Opinion Library

Divorce

Tran v. Overby

COA01

In Tran v. Overby, the First Court of Appeals held that a husband’s pleaded request in his answer for attorney’s fees, expenses, and costs incurred to prepare and defend a divorce was an independent claim for affirmative relief, not merely a defensive request. Because that fee claim was already pending when the wife nonsuited her divorce petition, Texas Rule of Civil Procedure 162 did not extinguish it, and the trial court retained authority to decide and award fees under Family Code section 6.708. The court also rejected the wife’s jury-trial complaint, holding that although the reasonableness of fees can be a jury issue, her original jury demand in the divorce case did not survive the nonsuit and she failed to timely perfect a new jury demand by paying the Rule 216 jury fee for the remaining post-nonsuit fee dispute.

Litigation Takeaway

"A nonsuit does not necessarily end a divorce case if the other side has already pleaded attorney’s fees as affirmative relief. For respondents, plead fees clearly and request an actual judgment so the claim survives dismissal; for petitioners, do not assume you can avoid fee exposure by nonsuiting on the eve of trial. And if only fees remain after nonsuit, file a new jury demand and pay the jury fee again or you may lose any right to a jury on reasonableness."

In re L.B.

COA05

In a child-removal proceeding, the relator sought mandamus relief after the trial court allegedly refused to conduct an adversary hearing, reset it, and orally extended the children’s removal. The Fifth Court of Appeals explained that an oral ruling may be reviewed by mandamus only if the record establishes a clear, specific, and enforceable order. Because the relator provided neither a signed written order nor a properly authenticated reporter’s record documenting the trial court’s precise ruling, the court could not determine whether a reviewable order existed. It denied the mandamus petition without reaching the legality of the alleged rulings and denied the emergency motion for temporary relief as moot.

Litigation Takeaway

"Urgency does not excuse an inadequate mandamus record. Before seeking emergency appellate relief from an oral family-court ruling, counsel should obtain either a signed order or a properly authenticated reporter’s record showing that the ruling is definite, presently operative, and enforceable; counsel’s description, docket entries, emails, and unauthenticated transcripts are not substitutes."

In re Dennis D. Spurling

COA14

Dennis D. Spurling sought mandamus relief compelling the trial court to rule on portions of a motion that had been pending for less than two months. The Fourteenth Court of Appeals recognized that a trial court has a ministerial duty to consider and rule on a properly filed, presented, and pending motion, but explained that mandamus requires an unreasonable delay assessed under the circumstances. Because the short passage of time did not itself show a refusal to act, and the record established no urgency, imminent prejudice, or other circumstance requiring expedited consideration, the court found no clear abuse of discretion. It denied the mandamus petition and Spurling’s motions for temporary relief.

Litigation Takeaway

"Mandamus will not ordinarily compel a ruling merely because a motion has been pending for several weeks. Before seeking relief, counsel should document proper filing and presentment, make reasonable follow-up requests, and build evidence showing why continued delay creates concrete and imminent harm. The requested relief should generally seek a ruling—not a particular outcome."

Modifying the Parenting Plan

In re Amber Gene Ward

COA07

In a post-divorce modification suit, the trial court temporarily transferred from Amber Gene Ward to Wayne Michael Fox, Jr. the exclusive right to designate their child’s primary residence based on concerns about the child’s hygiene, weight, eating habits, dental condition, a former residence, and an incident involving another child in Ward’s current household. Applying Texas Family Code § 156.006(b)(1), the Seventh Court of Appeals held that these allegations did not establish that the child’s present circumstances would significantly impair her physical health or emotional development: several concerns lacked a demonstrated connection to significant harm, the former residence did not reflect current conditions, and CPS had ruled out the investigated allegations. Because the trial court changed the primary-residence designation without sufficient evidence under the heightened statutory standard, and because the temporary order was not appealable, the court conditionally granted Ward mandamus relief.

Litigation Takeaway

"A temporary change of the parent who designates a child’s primary residence requires current, competent evidence connecting the child’s existing circumstances to significant physical or emotional impairment—not merely best-interest concerns, isolated observations, past living conditions, or evidence that another household may be preferable. Counsel seeking or opposing such relief should build a complete record around § 156.006(b)(1), preserve statutory objections, and be prepared to pursue mandamus because temporary custody orders generally cannot be challenged by interlocutory appeal."

FourSite Capital, LLC d/b/a FourSite Energy v. Eckard Land & Acquisition, L.L.C. and Eckard Exploration & Production, L.L.C.

COA05

Eckard Land & Acquisition and Eckard Exploration & Production obtained a temporary injunction restraining FourSite Capital while FourSite’s special appearance was being litigated. In a related interlocutory appeal, the Dallas Court of Appeals had already held that the trial court lacked personal jurisdiction over FourSite and dismissed the claims against it. Applying horizontal stare decisis and the rule that an order entered without personal jurisdiction over the affected party is void, the court concluded that the injunction was void rather than merely erroneous. Although the court could determine the order’s validity, it could not review the ordinary merits of an appeal from a void order. It therefore vacated the temporary injunction, dismissed the interlocutory appeal for want of jurisdiction, and denied FourSite’s motion to stay as moot.

Litigation Takeaway

"Personal jurisdiction must be established before a Texas court may impose an in-personam injunction on a nonresident. Jurisdiction over a divorce, child-custody dispute, marital status, Texas property, or another party does not independently authorize personal restraints against a nonresident spouse, parent, entity, trustee, or third party. Counsel should raise and resolve special appearances promptly, preserve accelerated appellate remedies, and seek vacatur—not merits review—when a lack of personal jurisdiction renders an injunction void."

General trial issues

Johnson v. Citibank, N.A.

COA14

In Johnson v. Citibank, Citibank won summary judgment on a credit-card debt using business-records affidavits and account records. On appeal, the defendant argued the affidavits should have been excluded because the affiants were not timely disclosed, the records did not satisfy Texas Rule of Evidence 902(10)’s 14-day notice requirement, and parts of the affidavits were conclusory. The Fourteenth Court of Appeals affirmed, holding that a summary-judgment submission date is not a “trial” for purposes of Rule 194.4’s 30-day witness-disclosure deadline, and that the appellate record did not show any actual trial event that would trigger exclusion. Most importantly, the court held that a Rule 902(10) notice complaint was waived because the defendant objected only to the affidavit’s form, not specifically to lack of the required 14-day notice, so the issue was not preserved under Rule 33.1. The court also concluded the affidavits were supported by sufficient factual detail and were not conclusory.

Litigation Takeaway

"Be exact with evidentiary objections. If you want to complain that business records were not served with Rule 902(10)’s required 14-day notice, say that specifically and get a ruling; a generic objection that the affidavit is defective will not preserve the issue. Also, do not assume a summary-judgment submission date counts as a trial date for witness-disclosure deadlines—build a clear record showing the actual operative trial setting or court-ordered deadline."

Perez v. Akene

COA03

In Perez v. Akene, the Third Court of Appeals held that a trial court abused its discretion by denying a party’s Rule 145 indigency claim and requiring payment of appellate costs based solely on the party’s failure to appear at the indigency hearing. Perez had filed a sworn statement of inability to pay and supported it with prima facie evidence, including proof of means-tested benefits, income records, and expense documentation. No sworn contest was filed under Rule 145(e)(1), and the opposing party offered no testimony or documentary evidence rebutting her inability-to-pay showing. The appellate court analyzed Rule 145’s text and structure and concluded that unanswered questions, judicial skepticism, or nonappearance are not evidence of ability to pay. Because Perez’s prima facie showing stood unrebutted, the order requiring appellate costs was unsupported, so the court reversed and directed preparation of the appellate record without prepayment.

Litigation Takeaway

"If your client files a compliant Rule 145 statement backed by prima facie proof—especially means-tested benefits—the trial court cannot deny indigency just because the client misses the hearing. To defeat indigency, the other side needs a proper sworn contest and actual evidence, not argument or suspicion."

Evidence

Webb v. State

COA10

In Webb v. State, the appellate court considered whether a trial court properly admitted a video and Facebook photographs when the sponsoring witness did not create the media, could not identify who did, and could not rule out possible alteration before law enforcement received them. Applying Texas Rule of Evidence 901’s liberal authentication standard, the court held the evidence was sufficiently authenticated because the witness personally recognized the people depicted by facial features, tattoos, and other distinctive characteristics, and testified the offered exhibit fairly and accurately reflected what he received. The court also held that photographs were not inadmissible merely because the sponsoring witness was not the photographer, and it rejected broader tampering complaints because those objections were not preserved at trial. The ruling confirms that under Rule 901, uncertainty about authorship or possible editing often goes to weight rather than admissibility.

Litigation Takeaway

"In Texas family-law cases, digital evidence like videos, screenshots, and social-media photos can often be authenticated through a witness who recognizes the people, place, or property shown—even if that witness did not create the media and cannot eliminate every possibility of alteration. The key lesson is twofold: Rule 901 sets a low threshold for admission, but objections must be specific if you want to preserve complaints about tampering, editing, hearsay, or other defects for appeal."

In re Welltower TCG RIDEA Tenant LLC

COA11

In *In re Welltower TCG RIDEA Tenant LLC*, the plaintiff filed a wrongful-death case in Comanche County, but the defendants challenged venue and proved that county was improper under Texas’s general venue statute. The defendants then established Tarrant County as a proper venue based on a defendant’s principal office. The plaintiff argued in the alternative that Hood County was also proper because the underlying events occurred there, and the trial court transferred the case to Hood County instead of Tarrant County. The Eastland Court of Appeals held that once the plaintiff’s original venue choice was shown to be improper, the plaintiff lost control over venue and could not obtain a second choice by proposing another proper county in response to the transfer motion. Applying Section 15.002 and Rules 86 and 87, and relying on *In re Masonite Corp.*, the court concluded the trial court abused its discretion by transferring the case to the plaintiff’s backup venue rather than the proper county established in the defendants’ motion. The court conditionally granted mandamus relief.

Litigation Takeaway

"If a case is filed in the wrong county, the plaintiff does not get a do-over. In Texas venue practice, a respondent who timely files and proves a proper transfer county can control the destination, and the trial court cannot rescue the petitioner by sending the case to a different county the petitioner later suggests. For family lawyers handling divorce-adjacent tort, contract, entity, or property claims governed by general venue rules, venue must be proven carefully at filing and challenged precisely at the outset."

Termination of Parental Rights

In the Interest of M.T., H.T., R.T., K.T., and G.T., Children

COA02

In this private termination appeal, the Fort Worth Court of Appeals held that legally and factually sufficient evidence supported termination of Mother’s parental rights under Texas Family Code § 161.001(b)(1)(D) and (E). The court focused on Mother’s long-running substance abuse, a December 2020 visitation incident in which the children fled a chaotic home and reported being terrified, evidence that Mother was heavily intoxicated while caring for them, unsafe home conditions, and proof that the children consistently feared her. The court analyzed endangerment both as dangerous surroundings under subsection (D) and as a course of conduct under subsection (E), emphasizing that endangerment can be shown through instability, impaired judgment, and emotional as well as physical danger. It rejected Mother’s argument that her recent sobriety defeated sufficiency, holding that a factfinder could weigh a short period of improvement against years of relapse and instability and still form a firm conviction that termination and best interest were proved.

Litigation Takeaway

"Recent sobriety alone usually will not overcome a documented pattern of substance abuse, instability, and child endangerment. In Texas family-law cases, the strongest endangerment records show a timeline of recurring conduct, third-party corroboration, unsafe conditions, and the child’s fear or emotional harm—not just one bad incident."