Family Law Appeals
When the Judge Gets It Wrong — What can we do now?
Appellate Work Most Family Lawyers Don’t Do
An appeal isn’t a second trial—it’s a review of whether the trial court made a legal or procedural error, argued to a different set of judges under a different set of rules. It’s a specialized skill set that most family lawyers rarely use, because most cases never get there.
David Eaker has been counsel of record in a dozen Texas appeals, in the Fifth Court of Appeals in Dallas and in the Tyler, Eastland, Houston, and El Paso courts. Most of that work is family law: parental rights, conservatorship, paternity, property division, and informal marriage.
When an Appeal Makes Sense
Not every disappointing result is a basis for appeal—an appellate court won’t re-weigh the evidence or decide it would have ruled differently. What it will review is whether the trial court applied the law correctly, followed proper procedure, and had a legally sufficient basis for its ruling. If you believe one of those broke down in your case, it’s worth a conversation about whether an appeal is realistic.
That candor cuts both ways. A hard look at the record sometimes says an appeal isn’t worth your money, and you’re better off hearing that from us at the outset than after the briefing is paid for.
A sample of some of our appellate work
Reversal of a divorce decree entered on a withdrawn agreement. In re Marriage of Dixon, No. 12-13-00324-CV (Tex. App.—Tyler Feb. 28, 2014, no pet.). The trial court rendered a final decree based on a Rule 11 agreement after our client had withdrawn his consent. The Twelfth Court of Appeals reversed and remanded. The Tyler court cited the decision later that year in Woody v. Woody, 429 S.W.3d 792, on the same point.
A signed affidavit of common-law marriage — and still no marriage. Fuller v. DeFranco, No. 05-19-01203-CV (Tex. App.—Dallas Nov. 18, 2020, no pet.). Our client, an airline pilot, sought a declaration that he had never been informally married to the woman he had lived with for years. The other side had a great deal to work with: a notarized affidavit the two of them had signed stating they entered a common-law marriage on a specific date, plus a series of other documents in which they were presented as spouses.
The answer was that every one of those representations existed to get something — flight benefits for her and her family, military benefits — and that none of them reflected an actual agreement to be married. The rest of the record pointed the other way: tax returns filed as head of household, years of messages in which they called each other boyfriend and girlfriend, and a wedding they were still planning in 2017. After a three-day bench trial the court found there had never been an agreement to marry, and the Fifth Court of Appeals affirmed, noting the trial court could properly conclude the documents “were created for the purpose of obtaining benefits only available to spouses and did not reflect an agreement to be married.”
Informal marriage cases are decided on their own facts, and a piece of paper calling two people married is not the end of the inquiry.
A child with three legal fathers, and a support order set aside years later. In re G.T.S., No. 01-09-00212-CV (Tex. App.—Houston [1st Dist.] Oct. 8, 2009, no pet.). Under the Family Code a child can end up with more than one man holding legal status as father, and this child had three: a presumed father, an acknowledged father, and our client, adjudicated the father in 1994 and ordered to pay support. When an enforcement action was brought on that order more than a decade later, we filed a bill of review and got the 1994 adjudication vacated, because the presumed and acknowledged fathers had never been joined as necessary parties to the case that produced it.
That left paternity open for the mother to establish properly. She did not, and the case was dismissed. She filed a new suit in another county without ever resolving the same problem, and by then the statute of limitations had run. The trial court granted our client summary judgment, the First Court of Appeals affirmed, and on our cross-point it reversed the attorney’s fees that had been awarded against him.
Three legal fathers is an unusual set of facts, but the lesson generalizes: an order entered years ago is not always beyond challenge, and who was and wasn’t made a party to the original case is often where the answer lies.
What to Expect
Appeals move on a different, often slower timeline than trial court, built entirely on the existing record and written briefing rather than new testimony. Deadlines are short and unforgiving at the front end—the notice of appeal is due long before the briefing is—so the time to call is right after the ruling, not months later. We’ll walk you through what’s realistic for your case, what it involves, and what it costs before you decide whether to move forward.