365 S.W.3d 833
Tex. App.2012Background
- Pope (Father) and Candice Pope (Mother) were married with two children, FP and JP.
- Father filed for divorce on April 21, 2010; Mother counter-petition filed April 26, 2010.
- Trial notice given September 30, 2010; trial rescheduled from December 8, 2010 to March 23, 2011 due to heavy docket.
- Father fired his attorney February 24–25, 2011, and withdrew his counsel.
- Trial proceeded March 23, 2011 with Father representing himself; final decree March 25, 2011; Mother named sole managing conservator and designating primary residence; Father as possessory conservator with supervised visitation until both children turn six.
- Father filed a motion for new trial April 11, 2011 asserting denial of a continuance; trial court denied after a May 20, 2011 hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the denial of a continuance was an abuse of discretion | Pope | Pope | No abuse; court did not abuse discretion in denying continuance. |
| Whether the admission of Specht's testimony was erroneous | Pope contends Specht lacked foundation; testimony biased/incomplete | Specht's credibility rather than admissibility was at issue; testimony allowed | No reversible error; Specht testimony properly admitted for credibility. |
| Whether newly discovered evidence warranted a new trial | Pope argues evidence not previously available requires new trial | Evidence existed pre-trial; not newly discovered; no new trial warranted | No abuse; denial of new-trial motion affirmed. |
Key Cases Cited
- Strong v. Strong, 350 S.W.3d 759 (Tex.App.-Dallas 2011) (new trial based on newly discovered evidence requires certain showing; abuse standard)
- Ricks v. Ricks, 169 S.W.3d 523 (Tex.App.-Dallas 2005) (abuse of discretion standard for trial court decisions)
- Hinkle v. Hinkle, 223 S.W.3d 773 (Tex.App.-Dallas 2007) (review of trial court discretion; not disturbed absent abuse)
- Waste Water, Inc. v. Alpha Finishing & Developing Corp., 874 S.W.2d 940 (Tex.App.-Houston [14th Dist.] 1994) (continuance abuse analysis based on movant’s conduct)
- Ayati-Ghaffari v. H-Ebrahimi, 109 S.W.3d 915 (Tex.App.-Dallas 2003) (duty of diligence in continuance context)