R. Civ. P. 680. Every order granting a temporary injunction must contain an order setting the cause for trial on the merits with respect to the ultimate relief sought. Tex. R. Civ. P. 683. However, the Fam­ily Code provides that temporary injunctions issued under section 105.001 or sections 6.501 through 6.507 need not include an order setting the cause for trial on the merits with respect to the ultimate relief requested. See Tex. Fam. Code §§ 6.503(a)(2)(C), 105.001(b)(3).

§ 4.7Bond

Before the issuance of a temporary restraining order or temporary injunction, the appli­cant ordinarily must execute and file with the clerk a bond to the adverse party. Tex. R. Civ. P. 684.

In a suit for divorce, however, the court may dispense with the issuance of a bond between the spouses in connection with temporary orders for the protection of the par­ties and their property. Tex. Fam. Code § 6.503(b); Tex. R. Civ. P. 693a.

The court also may dispense with the necessity of a bond in connection with temporary orders on behalf of the child. Tex. Fam. Code § 105.001(d).

The Texas Family Code does not create a statutory exception to the bond requirement for nonparties to a family law case as it does for parties pursuant to Code sections 6.503(b) and 105.001(d).

§ 4.8Contempt Punishment for Disobedience

The violation of any temporary restraining order, temporary injunction, or other tempo­rary order is punishable as contempt. Tex. Fam. Code §§ 6.506, 105.001(f). However, use of the phrases “intent to obstruct the authority of the Court” and “in a manner that the Court deems just and right” in a temporary order stated in the exact terms of section 6.501(a)(6) (formerly section 3.58(a)(6)) was found too vague to support enforcement by contempt. Ex parte Higginbotham, 768 S.W.2d 4, 5 (Tex. App.—Fort Worth 1989, orig. proceeding).

See chapters 31 through 35 of this manual for discussions of contempt powers and pro­cedures.

§ 4.9Temporary Support of Spouse

While a suit for divorce is pending, on the motion of a party or on the court’s own motion and after notice and hearing, the court may order payments to be made for the support of either spouse until a final decree is entered, including pending appeal. Tex. Fam. Code §§ 6.502(a)(2), 6.709(a)(1). See generally Herschberg v. Herschberg, 994 S.W.2d 273 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.); Grossnickle v. Grossnickle, 935 S.W.2d 830 (Tex. App.—Texarkana 1996, writ denied). The tempo­rary support order must be based on evidence that such support is necessary and equita­ble. Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993) (orig. proceeding). However, the trustee of a spendthrift trust may not be ordered to make mandatory distributions to the spouse of a beneficiary as temporary spousal support. In re BancorpSouth Bank, No. 05-14-00294-CV, 2014 WL 1477746, at *3 (Tex. App.—Dallas Apr. 14, 2014, orig. proceeding) (mem. op.).

§ 4.10Transfer of Property and Incurring of Debt Pending Decree

A court may grant temporary restraining orders or temporary injunctions prohibiting a party from transferring property of either or both parties. Tex. Fam. Code §§ 6.501(a)(6), 6.502(a)(9).

A transfer of real or personal community property or a debt incurred by a spouse while a divorce suit is pending that subjects the other spouse or the community property to liability is void with respect to the other spouse if the transfer was made or the debt was incurred with the intent to injure the rights of the other spouse. Tex. Fam. Code § 6.707(a). A transfer or debt is not void if the person dealing with the transferor or debtor spouse did not have notice of the intent to injure the rights of the other spouse. Tex. Fam. Code § 6.707(b); see Thomas v. Casale, 924 S.W.2d 433, 437–38 (Tex. App.—Fort Worth 1996, writ denied) (wife did not establish that husband’s paramour knew about husband’s intent to defraud community estate).

§ 4.11Inventory and Appraisement

While a divorce suit is pending and on a party’s motion or on the court’s own motion after notice and hearing, the court may render an order requiring each party to file a sworn inventory and appraisement of the real and personal property owned or claimed by the parties and specifying the form, manner, and substance of the inventory and appraisal and list of debts and liabilities. Tex. Fam. Code § 6.502(a)(1). See chapter 7 of this manual for a discussion of inventory and appraisement.

§ 4.12Interim Attorney’s Fees and Expenses

While a suit for divorce is pending, on the motion of a party or on the court’s own motion after notice and hearing, the court may order payment of reasonable attorney’s fees and expenses. Tex. Fam. Code §§ 6.502(a)(4), 105.001(a)(5). The court must give notice and an opportunity to participate in an adversarial hearing before awarding interim fees against such party. Post v. Garza, 867 S.W.2d 88, 90 (Tex. App.—Corpus Christi–Edinburg 1993, orig. proceeding). The trial court has broad, though not unlim­ited, discretion in making temporary orders for attorney’s fees during the course of divorce proceedings, and the trial court’s order will not be disturbed absent an abuse of that discretion. Herschberg v. Herschberg, 994 S.W.2d 273, 277–78 (Tex. App.—Cor­pus Christi–Edinburg 1999, no pet.).

Payment of the interim attorney’s fees and expenses is enforceable by contempt and by imprisonment if the fees are characterized as spousal or child support. Tex. Fam. Code §§ 6.506, 105.001(f); In re Bielefeld, 143 S.W.3d 924, 928–29 (Tex. App.—Fort Worth 2004, orig. proceeding). The procedure for enforcement of an order by a motion for contempt is described in chapter 33 of this manual.

In Baluch v. O’Donnell, 763 S.W.2d 8, 10–11 (Tex. App.—Dallas 1988, orig. proceed­ing), the trial court was directed to set aside its order for sanctions under Tex. R. Civ. P. 215, entered for violation of an order to pay interim attorney’s fees that were unrelated to discovery. Baluch was found inapplicable, however, in Shirley v. Montgomery, 768 S.W.2d 430, 433 (Tex. App.—Houston [14th Dist.] 1989, orig. proceeding), in which payment had been ordered made to the child’s guardian ad litem as security for costs and in which the evidence showed that the order was to allow the ad litem to conduct discovery. In TransAmerican Natural Gas Corp. v. Mancias, 877 S.W.2d 840, 844 (Tex. App.—Corpus Christi–Edinburg 1994, orig. proceeding), the court interpreted Texas Rule of Civil Procedure 143 to apply only to costs already accrued and disallowed a deposit for costs to be accrued in the future. In Saxton v. Daggett, 864 S.W.2d 729, 734–36 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding), the court discussed sanctions imposed for failure to pay interim attorney’s fees.

§ 4.13Other Temporary Orders

For a discussion of other items of ancillary relief that may be sought, through the appointment of a master in chancery, an auditor, a receiver, or a mental health evaluator, see chapter 8 of this manual.

§ 4.14Associate Judge

The judge of a court having jurisdiction of suits under title 1, 4, or 5 or chapter 45 of the Family Code may appoint a full-time or part-time associate judge if the commissioners court of a county in which the court has jurisdiction has authorized employment of an associate judge. Tex. Fam. Code § 201.001(a). The judge may refer to the associate judge any aspect of a suit involving a matter in the court’s jurisdiction under title 1, 4, or 5 or chapter 45, including any matter ancillary to the suit. Tex. Fam. Code § 201.005(a).

Except as limited by the order of referral, an associate judge has the power to render and sign a temporary order, and such an order constitutes an order of the referring court. Tex. Fam. Code § 201.007(a), (c).

Hearing before Judge:      Any party may request a de novo hearing before the referring court by filing with the clerk of the referring court a written request not later than the third working day after the date the party receives notice of the substance of (1) the associate judge’s report or (2) the rendering of the temporary order, if the request con­cerns a temporary order rendered by an associate judge. Tex. Fam. Code § 201.015(a). In calculating the period, the first day is excluded and the last day is included. See Tex. Gov’t Code § 311.014; Peacock v. Humble, 933 S.W.2d 341, 342 (Tex. App.—Austin 1996, orig. proceeding) (per curiam).

Caveat:      Tex. Fam. Code § 201.015(a) does not apply if the case is heard by a master in a court designated under Tex. Gov’t Code § 23.001 as a juvenile court. The Govern­ment Code does not provide for a mandatory de novo hearing of a master’s recommen­dation. In re Smith, 260 S.W.3d 568 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).

A request for a de novo hearing must specify the issues that will be presented to the referring court. Tex. Fam. Code § 201.015(b). Notice must be given to opposing coun­sel. Tex. Fam. Code § 201.015(d). The referring court, after notice to the parties, must hold the de novo hearing within thirty days of the filing of the initial request. Tex. Fam. Code § 201.015(f). However, a referring court’s failure to hold a de novo hearing within thirty days, as required by the Family Code, does not deprive the referring court of jurisdiction. See Lopez v. Lopez, 995 S.W.2d 896, 897 (Tex. App.—El Paso 1999, no pet.).

Pending a de novo hearing before the referring court, a proposed order of the associate judge is in full force and effect and is enforceable as an order of the referring court, except for an order providing for the appointment of a receiver. Tex. Fam. Code § 201.013(a). Once a de novo hearing is conducted and a final order is issued, the asso­ciate judge’s proposed order no longer has any effect. In re I.D.Z., 602 S.W.3d 1, 8 (Tex. App.—El Paso 2020, no pet.). Section 201.013(c) concerns orders by an associate judge for the temporary detention or incarceration of a witness or party. See Tex. Fam. Code § 201.013(c).

§ 4.15Motion to Modify Temporary Orders

A motion to modify temporary orders may be filed at any time during the pendency of a suit. See Tex. Fam. Code §§ 6.501(a), 6.502(a), 6.505(a), 105.001(a). Unless presented during a hearing or trial, any pleading, plea, motion, or application to the court for an order, whether in the form of a motion, plea, or other form of request, shall be filed with the court clerk in writing, shall state the grounds therefor, shall set forth the relief or order sought, shall be at the same time served on all other parties, and shall be noted on the court’s docket. An application to the court for an order and notice of any hearing on the request that is not presented during a hearing or trial shall be served on all other par­ties not less than three days before the time specified for the hearing, unless otherwise provided by the Texas Rules of Civil Procedure or shortened by the court. Tex. R. Civ. P. 21(b).

Pursuant to section 105.001(a) of the Family Code, before modifying a temporary order, a court must consider whether the requested modification is necessary for “the safety and welfare” of the child. In re McPeak, 525 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding) (citing In re Casanova, No. 05-14-01166-CV, 2014 WL 6486127, at *3 (Tex. App.—Dallas Nov. 20, 2014, orig. proceeding) (mem. op.)). A party who seeks to modify temporary orders, not final orders, is not required to file an affidavit that complies with Family Code section 156.102, as section 156.102 applies only to a modification of final orders. McPeak, 525 S.W.3d at 314.

COMMENT:      Some courts greatly restrict the ability to modify temporary orders, requiring affidavits to support a request before granting a hearing. Before filing a motion to modify temporary orders, the attorney should check the local rules of the county and the policy of the particular court.

§ 4.16Motion to Extend Temporary Orders

A temporary order may be extended on written motion of any party. See Tex. Fam. Code §§ 6.501(a), 6.502(a), 105.001(a). The most common request for extension of temporary orders is to extend financial support beyond the period originally specified by the court order.

If the request for an extension pertains to a restraining order or injunction, the Texas Rules of Civil Procedure generally apply. See Tex. R. Civ. P. 680.

§ 4.17Orders Protecting against Family Violence

On the motion of a party to a suit for divorce, the court may render a protective order as provided by Family Code title 4, subtitle B. Tex. Fam. Code § 6.504. If the application for protective order is filed as a motion in a divorce suit, notice is given in the same manner as in any other motion. Tex. Fam. Code § 82.043(e). Such an order must be a separate document entitled “PROTECTIVE ORDER.” Tex. Fam. Code § 85.004. Pro­tective orders are discussed in chapter 17 of this manual.

§ 4.18Temporary Orders Pending Appeal

In a suit for dissolution of marriage, on the motion of a party or on the court’s own motion and after notice and hearing, the court may render a temporary order as consid­ered equitable and necessary for the preservation of the property and for the protection of the parties during an appeal. In addition to other matters, an order may require the support of either spouse, require the payment of reasonable and necessary attorney’s fees and expenses, appoint a receiver for the preservation and protection of the parties’ property, award one spouse exclusive occupancy of the parties’ residence pending the appeal, enjoin a party from dissipating or transferring the property awarded to the other party in the trial court’s property division, or suspend the operation of all or part of the property division that is being appealed. Tex. Fam. Code § 6.709(a).

A motion seeking an original temporary order under section 6.709 may be filed before trial and may not be filed by a party after the date by which that party is required to file the party’s notice of appeal under the Texas Rules of Appellate Procedure. Tex. Fam. Code § 6.709(h). The trial court retains jurisdiction to conduct a hearing and sign an original temporary order until the sixtieth day after the date any eligible party has filed a notice of appeal from final judgment under the Texas Rules of Appellate Procedure. Tex. Fam. Code § 6.709(i). The trial court retains jurisdiction to modify and enforce a temporary order unless the appellate court, on a proper showing, supersedes the trial court’s order. Tex. Fam. Code § 6.709(j).

On the motion of a party or on the court’s own motion, after notice and hearing, the trial court may modify a previous temporary order if the circumstances of a party have mate­rially and substantially changed since the rendition of the previous order and modifica­tion is equitable and necessary for the preservation of the property or for the protection of the parties during the appeal. Tex. Fam. Code § 6.709(k). A party may seek review of the trial court’s temporary order by motion filed in the court of appeals with jurisdiction or potential jurisdiction over the appeal from the judgment in the case, proper assign­ment in the party’s brief, or petition for writ of mandamus. Tex. Fam. Code § 6.709(l). A temporary order rendered under section 6.709 is not subject to interlocutory appeal. Tex. Fam. Code § 6.709(m).

A temporary order pending appeal enjoining a party from dissipating or transferring the property awarded to the other party in the trial court’s property division may be ren­dered without the issuance of a bond between the spouses or an affidavit or a verified pleading stating specific facts showing that immediate and irreparable injury, loss, or damage will result. The temporary order is not required to define the injury or state why the injury is irreparable or include an order setting the suit for trial on the merits with respect to the ultimate relief sought. The temporary order may not prohibit a party’s use, transfer, conveyance, or dissipation of the property awarded to the other party in the trial court’s property division if the use, transfer, conveyance, or dissipation of the property is for the purpose of suspending the enforcement of the property division that is the subject of the appeal. Tex. Fam. Code § 6.709(b).

A temporary order that suspends the operation of all or part of the property division that is the subject of the appeal may not be rendered unless the trial court takes reasonable steps to ensure that the party awarded property in the trial court’s property division is protected from the other party’s dissipation or transfer of that property. Tex. Fam. Code § 6.709(c). In considering a party’s request to suspend the enforcement of the property division, the trial court shall consider whether any relief granted under section 6.709(a) is adequate to protect the party’s interest in the property awarded to the party or the party who was not awarded the property should also be required to provide security for the appeal in addition to any relief granted under section 6.709(a). Tex. Fam. Code § 6.709(d).

If the trial court determines that the party awarded the property can be adequately pro­tected from the other party’s dissipation of assets during the appeal only if the other party provides security for the appeal, the trial court shall set the appropriate amount of security, taking into consideration any relief granted under section 6.709(a) and the amount of security that the other party would otherwise have to provide by law if relief under section 6.709(a) was not granted. Tex. Fam. Code § 6.709(e).

In rendering a temporary order that suspends enforcement of all or part of the property division, the trial court may grant any relief under section 6.709(a), in addition to requiring the party who was not awarded the property to post security for that part of the property division to be suspended. The trial court may require that the party who was not awarded the property post all or only part of the security that would otherwise be required by law. Tex. Fam. Code § 6.709(f).

Section 6.709 does not prevent a party who was not awarded the property from exercis­ing that party’s right to suspend the enforcement of the property division as provided by law. Tex. Fam. Code § 6.709(g).

Similarly, the court may make any order necessary to preserve and protect the safety and welfare of a child. In addition to other matters, the court may appoint temporary conservators for the child and provide for possession of the child, make orders for tem­porary support, enter restraining orders, prohibit a person from removing the child beyond a certain geographical area, require payment of reasonable and necessary attor­ney’s fees and expenses, or suspend the operation of the order or judgment that is being appealed. Tex. Fam. Code § 109.001(a). An award of appellate attorney’s fees in a suit affecting the parent-child relationship is not required to be conditioned on a successful appeal. In re Mansour, 360 S.W.3d 103, 108–09 (Tex. App.—San Antonio 2020, orig. proceeding); In re Jafarzadeh, No. 05-14-01576-CV, 2015 WL 72693, at *2 (Tex. App.—Dallas Jan. 2, 2015, orig. proceeding) (mem. op.).

A temporary order pending appeal enjoining a party from molesting or disturbing the peace of the child or another party may be rendered without the issuance of a bond between the parties or an affidavit or a verified pleading stating specific facts showing that immediate and irreparable injury, loss, or damage will result. The temporary order is not required to define the injury or state why the injury is irreparable or include an order setting the suit for trial on the merits with respect to the ultimate relief sought. Tex. Fam. Code § 109.001(b).

A motion seeking an original temporary order under section 109.001 may be filed before trial and may not be filed by a party after the date by which that party is required to file the party’s notice of appeal under the Texas Rules of Appellate Procedure. Tex. Fam. Code § 109.001(b–1). The trial court retains jurisdiction to conduct a hearing and sign a temporary order until the sixtieth day after the date any eligible party has filed a notice of appeal from final judgment under the Texas Rules of Appellate Procedure. Tex. Fam. Code § 109.001(b–2).

The trial court also retains jurisdiction to modify and enforce a temporary order unless the appellate court, on a proper showing, supersedes the court’s order. Tex. Fam. Code § 109.001(b–3). On the motion of a party or on the court’s own motion, after notice and hearing, the trial court may modify a previous temporary order if the circumstances of a party have materially and substantially changed since the rendition of the previous order and modification is equitable and necessary for the safety and welfare of the child. Tex. Fam. Code § 109.001(b–4).

The temporary orders rendered by the trial court pending appeal are not subject to inter­locutory appeal. Tex. Fam. Code § 109.001(c). A party may seek review of the trial court’s temporary order under section 109.001 by petition for writ of mandamus or proper assignment in the party’s brief. Tex. Fam. Code § 109.001(b–5).