Opinion Library

Property Division

Wood v. Wood

COA14

In Wood v. Wood, the parties’ premarital agreement and later MSA treated certain Schedule F retirement accounts as separate property to be divided equally, and their MSA required binding arbitration of disputes over drafting a decree that conformed to the agreement. When a dispute arose over decree language and use of a QDRO service to implement the retirement-account division, the wife argued the arbitrator exceeded his authority and substantively redivided property. The Fourteenth Court of Appeals rejected that argument, holding that the arbitrator acted within the scope of the MSA’s drafting-arbitration clause because the dispute submitted was how to implement the agreed division in the decree. The court further held that directing QDRO-related procedures was a permissible implementation mechanism, not an unlawful recharacterization or divestiture of separate property, and affirmed denial of vacatur under Texas Civil Practice and Remedies Code section 171.088(a)(3)(A).

Litigation Takeaway

"If an MSA sends decree-drafting disputes to binding arbitration, that authority can extend beyond mere wording disputes to the practical mechanics needed to carry out an agreed property division—especially with retirement assets. Lawyers should draft arbitration clauses carefully, spell out whether implementation issues like QDROs are included, and preserve any vacatur complaints precisely in the motion to vacate."

Appeal and Mandamus

In re David J. Alarid

COA06

In In re Alarid, the Texarkana Court of Appeals denied mandamus relief without reaching the merits because the relator failed to provide a proper Rule 52 mandamus record. The court found that some attached documents were neither certified nor sworn, some materials appeared not to have been filed in the trial court, and the Rule 52.3(k) certification did not properly state that the petition’s factual assertions were supported by competent evidence in the appendix or record. Strictly enforcing Rules 52.7 and 52.3(k), the court held that these record defects were fatal and denied mandamus relief.

Litigation Takeaway

"Mandamus can be lost on procedure alone. In family-law emergency and contempt matters, lawyers must ensure every material document filed below is included as a certified or sworn copy, exclude convenience exhibits that were not filed in the trial court, and use Rule 52.3(k) certification language that tracks the rule exactly. A strong merits argument will not save a defective mandamus record."

Appeal and Mandamus

Jonathan Edward Norton v. The State of Texas

COA10

In Norton v. State, the appellant challenged a six-year prison sentence imposed after revocation of community supervision as grossly disproportionate under the Eighth Amendment and article I, section 13 of the Texas Constitution. The Tenth Court of Appeals did not reach the merits because Norton never objected when sentence was pronounced and never raised the constitutional complaint in a motion for new trial or other post-trial filing. Applying Texas Rule of Appellate Procedure 33.1(a)(1) and preservation authorities, the court held that constitutional disproportionality complaints are waived unless timely and specifically presented to the trial court. The revocation judgment and sentence were affirmed.

Litigation Takeaway

"If you believe a ruling or punishment is constitutionally excessive, say so in the trial court—clearly, specifically, and on the record. Norton is a preservation case: even serious constitutional complaints, including disproportionality, due-process, or punitive-sanctions arguments, can be lost on appeal if counsel does not object at the hearing and, when appropriate, re-urge the issue in a post-judgment motion."

Child Custody

Victor Hugo Prado v. The State of Texas

COA01

In this injury-to-a-child appeal, the court rejected challenges to Prado’s convictions based on jury unanimity, legal sufficiency, and accomplice-witness corroboration, holding that commission and omission were alternative manner-and-means, that the evidence of prolonged malnourishment, visible injuries, deprivation, and Prado’s control over the children’s environment was sufficient to prove knowing or intentional injury by omission, and that independent testimony and documentary evidence adequately corroborated the mother’s testimony. The court did, however, agree that because both convictions arose from a single criminal action, duplicative court costs could not be imposed in both judgments under article 102.073, so it modified one judgment to delete those costs and affirmed as modified.

Litigation Takeaway

"For Texas family-law cases, this opinion is a strong roadmap for proving endangerment through omission, not just direct abuse. A parent or paramour who controls the home and knowingly fails to feed, protect, or obtain care for a child can be framed as dangerous based on pattern evidence from daycare workers, relatives, photos, records, and other third parties. It also reminds lawyers to build corroboration beyond one compromised household witness and to audit multiple orders for duplicative cost or fee assessments."

In the Interest of J.S.C. and J.M.C., Children

COA10

The Waco Court of Appeals affirmed termination of Father’s parental rights under Texas Family Code § 161.001(b)(1)(E), holding the evidence was legally and factually sufficient to show Father engaged in his own endangering course of conduct. Father argued the case turned on whether he knew about Mother’s drug use and neglect, but the court rejected that framing because subsection (E) was supported by Father’s independent conduct: repeated incarceration, methamphetamine use and related criminal charges, avoidance of the Department due to active warrants, refusal to begin services, and prolonged absence from the children’s lives. The court also rejected Father’s argument that conduct before formal paternity adjudication could not count, concluding that knowledge of paternity is not required when the parent had reason to believe he was the father and avoided involvement. The termination judgment was affirmed.

Litigation Takeaway

"In endangerment cases, courts look at the parent’s overall pattern of instability—not just one bad act and not just the other parent’s misconduct. Repeated jail exposure, drug use, avoidance of CPS, failure to pursue paternity, and staying absent from the child’s life can together support termination and, by analogy, strong conservatorship and possession restrictions in other family-law cases."

In the Interest of Z.S., Z.S., M.S. III, Children

COA13

The Thirteenth Court of Appeals affirmed termination of both parents’ rights after concluding the evidence clearly and convincingly showed endangerment under Texas Family Code § 161.001(b)(1)(D) and (E) and that termination was in the children’s best interest. The court relied on severe unsanitary living conditions, untreated medical issues, exposure to sexual-abuse risk, domestic violence, and ongoing parental drug use during the case. It analyzed endangerment cumulatively, holding that the parents knowingly allowed the children to remain in dangerous surroundings and engaged in a continuing course of conduct that jeopardized the children’s physical and emotional well-being. The children’s improvement in their maternal grandmother’s placement further supported the best-interest finding.

Litigation Takeaway

"Endangerment cases are won or lost on the full pattern of danger, not one isolated event. Evidence of filthy home conditions, unsafe caregivers, domestic violence, drug use, poor visitation conditions, and lack of meaningful change after services can support termination—and in non-termination family cases, the same facts can justify supervised possession, sole conservatorship, or other protective restrictions."

Modifying the Parenting Plan

In re Gentri Renee McLean

COA11

In In re McLean, the Eleventh Court of Appeals considered whether a trial court could temporarily transfer the exclusive right to designate the children’s primary residence from the mother to the father in a pending modification suit. The father relied on evidence that the mother had denied visitation, the children had school absences, and the mother tested positive for cocaine. The court held that Family Code section 156.006(b)(1) requires more than proof of parental misconduct or decree violations; the movant must show that the children’s present circumstances would significantly impair their physical health or emotional development. Because the record lacked child-focused evidence tying the complained-of conduct to present significant impairment, the temporary modification was legally insufficient. The trial court therefore abused its discretion, and mandamus relief was conditionally granted.

Litigation Takeaway

"If you want temporary orders changing primary custody in Texas, you need proof of present, child-specific significant impairment—not just evidence that the other parent is obstructive, irresponsible, or tested positive for drugs. Denied visitation may support enforcement, but it does not automatically justify a temporary change of primary residence."

In the Interest of B.E.S.D. and T.D.G., Children

COA11

In this parental-rights termination appeal, the Eleventh Court of Appeals held the evidence was legally and factually sufficient to support the trial court’s finding that termination was in the best interest of the children under Texas Family Code § 161.001(b)(2). The court reviewed the record under the clear-and-convincing standard and applied the nonexclusive Holley factors, emphasizing that the same evidence supporting predicate endangerment grounds can also support best interest. The court focused on the mother’s repeated marijuana use during multiple pregnancies, repeated positive drug tests at childbirth, long CPS history, prior removals, domestic violence, instability, and failure to make lasting changes despite services. As to the father of B.E.S.D., the court likewise held that his refusal to cooperate, role in the unsafe environment, and conduct supporting the predicate findings also supported best interest. The termination order was affirmed.

Litigation Takeaway

"Pattern matters. Texas courts may infer future danger from a parent’s past conduct, and a best-interest finding does not fail just because every Holley factor was not proved. In family-law cases involving conservatorship, modification, or supervised possession, lawyers should build the record chronologically around recurring substance abuse, domestic violence, instability, noncompliance, and failure to benefit from services—not isolated incidents."

In the Interest of R.G. III, a Child

COA02

In In re R.G. III, the Fort Worth Court of Appeals affirmed termination of the father’s parental rights after concluding the evidence was legally and factually sufficient under Family Code § 161.001(b)(1)(D) and (E), and sufficient to support best interest under § 161.001(b)(2). The court analyzed the case as a pattern-endangerment record: the father repeatedly used methamphetamine, committed domestic violence, had a history of criminal instability and incarceration, and knowingly left the child with the mother despite knowing of her repeated methamphetamine relapses. The court also emphasized the dangerous living conditions surrounding the child, including motel living, lack of school enrollment, poor supervision, and the child’s own positive methamphetamine test. Rejecting the father’s minimization and alternative explanations, the court held that the combined evidence showed both endangering surroundings and endangering conduct, and that the same proof also established termination was in the child’s best interest.

Litigation Takeaway

"Texas courts will treat substance abuse, domestic violence, criminal instability, educational neglect, and failure to protect from a known drug-using parent as a unified endangerment pattern. For litigators, the lesson is to build or rebut the case through cumulative proof of knowledge, relapse history, protective failures, and the child’s concrete exposure to danger—not isolated incidents or last-minute claims of improvement."

Evidence

Rodriguez v. State

COA11

In Rodriguez v. State, the Eastland Court of Appeals held that Article 38.37, section 2(b) permits evidence of an extraneous child-sex offense even when the extraneous victim is a different child from the complainant in the charged case. The defendant, charged with indecency with a child involving G.T., challenged the admission of testimony from K.N. about an earlier alleged sexual assault, arguing the evidence was too dissimilar, unfairly prejudicial, and unconstitutional under Article 38.37. The court relied on prior authority, especially Wishert, to reject any same-victim limitation in the statute, held that the statute survived both facial and as-applied constitutional challenges because of its procedural safeguards, and concluded the trial court acted within its discretion after conducting the required hearing and Rule 403 balancing. The conviction was affirmed.

Litigation Takeaway

"For family-law litigators, Rodriguez is a strong crossover authority for the proposition that alleged sexual misconduct toward one child can be relevant to assessing risk to another child. In custody, modification, and protective-order cases, do not assume allegations lose force just because the child in suit is different; instead, expect courts to consider cross-child conduct as part of a broader safety and protective-capacity analysis, while still litigating reliability, corroboration, and proportionality."