Law Offices of Thomas P. Jackson
Dallas Divorce Attorneys

An Introduction to the Divorce
Process in Dallas Texas

Separation

Filing for Divorce

Temporary Divorce Orders

Conducting Divorce Discovery

Mediation and Settlement
in the Divorce Process

Collaborative Representation
in the Divorce Process

Divorce Trials In Dallas

Decree of Divorce

Appellate Process in
the Dallas District

Divorce Modification

Paternity

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Grandparent Access

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Abuse

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The Appellate Process in the Dallas District

Motion for New Trial
Perfecting an Appeal
Supreme Court of Texas

Motion for New Trial

The Rules of Civil Procedure authorize a motion for new trial in order to give the trial court an opportunity to correct any errors made at the trial. If an error is made, it may be corrected at the trial court level with the least expense and the greatest efficiency. A motion for new trial is required as a prerequisite to appeal with respect to any of the following complaints:

• A complaint on which evidence must be heard, such as one of jury misconduct, newly discovered evidence, or failure to set aside a judgment by default.
• A complaint of factual insufficiency of the evidence to support a jury finding.
• A complaint that a jury finding is against the overwhelming weight of the evidence.
• A complaint of inadequacy or excessiveness of the damages found by the jury.
• Incurable jury argument, if not otherwise ruled on by the trial court.

Although a motion for new trial is not a prerequisite to appeal of other types of complaints in a jury trial, or of any complaints in a nonjury trial. However, to preserve a complaint for appellate review, a party must bring the error to the trial court's attention through an appropriate request, objection, or motion, stating the specific grounds for the ruling desired unless the grounds are apparent from the record. The party must further obtain a ruling on the request, objection, or motion. If the trial court refuses to rule, an objection to the refusal is sufficient to preserve the complaint. Thus, in some cases, a motion for new trial may be the most appropriate mechanism for raising an issue in the trial court, even though a motion for new trial is not strictly required as a prerequisite to appeal under Rules of Civil Procedure.

The trial court may grant a new trial and set aside the judgment for good cause, either on the motion of a party or on its own motion. Appellate courts have said that trial courts should exercise their discretion liberally when considering whether to grant new trials in light of the principle that new trials should be freely allowed when the basic requirements are met.

The trial court has broad discretion to set aside a judgment because of errors made during the trial or in the judgment. Any error made during the trial that, in the view of the trial court, affected or might reasonably have affected the results, will warrant the granting of a new trial.

A new trial may be granted on the grounds of factual insufficiency of the evidence or on the grounds that a jury finding is against the overwhelming weight of the evidence. The distinction between these two grounds depends on the burden of proof. If the complaining party did not have the burden of proof on the issue, the complaint should be worded in terms of insufficient evidence to support the jury finding. The complaining party is asserting simply that the opposing party has not carried its burden of proof. If the complaining party did have the burden of proof on the issue, the complaint should be worded in terms of the jury finding being contrary to the great weight and preponderance of the evidence. The complaining party in this situation is asserting that the jury incorrectly determined that the complainant failed to carry the burden of proof.

A motion for new trial may be based on jury misconduct, including an improper communication made to the jury or an erroneous or incorrect answer on voir dire. The court may grant a new trial if the misconduct is proved, if the conduct is material, and if it reasonably appears, from the evidence on the hearing and at trial and from the record as a whole, that injury probably resulted to the complaining party.

A motion for new trial may be granted on the grounds of newly discovered evidence. Ordinarily, to justify a new trial on the grounds of newly discovered evidence, five elements must be present:

• Admissible, competent evidence must be introduced showing the existence of the newly discovered evidence;
• The moving party must show that he or she had no notice of the existence of this evidence prior to the time of trial;
• The moving party must show that due diligence was used to procure the evidence prior to trial;
• The moving party must show that the evidence is not merely cumulative to that already given and does not tend merely to impeach the testimony of the adversary; and
• The moving party must show that the evidence would probably produce a different result if a new trial were granted.

However, some courts of appeals have held that public policy requires these rules to be relaxed in child custody cases. According to those courts, when evidence, not offered at trial but presented in support of a motion for new trial in a child custody case, strongly shows that the original custody order would have a serious adverse effect on the welfare of the children, and presentation of that evidence at another trial would probably change the result, the failure to grant a new trial is an abuse of discretion.

A motion for new trial following a default judgment may be based on either legal or equitable grounds. A legal remedy is available if there was some error in the proceedings that led to the default judgment. If there was no error, a new trial may be ordered on equitable grounds if certain requirements are met. Often both grounds are raised in the same motion.

Perfecting an Appeal

Any party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal. Thus, there may be more than one notice of appeal in an action, and a given party may be both an appellant and an appellee. A party who is asking only that the appellate court affirm the trial court's judgment is not seeking to alter the trial court's judgment and is not required to file a notice of appeal. However, if the party is asking the appellate court for more relief, or different relief, it is seeking to alter the trial court's judgment and must file a notice of appeal. The appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause. This requirement, that each party complaining of the trial court's judgment must perfect its own appeal, is new with the 1997 revisions to the Appellate Rules and replaces the former practice in which an appellee could complain of error by means of cross-points in the appellee's brief.

Within 30 days after an appeal is perfected, either party may present a motion to the trial court for certain orders for the protection of the parties, for the safety and welfare of the children, and for the preservation of the property during the pendency of the appeal. In addition to other matters as the court may deem necessary and equitable, these orders may:

• Require the support of either of the spouses.
• Require the support of a child by a party.
• Require payment of reasonable attorney's fees and expenses.
• Appoint a receiver for the preservation and protection of property.
• Appoint temporary conservators and provide for possession of the child or children.
• Award one spouse exclusive occupancy of the parties' residence.
• Restrain a party from molesting or disturbing the peace of the child or another party.
• Prohibit a person from removing the child or children beyond a geographical area identified by the court.
• Suspend the operation of the judgment (other than a judgment terminating parental rights in a suit brought by the state) being appealed.

Supreme Court of Texas

The Texas Supreme Court has appellate jurisdiction over family law cases in which there is a dissenting opinion in the court of appeals involving a question of law material to the decision, cases in which one court of appeals' decision deviates from a prior decision of another court of appeals or from a prior decision of the Supreme Court, and cases involving construction or validity of statutes necessary to the determination of a case.

In any other case in which it appears that an error of law has been committed by the court of appeals, and that error is of such importance to the jurisprudence of the state that, in the opinion of the Supreme Court, it requires correction, but excluding those cases in which the jurisdiction of the court of appeals is made final by statute. The Supreme Court has appellate jurisdiction with respect to questions of law only. The judgment of the court of appeals is conclusive on the facts of the case in all civil case.

Whether to grant review of a matter within the Court's jurisdiction is a matter of judicial discretion. The Appellate Rules set out the following factors for the Court to consider in deciding whether to grant a petition for review:

• Whether the justices of the court of appeals disagree on an important point of law.
• Whether there is a conflict between the courts of appeals on an important point of law.
• Whether a case involves the construction or validity of a statute.
• Whether a case involves a constitutional issue.
• Whether the court of appeals appears to have committed an error of law of such importance to the state's jurisprudence that it should be corrected.
• Whether the court of appeals has decided an important question of state law that should be, but has not been, resolved by the Supreme Court.

To seek Supreme Court review of the legal issues in a final judgment of a court of appeals, the appellant must file a petition for review (formerly called an application for writ of error) addressed to the Supreme Court of Texas.