In re Calzadias

484 S.W.3d 574, 2016 Tex. App. LEXIS 1016, 2016 WL 383300
CourtCourt of Appeals of Texas
DecidedFebruary 1, 2016
DocketNo. 07-16-00002-CV
StatusPublished

This text of 484 S.W.3d 574 (In re Calzadias) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Calzadias, 484 S.W.3d 574, 2016 Tex. App. LEXIS 1016, 2016 WL 383300 (Tex. Ct. App. 2016).

Opinion

OPINION

Mackey K. Hancock, Justice

Relator, Michael Calzadias, seeks extraordinary relief from this Court in-his request that we issue a writ of mandamus directing Respondent, the Honorable William R. Eichman II, presiding judge of the 364th District Court in Lubbock County, to vacate its order granting new trial in response to the motion filed in a pending custody case by mother and Real Party in Interest, Olesya Timofeeva. We will deny his petition.

Factual and Procedural History

Relator originally filed his original petition in a suit affecting the parent-child relationship in March 2014, concerning the two young children of Relator and Real Party in Interest.’ ■ In June 2014, temporary orders were entered naming Relator and Real Party in Interest as joint managing conservators and giving Real Party in Interest the exclusive right to designate the children’s primary residence within Naples,, Florida, or Lubbock, Texas. . .

In November 2014, Relator filed a motion to modify those temporary orders. After a hearing on that motion, the associate judge granted Relator the exclusive right to designate the primary residence of the children in Lubbock, Texas, and granted Real Party in Interest standard possession. Final hearing in the matter was held March 25 and May 5, 2015. Respondent signed final judgment in the matter on June 4, 2015, in which Relator was still named as the joint managing conservator with the exclusive right.to designate the children’s primary residence and Real Party in Interest was given standard possession. .

A little over one week later, on June 12, 2015, Relator was arrested in Lubbock following a traffic stop and a search which yielded a.large amount of cash held together by a rubber band. During that interaction, it appears from the record that Relator-was less than forthcoming to officers about where he lived, how long he had been living in Lubbock, to whom the vehicle he was driving belonged, and the source of the cash. Further, one of the [576]*576department’s canines alerted on .the driver’s side door of the vehicle Relator was driving, though no drugs were found, and also alerted on the money Relator had. Relator was found to have possession of four cell phones and two hotel room keys. Relator would later acknowledge at the new trial hearing, just as he apparently did in the underlying custody case and at the scene of the arrest, that he had. been arrested for drug-related activity in the past. He was arrested on suspicion of driving with a suspended license, failure to display vehicle inspection sticker, and money laun- . dering.

Real Party in Interest filed a motion for new trial on June 30th. Hearing on that motion was held August 14 and 18, 2015. At the conclusion of the-Rearing, Respondent granted Real Party in Interest’s motion for new trial and entered temporary orders granting custody and primary con-servatorship to Real Party in Interest until final hearing could be held. The next day, the children returned with Real Party in Interest to Florida.

Applicable Standards

Review of New Trial Orders on Petition for Writ of Mandamus

Traditionally, Texas courts have expressed reluctance to interfere in matters such as this one: a merits-based review of a trial court’s decision to grant a new trial. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 757 & n. 7 (Tex.2013) (orig.proceeding) (Texas Supreme Court taking “next step” in mandamus- jurisprudence by breaking from, courts’ traditional reluctance to review trial court’s new trial orders). After a series of cases leading up to and including In re Toyota Motor Sales, it is now clear that an appellate court may conduct a merits-based mandamus review of a trial court’s articulated reasons for granting a new trial. See In re Whataburger Rests. LP, 429 S.W.3d 597, 598 (Tex.2014) (orig.proceeding) (per curiam) (citing In re Toyota Motor. Sales, 407 S.W.3d at 755-59). A writ. of mandamus shall issue to correct a clear abuse of discretion committed by a trial court in granting a new trial. Id. A trial court does not abuse its. discretion so long as its stated reason for granting a new trial is legally appropriate and- specific enough to indicate that the trial court derived the reasons from the particular facts and circumstances of the case at hand. Id. (citing In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex.2012) (orig.proceeding)).

Standard for New Trial on the Basis of Newly Discovered Evidence

Generally speaking, to be entitled to a new trial on the basis of newly discovered evidence, the movant must establish the following elements: (1) the evidence has come to its knowledge since the trial, (2) its failure to discover the evidence sooner was not due to lack of diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it would probably produce a different result if a new trial were granted. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex.2010).

However, the standard for granting a new trial based- on newly discovered evidence in a suit concerning child custody has been relaxed. See Hefley v. Hefley, 859 S.W.2d 120, 124-25 (Tex.App.-Tyler 1993, no writ). In child custody cases, when evidence, not offered at trial but presented in support of a motion for new trial, strongly shows that the original custody order would have a serious adverse effect on the welfare of the children, and that presentation- of such evidence at another trial would probably change the result, the failure to grant a new trial is an abuse of discretion. Id. at 125.

[577]*577Hefley, though it has become an oft-cited source of this relaxed standard, relied heavily on C. v. C., 534 S.W.2d 359 (Tex.Civ.App.-Dallas 1976, writ dismissed w.o.j.). In C. v. C., the Dallas .Court of Appeals explained the rationale. for the relaxed standard in such cases:

[W]e ■ conclude that the ordinary rules restricting the granting of a new trial for newly discovered evidence should not be applied rigidly in child custody proceedings. In such cases the children are the primary parties in interest, and they are rarely represented .by counsel. Counsel for the contending parents cannot always be relied upon to protect the interests of the children • because the parents often attempt to promote their own interests and vindicate their own asserted rights rather- than to protect the children’s interests. Consequently, the court’s duty to protect the children’s interests should not be limited by technical rules. Pertinent facts which may directly affect the interests of the children should be heard and considered by the trial court regardless of the lack of diligence of the parties in their presentation of information to the court.

Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Waffle House, Inc. v. Williams
313 S.W.3d 796 (Texas Supreme Court, 2010)
Hefley v. Hefley
859 S.W.2d 120 (Court of Appeals of Texas, 1993)
C v. C
534 S.W.2d 359 (Court of Appeals of Texas, 1976)
in Re United Scaffolding, Inc.
377 S.W.3d 685 (Texas Supreme Court, 2012)
in Re Whataburger Restaurants Lp
429 S.W.3d 597 (Texas Supreme Court, 2014)
in the Interest of A.G.C., a Minor Child
279 S.W.3d 441 (Court of Appeals of Texas, 2009)
Katy Shuk Chi Lau Messier v. Luc J. Messier
389 S.W.3d 904 (Court of Appeals of Texas, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
484 S.W.3d 574, 2016 Tex. App. LEXIS 1016, 2016 WL 383300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-calzadias-texapp-2016.