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Case Law Database

Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

Kesterson v. Varner

Bruce Varner (Father) appealed the trial court's dismissal of his Petition to Modify Custody of his son, J.V. The original custody was awarded to Judy Kesterson (Mother) in a 1990 divorce. Varner sought modification in 2002, citing J.V.'s serious mental health issues, including ADHD, Bipolar Disorder, and Oppositional Defiant Disorder, as a material change in circumstances. The trial court dismissed the petition, finding Varner failed to prove a material change in circumstances or that a custody change was in the child's best interest. The appellate court affirmed the trial court's decision, concluding that while a material change in circumstances was established due to J.V.'s mental health, Varner did not meet the burden of proof that changing custody to him would be in J.V.'s best interest, especially given expert testimony on J.V.'s manipulative behavior and the guardian ad litem's recommendation for J.V. to remain with the mother. The court also affirmed the allocation of attorney's fees and guardian ad litem fees to Varner.

Custody ModificationChild Mental HealthParental DiscretionBest Interest of ChildGuardian Ad Litem FeesAttorney Fees AwardAppellate ReviewTrial Court DismissalPsychiatric DiagnosisAttention Deficit Hyperactivity Disorder
References
29
Case No. E2013-01734-COA-R3-CV
Regular Panel Decision
Jul 30, 2014

Joshua Wayne Taylor v. Mary Katherine Taylor

This is a post-divorce case concerning the modification of a permanent parenting plan and other relief for the parties' daughter. Mother initially sought to modify the residential parenting schedule, and Father counterclaimed for a modified schedule and a change in custody designation. The trial court found no material change in circumstances to warrant a change in the primary residential parent but found a material change supporting a modification of the residential schedule, significantly increasing Mother's parenting time. Father appealed this decision, raising issues regarding the material change in circumstances, failure to designate him as the primary residential parent, and failure to find Mother in contempt. Mother raised issues concerning deviations from child support guidelines and attorney's fees. The Court of Appeals affirmed the trial court's decision, finding no error in the denial of a custody change, the modification of the parenting schedule, or the handling of contempt and child support issues.

DivorceChild CustodyParenting Plan ModificationResidential ScheduleMaterial Change in CircumstancesChild Support GuidelinesContempt of CourtAttorney FeesAppellate ReviewAbuse of Discretion
References
38
Case No. W2010-01715-COA-R3-CV
Regular Panel Decision
Apr 28, 2011

Whitney W. Webb v. Justin L. Pewitt

This case concerns a post-divorce modification of child custody. The trial court changed primary residential custody from the mother to the father after finding a material change in circumstances and determining it was in the child's best interest. The mother appealed, raising several issues regarding the trial court's findings and considerations, including its assessment of her lifestyle changes. The Court of Appeals affirmed the trial court's decision, concluding that sufficient evidence supported the finding of a material change in circumstances due to the mother's unstable living conditions, multiple moves, domestic altercations, and the child's troubled state, and that the custody modification was in the child's best interest for stability.

Child CustodyPost-DivorceMaterial Change in CircumstancesBest Interest of the ChildParental StabilityDomestic DisturbancesParental ConductAppellate ReviewTrial Court FindingsRule 52.01
References
13
Case No. 13-22-00016-CV
Regular Panel Decision
Aug 10, 2023

In the Interest of G.M.K., a Child v. the State of Texas

Jared appealed a trial court's order modifying his parent-child relationship with his child, G.M.K., and his child support obligation to Kathleen. Jared argued the trial court erred by denying his motion to modify child support, claiming a material and substantial change in circumstances due to his long-term disability and reduced income after two hip surgeries. He also asserted the trial court applied an incorrect standard and was biased. The appellate court affirmed the trial court's judgment, concluding that Jared failed to provide sufficient evidence to accurately identify his net resources, thus failing to meet his burden to show a material and substantial change in circumstances. The court also found no reversible judicial bias.

Family lawChild support modificationAbuse of discretionNet resourcesBurden of proofJudicial biasAppellate reviewMaterial and substantial changeTexas Family CodeParent-child relationship
References
35
Case No. W2001-01350-COA-R3-CV
Regular Panel Decision
Mar 21, 2002

William Perry v. Ricki Perry

This case involves an appeal from a Chancery Court decision concerning the continuation of rehabilitative alimony and attorney's fees following a divorce. The trial court initially awarded temporary rehabilitative alimony to Ms. Perry and later extended it for three additional years, also ordering Mr. Perry to pay Ms. Perry's attorney's fees. Mr. Perry appealed, arguing that Ms. Perry failed to demonstrate a substantial and material change in circumstances required for modification. The Court of Appeals of Tennessee affirmed the trial court's decision, ruling that a showing of a substantial and material change in circumstances was not necessary for the modification of a temporary, open-ended alimony award. The appellate court also upheld the trial court's award of attorney's fees, finding no abuse of discretion.

DivorceAlimonyRehabilitative AlimonyAttorney's FeesSpousal SupportMarital DissolutionAppellate ReviewTrial Court DiscretionTemporary AlimonyChange in Circumstances
References
11
Case No. 05-17-01457-CV
Regular Panel Decision
Aug 22, 2019

Charles Chang, M.D. v. Ashley Denny

Dr. Charles Chang performed brain surgery on Ashley Denny in 2006, leaving a cotton ball in her brain, which was discovered during a second surgery in 2011. Denny filed a medical liability claim against Dr. Chang in 2013, approximately seven years after the initial surgery and more than two years after discovering the foreign object. The trial court initially dismissed the claims as time-barred but later granted a new trial, where a jury found Dr. Chang negligent and Denny diligent in pursuing her claim. Dr. Chang appealed, challenging the denial of his motion for Judgment Non Obstante Veredicto (JNOV) on Denny's open courts defense. The dissenting opinion argues that Denny failed to exercise due diligence as a matter of law, given the 25-month delay in filing suit after discovery, and that her explanations (difficulty helping her lawyer and finding an expert) are insufficient to overcome the statute of limitations. The dissent concludes that the law should be applied neutrally, preventing recovery against Dr. Chang and suggesting Denny's recourse should be against her attorney.

Medical MalpracticeStatute of LimitationsOpen Courts DoctrineDue DiligenceForeign ObjectSurgical ErrorJury VerdictJudgment Non Obstante VeredictoAppellate ReviewTexas Civil Practice
References
15
Case No. MISSING
Regular Panel Decision

Westerhaus v. Liberty Mutual Insurance Co.

Justice Lagarde dissents in a case concerning the readjudication of "future dependency" of a minor under the Workers' Compensation Act. In 1982, Stacie was found dependent, with an insurance company, Liberty, paying benefits until 1993 when it sought readjudication. The trial court's judgment allowed for readjudication based on a "material change of the then circumstances of dependency." Lagarde argues that Liberty's summary judgment evidence, which included Stacie's admissions about her financial independence and age, conclusively proved this material change. Therefore, Justice Lagarde would have affirmed the summary judgment in favor of Liberty.

Future DependencyMinor DependencyWorkers' CompensationReadjudicationMaterial Change of CircumstancesSummary JudgmentDissenting OpinionAdult Child DependencyFinancial IndependenceInsurance Benefits
References
0
Case No. M1998-00919-COA-R3-CV
Regular Panel Decision
Mar 15, 2001

Walter Hanselman, Jr. v. Linda Hanselman

This appeal concerns a father's attempt to reduce his child support and spousal support obligations after a decline in income due to employer cutbacks in overtime. The father, Walter Jacob Hanselman, Jr., filed a petition in Hickman County Chancery Court seeking a downward modification. The trial court denied the petition, finding he failed to establish a significant variance in child support and a substantial change in circumstances for spousal support. The Court of Appeals agreed with the trial court's findings, concluding that Mr. Hanselman did not demonstrate a significant income variance or a material change in circumstances. Therefore, the judgment denying the reduction in support obligations was affirmed.

Child Support ModificationSpousal SupportOvertime IncomeIncome AveragingParental ObligationsDivorce DecreeTennessee LawAppellate ReviewMaterial Change in CircumstancesFrivolous Appeal
References
34
Case No. MISSING
Regular Panel Decision

Farish v. Farish

George Rice Farish appealed an order denying his motion to modify child support, arguing a material and substantial change in circumstances following his 1987 divorce from Dorothy Farish. He cited a decline in his net resources, remarriage, the birth of another child, and increased private school tuition for the three children from his first marriage. The trial court denied the motion, finding no material and substantial change and affirming the original $4,500 monthly child support, along with awarding attorney's fees to Dorothy Farish. The appellate court upheld this decision, concluding that Farish's income had increased, his debt load had substantially decreased, and the other factors did not warrant a modification of the child support order.

Child Support ModificationFamily LawMaterial and Substantial ChangeNet ResourcesFinancial CircumstancesIncome IncreaseDebt ReductionAttorney's FeesTexas Family CodeAppellate Review
References
16
Case No. 02-18-00307-CV
Regular Panel Decision
Aug 28, 2019

Norbert Bolda v. Clivaller Bolda

Norbert Bolda appealed the trial court's order denying his petition to modify or terminate a spousal-maintenance order, which required him to pay his ex-wife, Clivaller Bolda, $1,600 monthly. Norbert contended that there was insufficient evidence to support the trial court's finding of no material and substantial change and that the spousal maintenance exceeded the statutory cap. The Court of Appeals, Second Appellate District of Texas at Fort Worth, affirmed the trial court's judgment. The court primarily ruled that the spousal maintenance obligation was contractual alimony, not court-ordered spousal maintenance, and thus not subject to modification under Chapter 8 of the Texas Family Code, and alternatively, that Norbert failed to prove a material and substantial change in circumstances.

Spousal MaintenanceContractual AlimonyModification of OrderDivorce DecreeMaterial and Substantial ChangeDisability BenefitsTexas Family CodeAppellate ReviewAbuse of DiscretionEnforcement of Contract
References
23
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