Introduction: When a Custody Battle Spills Into a Second Lawsuit
Some of the hardest family law cases don’t stay inside the family courtroom. When emotions run high, one former spouse may file a separate civil lawsuit against the other, and the other answers with counterclaims.
Per the published opinion, that is what happened in W. v. D., No. 02-25-00643-CV, 2026 WL 2357615 (Tex. App.—Fort Worth Aug. 13, 2026) (mem. op.). The court called the underlying case “a bitter custody dispute.” Yet the appeal turned on a law most divorcing couples have never heard of: the Texas Citizens Participation Act (TCPA), often called Texas’s anti-SLAPP law.
For anyone working with a Dallas divorce attorney, this case answers three practical questions:
- Can you sue a former spouse for “abusing” the court system during litigation?
- Can you recover damages because your ex made a police report against you?
- What evidence do you need to keep that kind of claim alive?
The Second Court of Appeals answered all three. Every Dallas-area parent and spouse should understand those answers before turning a family dispute into a tort lawsuit.
Case Background: From Divorce and Custody to a Civil Lawsuit
Who were the parties?
We’ll call the parties Z.W. and J.D. They were former spouses with an ongoing divorce-and-custody case in Tarrant County. According to the opinion, J.D. is a commercial pilot, which later mattered for his damages claims.
How did the separate lawsuit begin?
In October 2024, Z.W. represented herself and filed a civil suit against J.D. and a third party. She brought more than a dozen claims, including fraud, intentional infliction of emotional distress, defamation, and invasion of privacy. In general, she alleged domestic violence during the marriage and an affair.
J.D. and the third party answered that the suit was filed in bad faith to harass them, and they filed counterclaims. Z.W. then nonsuited (voluntarily dropped) her claims against both of them.
How did the counterclaims evolve?
J.D. kept his counterclaim going and amended it several times:
- Second amended counterclaim (March 2025): defamation and tortious interference with contract. He alleged a false police report and contacts with his employer meant to get him fired.
- Third amended counterclaim (September 2025): two new claims:
- Abuse of process, based on Z.W.’s conduct in the litigation.
- “Negligence per se and intentional tort,” based on allegedly false reports to the Southlake Police Department.
Police investigated Z.W.’s assault report and found insufficient facts to charge J.D. A footnote says he showed the detective he had been out of the country on the dates in question.
What happened in the trial court?
Z.W. filed a TCPA motion to dismiss the two new claims. After a hearing, the trial court denied the motion and sustained all of J.D.’s objections to her evidence. The TCPA allows an immediate (interlocutory) appeal, and Z.W. took one.
Legal Analysis: How the Fort Worth Court of Appeals Decided the Case
What is the TCPA, and why does it matter in family disputes?
The TCPA, Tex. Civ. Prac. & Rem. Code §§ 27.001–.011, lets a defendant seek early dismissal of claims based on free speech, the right to petition, or the right of association. Filing court papers and reporting suspected crimes to police can both qualify.
The court applied the familiar three-step, burden-shifting framework under Section 27.005:
- Step one: The party asking for dismissal shows the claim is “based on or in response to” protected activity.
- Step two: The party bringing the claim must establish, by “clear and specific evidence,” a prima facie case for each element.
- Step three: The party asking for dismissal can still win by proving a valid defense.
The appeals court reviewed the ruling de novo (from scratch), citing L.I. v. A.L.D.F., 631 S.W.3d 40 (Tex. 2021).
Was the motion filed on time?
Yes. A TCPA motion must be filed within 60 days of service of the “legal action.” Under Montelongo v. Abrea, 622 S.W.3d 290, 301 (Tex. 2021), an amended pleading that adds a claim with different elements starts a new 60-day clock for that claim.
Abuse of process and negligence per se have different elements than defamation, so the motion was timely as to those new claims. By the same logic, it was untimely as to the earlier defamation and tortious-interference claims. Those claims survive and go back to the trial court.
How did the court handle the evidentiary objections?
The court upheld the exclusion of Z.W.’s evidence. Her affidavit said she acted “in good faith” and that J.D. acted in “bad faith.” The court held those statements were conclusory and not competent evidence. The police records she offered were not properly authenticated under Texas Rule of Evidence 901.
The opinion also noted two things. A quotation Z.W. attributed to In re L., 460 S.W.3d 579 (Tex. 2015), does not appear in that decision. And she acknowledged using ChatGPT to prepare filings. It is a timely reminder to check any AI-generated legal research against the actual source.
Why did the abuse-of-process claim fail?
Z.W. easily met step one, because the claim was based on her pleadings, motions, and discovery conduct. The burden then shifted to J.D.
Texas law requires three elements for abuse of process:
- An improper use of process after it is issued.
- An ulterior motive.
- Resulting damage.
The damage must be “special damages”: some physical interference with a person or property, such as an arrest, attachment, injunction, or sequestration. P.C.L.L.P. v. S., 369 S.W.3d 301, 332–33 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
J.D.’s evidence showed attorney’s fees, litigation costs, frustration, and concern. The court relied on T.B.C.C. v. G., 921 S.W.2d 203 (Tex. 1996), and held that “the ordinary losses incident to defending a civil suit” don’t count. The claim was dismissed.
Can you sue an ex for filing a false police report in Texas?
Not easily. The court read the “intentional tort” as a malicious-prosecution claim, which requires that a criminal prosecution actually begin. The court cited the Dallas Court of Appeals in A. v. G., No. 05-23-00343-CV, 2024 WL 725669 (Tex. App.—Dallas Feb. 22, 2024, no pet.). It held that a witness statement to police is not a formal charge. No prosecution followed, so that theory failed.
The negligence-per-se theory also failed. It was based on the false-report statute, Texas Penal Code § 37.08. The court found no Texas case recognizing a private right to sue under that statute. Even assuming such a claim exists, J.D. offered no evidence of any of the following:
- The report reached his employer or the FAA.
- He was arrested or detained because of it.
Under S & S Emergency Training Solutions, Inc. v. E., 564 S.W.3d 843 (Tex. 2018), a claimant must show “some specific, demonstrable” damages.
What was the final result?
The court reversed the trial court and dismissed the abuse-of-process and false-reporting claims with prejudice. It sent the case back for further proceedings under Section 27.009. That section generally provides for court costs and reasonable attorney’s fees to a party who wins a TCPA motion.
Does this ruling apply in Dallas County?
Dallas County appeals go to the Fifth District Court of Appeals, not Fort Worth. Still, civil memorandum opinions carry precedential weight in Texas. This decision also relies on Texas Supreme Court authority and on the Dallas court’s own Anderson decision. A Dallas family law attorney can expect this reasoning to be persuasive locally. Because the opinion is recent, it may still face further appellate review.
What are the practical implications for parents in a custody dispute?
The decision does not protect knowingly false reports. The defamation and tortious-interference claims based on the same conduct will still proceed. What the case does show is that the type of claim, and the proof behind it, matter enormously.
Before a parent files a tort claim against a co-parent, a Dallas divorce attorney should look at three things. What is the TCPA exposure? What evidence of concrete damages exists? Does the family court already offer a better remedy?
Key Takeaways for Dallas Divorcing Couples
- Legal fees are not “special damages.” Frustrating litigation tactics alone rarely support an abuse-of-process claim.
- A police report is not a prosecution. Without formal charges, malicious-prosecution claims generally fail.
- Deadlines reset with new claims. Each amended pleading can open a new 60-day TCPA window.
- Counterclaims can backfire. If a claim is dismissed under the TCPA, the person who brought it can be ordered to pay fees and costs.
- Verify every citation. Courts check whether quoted authority actually says what a filing claims.
Strategic Insights: What We’ve Learned From This Case
This case shows why an early, objective case assessment matters. Different strategies might have included seeking relief within the custody case itself, such as sanctions or protective orders. Another approach might have been to document specific losses before adding tort claims. An experienced Dallas divorce attorney weighs whether a new claim invites a TCPA motion, and whether the possible recovery is worth the risk of paying the other side’s fees.
Talk to a Dallas Divorce Attorney Who Gives You the Honest Picture
Is your divorce or custody case spilling into police reports, calls to an employer, or threats of a separate lawsuit? You need clear guidance before you act. For more than 25 years, the Law Office of Michael P. Granata has helped Dallas families through high-conflict cases with a strategic approach balanced by compassion.
We give honest assessments, not false promises, and we’re open with you about realistic outcomes. Whether you need a Dallas child custody lawyer, a Dallas child support lawyer, or help with spousal support, we’re here.
If you’ve been searching for a “divorce attorney near me,” we serve Dallas, Irving, Richardson, Garland, Mesquite, DeSoto, Grand Prairie, Lakewood, Highland Park, Cockrell Hill, Lancaster, Seagoville, and Duncanville. Call (214) 977-9050 to schedule your Dallas divorce lawyer consultation, or read more case analyses on our blog.
