Texas Divorce Attorney Blog
Generally, all evidence in a Texas custody case should be presented at trial. In some cases, however, the court may decide to reopen evidence pursuant to Texas Rule of Civil Procedure 270. In a recent case, a mother challenged the court’s custody order after it reopened evidence following the trial.
The only issue at trial was who would be primary conservator and get child support. The court expressed an intent to give the mother the exclusive right to designate the child’s primary residence at the end of the trial.
The father subsequently moved to reopen evidence, seeking permission to present evidence on the child’s best interest. He argued the mother had presented evidence of a stable relationship with a person identified by the court as “B.J.,” but misrepresented her relationship and he had not way of knowing this information before trial. He argued she testified she and B.J. were in a stable relationship and cohabitating without mentioning a new romantic interest. He argued she had represented her relationship as more stable than his. He argued the court indicated the decision was close and this evidence could have been a deciding factor.
Hearing on Motion to Reopen Evidence
Regarding the new romantic interest, identified by the court as “Cody,” the mother testified at the hearing they were not “official” and only “talking.” There were social media photos depicting the pair, including one showing them the day after the trial with a caption referring to them as “love birds.”
The mother said she was single and had been so for “a while. . .” She testified Cody was not her boyfriend, but they were “still friends.” She said she did not think Cody ever stayed overnight when the child was there.
She said she told the truth when she answered “yes” when asked if she was in a relationship. She could not give the date her relationship with B.J. ended. She thought he began staying with his mother in early December. The trial began on December 2. The mother further testified that she and B.J. were in a relationship during the trial, saying they had been “on and off.” She said they were trying to work things out, while she and Cody were “just friends.”
The court asked if she had represented her relationship as stable at trial when B.J. moved out within 48 hours and she was dating someone else. She denied dating Cody, but replied, “Yes, sir,” when the court said, “You made misrepresentations to the Court.”
The father testified he thought the mother’s relationship with B.J. was stable at trial and had no indication they had broken up. He testified he saw the photo within a couple of days after trial and his daughter told him her mother had a “new boyfriend. . .” He testified the mother told him she was “with Cody now” at the exchange on December 11.
In a letter to the parties, the court stated its decision had largely been based on the parents’ stability and it appeared the mother had “purposefully misrepresented her relationship. . .” The letter further stated that “clearly the mother lacks stability and may have committed perjury.” The court subsequently signed a final order naming both parents joint managing conservators with the father having the right to designate the child’s primary residence and ordering the mother to pay child support.
The Mother’s Appeal
The mother appealed, arguing it was an abuse of discretion for the trial court to reopen the evidence.
A court may permit additional evidence at any time if “it clearly appears to be necessary to the due administration of justice. . . ,” although evidence on a matter that is controversial may not be presented after a jury verdict. Tex. R. Civ. P. 270. Texas case law has established that the court has discretion in deciding to reopen the evidence, but should exercise that discretion liberally to allow the parties to fully present their cases. Courts should consider whether the party seeking to introduce the evidence exercised due diligence to obtain it, whether the evidence is decisive, whether allowing the evidence would cause undue delay, and whether injustice would result. In re B.J.M.
Due Diligence
The mother argued the father knew of her relationship with B.J. and could have called him to testify. The father argued the mother cited no evidence he had questioned the status of her relationship before trial. Furthermore, he argued that she had brought the relationship into the trial by presenting it as current and loving. He argued he promptly filed his motion after he discovered her testimony was not true.
The mother argued the father was not diligent between when he discovered her relationship had ended and when he filed the motion.
The appeals court concluded that, when considering the evidence in the light most favorable to the ruling, the trial court could have concluded that there was no reason for the father to question the status of the relationship before trial and that he showed diligence when he filed the motion.
Decisiveness of Proffered Evidence
The mother also argued the evidence was not decisive to the child’s best interest. She further argued her home did not lack stability because B.J. moved out. She argued she presented evidence of stability, including evidence of reliable childcare, employment, a family support system, and her role as the child’s primary caregiver in the daytime.
The father argued the evidence he wanted to present directly spoke to the child’s best interest. The mother testified that her “boyfriend” lived with her and the children and that the children loved him. She testified they had been together nearly two years and lived together for a year and a half.
The mother had also expressed concerns at trial about how the father’s romantic relationships affected the child. She had concerns that two different women, including his current wife, had lived with the father after their separation. The father argued the mother had represented her home was stable because of her long-term relationship and argued his was not stable because he had multiple relationships since their separation.
According to the appeals court, the mother “was evasive” at the hearing regarding when her relationship with B.J. ended and when she started a new relationship. The trial court, in its role as factfinder, could have found the father more credible. Additionally, the court had stated at hearing that it had based its prior ruling “largely on the stability of the mother, and that appears to have been misrepresented.” The trial court therefore stated the relationship with B.J. was a significant factor in its determination of the child’s best interest. The appeals court concluded that the trial court could have determined that the evidence the father sought to present was decisive as to the child’s best interest.
No Undue Delay or Injustice
The mother also argued the reopening of the evidence resulted in undue delay and an injustice. The appeals court rejected this argument, noting trial court reopened evidence before it signed a final judgment, so it was within its plenary power.
The appeals court found no abuse of discretion in the trial court’s granting the motion to reopen based on the factors and affirmed the reformed final order.
Seek Experienced Representation
In this case, the father’s prompt action after learning of the change in the mother’s relationship status allowed him to get the evidence reopened. If you are facing a contentious custody dispute, a knowledgeable Texas child custody attorney will help you fight for your children. Contact McClure Law Group at 214.692.8200 to discuss your case.