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FAMILY LAW
PRIMER |
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The Appellate Process in the
Dallas District 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 : 1) 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: 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. |
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