                  NUMBER 13-16-00411-CV

                    COURT OF APPEALS

              THIRTEENTH DISTRICT OF TEXAS

                CORPUS CHRISTI - EDINBURG


                IN RE HECTOR L. RODRIGUEZ


              On Petition for Writ of Mandamus.


                  NUMBER 13-16-00416-CV

                    COURT OF APPEALS

              THIRTEENTH DISTRICT OF TEXAS

               CORPUS CHRISTI – EDINBURG


HECTOR L. RODRIGUEZ,                                    Appellant,
                              v.
TAMARA RODRIGUEZ,                                       Appellee.



         On appeal from the County Court at Law No. 8
                  of Hidalgo County, Texas.
                     MEMORANDUM OPINION ON REHEARING

             Before Justices Rodriguez, Benavides, and Hinojosa1
                 Memorandum Opinion by Justice Rodriguez2

         We issued our original memorandum opinion in these cases on October 4, 2016.

See In re Rodriguez, No. 13-16-00411-CV, 2016 WL 5846544, at *1 (Tex. App.—Corpus

Christi Oct. 4, 2016, orig. proceeding) (mem. op.). Relator Hector L. Rodriguez has filed

a motion for rehearing in cause number 13-16-00411-CV. See TEX. R. APP. P. 49.1. We

deny the motion for rehearing but withdraw our prior memorandum opinion and judgment

and substitute the following memorandum opinion and accompanying judgment in their

place.

         By petition for writ of mandamus filed in cause number 13-16-00411-CV, relator

Hector L. Rodriguez contends that the trial court abused its discretion by striking his

amended pleadings and by denying him a jury trial on reasonable attorney’s fees.3 The

underlying proceeding is a suit to modify the parent-child relationship that was originally

instituted by Hector’s ex-wife and real party in interest, Tamara Rodriguez.                            We

conditionally grant the petition for writ of mandamus in part with regard to the amendment

of pleadings and deny it in part regarding a jury trial on attorney’s fees.



        1 The Honorable Gregory T. Perkes, former Justice of this Court, did not participate in this decision

because his term of office expired on December 31, 2016. In accordance with the appellate rules, he was
replaced on panel by Justice Hinojosa. See TEX. R. APP. P. 41.1(a).
         2See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); TEX.
R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).

        3 This original proceeding arises from trial court cause number F-0886-13-8 in the County Court at

Law No. 8 of Hidalgo County, Texas, and the respondent is the Honorable Omar Maldonado. See TEX. R.
APP. P. 52.2.


                                                     2
        By a separate notice of appeal filed in cause number 13-16-00416-CV, Hector

seeks to appeal one of the orders that is also at issue in the original proceeding. Having

addressed this order by mandamus, we dismiss Hector’s appeal as moot.4

                                            I. BACKGROUND

        Pursuant to an agreed decree of divorce based on a mediated settlement

agreement, Hector and Tamara were appointed joint managing conservators of their two

minor children. The divorce decree provided that Hidalgo County would be the primary

residence of the children and gave Tamara the exclusive right to designate the children’s

primary residence within that county.

        On March 3, 2015, Tamara filed a petition to modify the parent-child relationship

seeking to alter the child support provisions of the mediated settlement agreement and

the divorce decree. Her petition stated:

               The circumstances of the children or a person affected by the order
        have materially and substantially changed since the date of the signing of
        the mediated settlement agreement on which the order to be modified is
        based. Since the date of the mediated agreement, and since the date of
        the decree of divorce, Respondent has failed to expend his time or funds
        on matters that affect the best interests of the children. Despite having the
        means and time to vacation with the children, and having set aside time and
        expended funds to vacation with others, he has not taken his children for a
        vacation. He has also not supported the children with his time or money in
        other respects, including not providing support, or assisting in paying for
        counseling sessions for one of the children, not providing support and
        assistance for the children in school expenses, other than tuition, nor in the
        payment of incidental expenses for the children. Respondent’s failure to
        provide for the children in terms of time, activity has required Petitioner to
        increase her support by spending more of her time with the children and
        funds on the children, which adversely affects the time Petitioner can devote

         4 Hector filed a motion to consolidate the petition for writ of mandamus filed in cause number 13-

16-00411-CV and the appeal filed in cause number 13-16-00416-CV. Tamara opposed this motion and
filed a response in opposition. The Court, having examined and fully considered the opposed motion to
consolidate and the response thereto, grants the motion to consolidate and issues this opinion in both
causes.

                                                    3
       to her employment, which adversely affects her income. While at the same
       time Respondent’s income has increased dramatically.

              At the time . . . the agreement between the parties was reached, the
       child support amount was based upon an anticipation that Respondent
       would spend more time with and resources on the children, and that the
       parties’ income would be approximately equivalent. Based upon these
       considerations, no child support payments were previously ordered other
       than those related to health insurance and medical expenses. The absence
       of support payments as previously ordered are not in substantial
       compliance with the guidelines in chapter 154 of the Texas Family Code,
       and the requested increase would be in the best interest of the children.
       Petitioner requests that any increase be made retroactive to the earlier of
       the time of service of citation on Respondent or the appearance of
       Respondent in this modification action. The requested modification is in the
       best interest of the children.

Tamara also asked for attorney’s fees, expenses, costs, and interest.

       On March 25, 2015, Hector filed an original answer generally denying Tamara’s

allegations, seeking “general relief,” and requesting attorney’s fees, expenses, costs, and

interest.

       On or about January 7, 2016, Tamara filed a first amended petition to modify the

parent-child relationship which generally reiterated her previous allegations and further

asserted that Hector allowed the health insurance for the children to lapse. Tamara also

alleged:

              Petitioner requests that the powers of the parent be modified granting
       to Petitioner sole managing conservatorship and the exclusive right to
       designate the primary residence of the children, without regard to any
       geographic restriction.

             Petitioner requests that the terms and conditions for access to or
       possession of the children be modified.

              The requested modification is in the best interest of the children.




                                             4
Tamara asserted that “educational, medical and developmental conditions of the children

have arisen, the evaluation and treatment for which [Hector] has ignored and obstructed.”

She therefore “requested the modification of custody set out above, which supports an

order for the award of child support.”

       On January 12, 2016, the trial court entered a docket control order which set the

case for trial on April 11, 2016. The order stated that the “case shall be tried by a jury if

there are any issues to which a party has the right to a determination by a jury trial,” but

provided that the case would be tried to the bench if “there are no issues that are required

to be submitted to a jury.” The docket control order set a mandatory status conference

for March 9, 2016, a pretrial conference for April 7, 2016, and a mandatory mediation

deadline of thirty days before trial. The order stated that “[a]ll deadlines shall be pursuant

to the Texas Rules of Civil Procedure unless otherwise agreed to.”

       On February 17, 2016, Hector requested a jury trial.

       On March 21, 2016, Tamara filed a second amended petition to modify the parent-

child relationship. She essentially reiterated all of her previous allegations, but deleted

her request to grant her sole managing conservatorship and the exclusive right to

designate the primary residence of the children without regard to any geographic

restriction. She continued to request “that the terms and conditions for access to or

possession of the children be modified.”

       On March 31, 2016, Hector filed a first supplemental original answer and counter

petition to modify the parent-child relationship. Hector sought to prevent the children from

associating with a specific individual and requested that he have the exclusive right to




                                              5
designate the primary residence of the children, and that any such designation be with a

geographic restriction to Hidalgo County:

              Counter-Petitioner would show unto the Court and jury that, should
      a jury or the Court determine that the circumstances of the children or a
      person affected by the prior Agreed Final Decree of Divorce which was
      entered on May 16, 2014 have materially and substantially changed since
      the date of the signing of the Agreed Final Decree of Divorce, which
      Respondent continues to deny as to the support of the children, then in that
      event Counter-Petitioner would show unto the Court and jury that the
      conservatorship, possession, and access of the children by Counter-
      Respondent should be modified such that, to protect the mental health and
      welfare of the children, Counter-Respondent be prohibited from, during
      Counter-Respondent’s periods of possession of the children, associating
      with, traveling with, or otherwise allowing the children to come in personal
      contact with, Mr. Alexander Cook. While Counter-Petitioner does not
      believe the children the subject of this suit will be materially harmed or
      injured by Counter-Respondent continuing to associate with, date,
      communicate with, or engage in other activities with, Mr. Alexander Cook,
      such conduct should not occur while Counter-Respondent has possession
      of the children, as it would most likely lead to devastating results for the
      children or one of the children.

             Additionally, Counter-Petitioner would show unto the Court and jury
      that, should a jury or the Court determine that the circumstances of the
      children or a person affected by the prior Agreed Final Decree of Divorce
      which was entered on May 16, 2014 have materially and substantially
      changed as to the conservatorship, possession, and access of the children
      by Counter-Respondent since the date of the signing of the Agreed Final
      Decree of Divorce, Counter-Petitioner additionally requests that he be
      designated the joint managing conservator with the exclusive right to
      designate the primary residence of the children, and that any such
      designation be with a geographic restriction to within Hidalgo County,
      Texas.

      On April 4, 2016, Tamara filed a motion to strike Hector’s first supplemental original

answer and counter petition. She asserted that Hector was requesting modification of

conservatorship, possession, and access “for the first time.” She stated that his previous

pleadings alleged that there had been no material and substantial change in

circumstances to warrant a modification, but “on the eve of trial,” he had “taken the



                                            6
position that if there has been a material and substantial change in circumstances, such

a material and substantial change would support his requested modification rather than

[Tamara’s] requested modification.” Tamara asserted that she had not been able to

conduct discovery as to the requested modification or the “injunction” regarding Cook.

She requested a continuance of trial in the event that the trial court did not strike the

counter petition so that she could conduct discovery as to the “new claim for affirmative

relief.”

           On April 8, 2016, in a separate cause number, F-0886-13-8, Hector filed a petition

to modify the parent child relationship. His allegations in this new and separate cause

mirror the allegations previously made in his counter petition in this case. Hector alleged

that the circumstances of the children had materially and substantially changed as to

Tamara’s actions in “intentionally bringing the children around [Cook],” and he sought to

prevent the children from associating with Cook. Hector further asserted that a material

and substantial change in circumstances had occurred:

           As a result of [Tamara’s] changed position on the residency of the children,
           including statements that she wishes to move the children out of the Rio
           Grande Valley; as a result of her filing pleadings asking the Court and jury
           to allow the geographic restriction to be lifted; and as a result of the
           children’s counselor testifying that such move would not be in the children’s
           best interest; Petitioner additionally requests that he be designated the joint
           managing conservator with the exclusive right to designate the primary
           residence of the children, and that any such designation be with a
           geographic restriction to within Hidalgo County, Texas.

Hector requested attorney’s fees, expenses, costs, and interest.

           On April 12, 2016, trial began. That day, the trial court refused to allow Hector’s

claims to be tried with Tamara’s claims. By verbal ruling the trial court stated, “Court’s

going to go ahead and make a finding that the pleadings do, in fact, serve as surprise.



                                                 7
That’ll be the finding of the Court, so your motion to strike is granted.” During the trial,

the court ordered a social study and abated the case to allow the study to take place.

Hector moved for a mistrial and moved to consolidate the proceedings. He also sought

to stay the trial and sought an emergency continuance to conduct discovery and appoint

an expert in rebuttal to the social study. The trial court denied these requests.

        This original proceeding ensued. By one issue with multiple sub-parts, Hector

contends that the trial court abused its discretion and Hector’s appellate remedy is

inadequate. More specifically, Hector contends (1) the trial court abused its discretion by

striking Hector’s counter claim where the counter claim was filed more than seven days

before trial, and there could be no surprise or prejudice; (2) the trial court should have

ordered a continuance instead of striking Hector’s counter claim, and after the trial court

later abated the case to conduct a social study, the trial court should have granted a

mistrial and allowed discovery to cure Tamara’s claim of surprise and prejudice; (3) the

trial court abused its discretion by later striking Hector’s separate lawsuit and denying his

request to consolidate the two proceedings where the reasoning stated in its orders is

logically inconsistent; (4) the trial court abused its discretion by denying Hector’s right to

a jury trial on the reasonableness of attorney fees; and (5) Hector lacks an adequate

remedy by appeal.5 Through a motion for emergency temporary relief, Hector sought to

stay the trial of this matter pending resolution of this original proceeding.




        5 Specifically, Hector’s petition for writ of mandamus requests relief from the trial court’s (1) April

12, 2016 ruling striking Hector’s counter claim for modification of the parties’ divorce decree and denying
his request for a jury trial on attorney fees; (2) June 21, 2016 orders denying Hector’s motion to consolidate
and for a mistrial, and (3) July 1, 2016 order striking Hector’s original petition for modification of the divorce
decree.

                                                        8
       This Court granted a stay of the proceedings below and requested and received

Tamara’s response to the petition for writ of mandamus. Tamara objected to Hector’s

statement of facts and asserted that he has failed to present a sufficient record. Tamara

contends that the trial court did not abuse its discretion in making the foregoing rulings

and that Hector possesses an adequate remedy by appeal to address any alleged error.

This Court has received supplemental record materials as well as Hector’s reply to

Tamara’s response.

                                         II. MANDAMUS

       To be entitled to mandamus relief, the relator must demonstrate that the trial court

clearly abused its discretion and the relator has no adequate remedy by appeal. In re

Lee, 411 S.W.3d 445, 463 (Tex. 2013) (orig. proceeding); In re Reece, 341 S.W.3d 360,

364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124,

135–36 (Tex. 2004) (orig. proceeding); see In re M-I L.L.C., No. 14-1045, 2016 WL

2981342, at *2, __ S.W.3d __, __ (Tex. May 20, 2016) (orig. proceeding). A trial court

clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly

or apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d

379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The adequacy of an appellate

remedy must be determined by balancing the benefits of mandamus review against the

detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding).

       An improper order prohibiting a party from amending a pleading may be set aside

by mandamus when a party’s ability to present a viable claim or defense at trial is vitiated

or severely compromised. In re City of Dallas, 445 S.W.3d 456, 462–64 (Tex. App.—



                                                9
Dallas 2014, orig. proceeding).     In considering whether mandamus is appropriate

regarding the denial of amended pleadings, we consider the timing of the filing of the

proposed amended pleading and the procedural posture of the case at the time the motion

for leave to amend is filed. See id. In cases where discovery is complete, the trial court

has conducted a significant portion of the trial, disposing of a substantial portion of the

case as a result, and only few substantive issues remain pending, mandamus review of

interlocutory trial court rulings may actually defeat the goal of judicial economy and

efficient resolution of disputes. Id.; see In re McAllen Med. Ctr., 275 S.W.3d 458, 465

(Tex. 2008) (orig. proceeding). “In circumstances where the petition for writ of mandamus

frustrates, rather than enhances, the efficient resolution of the case as a whole, the

appropriate channel for review of a trial court’s order regarding amendment of pleadings

is by appeal.” In re City of Dallas, 445 S.W.3d at 462–64.

      The denial of a trial by jury is reviewable by mandamus. In re Prudential Ins. Co.

of Am., 148 S.W.3d at 139; In re Baker, No. 14-16-00101-CV, 2016 WL 2605766, at *3,

__ S.W.3d at __, __ (Tex. App.—Houston [14th Dist.] May 5, 2016, orig. proceeding). In

addition, as our sister courts have explained, an appeal is particularly inadequate to

remedy the denial of a jury trial in cases involving child custody issues. See In re Baker,

2016 WL 2605766, at *3; In re Reiter, 404 S.W.3d 607, 611 (Tex. App.—Houston [1st

Dist.] 2010, orig. proceeding). While an order denying a request for a jury trial could be

remedied on appeal following a bench trial and final judgment, an appeal from a bench

trial would be inadequate where both parties would be required to endure a trial and its

attendant expenses for naught, and more importantly, the child affected by the underlying

case should not suffer the delay of a second trial before parental rights and obligations



                                            10
can be established. See In re Reiter, 404 S.W.3d at 611. “Justice demands a speedy

resolution of child custody and child support issues.” Proffer v. Yates, 734 S.W.2d 671,

673 (Tex. 1987) (orig. proceeding). These principles apply here because the issues to

be tried include access, possession, and support of the parties’ children. See In re Baker,

2016 WL 2605766, at *3; In re Reiter, 404 S.W.3d at 611.

                               III. AMENDMENT OF PLEADINGS

       By his first three sub-issues, Hector complains generally about the trial court’s

refusal to allow him to amend his pleadings. The “well-settled policy underlying the

practice of amending pleadings” is one that recognizes that litigants enjoy a “liberal right”

to modify their averments at will. In re Trident Steel Corp., 424 S.W.3d 126, 130 (Tex.

App.—Amarillo 2014, no pet.); KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 899

(Tex. App.—Dallas 2003, no pet.). Thus, a party generally has a right to amend its

pleadings freely. In re City of Dallas, 445 S.W.3d at 462–64. However, this liberal right

to amend pleadings must be balanced against the right of the trial court to control its

docket in a manner that permits the efficient administration of justice. See id. A trial court

has broad discretion to manage its docket, and we will not interfere with a trial court’s

exercise of its discretion absent a showing of clear abuse. Bagwell v. Ridge at Alta Vista

Invs.I, L.L.C., 440 S.W.3d 287, 292 (Tex. App.—Dallas 2014, pet. denied).

       Texas Rule of Civil Procedure 63 provides that parties may amend their pleadings

“as they may desire . . . at such time as not to operate as a surprise to the opposite party;

provided, that . . . within seven days of the date of trial or thereafter” any pleading

amendments may be filed only with prior leave of court, “which leave shall be granted”

unless the opposing party makes a showing of surprise. TEX. R. CIV. P. 63. Rule 63 is to



                                             11
be “liberally construed.” Lee v. Key W. Towers, Inc., 783 S.W.2d 586, 588 (Tex. 1989).

Only when amendment is sought within seven days of trial or after such time as may be

ordered by the judge under a scheduling order need the litigant obtain leave of the court.

In re Trident Steel Corp., 424 S.W.3d at 130; see TEX. R. CIV. P. 63. And, even then,

leave must be granted unless “there is a showing that such filing will operate as a surprise

to the opposite party.” TEX. R. CIV. P. 63.

       A trial court has no discretion to refuse an amendment unless (1) the opposing

party presents evidence of surprise or prejudice; or (2) the amendment asserts a new

cause of action or defense, and thus is prejudicial on its face, and the opposing party

objects to the amendment. State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.

1994); Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990); In re City

of Dallas, 445 S.W.3d at 462–64; Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d

48, 64 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); Gunn v. Fuqua, 397 S.W.3d

358, 377 (Tex. App.—Dallas 2013, pet. denied); Rodriguez v. Crowell, 319 S.W.3d 751,

758–59 (Tex. App.—El Paso 2009, pet. denied); Hakemy Bros., Ltd. v. State Bank & Trust

Co., Dallas, 189 S.W.3d 920, 924 (Tex. App.—Dallas 2006, pet. denied). The burden of

showing prejudice or surprise rests on the party resisting the amendment. Greenhalgh,

787 S.W.2d at 939; Kilpatrick, 874 S.W.2d at 658; First State Bank of Mesquite v.

Bellinger & Dewolf, LLP, 342 S.W.3d 142, 146 (Tex. App.—El Paso 2011, no pet.);

Rodriguez, 319 S.W.3d at 758–59; Hakemy Bros., Ltd., 189 S.W.3d at 924.

       An amendment that is of a “formal, procedural nature” typically will not result in

surprise or prejudice, and thus a need to allow additional time for trial preparation, and

should be allowed in most circumstances. See Chapin & Chapin, Inc. v. Tex. Sand &



                                              12
Gravel Co., Inc., 844 S.W.2d 664, 665 (Tex. 1992); In re City of Dallas, 445 S.W.3d at

462–64. Examples of procedural amendments include matters such as increasing the ad

damnum to conform to the evidence introduced without objection at trial or substituting a

verified denial for an unverified denial. See Chapin & Chapin, Inc., 844 S.W.2d at 665;

In re City of Dallas, 445 S.W.3d at 462–64.

       While the assertion of a new cause of action may be prejudicial on its face, it is not

automatically prejudicial as a matter of law. Tanglewood Homes Ass’n, Inc., 436 S.W.3d

at 64; Rodriguez, 319 S.W.3d at 758–59; LeBoeuf, 16 S.W.3d at 839. An amendment is

prejudicial if: (1) it asserts a new substantive matter that reshapes the nature of the trial

itself; (2) the opposing party could not have anticipated it in light of the development of

the case up to the time the amendment was requested; and (3) the opposing party’s

presentation of its case would be detrimentally affected by the amendment. In re City of

Dallas, 445 S.W.3d at 462–64; Tanglewood Homes Ass’n, Inc., 436 S.W.3d at 64–65;

Rodriguez, 319 S.W.3d at 758–59. Even additional, separately stated causes of action

may not constitute new subject matter if the added claims have common elements with

claims previously asserted and require the same evidentiary proof required to support an

already pleaded claim or defense. In re City of Dallas, 445 S.W.3d at 462–64; Rodriguez,

319 S.W.3d at 758–59. The question is not whether the opposing party did in fact

anticipate the amended pleading, but rather whether it could have been anticipated.

Rodriguez, 319 S.W.3d at 758–59; Allstate Prop. & Cas. Ins. Co. v. Gutierrez, 281 S.W.3d

535, 539 (Tex. App.—El Paso 2008, no pet.); Whole Foods Mkt. Sw., L.P. v. Tijerina, 979

S.W.2d 768, 777 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).




                                             13
       We review a trial court’s decision to grant or strike a pleading amendment for an

abuse of discretion. Kilpatrick, 874 S.W.2d at 658; Greenhalgh, 787 S.W.2d at 939–40;

Ginn v. NCI Bldg. Sys., Inc., 472 S.W.3d 802, 837 (Tex. App.—Houston [1st Dist.] 2015,

no pet.); Rodriguez, 319 S.W.3d at 758–59. A trial court’s decision on a motion for leave

to amend pleadings must be evaluated in the context of the entire case, and the potential

for delay in the ultimate disposition of a case caused by a proposed amendment may be

considered in determining whether the trial court has abused its discretion. In re City of

Dallas, 445 S.W.3d at 463; Tanglewood Homes Ass’n, Inc., 436 S.W.3d at 64; Rodriguez,

319 S.W.3d at 758–59. On review, the party complaining of the court’s ruling bears the

burden of demonstrating that the trial court erred. Hardin v. Hardin, 597 S.W.2d 347, 349

(Tex. 1980); Ginn, 472 S.W.3d at 838. We note, generally, that “[a]ppellate courts rarely

find an abuse of discretion when a trial court refuses to strike an amended pleading filed

more than seven days before trial.” Christensen v. Chase Bank USA, N.A., 304 S.W.3d

548, 555 (Tex. App.—Dallas 2009, pet. denied).

       In this case, Hector’s counter petition was filed more than seven days before trial

and the trial court had not issued a scheduling order pertaining to the amendment of

pleadings, thus, no leave of court was necessary under Rule 63 or otherwise. See TEX.

R. CIV. P. 63. Thus, the trial court was required to allow the amendment unless Tamara

showed that it operated to surprise her. See id. Tamara asserts that: Hector’s counter

petition asserted a new cause of action and is prejudicial on its face; no discovery took

place on his claims for affirmative relief; a brief continuance would not cure surprise and

prejudice, and the trial court modified the docket control order to allow discovery as to the

social study.



                                             14
       We disagree with Tamara’s assertion that Hector’s counter petition presents a new

and patently surprising claim. Hector’s counter petition addressed the same central issue

as Tamara’s petition—the child’s best interest. If Hector had simply filed a general denial,

it would have entailed substantially the same evidence and argument. Reviewing the

pleadings in detail, Tamara instituted the underlying lawsuit in March of 2015 on the

premise that the circumstances of the parties had materially and substantially changed

and modification of the original decree—to increase her child support—would be in the

children’s best interest. In January 2016 in her amended petition, she reiterated that the

circumstances had materially and substantially changed and modification of the original

decree—with regard to her request for (1) increased support, (2) sole managing

conservatorship and the exclusive right to designate the primary residence of the children,

without regard to any geographic restriction, and (3) modification of the terms and

conditions for access to or possession of the children—would be in the children’s best

interest. Two months later and three weeks prior to the beginning of trial, Tamara again

amended her petition, essentially reiterated all of her previous allegations, but deleting

the request to grant her sole managing conservatorship and the exclusive right to

designate the primary residence of the children.        Consistently maintaining that the

circumstances of the parties had materially and substantially changed and modification

of the original decree would be in the children’s best interest, she continued to request

“that the terms and conditions for access to or possession of the children be modified.”

       Hector’s counter petition, filed ten days after Tamara’s second amended petition

and twelve days before trial, asserted that if a jury determined that circumstances had

materially and substantially changed, then “conservatorship, possession, and access of



                                            15
the children” should be modified to protect the mental health and welfare of the children.

He further sought to be designated as the joint managing conservator with the exclusive

right to designate the primary residence of the children, and that any such designation be

with a geographic restriction to within Hidalgo County, Texas.

       All pleadings filed in this case from its inception concern whether or not the

circumstances of the parties have materially and substantially changed and modification

of the original decree would be in the best interests of the children. See TEX. FAM. CODE

ANN. § 153.002 (“The best interest of the child shall always be the primary consideration

of the court in determining the issues of conservatorship and possession of and access

to the child.”); § 156.101 (“The court may modify an order that provides for the

appointment of a conservator of a child, that provides the terms and conditions of

conservatorship, or that provides for the possession of or access to a child if modification

would be in the best interest of the child and . . . the circumstances of the child, a

conservator, or other party affected by the order have materially and substantially

changed . . . .”); § 156.401(a)(1) (providing for the modification of child support where “the

circumstances of the child or a person affected by the order have materially and

substantially changed”); see also In re J.R.D., 169 S.W.3d 740, 742 (Tex. App.—Austin

2005, pet. denied) (“The party moving for modification has the burden of proving the

occurrence of ‘material and substantial change.’”). The fundamental issue in this suit, no

matter how it is pleaded, is the childrens’ best interest. See TEX. FAM. CODE ANN. §

153.002; In re Lee, 411 S.W.3d 445, 454 (Tex. 2013).

       Based on the foregoing and considering the context of the entire litigation, Hector’s

counter petition does not assert a new substantive matter that reshapes the nature of the



                                             16
trial itself. See In re City of Dallas, 445 S.W.3d at 462–64 Tanglewood Homes Ass’n,

Inc., 436 S.W.3d at 64–65; Rodriguez, 319 S.W.3d at 758–59; see also In re E.W.A., No.

2-07-135-CV, 2008 WL 1867144, at *7 (Tex. App.—Fort Worth Apr. 24, 2008, no pet.)

(mem. op.) (concluding that the trial court did not abuse its discretion in allowing amended

pleadings with additional rationales for the termination of parental rights where the

parent’s “only defense to the termination of his rights with regard to E.A. was the issue of

E.A.’s best interest—an issue for which the parties were presumably prepared”). Even if

we were to consider Hector’s counter petition as including additional, separately stated

causes of action, the counter petition does not incorporate new subject matter because

the added claims have common elements with claims previously asserted and require the

same evidentiary proof required to support Tamara’s already pleaded claims or defenses.

See In re City of Dallas, 445 S.W.3d at 462–64; Rodriguez, 319 S.W.3d at 758–59.

Moreover, Tamara could have anticipated Hector’s amended pleadings in light of the

development of the case up to the time the amendment was requested. See Rodriguez,

319 S.W.3d at 758–59; Allstate Prop. & Cas., 281 S.W.3d at 539.

       Based on the foregoing, we conclude that the trial court abused its discretion in

refusing to allow Hector to amend his pleadings. We sustain Hector’s first three sub-

issues to that effect.

                                      IV. JURY TRIAL

       In his fourth sub-issue, Hector alleges that the trial court abused its discretion in

refusing to allow him a jury trial regarding the reasonableness of attorney’s fees. Section

105.002 of the Texas Family Code delineates the right to a trial by jury in family law cases.

TEX. FAM. CODE ANN. § 105.002 (West, Westlaw through 2015 R.S.). Under this section,



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“a party is entitled to a verdict by the jury and the court may not contravene a jury verdict”

on the following issues:

       (A)    the appointment of a sole managing conservator;

       (B)    the appointment of joint managing conservators;

       (C)    the appointment of a possessory conservator;

       (D)    the determination of which joint managing conservator has the
              exclusive right to designate the primary residence of the child;

       (E)    the determination of whether to impose a restriction on the
              geographic area in which a joint managing conservator may
              designate the child’s primary residence; and

       (F)    if a restriction described by Paragraph (E) is imposed, the
              determination of the geographic area within which the joint managing
              conservator must designate the child’s primary residence.

Id. §105.002(c)(1). In contrast, this section provides that issues pertaining to child support

may not be submitted to a jury. See id. § 105.002(c)(2); see also Ayala v. Apodaca, No.

07-14-00295-CV, 2016 WL 3965396, at *3, __ S.W.3d __, __ (Tex. App.—Amarillo July

18, 2016, no. pet.). Further, issues regarding a “specific term or condition of possession

of or access to the child” or “any right or duty of a conservator, other than the

determination of which joint managing conservator has the exclusive right to designate

the primary residence of the child” may be not submitted to the jury. See TEX. FAM. CODE

ANN. § 105.002(c)(2). Finally, issues pertaining to attorney’s fees that are submitted to a

jury are merely advisory. Satterfield v. Huff, 768 S.W.2d 839, 841 (Tex. App.—Austin

1989, writ denied) (construing former version of the statute); Havis v. Havis, 657 S.W.2d




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921, 923 (Tex. App.—Corpus Christi 1983, writ dism’d) (same); Killpack v. Killpack, 616

S.W.2d 434 (Tex. Civ. App.—Fort Worth 1981, writ ref’d n.r.e.) (same).6

        To the extent that Hector asserts that he is entitled to a jury trial on the

reasonableness of attorney’s fees, we disagree. The Texas Family Code, within the

context of a modification suit, identifies those issues that a jury must decide, those a jury

may decide, and those it may not decide. TEX. FAM. CODE ANN. § 105.002. Attorney’s

fees are found in none of these provisions. See id.; see also McInnes v. Fife, No. 14-00-

00201-CV, 2001 WL 777078, at *1 (Tex. App.—Houston [14th Dist.] July 12, 2001, no

pet.) (mem. op.). Accordingly, we overrule Hector’s fourth sub-issue insofar as it asserts

a right to a jury trial on attorney’s fees. However, we note that Hector’s amended

pleadings invoke other issues which Hector would be entitled to submit to a jury, such as

issues pertaining to modification of conservatorship and the imposition of a geographic

restriction on the child’s residence. See TEX. FAM. CODE ANN. § 105.002(c)(1)(D)-(E).

Hector is entitled to a jury trial on these issues and all others delineated by Texas Family

Code section 105.002(c)(1). See generally id. § 105.002(c)(1).

                               V. ADEQUACY OF REMEDY BY APPEAL

        We have sustained Hector’s first three sub-issues alleging generally that the trial

court abused its discretion in refusing to allow him to amend his pleadings. We conclude

that the trial court’s order vitiated or severely compromised Hector’s ability to present his

claims and defenses at trial with regard to whether the circumstances of the parties have

materially and substantially changed and modification of the original decree would be in



        6 The Texas Supreme Court discussed the former statute’s distinction between binding and
advisory jury verdicts and the Legislature’s amendment to this section to clarify which issues a jury may
decide in a suit affecting the parent-child relationship. See Lenz v. Lenz, 79 S.W.3d 10, 20 (Tex. 2002).

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the best interests of the children. Accordingly, the trial court’s refusal to allow Hector to

amend his pleadings may be set aside by mandamus. See In re City of Dallas, 445

S.W.3d at 462–64. Further, considering that Hector’s request to amend his pleadings

was timely, the trial of this matter has been abated to allow for a social study and related

discovery, and the main substantive issues remain pending in this case, mandamus

review will promote the goal of judicial economy and the efficient resolution of this dispute.

See id.; see also In re McAllen Med. Ctr., 275 S.W.3d at 465. We thus conclude that

Hector lacks an adequate remedy by appeal and mandamus is available to remedy the

trial court’s error. See In re City of Dallas, 445 S.W.3d at 462–64. We sustain Hector’s

fifth issue.

                                       VI. CONCLUSION

       The Court, having examined and fully considered the petition for writ of mandamus,

the response, the reply, and the applicable law, is of the opinion that Hector has shown

himself entitled to part of the relief sought. Accordingly, we lift the stay previously imposed

in this cause. We conditionally grant mandamus relief, in part, insofar as we direct the

trial court to allow Hector to amend his pleadings. Our writ will issue only in the event

that the trial court fails to comply. All other relief sought in the original proceeding is

denied. We dismiss Hector’s appeal as moot.



                                                          NELDA V. RODRIGUEZ
                                                          Justice

Delivered and filed the
27th day of January, 2017.




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