                                    NO. 07-08-0491-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                 JANUARY 29, 2009
                          ______________________________

                              IN RE MEGAN LEE DOZIER,

                                                       Relator
                          _______________________________

                                      Dissent
                          _______________________________


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

       I respectfully dissent from the majority opinion and would deny the application for

writ of mandamus.

       Dozier and Brian Barkley, a married couple who had a child together, were divorced

via a lawsuit filed in Potter County. Dozier and the child allegedly had been living in Cottle

County since the filing of the divorce petition. After doing so, she eventually filed a motion

requesting the Potter County Court to modify aspects of the divorce and custody decree.

So too did she move to transfer venue of the matter to Cottle County since she and the

child purportedly had lived in that county for at least six months prior to initiation of the

proceeding. The trial court convened an evidentiary hearing to consider the transfer
request and ultimately denied it. Dozier believed this to be an abuse of discretion given

the terms of the applicable venue statute.1

         Underlying the trial court’s determination is the question of whether or not Dozier

and the child had resided in Cottle County for the requisite period of time before seeking

transfer. Though Dozier testified that they did, other evidence illustrated that the Cottle

County house she supposedly lived in was vacant, that she periodically stayed with her

boyfriend in a neighboring county, and that she told Barkley that she had a new address

in Randall County. Thus, the trial court was obligated to consider the credibility of the

parties, weigh the evidence and decide if the child had indeed lived in Cottle County for the

last six months. And, because it did, I would deny mandamus because an appellate court

may not grant such relief when resolution of a fact issue underlies the trial court’s decision.

Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787, 789 (Tex. 1996) (prohibiting an

appellate court from disturbing a trial court’s factual determinations via an original

mandamus proceeding); Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.

1990) (recognizing that an appellate court may not deal with disputed issues of fact via a

mandamus proceeding).



                                                                Brian Quinn
                                                                Chief Justice




         1
           According to that provision, “[i]f a suit to m odify . . . is filed in the court having continuing, exclusive
jurisdiction of a suit, on the tim ely m otion of a party the court shall . . . transfer the proceeding to another
county . . . if the child has resided in the other county for six m onths or longer.” T E X . F AM . C OD E A N N .
§155.201(b) (Vernon 2008) (em phasis added).

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