### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00844- CV

Ver onica Chavez Var a, Appellan t

v. Mark S. Vara, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -F M- 07- 0007 59, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Veronica Chavez Var a appeals from the t rial cour t ’s order declaring her a vexatious lit iga

nt, e ntere d in the ong oing suit af fec ting the pa

rent-c hild relationship (“SAPCR”) betwee n her and her ex-husband, appellee Mark S. Var a. We reve rse the trial court’s order decla ring Ver onica a

vexatious l itigant. See Tex. Ci v. Prac. & Rem. Code §§ 11.001-.104. The Var as were divorce d in 2008, and the parties have since filed numerous motions to modify or t o enfor ce the trial court’s decr ee and order s, along with motions for sanctions. On September 23, 2012, Ver onica filed a fifth motion to m o dify , alleg ing that Mark’ s income had incre ased since the time of the last order (issued in Marc h 2 0 1 2 ) an d that his visitation wa s infreque nt a nd irreg ular and seeking an incre ase in child support and a modification of Mark’ s vis i t at i o n schedule

. Along with her motion to modify , Ver onica also filed a motion
to transfe r, asser

ting that she and the children have lived in El Paso since November 2009. OnOctober 24, 2012, Mark filed a docum en t enti tled “Af fidavit Controverting Motion to Transf er.” Howeve r, Mark’ s aff

idavit did not controve rt Ver onica’ s alleg ations rela ted to transfe r and instead disputed t h at t h e parties’ circ umstances had chang ed so as to justify Ver onica’ s latest motion to modify and noted that in a J u ne 2012 hear ing, the trial court had ref used to g rant Ver onica’ s ear lier motion to transfe r. Mark also filed a motion seeking to have Ver onica decla red 1

a vexatious litigant, and on November 9, the trial court held a hear ing and co n s i d er ed both motions. The court then signe d two orders

— o n e decla ring Ver onica a vexatious litigant and one g ranting her motion to transfe r. 2

I n a SAPCR, a party ’s m otion to transfe r i s timely if it is filed at the t ime the par ty f il e s h e r “ in it ia l” p le a d in g , s u c h a s a mo ti o n to mo d if y . T e x. F a

m. Co d e § 1 5 5

. 2 0 4 ( b )

. I f th e o p p o s in g party seeks to contest the motion to transfe r, he must file a “contr overting aff idavit deny ing that g rounds for the transfe r exis t” on or befor e the first Monday following twenty day s from the filing of the motion. See id. § 155.204(d). I f no controve rting aff idavit is timel y fi led, the proce eding “must be transfe rre d without a hear ing to the pro p er co u rt ” no later than twenty -one day s afte r the deadline for filing an aff idavit. Id

. § 155.204(c)

. Under the statutes g overning the transfe r of a SAPC R, “ [t ]ransfer of a case to a county wher e the child has resided for more than six months is a

Ve ro n i ca filed an ear lier motion to transfe r on May 11, 2012, followed by a motion to 1 modify on May 14. I n the J une hear ing, the trial court denied the motion to transfe r, s t at i n g t h at beca use it was filed befor e the motion to modify , there was “no pleading to transfe r.” Although the parties wer e in dispute about wh et h er Ver onica’ s motion to transfe r should be considere d filed “simultaneously ” with her motion to modify and whether she had waived her rig ht to seek transfe r, the trial court said, “I don’t know that it matters but since I hear d the temporar y order s I ’m keeping it.” Vero n i ca nonsuited her moti on to modify and did not appea l from the trial court’s J une 2012 order s, so the denial of he r ea rlier motion to transfe r wa s never revie wed by

this Court. Neither party complains about the trial c ourt’s transf er of the ca se to El Paso. 2 2ma

n d a to r y mi n is te r ia l d

u ty

. ” Pr o ff e r v . Yat e s , 7 3 4 S. W. 2 d 6 7 1 , 6 7 3 ( T e x. 1 9 8 7 ) ( a p p ly in g p r e d e c e s s o r to section 155.204).

Ver onica’ s motion to transfe r was filed September 23, making Mark’ s aff idavit due October 15. See Tex. Fam. Code § 155.204(d). Be cause Mark’ s aff idavit (eve n if we can consider it to be “deny

ing that g rounds for the transfe r exis t”) was not timely , the trial court had no discretion but to transfe r the SAPC R 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 Ver onica decla red

a vexatious litigant on November 9. See Fitzgerald v. Fitzgerald , No. 14-12-00086- CV, 2013 WL 3 269040, at * 2 -3 (Tex. App.—Houston [14t h Dist.] J an. 24, 2013, no pet.) (mem. op.) (trial court

err ed in deciding motion for enfor cement befor e g ranting uncontested motion to transfe r; once timel y m o t i o n t o t ransf

er was filed and not contested, “the trial court had a statutory , minist eria l duty to transfe r venue and thus lacke d discretion to make further ruling s in the case ”); see also Silverman v. Johnson , 317 S.W .3d 846, 848-49 (Tex. App.—Austin 2010, no pet.) (in SAPC R, trial
court err ed in g ranting motion to dismiss and fai l i n g to rule on pending and uncontested motion
to transfe r; “[W ]hen transfe r is to occur —particula

rly when mandatory venue lies in a differ ent court—the transfe rring court’s actions should be limit ed to temporar y matters so that the court with continuing jurisdiction can make the p er m an en t d ecisions. The order of dismiss al enter ed by the district court in this case w as not a tempora ry order .”).

Even if the trial court had the authority to c onsider Mark’ s “contr overting ” aff idavit, at a 3 hear ing on a motion to transfe r, “[o] nly evidenc e perta ining to the transfe r may be taken.” See Tex. Fam. Code § 155.204(f). 3We reve rse the trial court’s order decla ring Ver onica a vexatious litigant and rema nd Mark’ s motion for consideration by the El Paso trial courts. See Silverman , 317 S. W

. 3 d at 8 50 (r ev er s ing order g ranting motion to dismiss and stating, “af ter transfe r, the [t ransf

ere e] court wi l l have the authority

to enterta in J ohnson’s motion to di smiss and for sanc tions”).

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Rose, and Goodwin Reverse d and Remande d Filed: Jul y

23, 2014

4