(dissenting).
I respectfully dissent. It is my opinion that the appellants’ plea of privilege should have been sustained.
We are concerned only with cause No. 19,987 for the reason that a suit seeking to re-litigate the custody of children based on changed conditions is a new and independent cause of action from the original suit for divorce. Also, the controverting affidavit filed in the original suit, cause No. 18,962, was not filed within the time limit permitted by the Rules of Civil Procedure, and there being no pleading and proof of good cause for such late filing, the court had no choice but to sustain the plea of privilege. Southern Insurance Company v. Rogers, Tex.Civ.App., 342 S.W.2d 135.
This being a suit to re-litigate the custody of minor children, whose custody had already been adjudicated at a term of court which had expired, the venue is controlled by the general law of venue. Duncan v. Duncan, Tex.Civ.App., 300 S.W.2d 149; Cade v. Jones, Tex.Civ.App., 289 S.W.2d 787; Fox v. Fox, Tex.Civ.App., 281 S.W.2d 122; Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Fitzgerald v. Neutze, Tex.Civ.App., 348 S.W.2d 677 (El Paso, 1961). Venue in such cases lies in the county of the residence of the person having legal custody. Lakey v. McCarroll (supra) ; Ellington v. Floyd, Tex.Civ.App., 255 *444S.W.2d 948; Taylor v. Taylor, Tex.Civ.App., 348 S.W.2d 226; Leonard v. Leonard, Tex.Civ.App., 358 S.W.2d 721. As I understand the majority opinion, it is based on custody being in the grandmother at the time of institution of suit. Or, that she being a party defendant and a resident of the county of suit, then venue is proper as to the other defendant-appellant under exception 4 of Article 1995. As to the first proposition, it is to be noted that there existed a valid and final judgment placing permanent custody in appellant, such custody to begin on January 25th. Custody was to be in the grandmother until that date. The father filed this suit on January 15th, and in February he filed his amended petition which was the basis of his controverting affidavit. It is my position that, at the time of the filing of this amended petition and at the time of the hearing thereon, custody was, by the final judgment, in appellant. Venue is determined by the facts as they exist at the time the plea is heard, Phipps v. Reed, Tex.Civ.App., 219 S.W.2d 561; Midlothian Oil & Gin Co. v. Commercial Standard Ins. Co., Tex.Civ.App., 120 S.W.2d 518 (El Paso, 1938) ; Avery v. Llano Cotton Seed Oil Mill Ass’n., Tex.Civ.App., 196 S.W. 351 (err. ref.). The venue question at the time of hearing was simply: Who had legal custody? To me, the answer is “appellant”, by virtue of the final judgment. That venue fact could not have been changed by any temporary stay order of the court entered in the dormant original suit for divorce, nor in this suit.
As to the second proposition, it appears to me to be a legal fiction to permit the father to maintain venue against the mother by making the grandmother a party defendant in a suit filed ten days before the grandmother’s custody expired by the terms of the final judgment. An essential venue fact under exception 4 of Article 1995 is that plaintiff has a bona fide claim against the resident defendant. In the case before us the plaintiff-father alleged no cause of action against the resident defendant-grandmother in the first place; and, in the second place, I fail to see how he could have had a bona fide cause of action against her, for such custody as she had would have expired within ten days of the filing of his suit. He could not expect to have her and the other defendant (the mother) in court for twenty days. Also, the nature of his suit was for change of the permanent custody portion of the judgment, and sought no action for the ten-day period in which the resident grandmother had custody.
For the reasons stated, I would sustain the appellants’ plea of privilege.