Prabhakar Gopalan v. Andrea Marsh

Supreme Court of Texas
══════════
No. 25-0161
══════════

Prabhakar Gopalan,
Petitioner,

v.

Andrea Marsh,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════

Argued March 4, 2026

JUSTICE DEVINE delivered the opinion of the Court.

In this divorce proceeding, the jury found that the father should
have the exclusive right to designate the children’s primary residence.
But the trial court awarded the mother more time with the children
under the divorce decree’s possession order. The central issue is
whether the court’s possession order contravened the jury verdict. We
hold that it did. The ordinary meaning of “primary residence” does not
encompass a home where the child lives less time than elsewhere, and
the statutory context supports that understanding. We therefore
reverse and remand the possession order for the trial court’s
redetermination. Because that issue may inform the best-interest
analysis in assigning parental rights and duties, we likewise reverse and
remand those determinations, along with the appellate attorney’s fee
award. We otherwise affirm.
I. Background
Andrea Marsh and Prabhakar Gopalan filed for divorce after nine
years of marriage. They agreed to joint managing conservatorship of
their two children but disputed the allocation of parental rights and
division of the marital estate. Following a five-day trial, the jury found
that Gopalan should have the exclusive right to designate the children’s
primary residence within Travis County. The trial court then
determined the specific possession terms, child support, and distribution
of the remaining parental rights—matters assigned to the court under
the Family Code.1 In the final decree, the court divided the estate,
adopted the jury’s finding on primary residence, and awarded Marsh
greater possession (approximately 57% of the time), monthly child
support, the majority of exclusive parental rights, and conditional
appellate attorney’s fees. After the court issued findings of fact and
conclusions of law, Gopalan appealed. Among other issues, he
challenges the possession order as contravening the verdict and seeks a
remand of possession and related issues.

1 See TEX. FAM. CODE §§ 105.002(c)(2), 153.071.

2
A divided court of appeals affirmed, concluding that the “decree
in this case implements the letter of the jury’s verdict.”2 Acknowledging
a split among the courts of appeals,3 the court agreed with the Dallas
Court of Appeals that “[t]here is simply no requirement in the Family
Code that one joint managing conservator be given more time of
possession of a child because of any particular jury finding.”4 In so
holding, the court adopted the view that the primary-residence right is
necessary “for purposes of public school enrollment and as a significant
factor in the power of relocation” but awarding “more days” of possession
to the other parent does not undermine that right.5 The dissent would
have held that the decree impermissibly conflicts with the verdict
because the ordinary meaning of “primary residence” requires that “the
children should live there at least half, if not slightly more than half, of
the time.”6 We granted review to resolve the split of authority.

2 706 S.W.3d 650, 659, 667 (Tex. App.—Austin 2025).

3 Id. at 666-67 (citing In re Z.K.S., No. 13-19-00011-CV, 2020 WL
103864, at *4 (Tex. App.—Corpus Christi–Edinburg Jan. 9, 2020, no pet.)
(mem. op.); In re W.B.B., No. 05-17-00384-CV, 2018 WL 3434588, at *3 (Tex.
App.—Dallas July 17, 2018, no pet.) (mem. op.); Albrecht v. Albrecht, 974
S.W.2d 262, 264-65 (Tex. App.—San Antonio 1998, no pet.)).
4 Id. at 667 (quoting W.B.B., 2018 WL 3434588, at *3).

5 Id. (quoting W.B.B., 2018 WL 3434588, at *3).

6 Id. at 684-85 (Triana, J., concurring and dissenting).

3
II. Discussion
A.
By way of context, we begin with a brief overview of the pertinent
statutory history.7 Before the Family Code’s codification, divorce courts
were empowered to award child custody8—a term that “connotes the
right to establish the child’s domicile”9—and since 1961 have been bound
by the jury’s custody determinations.10 At that time, courts disfavored
“split custody” and ordinarily granted custody to a single parent.11
In 1973, the Legislature enacted Title II of the Family Code,
which replaced “custodian” terminology with “conservator” and
enumerated parental rights and duties.12 The statute placed first in

7 See Brown v. City of Houston, 660 S.W.3d 749, 755 (Tex. 2023)
(“[N]obody should quarrel with examining how an enacted statute changes
over time. . . . [T]his is the history of the legislation, not legislative history.
Statutory history concerns how the law changed, which can help clarify what
the law means.” (alterations in original) (internal quotation marks and citation
omitted)).
8 See Lakey v. McCarroll, 134 S.W.2d 1016, 1020 (Tex. 1940) (noting

that the divorce court is authorized to give custody of a minor child to either
the father or the mother as the court may deem proper and right).
9 Leithold v. Plass, 413 S.W.2d 698, 700 (Tex. 1967); see id. at 702 n.1

(Norvell, J., dissenting) (discussing the distinction between “visitation rights”
and “custody rights”).
10 See In re Y., 516 S.W.2d 199, 205 (Tex. Civ. App.—Corpus Christi

1974, writ ref’d n.r.e.); see also Taft v. Johnson, 553 S.W.2d 408, 409-10 (Tex.
Civ. App.—El Paso 1977, writ ref’d n.r.e.).
11 See Leithold, 413 S.W.2d at 703-04 (Norvell, J., dissenting).

12 Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, secs. 12.04, 14.01,

.02(a), 1973 Tex. Gen. Laws 1411, 1420, 1422-23 (repealed and recodified 1995)
(current versions at TEX. FAM. CODE §§ 151.001, 153.131–.133). According to

4
that list “the right to have physical possession of the child and to
establish its [sic] legal domicile,” thereby linking possession with the
authority to determine domicile (now “residence”) in a single right.13
Under this scheme, divorce courts typically appointed a “managing”
conservator with that right and a “possessory” conservator with limited
possession rights.14 Then, as now, the child’s best interest remained the
“primary consideration” for those decisions.15

a contemporaneous commentator, the Legislature substituted “conservator” for
“custodian” to “encourage the courts and lawyers to disregard prior case law
concerning ‘custody.’” Eugene L. Smith, Title 2. Parent and Child, 5 TEX. TECH
L. REV. 389, 424 (1974). But “[t]his gambit was only partially successful.”
Eugene L. Smith, Title 2. Parent and Child, 13 TEX. TECH L. REV. 799, 928
(1982).
13 The Legislature changed “legal domicile” to “residence” as part of the

1995 recodification and changed “establish” to “designate” in 2003. Act of
May 25, 1973, 63d Leg., R.S., ch. 543, § 1, sec. 12.04(1), 1973 Tex. Gen. Laws
1411, 1420, repealed and recodified by Act of April 6, 1995, 74th Leg., R.S.,
ch. 20, §§ 1–2, sec. 151.003(a)(1), 1995 Tex. Gen. Laws 113, 139, 282, amended
by Act of May 27, 2003, 78th Leg., R.S., ch. 1036, § 3, sec. 151.001(a)(1), 2003
Tex. Gen. Laws 2987, 2988 (current version at TEX. FAM. CODE § 151.001(a)(1)
(“A parent of a child has . . . the right to have physical possession, to direct the
moral and religious training, and to designate the residence of the child[.]”)).
14 Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, secs. 12.04,
14.01(a)–(b), .02(a), .03–.04, 1973 Tex. Gen. Laws 1411, 1420, 1422-24
(repealed and recodified 1995) (current versions, as amended, at TEX. FAM.
CODE §§ 151.001, 153.131–.133, .191–.192); see Phillips v. Beaber, 995 S.W.2d
655, 660 (Tex. 1999) (“[T]he Family Code presumed that one parent would have
a custodial relationship with the child as its sole managing conservator, while
the other parent would be named a possessory conservator, exercising specified
visitation rights.”).
15 Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, sec. 14.07(a), 1973

Tex. Gen. Laws 1411, 1425 (repealed and recodified 1995) (current version, as
amended, at TEX. FAM. CODE § 153.002(a)).

5
Fourteen years later, the Legislature articulated the state’s policy
to ensure a child’s “frequent and continuing contact” with fit parents and
to encourage divorced parents “to share in the rights and responsibilities
of raising their children.”16 To further that policy, it authorized courts
to appoint “joint managing conservators,”17 defined as “the sharing of
the rights, privileges, duties, and powers of a parent by two parties,
ordinarily the parents, even if the exclusive power to make certain
decisions may be awarded to one party,” and with no requirement of
equal or nearly equal possession periods.18 In doing so, courts would
specify which rights were to be exercised “jointly” or “exclusively” and
would “ordinarily” designate “a primary physical residence.”19 The

16 Act of May 26, 1987, 70th Leg., R.S., ch. 744, § 6, sec. 14.021(a), 1987

Tex. Gen. Laws 2666, 2668 (repealed and recodified 1995; renumbered 2001)
(current version, as amended, at TEX. FAM. CODE § 153.001(a)).
17 Id. sec. 14.021(a)–(b) (current version, as amended, at TEX. FAM.

CODE § 153.131). Before that time, “the Family Code did not authorize courts
to appoint joint managing conservators unless the parties agreed in writing.”
Phillips, 995 S.W.2d at 659-60; see Act of May 18, 1979, 66th Leg., R.S., ch. 313,
§ 1, sec. 14.06(a), 1979 Tex. Gen. Laws 717, 717 (repealed and recodified 1995)
(amending former Section 14.06 to authorize written agreements for the
appointment of joint managing conservators) (current version, as amended, at
TEX. FAM. CODE § 153.133). The Legislature later entrenched this structure,
creating a rebuttable presumption that appointing the parents as joint
managing conservators is in the child’s best interest. Act of May 26, 1995, 74th
Leg., R.S., ch. 751, § 32, sec. 153.131(b), 1995 Tex. Gen. Laws 3888, 3901
(current version, as amended, at TEX. FAM. CODE § 153.131(b)).
18 Act of May 26, 1987, 70th Leg., R.S., ch. 744, §§ 4–6,
secs. 14.01(a)–(b), .02(e), .021(a)–(b), 1987 Tex. Gen. Laws 2666, 2667-68
(repealed and recodified 1995; renumbered 2001) (current versions, as
amended, at TEX. FAM. CODE §§ 101.016, 153.134–.135).
19 Id. secs. 14.02(e), .021(b); see TEX. FAM. CODE §§ 153.071 (requiring

courts to specify the rights and duties to be exercised independently, jointly,

6
Legislature subsequently adopted possession guidelines that
established a presumptive minimum possession period for “a parent
named as a joint managing conservator who is not awarded the primary
physical residence of the child.”20
Over time, “[c]onfusion arose . . . over the relationship between
binding jury verdicts on custody and court-determined conservatorship
terms.”21 As initially enacted, Title II barred courts from issuing decrees
that contravened a jury verdict on managing conservatorship,
possession, or access.22 Shortly thereafter, the Legislature altered

and exclusively), .134(b) (authorizing courts to allocate rights “between the
parents, independently, jointly, or exclusively,” and to establish “a geographic
area within which the conservator shall maintain the child’s primary
residence”). Alternatively, the parents could agree on “the county of residence
of the child” or “designate[] the conservator who has the sole legal right to
determine the residence of the child” and allocate all the remaining rights,
privileges, and duties “between the parents, solely, concurrently, or jointly.”
Act of May 26, 1987, 70th Leg., R.S., ch. 744, § 6, sec. 14.021(c)(1), (4), 1987
Tex. Gen. Laws 2666, 2668 (repealed and recodified 1995) (current version, as
amended, at TEX. FAM. CODE § 153.133(a)(1), (4)).
20 Act of May 12, 1989, 71st Leg., R.S., ch. 617, § 4, sec. 14.034, 1989

Tex. Gen. Laws 2030, 2035, renumbered and amended by Act of Apr. 6, 1995,
74th Leg., R.S., ch. 20, § 1, sec. 153.137, 1995 Tex. Gen. Laws 113, 150-51,
repealed by Act of May 29, 2009, 81st Leg., R.S., ch. 1114, § 31, 2009 Tex. Gen.
Laws 3056, 3072. The presumption in former section 153.137 was removed in
2009 as its substance was entirely encompassed by a broader presumption
enacted as part of the 1995 recodification and still in force today as section
153.252. See TEX. FAM. CODE § 153.252 (“[T]here is a rebuttable presumption
that the standard possession order . . . (1) provides reasonable minimum
possession of a child for a parent named as a possessory conservator or joint
managing conservator; and (2) is in the best interest of the child.”).
21 Lenz v. Lenz, 79 S.W.3d 10, 20 (Tex. 2002) (citation omitted).

22 Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, sec. 11.13(b), 1973

Tex. Gen. Laws 1411, 1418 (repealed and recodified 1995) (current version, as

7
course, empowering courts to set “the specific terms and conditions of
access to the child, support of the child, and the rights, privileges, duties,
and powers of conservators, on which issues the [jury] verdict, if any, is
advisory only.”23 But this shift prompted concern “that such authority
would ultimately thwart the jury’s will in determining custody.”24 In
1997, the Legislature again clarified the statute, specifying the jury
issues that a court “may not contravene,” including “the determination
of the primary residence of the child.”25

amended, at TEX. FAM. CODE § 105.002(c)(1)); see Y., 516 S.W.2d at 205
(holding that the adoption of former section 11.13(b) continued to make the
jury’s verdict binding on issues of managing conservatorship, possession, and
access).
23 Act of June 2, 1975, 64th Leg., R.S., ch. 476, § 17, sec. 11.13, 1975

Tex. Gen. Laws 1253, 1259 (repealed and recodified 1995) (current version, as
amended, at TEX. FAM. CODE § 105.002(c)(2)); see Eugene L. Smith, Title 2.
Parent and Child, 8 TEX. TECH L. REV. 19, 44 (1976) (explaining that if the
jury’s verdict were binding on all issues of custody “the [jury] charge would be
fragmented and overlong, entangling the jury in the details of the proper
decree”).
24 Lenz, 79 S.W.3d at 20.

25 Act of May 8, 1997, 75th Leg., R.S., ch. 180, § 1,
sec. 105.002(c)(1)(D), (d), 1997 Tex. Gen. Laws 1033, 1034, amended by Act of
May 27, 2003, 78th Leg., R.S., ch. 1036, § 2, sec. 105.002(c)(1)(D), 2003 Tex.
Gen. Laws 2987, 2987 (current version, as amended, at TEX. FAM. CODE
§ 105.002(c)(1)(D)). The 2003 amendment tracks the current statute in making
the “determination” to be “which joint managing conservator has the exclusive
right to designate the primary residence of the child.” TEX. FAM. CODE
§ 105.002(c)(1)(D).

8
B.
With this historical context in mind, we turn to the statute’s
operative language. Section 105.002(c) of the Family Code provides that
“[i]n a jury trial”:
(1) a party is entitled to a verdict by the jury and the court
may not contravene a jury verdict on the issues of:
...
(D) the determination of which joint managing
conservator has the exclusive right to designate the
primary residence of the child;
. . . [but]
(2) the court may not submit to the jury questions on the
issues of:
...
(B) a specific term or condition of possession of or
access to the child; or
(C) any right or duty of a conservator, other than a
determination under Subdivision (1)(D), (E), or (F).26
The issue here is whether a jury finding on the primary-residence right
restricts the court’s possession allocation without also improperly
determining a specific term or condition of possession. We conclude that
it does.
At its core, this question comes down to what “primary residence”
means within the statutory context. A statute’s meaning presents a

26 TEX. FAM. CODE § 105.002(c) (emphases added). Subdivisions (1)(E)
and (F) refer to a geographic restriction on the primary residence designation.
Id.

9
question of law that we review de novo, applying well-established
principles and rules to guide our analysis.27 When a statutory term is
undefined, as here, we apply its common, ordinary meaning unless this
yields an absurd result or a different meaning is apparent from the
statutory context.28 To ascertain a term’s ordinary meaning, we often
start by consulting dictionaries.29 Dictionaries define (1) “residence” as
“the place where one actually lives or has his home as distinguished
from his technical domicile,”30 (2) “primary” as “first in rank or
importance,”31 and (3) “primary residence” as “[t]he place where a

27 Malouf v. State ex rels. Ellis, 694 S.W.3d 712, 718 (Tex. 2024).

28 Baumgardner v. Brazos River Auth., 714 S.W.3d 597, 601 (Tex. 2025).

29 Morath v. Lampasas Indep. Sch. Dist., 686 S.W.3d 725, 735 (Tex.

2024).
30 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, at 1931 (2002);

see NEW OXFORD AMERICAN DICTIONARY, at 1485 (3d ed. 2010) (“a person’s
home; the place where someone lives”). As noted, the Legislature changed
“legal domicile” to “residence” in 1995, reflecting a shift from an abstract legal
concept to a functional factual concept. See supra note 13; see also Domicile,
GARNER’S DICTIONARY OF LEGAL USAGE, at 293 (3d ed. 2011) (“Residence
comprehends no more than a fixed abode where one actually lives for the time
being” while “domicile means the place with which a person has a settled
connection for certain legal purposes” (internal quotation marks and citations
omitted)). “[R]esidence” may be an “elastic” concept in different legal contexts.
Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964) (“The term ‘residence’ . . . is
extremely difficult to define.”); see Fortenberry v. Great Divide Ins. Co., 664
S.W.3d 807, 812 (Tex. 2023) (“Texas courts have long grappled with residency
and venue questions in the context of mobile Texans, and our precedents take
a flexible view of what it means to ‘reside’ somewhere for purposes of
establishing proper venue.”). But in this context, there is no dispute where the
children will reside—at the homes of both their parents. The question is which
home will be the “primary residence” and what that means.
31 WEBSTER’S THIRD, supra note 30, at 1800; see NEW OXFORD, supra

note 30, at 1386 (“of chief importance; principal”).

10
person lives most of the time.”32 Simply put, a home where the child
actually lives less time than elsewhere is not the child’s “primary
residence” as that phrase is ordinarily understood.
Courts of appeals that have reached a contrary conclusion failed
to properly engage with the statute’s plain meaning.33 Instead, they
construed “primary residence” as a legal label designed “to achieve
stability” “for purposes of public school enrollment and as a significant
factor in the power of relocation.”34 Neither the plain language nor the
statutory context—including “the larger historical sweep” described
above or “the surrounding provisions”35—supports such a technical and
narrow meaning. Moreover, regardless of their “primary residence,”
children may generally attend a public school where either parent

32 Principal residence,BLACK’S LAW DICTIONARY, at 1568 (12th ed.
2024) (“Also termed primary residence; principal home.”).
33 See Puligundla v. Madipuri, No. 14-23-00743-CV, 2025 WL 1232344,

at *3-4 (Tex. App.—Houston [14th Dist.] Apr. 29, 2025, no pet.) (mem. op.); 706
S.W.3d at 666-67; In re S.H., 590 S.W.3d 588, 593 (Tex. App.—El Paso 2019,
pet. denied); W.B.B., 2018 WL 3434588, at *3.
34 W.B.B., 2018 WL 3434588, at *3; see Puligundla, 2025 WL 1232344,

at *3-4 (adopting W.B.B.’s reasoning and concluding that the
primary-residence right refers to “the ultimate right to decide the legally
recognized principal home where the children stay” (emphasis added)); S.H.,
590 S.W.3d at 593 (“Regardless of time spent with [the father], [the children’s]
primary residence remains wherever [the mother] determines it to be.”).
35 See Brown, 660 S.W.3d at 754 (“Among the core contextual
considerations that generate reliable constructions are the surrounding
provisions of a disputed text and how that text arises within the statute’s
larger historical sweep.”).

11
resides.36 The rigorous statutory hurdle for modifying the
primary-residence right is also at odds with an interpretation that
would confine “primary residence” to a mere legal label for relocation
purposes.37 To the extent these courts have imposed a different
construction on “primary residence” than its ordinary meaning, we
disapprove of those opinions.
When a term’s ordinary meaning and statutory context both point
in the same direction, our fidelity to enacted text compels an end to our
interpretative inquiry. We therefore hold that the trial court
contravened the jury verdict by awarding greater possession time to
Marsh. The verdict on the primary-residence right does not dictate a
“specific term or condition” of possession; it imposes a general
constraint. Thus, remand is necessary for the trial court to redetermine
the decree’s possession order. Because the possession schedule informs
the best-interest analysis for allocating parental rights and duties,

36 See TEX. EDUC. CODE § 25.001(b)(1)–(2) (requiring admission into the

public schools if “the person and either parent of the person reside in the school
district” or “a parent of the person resides in the school district and that parent
is a joint managing conservator [or sole managing or possessory conservator]”).
37 See TEX. FAM. CODE § 156.102 (requiring that a court deny relief and

refuse to schedule a modification hearing within one year of the order unless
it determines that facts support an affidavit alleging (1) the child’s potential
endangerment or significant impairment; (2) the person with the exclusive
designation right is seeking or consenting to the modification, which is in the
child’s best interest; or (3) voluntary relinquishment of primary care and
possession by the person with that right for at least six months, with the
modification being in the child’s best interest).

12
including child support,38 we lack confidence that the court’s initial
determinations were not significantly affected by its erroneous
possession order. Under these circumstances, the trial court should
have an opportunity to reconsider those issues as well.
Two additional observations deserve mention. First, the plain
meaning of “primary residence” in its statutory context does not
preclude a possession arrangement of equal periods. The Family Code
provides that “[j]oint managing conservatorship does not require the
award of equal or nearly equal periods of physical possession of and
access to each of the joint conservators.”39 This provision implies that
equal time is permissible; otherwise, the statement that it is not
required would be surplusage.40 And in such an arrangement, the
children would not be spending more time living elsewhere. That said,
there can be only one “primary residence.” Accordingly, even when the
parent with the primary-residence right has been awarded equal or
greater possession time, the order would still contravene the jury verdict

38 See id. §§ 153.002(a) (“The best interest of the child shall always be

the primary consideration of the court in determining the issues of
conservatorship and possession[.]”), 154.123(b)(4) (“In determining whether
application of the [child-support] guidelines would be unjust or inappropriate
under the circumstances, the court shall consider evidence of all relevant
factors, including . . . the amount of time of possession of and access to a
child[.]”).
39 Id. § 153.135 (emphases added).

40 See In re Tex. Educ. Agency, 619 S.W.3d 679, 688 (Tex. 2021) (orig.

proceeding) (“[W]e endeavor to afford meaning to all of a statute’s language so
none is rendered surplusage.”); Waak v. Rodriguez, 603 S.W.3d 103, 108 (Tex.
2020) (recognizing “the cardinal rule of statutory interpretation that every
word of text be given meaning”).

13
if the possession periods are structured such that the designated
residence would not be “primary” in the sense of “first in rank or
importance.”
Second, Gopalan repeatedly refers to the joint managing
conservator with the exclusive right to designate the primary residence
as the “primary parent.”41 We emphatically reject this conflation, which
has no textual basis. The significance of the primary-residence right,
with its concomitant responsibilities, cannot be doubted. But its
assignment reflects a best-interest consideration, not a hierarchical
ordering of the parents in rank or importance. Both parents are
encouraged to “share in the rights and duties of raising their child,”42
and our legal language should reflect this noteworthy public policy.
Courts and litigants should avoid injecting into highly charged divorce
proceedings shorthand references like “primary parent” that carry
contentious value judgments untethered from any legal grounding.
C.
Gopalan challenges other unrelated portions of the divorce decree
involving a bond requirement for international travel with the children,
the characterization of Gopalan’s interest in the marital residence, and
certain findings of facts and conclusions of law. The court of appeals

41 Some lower courts have employed similar nonstatutory terminology.

See, e.g., W.B.B., 2018 WL 3434588, at *3 (“It is this power [to designate a
primary residence] that makes Father ‘primary’ as that shorthand term is
used, not the number of days he has possession[.]”).
42 TEX. FAM. CODE § 153.001(a)(3); see id. § 101.016 (defining “joint

managing conservatorship” as “the sharing of the rights and duties of a
parent . . . even if the exclusive right to make certain decisions may be
awarded to one party”).

14
affirmed the trial court’s judgment on these issues.43 Our independent
review reveals no error requiring reversal, and further discussion would
not aid the development of the state’s jurisprudence.44 Without
expressing an opinion on the appellate court’s reasoning, we conclude
its judgment on those portions of the decree is correct.45
D.
Gopalan’s final issue concerns attorney’s fees. Because the court
of appeals affirmed, it did not reach this issue.46 In the interest of
judicial economy, we address it here.47
In the divorce decree, the trial court (1) required the parties to
bear their own trial-attorney fees, (2) awarded Marsh $80,000 in
contingent appellate fees,48 and (3) accounted for $117,411.02 of Marsh’s
trial fees as part of the just-and-right division of the marital estate,
citing Gopalan’s “unnecessary escalation of litigation.” Gopalan does not

43 See 706 S.W.3d at 662-63, 672-76, 678-83.

44 See Regent Care of S.A., L.P. v. Detrick, 610 S.W.3d 830, 839 (Tex.

2020) (summarily disposing of an issue when additional discussion would not
add to the state’s jurisprudence).
45 See id. at 839 n.9 (collecting cases in which we expressed no opinion

on the court of appeals’ reasoning while acting on its judgment).
46 706 S.W.3d at 683.

47 See TEX. R. APP. P. 53.4; Tabakman v. Tabakman, 728 S.W.3d 703,

710 (Tex. 2025).
48 The court awarded appellate fees “conditioned on [Gopalan’s] pursuit

of appeal.” Gopalan characterizes this award as “contingent upon an
unsuccessful appeal,” which Marsh does not dispute. We therefore need not
consider the meaning of “conditioned on his pursuit of appeal” or the propriety
in this case of awarding fees not conditioned on an unsuccessful appeal.

15
challenge the court’s discretion to allocate those fees,49 but he seeks a
remand for redetermination of Marsh’s fee award if he succeeds on
appeal. We agree remand is warranted as to the appellate fees but not
to revisit the property division’s treatment of the trial-attorney fees.
The trial court’s equitable consideration of excessive fees in
dividing the community estate was based on Gopalan’s pretrial conduct,
not on any legal conclusion now found erroneous on appeal.50 The court’s
fact findings explain that Gopalan’s escalation of pretrial litigation
unnecessarily caused both parties to incur substantial fees paid from the
community estate.51 In other words, those fees bore no relation to

49 See TEX. FAM. CODE § 106.002; Murff v. Murff, 615 S.W.2d 696, 699

(Tex. 1981) (“The attorney’s fee is but a factor to be considered by the court in
making an equitable division of the estate, considering the conditions and
needs of the parties and all of the surrounding circumstances.” (quoting Carle
v. Carle, 234 S.W.2d 1002, 1005 (Tex. 1950))).
50 For this reason, Gopalan’s principal authority Bruni v. Bruni is
inapposite. 924 S.W.2d 366, 367-69 (Tex. 1996). In that post-divorce
proceeding, the mother sought recovery of unpaid child support and
enforcement of an agreement requiring the father to provide support until the
children reached age twenty-one. Id. at 367. The trial court determined the
agreement was unenforceable, limited recovery to past-due support accruing
until the children turned eighteen, and awarded the mother $10,000 in
attorney’s fees. Id. On appeal, the mother contended that the discretionary
fee award would likely have been higher had the court correctly determined
that the agreement was enforceable. Id. at 368. We agreed and remanded for
reconsideration, holding that the trial court should reconsider its fee award
because its judgment rested on erroneous legal conclusions regarding the
enforceability of the agreement. Id. at 368-69.
51 Marsh introduced evidence at trial that her reasonable and necessary

trial-attorney fees totaled $267,411.02 while Gopalan’s fees and expenses were
as high as $824,100.16. Gopalan conceded that he spent roughly $600,000
more than Marsh, but he sought to justify only $503,393.69 of that amount.
While on the stand, Gopalan also admitted that “we have spent an enormous

16
Gopalan’s successful appellate issue regarding the jury verdict. On this
record, reversal of the possession order affords no basis to disturb the
property division.
The appellate-fee award requires a different analysis. Because
Gopalan has prevailed in part on appeal, Marsh may not be entitled to
the full award.52 But she may recover fees incurred in addressing his
unmeritorious issues.53 Marsh’s evidence does not identify the appellate
fees that would be incurred on those issues, so remand is necessary to
determine that amount.54

amount of money on this case” and took “responsibility for it.” The jury found
that $267,411.02 and $503,393.69 constituted reasonable and necessary trial
fees for Marsh and Gopalan, respectively.
52 See Ventling v. Johnson, 466 S.W.3d 143, 156 (Tex. 2015) (“An award

of conditional appellate attorney’s fees to a party is essentially an award of fees
that have not yet been incurred and that the party is not entitled to recover
unless and until the appeal is resolved in that party’s favor.”).
53 See Pioneer Emerald Pointe, LLC v. Texmenian Contractors, LLC,

No. 05-22-00493-CV, 2023 WL 3963991, at *12 (Tex. App.—Dallas June 13,
2023, no pet.) (mem. op.) (“If an appellant is partially successful, the appellee
may recover fees only for work performed on the issues where the appellant
was unsuccessful.”).
54 See, e.g., Phillips v. Rob Roy Homeowners Ass’n, No. 03-21-00543-CV,

2023 WL 2817342, at *7 (Tex. App.—Austin Apr. 7, 2023, pet. denied) (mem.
op.) (remanding the conditional appellate-fee award for the district court to
determine the amount to be awarded the appellee given the appellant’s partial
success on appeal); Taylor Morrison of Tex., Inc. v. Fulcher,
No. 13-20-00332-CV, 2022 WL 3092553, at *7 (Tex. App.—Corpus Christi–
Edinburg Aug. 4, 2022, no pet.) (mem. op.) (same); cf. Tony Gullo Motors I, L.P.
v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006) (noting that remand is required to
determine what portion of attorney’s fees is recoverable when at least some
fees are attributable only to claims for which they are not recoverable).

17
III. Conclusion
For these reasons, we reverse the divorce decree’s allocation of
possession, child support, and parental rights and duties between Marsh
and Gopalan. We remand those issues along with the award of appellate
attorney’s fees for redetermination consistent with our opinion. We
otherwise affirm the court of appeals’ judgment. Our judgment is
without prejudice to either party seeking modification of the exclusive
right to designate the primary residence of a child under any relevant
authority.

John P. Devine
Justice

OPINION DELIVERED: May 22, 2026

18