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Father’s Motion for New Trial Denied in Texas

In a Texas child support decision, a father’s attorney told the trial court the couple had reached an agreement about everything but the father’s child support obligation. His attorney told the court what the terms of their agreement were. These included that the mother would decide the kids’ primary residence, and the father would have standard possession with certain modifications. After deciding the amount of the child support payment, the lower court announced it approved their agreement.

The lower court entered a divorce decree, including the terms that had been announced on the record. The decree had a place for the father to sign indicating consent, but he didn’t sign. He asked for a new trial without an attorney, and when that motion was denied, he appealed without an attorney. He presented five issues.

He argued that the mother had instituted a malicious criminal prosecution against him that adversely affected his negotiations during divorce. He claimed there was newly discovered evidence in the form of his cell phone, which had been in the district attorney’s custody previously as proof in an ongoing criminal investigation.

The appellate court explained that the lower court had discretion whether to grant or deny a motion for a new trial on the basis of newly discovered evidence. However, when asking for a new trial, a party had to show the evidence came to his knowledge after the trial, the failure to find the evidence sooner wasn’t based on lack of diligence, the proof wasn’t cumulative, and it was material such that it would cause a different result if there were a new trial.

The appellate court noted there was no sworn testimony given at the motion for a new trial. At the hearing, the father argued that his cell phone wasn’t available and that it had evidence needed to show adultery, malicious prosecution, parental agreement, perjury, vindictiveness, and violations of a restraining order. He didn’t provide the actual phone contents. He said he’d told his attorney this, although it wasn’t brought up at trial.

His motion for a new trial was denied for several reasons. Among these was that the father hadn’t presented evidence regarding his complaint of new evidence. The trial court had stated that diligence wasn’t used to procure the use of the evidence at trial and that it wasn’t newly discovered. There wasn’t evidence to show that the actual contents of the phone were so material they would have resulted in a different outcome had a new trial occurred.

The father also claimed it was improper for the lower court to render judgment without the couple going to mediation. He claimed Section 154.002 of the Texas Civil Practice and Remedies Code required couples to mediate if they had kids. The appellate court disagreed with this claim. It noted that the statute on which he based his arguments was simply a policy statement encouraging couples to go to some form of alternative dispute resolution. This issue was also overruled.

In another issue, the father claimed the mother didn’t disclose an allegation that he’d exposed his kids to pornography. The mother’s attorney cross-examined him about an addiction to pornography at trial. He claimed he had porn on his cell phones at the time of trial. The father’s attorney asked the mother about why she wanted supervised visitation for the father, and she replied that it was because she believed they were exposed to porn while they were with him. However, the father hadn’t objected to these questions. The appellate court found that these issues weren’t preserved as a result.

For these and other reasons, the appellate court affirmed the lower court’s decision.

If your divorce involves matters related to child support, call the Texas attorneys at the McClure Law Group at 214.692.8200.

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Johnny Depp, Amber Heard, and a Discussion on Family Violence Protective Orders and Temporary Restraining Orders in Texas, June 9, 2016

Divorce and Taxes – What to do if your ex-spouse botched your joint tax return, May 31, 2016