                                          NO. 07-09-0180-CV

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL C

                                       AUGUST 10, 2009
                               ______________________________

                                In re BRIAN FREEMAN BARKLEY,

                                                          Relator
                             ________________________________

                               Original Proceeding on Mandamus
                              _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                        If Mom and Dad want to play ping pong, so be it;
                                I just don’t want to be the ball.1

      Pending before the court is an application from Brian Freeman Barkley for a writ of

mandamus. The matter spawns from the divorce between Barkley and Megan Dozier.

During the marriage, the two had one child who is the indirect subject of this proceeding.

Both parents were appointed the child’s joint managing conservators. Dozier, however,

was authorized to designate the child’s primary residence so long as it was within Potter

or Randall County. Eventually, Dozier moved to Cottle County with the child and petitioned

to have the Potter/Randall geographic restriction modified.        In turn, Barkley sought

sanctions and an order holding her in contempt. Via a “temporary order,” Dozier was held



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          A perspective from a child of a broken hom e.
in contempt but freed from limiting the child’s primary residence to either Potter or Randall

counties. The trial court allowed her to designate a primary residence within 150 miles of

those counties. That resulted in Barkley petitioning for mandamus.

       Frankly, we do not know of the particular relief sought by Barkley. He disputes the

validity of the trial court’s “temporary order” and posits that the trial court should not have

conducted a hearing. Yet, instead of suggesting what we should direct the trial court to do,

he simply asks that his petition be granted and that he be awarded such other relief to

which he may be entitled. Despite this omission, we assume that he wants us to direct the

trial court to withdraw its “temporary order.” We deny the invitation to do so for several

reasons.

       Regarding his first complaint, Barkley suggests that the trial court should not have

held a hearing on Dozier’s request to broaden the geographic restriction because she

neglected to attach an affidavit to her petition. Purportedly, §156.102 of the Texas Family

Code required her to do so as a prerequisite to receiving an evidentiary hearing. That

statute applies to actions wherein one “seek[s] to modify the designation of the person

having the exclusive right to designate the primary residence of a child” and obligates the

petitioner to “execute and attach an affidavit” to the petition. TEX . FAM . CODE ANN .

§156.102(a) (Vernon 2008).        Additionally, the affidavit must contain one or more

allegations itemized in the statute. Those allegations along with the purported facts

accompanying them are the indicia to be used by the trial court to determine whether an

evidentiary hearing is warranted. That is, if the affidavit contains “facts adequate to

support” one or more of the requisite statutory allegations, then the trial court must

schedule the matter for hearing. If not, then it may not. Id. §156.102(c).

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       Whether a petition to expand geographic restrictions like that involved here is an

effort to “modify the designation of the person having the exclusive right to designate the

primary residence of a child” is something we need not address. This is so because the

issue before us is moot. See In re H & R Block Financial Advisors, Inc., 262 S.W.3d 896,

900 (Tex. App.–Houston [14th Dist.] 2008, orig. proceeding) (stating that an issue is moot

when its resolution is no longer relevant). As previously mentioned, the legislature

specified that the affidavit was to be used as a means of determining whether a hearing

should be held. Since the trial court actually held the hearing, whether it should hold such

a hearing is no longer relevant. Indeed, we analogize the situation to one involving a

summary judgment. If a trial court was to grant a partial summary judgment in absence of

the necessary evidentiary support but then try the same issue and enter judgment based

upon the evidence tendered at trial, it no longer matters whether the evidence supported

the summary judgment. This is so because the issue was resolved at trial as opposed to

some preliminary procedure which exists for the purpose of assessing whether a trial is

needed. So, other than being an academic exercise, it matters not whether evidence

exists to warrant a hearing when the court actually holds the hearing and resolves the

dispute upon the evidence there tendered. And, that happened here.

       Second, because the trial court convened the aforementioned evidentiary hearing,

we are precluded from addressing Barkley’s second issue. The last encompasses whether

there was some evidence to support the trial court’s decision to modify the geographic

restriction. Because evidence appears of record creating a fact issue for the trial court to

decide (e.g. Dozier’s recent marriage to someone who lives and works outside Potter and

Randall counties), we cannot, through mandamus, address whether the evidence was

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sufficient to support that decision. See In re Acadia Ins. Co., 279 S.W.3d 777, 779 (Tex.

App.–Amarillo 2007, orig. proceeding) (holding that an appellate court cannot issue a writ

of mandamus where the trial court’s decision is based upon disputed evidence).

      Accordingly, the petition for writ of mandamus is denied.



                                                Brian Quinn
                                                Chief Justice




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