in Re Megan Lee Dozier, Relator ( 2009 )

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).
2