in Re: In the Interest of M.C.W., a Child , 2013 Tex. App. LEXIS 6151 ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00115-CV
IN RE: IN THE INTEREST OF M.C.W., A CHILD
May 16, 2013
OPINION ON ORIGINAL PROCEEDING
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Pending before the court is the petition of Tammie Imel for a writ of mandamus.
Through it, she asks us to review the order of the Hon. Abe Lopez, 140th District Court
of Lubbock County, Texas, temporarily modifying various terms and conditions of a child
custody or possession decree. Allegedly, the evidence presented at the hearing from
which the order emanated is insufficient to satisfy the statutory requirements permitting
the modification. See TEX. FAM. CODE ANN. § 156.006(b) (West Supp. 2012) (specifying
the elements authorizing modification of an order appointing the parent having the
exclusive right to designate the primary residence of the child). So, “[b]ased on the
absence of evidence to meet the criteria required for the applicable statute, the Relator
respectfully requests [this] Court to find that the trial court abused [its] discretion by
fail[ing] to apply the facts to the applicable law correctly in this case, and that this Court
order the trial court to dissolve and vacate the Temporary Orders entered in this
proceeding.” We deny the petition.
“’It is well established Texas law that an appellate court may not deal with
disputed areas of fact in an original mandamus proceeding.’” In re Angelini, 186 S.W.3d
558, 560 (Tex. 2006) (orig. proceeding); In re Thorpe, No. 07-10-00341-CV, 2010 Tex.
App. LEXIS 7681, at *3-4 (Tex. App.–Amarillo 2010, orig. proceeding) (stating that an
appellate court cannot resolve questions of fact in a mandamus proceeding). The
petition at bar effectively asks us to violate the aforementioned restrictions. Its tenor is
in the nature of an attack upon the sufficiency of the evidence underlying the trial court’s
finding regarding changed circumstances and the best interests of the child. And, while
the relator suggests otherwise, there is evidence which a rational factfinder could
interpret as satisfying those requirements. That evidence includes the child’s changing
residences and schools many times within a few short years, the child’s excessive
absences from school, the relator’s use of alcohol or other intoxicating substances, and
the child’s need for, but loss of, stability. See In the Interest of C.M.G., 339 S.W.3d 317,
321 (Tex. App.–Amarillo 2011, no pet.) (holding that stability is important to a child’s
well-being).
In short, the heart of the matter before us involves 1) a disagreement about the
quantum of weight that should be assigned to different aspects of the evidence
presented below, and 2) the credibility of witnesses. Resolution of those matters lay
with the trial court. Our authority to act via a petition for mandamus relief, therefore, is
non-existent. We also deny the motion for temporary relief as moot.
Per Curiam
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