If you believe that a judge made an error in your child custody or divorce trial, you have an opportunity to correct the error(s) by filing a motion for a new trial. By filing a motion for a new problem, you can get the mistake fixed without having to go through an entirely new process, as in situations when you have to appeal your trial results to an appellate court. Today's blog post from the Law Office of Bryan Fagan, PLLC, will go through what a motion for a new trial looks like and how it can play out in the courtroom.
The basis for a motion for a new trial
As I mentioned a moment ago, a motion for a new trial is a post-trial remedy that allows the same judge who issued the decisions in your case to correct any errors made in applying the law to your specific facts and circumstances. Going to the judge who issued your decision can potentially save time and money. With that all said, some types of cases require that you file a motion for a new trial before you can file an appeal to a higher court. Typically, these cases all involve juries rare in family law trials.
Overall, to argue to an appeals court that your trial court judge wrongly decided a particular issue, you must bring that error to the court's attention. The typical method is a motion for a new trial, which states the specific mistake and requests relief based on those errors. If your sign for a new trial is granted, then you can get a new problem- either in whole or about a part of your trial.
The general rule that appellate courts follow in Texas is that trial courts should allow for new trials with relatively great frequency. A further problem should be granted when the above basic requirements are met. However, the devil is in the details, and you must be specific regarding the error made and the relief you are seeking. If the trial court believes that the mistake affected or might reasonably have affected the results of your trial, then your motion should be granted.
Newly discovered evidence as to the basis for granting a motion for a new trial
If you find out new information that either was not available or was not known to you at the time of your problem, you can utilize this as your basis for a motion for a new trial. However, the following conditions must be present to win a new problem after a hearing is held:
-You must show that the evidence would like to cause a different result in a new trial
-You must show that due diligence was utilized to obtain this evidence before your trial
-You must show that the evidence isn't just duplicative (the same as) evidence previously produced at your trial. If the content of the evidence calls into question the honesty of your opposing party, then this will not allow for a new problem to be had
-You must show that you were unaware of the evidence before the trial and had no notice of its existence
-You must show that the newly discovered evidence must be admissible in terms of being offered and admitted into the record of evidence (testimonial and documentary) that a judge can consider
However, I will note that in some appellate court decisions, the above standards can be relaxed for those going through child custody cases because failing to do so would go against public policy towards doing what is in the best interests of a child.
For instance, suppose that you have been made aware of evidence that could have completely changed the outcome of your child custody case- but only were made aware of its existence a week after your trial ended. In situations like this, if you can show that the original custody order would have a severely negative impact on your child, then the judge must grant a motion for a new trial if you file one or if it points one on its activity.
Default judgment motions for a new trial
Suppose you file a motion for a new trial after having a default judgment rendered against you. In that case, you can do so based on a specific statute under our Code of Civil Procedure/Family Law Code or based on equity/fairness grounds. Procedurally if you were not served with notice correctly and a default judgment was rendered, the motion for a new trial should be granted without delay. Secondly, you can also win on a motion for a new trial based on a default judgment based on equity and fairness grounds as well.
Utilizing a motion for a new trial as the basis for an appeal
Within thirty days of filing a notice of appeal and having that appeal honored and accepted by the particular appellate court. In this period, you or your attorney can file a motion with the trial court seeking protection of you or your children and preserving evidence related to your case. At the same time, you wait for the appellate decision to be issued by the judge.
Other issues may be dealt with regarding a motion of this kind. Support may be requested of either party in a divorce case or a child in either a divorce or child custody case. Temporary conservators of a child may be requested as well, and temporary restraining orders may be asked to keep every party's behavior on par with where it ought to be. No withdrawing from school will be done. Think back to the temporary orders in your divorce, and the restraining orders in this scenario would look a lot like those. Geographic restrictions can be put in place if they are presently not part of the trial court's order.
When can the Texas Supreme Court agree to hear an appeal?
If you have appealed a trial court decision to an intermediate (Court of Appeals) court and were not successful, then you can request that the Texas Supreme Court review your case for a possible hearing.
The Supreme Court can hear a family law case when there is a dissenting opinion from the appellate court (a decision that did not agree with the majority decision) that involves a question of law that is highly relevant to the overall decision not to grant your appeal request. Also, if your appellate court's decision is different than the decision made by another appellate court or the Supreme Court, then the Supreme Court can agree to hear your case.
Overall, the Supreme Court of Texas can only hear cases where the appellate court has made an error in applying our state's law. The high court gives the appellate court wide latitude when deciding fact-based issues in your case.
Hiring an experienced family law attorney is essential when filing a motion for a new trial.
Many family law attorneys lack the experience to provide you with an excellent opportunity to win on a motion for a new trial. Even then, many attorneys with the expertise to do so will decline to accept your case because of the low likelihood of success. The attorneys with the Law Office of Bryan Fagan will speak to you about your case and give you an idea about the process and timeline involved with filing a motion for a new trial. Our licensed family law attorneys are experienced in preparing and filing motions for a new problem in child custody and divorce cases.
The only way for you to learn whether or not you have a chance at winning a motion for a new trial hearing is to speak to an attorney. You have until thirty days after the judge signs your final orders to file your activity for a new trial, so do not waste time. Contact us today for a free-of-charge consultation with one of our licensed family law attorneys.
If you believe that a judge made an error in your child custody or divorce trial, you have an opportunity to correct the error(s) by filing a motion for a new trial. By filing a motion for a new problem, you can get the error corrected without going through an entirely new process, as in situations when you have to appeal your trial results to an appellate court. Today's blog post from the Law Office of Bryan Fagan will go through what a motion for a new trial looks like and how it can play out in the courtroom.
The basis for a motion for a new trial
As I mentioned a moment ago, a motion for a new trial is a post-trial remedy that allows the same judge who issued the decisions in your case to correct any errors made in applying the law to your specific facts and circumstances. Going to the judge who issued your decision can potentially save time and money. With that all said, some types of cases require that you file a motion for a new trial before you can file an appeal to a higher court. Typically, these cases all involve juries rare in family law trials.
Overall, to argue to an appeals court that your trial court judge wrongly decided a particular issue, you must bring that error to the court's attention. The typical method is a motion for a new trial that states the specific mistake and requests relief based on those errors. If your sign for a new trial is granted, then you can get a new problem- either in whole or about a part of your trial.
The general rule that appellate courts follow in Texas is that trial courts should allow for new trials with relatively great frequency. A further problem should be granted when the above basic requirements are met. However, the devil is in the details, and you must be specific regarding the error made and the relief you are seeking. If the trial court believes that the mistake affected or might reasonably have affected the results of your trial, then your motion should be granted.
Newly discovered evidence as to the basis for granting a motion for a new trial
If you find out new information that either was not available or was not known to you at the time of your problem, you can utilize this as your basis for a motion for a new trial. However, the following conditions must be present to win a new trial after a hearing is held:
-You must show that the evidence would like to cause a different result in a new trial
-You must show that due diligence was utilized to obtain this evidence before your trial
-You must show that the evidence isn't just duplicative (the same as) evidence previously produced at your trial. If the content of the evidence calls into question the honesty of your opposing party, then this will not allow for a new problem to be had
-You must show that you were unaware of the evidence before the trial and had no notice of its existence
-You must show that the newly discovered evidence must be admissible in terms of being offered and admitted into the record of evidence (testimonial and documentary) that a judge can consider
However, I will note that in some appellate court decisions, the above standards can be relaxed for those going through child custody cases because failing to do so would go against public policy towards doing what is in the best interests of a child.
For instance, suppose that you have been made aware of evidence that could have completely changed the outcome of your child custody case- but only were made aware of its existence a week after your trial ended. In situations like this, if you can show that the original custody order would have a severely negative impact on your child, then the judge must grant a motion for a new trial if you file one or if it points one on its activity.
Default judgment motions for a new trial
Suppose you file a motion for a new trial after having a default judgment rendered against you. In that case, you can do so based on a specific statute under our Code of Civil Procedure/Family Law Code or based on equity/fairness grounds. Procedurally if you were not served with notice correctly and a default judgment was rendered, the motion for a new trial should be granted without delay. Secondly, you can also win on a motion for a new trial based on a default judgment based on equity and fairness grounds as well.
Utilizing a motion for a new trial as the basis for an appeal
Within thirty days of filing a notice of appeal and having that appeal honored and accepted by the particular appellate court. In this period, you or your attorney can file a motion with the trial court seeking protection of you or your children and preserving evidence related to your case. At the same time, you wait for the appellate decision to be issued by the judge.
Other issues may be dealt with regarding a motion of this kind. Support may be requested of either party in a divorce case or a child in either a divorce or child custody case. Temporary conservators of a child may be requested as well, and temporary restraining orders may be asked to keep every party's behavior on par with where it ought to be. No withdrawing from school will be done. Think back to the temporary orders in your divorce, and the restraining orders in this scenario would look a lot like those. Geographic restrictions can be put in place if they are presently not part of the trial court's order.
When can the Texas Supreme Court agree to hear an appeal?
If you have appealed a trial court decision to an intermediate (Court of Appeals) court and were not successful, then you can request that the Texas Supreme Court review your case for a possible hearing.
The Supreme Court can hear a family law case when there is a dissenting opinion from the appellate court (a decision that did not agree with the majority decision) that involves a question of law that is highly relevant to the overall decision not to grant your appeal request. Also, if your appellate court's decision is different than the decision made by another appellate court or the Supreme Court, then the Supreme Court can agree to hear your case.
Overall, the Supreme Court of Texas can only hear cases where the appellate court has made an error in applying our state's law. The high court gives the appellate court wide latitude when deciding fact-based issues in your case.
Hiring an experienced family law attorney is essential when filing a motion for a new trial.
Many family law attorneys lack the experience to provide you with an excellent opportunity to win on a motion for a new trial. Even then, many attorneys with the expertise to do so will decline to accept your case because of the low likelihood of success. The attorneys with the Law Office of Bryan Fagan will speak to you about your case and give you an idea about the process and timeline involved with filing a motion for a new trial. Our licensed family law attorneys are experienced in preparing and filing motions for a new problem in child custody and divorce cases.
The only way for you to learn whether or not you have a chance at winning a motion for a new trial hearing is to speak to an attorney. You have until thirty days after the judge signs your final orders to file your activity for a new trial, so do not waste time. Contact us today for a free-of-charge consultation with one of our licensed family law attorneys.
