      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00844-CV



                               Veronica Chavez Vara, Appellant

                                                v.

                                    Mark S. Vara, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
     NO. D-1-FM-07-000759, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Veronica Chavez Vara appeals from the trial court’s order declaring her

a vexatious litigant, entered in the ongoing suit affecting the parent-child relationship (“SAPCR”)

between her and her ex-husband, appellee Mark S. Vara. We reverse the trial court’s order declaring

Veronica a vexatious litigant. See Tex. Civ. Prac. & Rem. Code §§ 11.001-.104.

               The Varas were divorced in 2008, and the parties have since filed numerous

motions to modify or to enforce the trial court’s decree and orders, along with motions for

sanctions. On September 23, 2012, Veronica filed a fifth motion to modify, alleging that Mark’s

income had increased since the time of the last order (issued in March 2012) and that his

visitation was infrequent and irregular and seeking an increase in child support and a modification

of Mark’s visitation schedule. Along with her motion to modify, Veronica also filed a motion

to transfer, asserting that she and the children have lived in El Paso since November 2009. On
October 24, 2012, Mark filed a document entitled “Affidavit Controverting Motion to Transfer.”

However, Mark’s affidavit did not controvert Veronica’s allegations related to transfer and

instead disputed that the parties’ circumstances had changed so as to justify Veronica’s latest

motion to modify and noted that in a June 2012 hearing, the trial court had refused to grant

Veronica’s earlier motion to transfer.1 Mark also filed a motion seeking to have Veronica declared

a vexatious litigant, and on November 9, the trial court held a hearing and considered both

motions. The court then signed two orders—one declaring Veronica a vexatious litigant and one

granting her motion to transfer.2

                In a SAPCR, a party’s motion to transfer is timely if it is filed at the time the party

files her “initial” pleading, such as a motion to modify. Tex. Fam. Code § 155.204(b). If the opposing

party seeks to contest the motion to transfer, he must file a “controverting affidavit denying that

grounds for the transfer exist” on or before the first Monday following twenty days from the filing

of the motion. See id. § 155.204(d). If no controverting affidavit is timely filed, the proceeding

“must be transferred without a hearing to the proper court” no later than twenty-one days after

the deadline for filing an affidavit. Id. § 155.204(c). Under the statutes governing the transfer of a

SAPCR, “[t]ransfer of a case to a county where the child has resided for more than six months is a

       1
           Veronica filed an earlier motion to transfer on May 11, 2012, followed by a motion to
modify on May 14. In the June hearing, the trial court denied the motion to transfer, stating that
because it was filed before the motion to modify, there was “no pleading to transfer.” Although the
parties were in dispute about whether Veronica’s motion to transfer should be considered filed
“simultaneously” with her motion to modify and whether she had waived her right to seek transfer,
the trial court said, “I don’t know that it matters but since I heard the temporary orders I’m keeping
it.” Veronica nonsuited her motion to modify and did not appeal from the trial court’s June 2012
orders, so the denial of her earlier motion to transfer was never reviewed by this Court.
       2
           Neither party complains about the trial court’s transfer of the case to El Paso.

                                                   2
mandatory ministerial duty.” Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (applying predecessor

to section 155.204).

                Veronica’s motion to transfer was filed September 23, making Mark’s affidavit due

October 15. See Tex. Fam. Code § 155.204(d). Because Mark’s affidavit (even if we can consider

it to be “denying that grounds for the transfer exist”) was not timely, the trial court had no discretion

but to transfer the SAPCR to El Paso no later than November 5. See id. § 155.204(c). The trial court

abused its discretion in failing to do so and in considering Mark’s motion to have Veronica declared

a vexatious litigant on November 9.3 See Fitzgerald v. Fitzgerald, No. 14-12-00086-CV, 2013 WL

269040, at *2-3 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, no pet.) (mem. op.) (trial court

erred in deciding motion for enforcement before granting uncontested motion to transfer; once

timely motion to transfer was filed and not contested, “the trial court had a statutory, ministerial

duty to transfer venue and thus lacked discretion to make further rulings in the case”); see also

Silverman v. Johnson, 317 S.W.3d 846, 848-49 (Tex. App.—Austin 2010, no pet.) (in SAPCR, trial

court erred in granting motion to dismiss and failing to rule on pending and uncontested motion

to transfer; “[W]hen transfer is to occur—particularly when mandatory venue lies in a different

court—the transferring court’s actions should be limited to temporary matters so that the court with

continuing jurisdiction can make the permanent decisions. The order of dismissal entered by the

district court in this case was not a temporary order.”).




        3
         Even if the trial court had the authority to consider Mark’s “controverting” affidavit, at a
hearing on a motion to transfer, “[o]nly evidence pertaining to the transfer may be taken.” See Tex.
Fam. Code § 155.204(f).

                                                   3
               We reverse the trial court’s order declaring Veronica a vexatious litigant and remand

Mark’s motion for consideration by the El Paso trial courts. See Silverman, 317 S.W.3d at 850

(reversing order granting motion to dismiss and stating, “after transfer, the [transferee] court will

have the authority to entertain Johnson’s motion to dismiss and for sanctions”).



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Rose, and Goodwin

Reversed and Remanded

Filed: July 23, 2014




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