in Re: Sonia Alvarez, 05-16-00753-CV

Mother (relator) filed an amended motion to transfer venue on April 25, 2016, the same day Father filed a motion to modify a Final Order of Modification entered April 20, 2016.
The children have lived in Collin County for more than six months; mother sought transfer of the SAPCR to Collin County under Tex. Fam. Code § 155.201(b).
Under § 155.204(b) a party who is “another party” must file a transfer motion by the first Monday after the 20th day after service of notice; mother filed within that period and thus her motion was timely.
Father did not file a controverting affidavit as required by Tex. Fam. Code § 155.204(d); he filed an unverified response that did not deny the children’s Collin County residency.
Trial court denied the motion to transfer despite the motion being timely and uncontroverted.

Issue	Plaintiff's Argument (Alvarez)	Defendant's Argument (Father)	Held
Whether transfer was mandatory under § 155.201(b) because children resided in Collin County >6 months	Motion to transfer was timely and, uncontroverted, mandates transfer to Collin County	Transfer was untimely, improperly filed, and without basis (argued children lived in Dallas in 2011; attacked prior motions)	Transfer was mandatory; trial court abused discretion by denying transfer
Whether Alvarez’s motion was timely under § 155.204(b)	As “another party” she timely filed on April 25, within the statutory deadline	Argued transfer should have been filed in 2011 when modification was first sought	Motion was timely as filed the same day Father filed his motion to modify
Whether Father’s response sufficed as a controverting affidavit under § 155.204(d)	No — Father’s response was unverified and failed to deny residency, so no timely controverting affidavit was filed	Implied that response opposed transfer and raised history of prior filings	Father did not file a timely, sworn controverting affidavit; allegations therefore uncontroverted
Remedy — whether mandamus relief is appropriate	Mandamus proper because duty to transfer is ministerial and appeal is inadequate	Denial of transfer was within trial court discretion (implicitly)	Mandamus conditionally granted; trial court directed to transfer to Collin County within 10 days

Cassidy v. Fuller, 568 S.W.2d 845 (Tex. 1978) (construing mandatory nature of venue-transfer language in family-code context)
Proffer v. Yates, 734 S.W.2d 671 (Tex. 1987) (mandamus appropriate when statutory mandatory venue-transfer grounds exist)
In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) (standard for mandamus: abuse of discretion and lack of adequate appellate remedy)
In re Wheeler, 177 S.W.3d 350 (Tex. App.—Houston [1st Dist.] 2005) (party who files motion to modify is treated as a petitioner for venue-timing rules)
In re Simonek, 3 S.W.3d 285 (Tex. App.—Waco 1999) (same classification principle for movant/petitioner)
In re Aguilera, 37 S.W.3d 43 (Tex. App.—El Paso 2000) (when transfer motion is timely and uncontroverted, judge must promptly transfer without hearing)
In re Middlebrook, 7 S.W.3d 262 (Tex. App.—Waco 1999) (timely, uncontroverted motion eliminates trial court discretion to deny transfer)
Martinez v. Flores, 820 S.W.2d 937 (Tex. App.—Corpus Christi 1991) (uncontroverted allegations stand when controverting affidavit fails to deny grounds for transfer)