Weekly Digest
August 8 – August 14, 2026
6 opinions this week
In the Estate of Victoria B. Kubiak, Deceased
COA01
In a probate will contest, the court held that the contestant had “possession, custody, or control” of the decedent’s medical and pharmacy records because Texas statutes gave him a legal right to obtain them from the providers, even though the records were physically held by third parties. The First Court of Appeals analyzed Rule 192.7(b) together with Estates Code sections 55.101 and 55.102 and Occupations Code section 159.003(a)(8), concluding that legal access is enough to create a production duty. The court also found that the contestant waived any contrary objection by not timely asserting lack of control and that pending third-party subpoenas did not excuse nonproduction. It affirmed the trial court’s $7,727 attorney’s-fee sanction for repeated failure to comply with discovery requests and court orders.
Litigation Takeaway
“If a party has a legal right to obtain records, Texas discovery law may treat those records as within that party’s control even when a third party physically holds them. In family-law cases, do not assume subpoenas replace party-production duties, and raise any true lack-of-control objection specifically and on time or risk waiver and sanctions.”
Price v. Clayborn
COA01
In Price v. Clayborn, a former husband filed a pleading labeled as a bill of review to attack post-divorce enforcement and receivership orders involving the former marital residence. The court looked past the title of the filing and analyzed its substance, concluding it was not a true bill of review because it did not seek to set aside the final divorce decree; instead, it sought only to undo later post-judgment orders allegedly inconsistent with the decree and MSA. Once characterized as a motion to set aside post-judgment orders, the appeal failed because denial of that type of motion is not independently appealable, and any direct appeal from the June 4, 2024 receiver and enforcement orders was untimely. The First Court of Appeals dismissed the case for want of jurisdiction.
Litigation Takeaway
“In post-divorce property cases, the label on your pleading does not control—the relief you actually seek does. If you are challenging an enforcement or receivership order rather than the divorce decree itself, use the correct procedural vehicle and meet the appellate deadline tied to that order, or you may lose the case on jurisdiction before the court ever reaches the merits.”
Yakovlev v. Yakovleva
COA01
In Yakovlev v. Yakovleva, the spouses signed a valid postnuptial partition agreement stating that each spouse’s earnings, retirement benefits, stock, and other employment-related benefits would remain that spouse’s separate property. In the divorce, the trial court nevertheless treated portions of Sergey’s IRAs, 401(k), and pension earned before August 1, 2022 as community property, awarded Maria a share of those assets, and entered a money judgment as part of the overall division. The court of appeals analyzed the agreement under Texas Family Code sections 4.102 and 4.104, applied ordinary contract-construction principles, and held that the agreement’s text controlled characterization of the disputed assets. Because a divorce court may divide only community property and may not indirectly invade separate property through an offset or money judgment, the trial court abused its discretion. The court reversed the property division, vacated the money judgment, remanded for a new just-and-right division consistent with the agreement, and affirmed the child-abduction-prevention provisions.
Litigation Takeaway
“A valid postnuptial or partition agreement is not just an equitable factor—it controls characterization. In any divorce involving a marital property agreement, lawyers must resolve characterization first, draft the decree to track the agreement’s actual language, and object to any attempt to use offsets or money judgments to reallocate separate property.”
In the Interest of Z.I.A.B., Z.J.T.B. a/k/a Z.B., and Z.S.B. a/k/a Z.B., Children
COA01
In In re Z.I.A.B., the First Court of Appeals affirmed a conservatorship order finding that the parental presumption under Texas Family Code section 153.131 had been rebutted. The dispute was whether mother, despite being the natural parent, should be appointed sole managing conservator, or whether DFPS and a godmother could be appointed instead because placing the children with mother would significantly impair their physical health or emotional development. The court examined evidence of mother’s substance abuse, positive and missed drug tests, unsuccessful discharge from treatment, failure to provide basic necessities, housing without electricity, exposure of the children to domestic violence, and the children’s resulting trauma and need for counseling and treatment. Although mother completed some services and later produced some negative drug tests, the court held the trial court could weigh those late improvements against the larger history of instability and ongoing risk. The court concluded the evidence was legally and factually sufficient to support the significant-impairment finding and affirmed the order appointing DFPS sole managing conservator of two children, the godmother sole managing conservator of the third, and mother possessory conservator.
Litigation Takeaway
“To overcome the parental presumption, a nonparent must present connected, concrete evidence showing that the parent’s conduct creates a real risk of significant physical or emotional impairment—not just that another placement is better. For parents, partial compliance and recent improvement usually will not overcome a record of substance abuse, instability, unmet needs, and trauma unless the rehabilitation evidence is sustained, specific, and trial-ready.”
In the Interest of A.Z.Q., a Child
COA08
The Eighth Court of Appeals affirmed termination of the mother’s parental rights under Texas Family Code § 161.001(b)(1)(E), holding the evidence was legally and factually sufficient to show a voluntary, deliberate, and conscious course of conduct that endangered the child. The court relied on the child’s positive cocaine and THC test, the mother’s admitted cocaine use in the child’s presence, her failure to tell medical providers about likely marijuana-gummy ingestion, her continued drug use after removal, and her failure to engage honestly in substance-abuse services despite signing a service plan. Applying clear-and-convincing sufficiency standards, the court treated the case as one about ongoing endangerment rather than a single ingestion incident and concluded the trial court could reasonably form a firm belief or conviction that subsection (E) was satisfied.
Litigation Takeaway
“Drug-use cases are won or lost on pattern evidence, not isolated events. A parent’s minimization of risk, continued use after intervention, refusal to test, denial during treatment assessments, and association with unsafe drug users can support endangerment findings and, in private custody cases, justify supervised access, restrictions, and modified conservatorship.”
Williams v. State
COA05
In Williams v. State, the Dallas Court of Appeals affirmed a mother’s conviction for injury to a child after she challenged the sufficiency of the evidence identifying her as the abuser and complained about relevance and hearsay rulings tied to abuse-related testimony. The court held the evidence was legally sufficient because the record included the mother’s recorded admissions, sibling testimony describing repeated abuse, and medical evidence consistent with acute blunt-force trauma; under the deferential sufficiency standard, the jury was entitled to resolve conflicts and disbelieve her trial recantation and blame-shifting. The court also rejected her evidentiary complaints and modified the judgment to correct clerical errors in the Penal Code citation and lead counsel designation because the appellate record clearly supplied the correct information.
Litigation Takeaway
“In abuse-driven family cases, appeals usually turn on the record: specific evidentiary objections must be carefully preserved, and a factfinder’s credibility calls will rarely be disturbed when admissions, child testimony, and medical proof line up. The case also underscores that clerical mistakes in final orders can often be corrected on appeal when the record clearly shows the right information, without undoing the merits.”