In Re JP
365 S.W.3d 833
Tex. App.2012Background
- Matthew Pope and Candice Pope are married with two children, FP and JP, and filed for divorce in 2010.
- The trial was delayed due to docket congestion; trial was rescheduled for March 23, 2011.
- Father fired his attorney February 2011, and the withdrawal motion was granted the same day.
- Father moved for a continuance the day before trial; trial proceeded with Father self-represented.
- Final decree: Candice Pope appointed sole managing conservator; Matthew Pope appointed possessory conservator with supervised visitation until both children turn six.
- Father filed a motion for new trial in April 2011; the trial court denied it after a May 2011 hearing; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Continuance denial as abuse of discretion | Pope argues denial of continuance was abuse. | Pope contends no abuse; failure to prepare is own fault. | No abuse; continuance denied. |
| Admissibility of Specht testimony | Pope claims Specht's opinion was unfounded, biased, lacking foundation. | Specht testimony admitted for credibility; cross-examination conducted. | No reversible error; testimony properly admitted for credibility. |
| Newly discovered evidence standard | Pope asserts new evidence justify a new trial under Strong standard and extreme-case rationale. | Evidence existed pre-trial; not newly discovered; not sufficiently strong. | No abuse; motion for new trial denied. |
Key Cases Cited
- Strong v. Strong, 350 S.W.3d 759 (Tex.App.-Dallas 2011) (new-trial standards require non-cumulative, material evidence)
- Ricks v. Ricks, 169 S.W.3d 523 (Tex.App.-Dallas 2005) (appellate review of trial court discretion for abuse)
- Hinkle v. Hinkle, 223 S.W.3d 773 (Tex.App.-Dallas 2007) (abuse of discretion standard; some evidence supports trial court)
- Waste Water, Inc. v. Alpha Finishing & Developing Corp., 874 S.W.2d 940 (Tex.App.-Houston [14th Dist.] 1994) (movant's conduct determines good cause for continuance)
- Bell v. Showa Denko K.K., 899 S.W.2d 749 (Tex.App.-Amarillo 1995) (standard for admissibility and credibility in new-trial context)