In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00024-CV
______________________________
IN RE:
REBECCA SAMFORD
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
OPINION
Former spouses Rebecca Samford and Archie Morris Samford, Jr.,1 continue their ongoing
struggle focused primarily on the management and possession of their minor child, A.S. This is now
the third time the struggle has come to this Court.
Again Morris' effort to obtain modification of a child custody order over A.S. is central to
this case. Originally, Morris sought to change Rebecca and Morris' joint managing conservatorship
over A.S. to name Morris as sole managing conservator. Morris has since amended his motion to
relinquish that request—a change which denies to Rebecca the mandamus relief she now requests
of this Court.
A brief review of this struggle will help provide context for the current mandamus request.
Initially, due to Rebecca's behavior, the details of which are not germane here, the trial court had
struck her pleadings and had entered a default judgment against her, modifying the conservatorship
of A.S. Rebecca appealed, claiming that, although her pleadings had been struck, she was entitled
to have a jury determine whether Morris had proven the required elements in his motion to change
the conservatorship. We concluded that, because a parent's failure to respond should not form the
sole basis for the trial court's judgment in a family law matter, some fact-finding was required and
a jury was required to find the requisite facts. See TEX . FAM . CODE ANN . § 105.002(a)(c) (Vernon
Supp. 2007). We also agreed with a concurring opinion in Marr v. Marr, 905 S.W.2d 331, 333–34
1
For clarity, in this opinion we use Rebecca and Morris as the names of the litigants.
2
(Tex. App.—Waco 1995, no writ), which stated that "a defaulting defendant (by virtue of death
penalty sanctions) in a family law matter is still entitled to rely on her jury demand and have a jury
trial on any fact question related to the custody modification when the jury demand is not struck."
See In re A.S., No. 06-07-00044-CV, 2007 WL 4232977 (Tex. App.—Texarkana Dec. 4, 2007, no
pet.). Under the posture of the case at that time, we found that denying Rebecca a jury trial was
harmful error and reversed and remanded the case for further proceedings.
After remand, Morris amended his motion to eliminate his request that A.S.'s conservators
be changed and asked that the case be withdrawn from the jury docket. When the trial court agreed,
Rebecca filed this petition for writ of mandamus, asking this Court to direct the trial court to give
her a jury trial on Morris' amended motion. Because Morris' amended motion seeks neither a change
in A.S.'s conservators nor a designation that either Rebecca or Morris has the exclusive right to
designate A.S.'s primary residence, we conclude that no pending request allows for decision by a
jury.
Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion
or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law.
Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.
1992). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of
discretion, or, in the absence of another statutory remedy, when the trial court fails to observe a
mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695
3
S.W.2d 564, 567 (Tex. 1985). Although the right to mandamus is quite limited, recent authority
suggests that denying a jury trial, when such a right is clearly shown, can be addressed by both
appeal and mandamus. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 139 (Tex. 2004).
When we remanded this appeal to the trial court, we did not order it to conduct a jury trial.
We found it to be error to deny one under the facts then existing, and remanded the case for further
proceedings. The mandamus record before us shows that the situation has changed since that time.
Although we did conclude at the time that, even without live pleadings, Rebecca remained entitled
to a jury trial, that conclusion was based on the fact that a jury trial was available on Morris' then
pending request that the existing joint managing conservatorship be changed to name Morris as sole
managing conservator. See TEX . FAM . CODE ANN . § 105.002(c)(1)(A) (Vernon Supp. 2007). As we
have said, Morris' motion to modify, as currently amended, now contains neither a request to change
conservators nor a determination of which joint managing conservator has the exclusive right to
designate A.S.'s primary residence. The motion, as amended, seeks an order that A.S. will reside
with Morris during the school week and that Morris will have the authority to make certain health
care and education decisions concerning A.S. The motion also seeks a change in child support,
contempt relief for Rebecca's failure to sign a deed and tax exemption document as previously
ordered by the trial court, a restraining order against Rebecca, and attorney's fees. Those issues are
not ones that, under the statute, support a right to a jury trial. See TEX . FAM . CODE ANN . §
105.002(c)(2) (Vernon Supp. 2007).
4
Rebecca's sole contention in this mandamus is that the trial court failed to perform the
ministerial act of conducting a jury trial, which she says was ordered by this Court. She also directs
our attention to Phillips v. Beaber, 995 S.W.2d 655 (Tex. 1999), arguing that, because of the nature
of the relief sought by Morris, the motion should be treated as effectively an attempt to change
conservatorship. In Phillips, the Texas Supreme Court reviewed a father's motion to modify joint
managing conservators' exclusive rights to primary possession and to establish a child's residence
after the child moved to a new home state. The court concluded that it was really a motion to modify
"custody" rather than mere "possession or access" under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJA). Based on that conclusion, the court applied the UCCJA and concluded
that the trial court could not exercise continuing jurisdiction in the absence of a written agreement
of all parties. Phillips is distinguishable in two notable ways, both the different legal issues there
involved and the significantly greater rights modification there sought.2
What force remains of Phillips, for the current discussion, is merely the proposition that a
pleading should be defined by its substance, not necessarily the way it is labeled. Id. at 660–61. We
agree that artful labeling of pleadings must yield to the true content of those pleadings. We look at
the substance of a pleading to determine its nature, not merely at the form or title given to it. See
2
See Act of April 22, 1999, 76th Leg., R.S., ch. 34, § 1, 1999 Tex. Gen. Laws 52, 63, 65
(striking former Section 152.001(a)(2), (3) and former Section 152.003(d) of the Texas Family Code,
the statutes involved in Phillips).
5
TEX . R. CIV . P. 71; State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); BCY Water Supply Corp.
v. Residential Invs., Inc., 170 S.W.3d 596 (Tex. App.—Tyler 2005, no pet.).
Rebecca's argument here is that Morris' motion, despite purporting merely to change
visitation, effectively seeks Morris' appointment as sole managing conservator or his being given
exclusive right to designate A.S.'s primary residence. We disagree.
The record shows that the parties, joint managing conservators, had what was described as
week-to-week visitation and that the final decree of divorce restricted domicile to Panola County,
Texas, without placing the right to establish domicile in either joint managing conservator. As
described above, the amended motion does not seek to change custody or the current type of
conservatorship. It does seek to change visitation schedules, but not to the point that it would
eliminate custodial visitation by either parent. It does not seek a right to establish domicile in a
different geographic area, nor does it seek to effect any designation of primary residence.
Under these facts, the record does not show that Rebecca is entitled to a jury trial on these
issues. Therefore, it does not show that the trial court failed to exercise a ministerial duty when it
removed the case from the jury docket and set it for trial to the court.
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We deny the petition for writ of mandamus.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 27, 2008
Date Decided: March 28, 2008
7
in Re: Rebecca Samford
Combined Opinion