Motion for New Trial In Child Custody Cases In Texas
In matters relating to child custody, it can be error to refuse to grant a motion for new trial, even though the evidence is not newly discovered, where there is an extreme case and the evidence is sufficiently strong. See C. v. C., 534 S.W.2d 359, 361-62 (Tex. Civ. App.--Dallas 1976, writ dism'd).
In C. v. C., evidence was presented at the motion for new trial hearing that showed the father, who was appointed managing conservator, was a man of violent temper who cruelly and harshly disciplined his children. C. v. C., 534 S.W.2d at 360-62.
No evidence of this nature had been introduced at trial. Id.
In contrast to the evidence raised at the motion for new trial in C. v. C., the nature of the evidence offered by Morgan in this case does not rise to the level of proof required by the court in C. v. C. for reasons that we have already set forth.
We have previously noted that, in general, the trial court is not required to hear such evidence at the motion for new trial hearing where the offer of proof fails to show that it is newly discovered.
We would hold that in custody cases the trial court is not required to hear evidence at the hearing on the motion for new trial where the offer of proof indicates that the evidence is not newly discovered and is not evidence of the character outlined in C. v. C. and the line of cases relying upon it.
Where the evidence offered by Morgan showed on its face that it was neither newly discovered nor admissible under the exception set forth in C. v. C., there was no need for a bill of exceptions.
Even if the trial court erred in not permitting Morgan to make a bill of exceptions, where, as here, the record is sufficient to apprise both the trial court and the appellate court of the nature of the evidence expected to be elicited, any error in refusing to allow a bill of exceptions is harmless. See Pennington v. Brock, 841 S.W.2d 127, 131 (Tex. App.--Houston [14th Dist.] 1992, no writ).