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Luciano v. Luciano

Court of Appeals of Texas, Eleventh District

December 21, 2017


          On Appeal from the 318th District Court Midland County, Texas Trial Court Cause No. FM56956

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.



         This is an appeal from a divorce proceeding. After litigating the divorce over the course of two hearings, Appellant's trial counsel advised the trial court that the parties had reached an agreement on all matters with the exception of the calculation of Appellant's child support obligation. Appellant's trial counsel informed the court of the terms of the parties' agreement, which included Appellee being the parent to determine the children's primary residence and Appellant having standard possession with various modifications. After determining the amount of Appellant's child support payment, the trial court announced that it approved the parties' agreement.

         The trial court subsequently entered a final decree of divorce that included the terms of the parties' agreement as announced on the record. While the decree had a place for Appellant to sign indicating that he "approved and consented as to both form and substance, " Appellant did not sign the decree. Instead, Appellant timely filed a pro se motion for new trial after the decree was entered. Appearing pro se on appeal, Appellant presents five issues. We affirm.

         Appellant asserts in his first issue that the trial court erred in denying his motion for new trial with respect to the ground of newly discovered evidence. Appellant asserts that Appellee instituted a malicious criminal prosecution against him. He contends that the criminal charge negatively affected his bargaining position during the divorce proceedings. The evidence that Appellant asserts was newly discovered was his cell phone, which he asserts was not available at trial because it was in the custody of the district attorney's office. He contends that the cell phone could not have been subpoenaed because it was evidence in an ongoing criminal investigation.

         Whether a motion for new trial on the ground of newly discovered evidence will be granted or refused is generally a matter addressed to the sound discretion of the trial judge, and the trial judge's action will not be disturbed on appeal absent an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003); see Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010) (citing Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)). A party seeking a new trial on grounds of newly discovered evidence "must demonstrate to the trial court that (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." Waffle House, 313 S.W.3d at 813 (citing Van Winkle, 660 S.W.2d at 809).

         We note at the outset that no sworn testimony was presented at the hearing on the motion for new trial. Appellant presented argument at the hearing that his cell phone was not available at trial, that it had "all of the evidence in there to state my case for the divorce, " and that it was not subject to being subpoenaed for trial. When asked what was on the phone, Appellant responded: "It had all the admissible evidence needed for adultery, malicious prosecution to gain an unfair advantage over custody hearings, perjury, parental agreement established, vindictiveness and restraining order violations granted by this presiding Court." However, Appellant did not offer the actual contents of the phone into evidence. Appellant also stated that he communicated much of this information to his trial counsel but that his trial counsel did not bring it up at trial.

         At the hearing on the motion for new trial, the trial court denied Appellant's motion for new trial for multiple reasons-the trial court concluded that the cell phone was not newly discovered evidence, that it was not listed as an evidentiary item in discovery, and that it could have been obtained for trial with a subpoena or a motion to compel its production. Afterwards, the trial court entered findings of fact and conclusions of law noting that Appellant's motion for new trial was not verified and that he presented no evidence to the court concerning his complaint of new evidence.

         The record does not show that the trial court abused its discretion in denying Appellant's motion for new trial on the ground of newly discovered evidence. The reasons listed by the trial court show that the evidence was not newly discovered and that diligence was not used to procure its use at trial. Furthermore, in the absence of a showing of the actual contents of the phone, there was no evidence to establish that the evidence was so material it would have probably produced a different result if a new trial had been granted, particularly in light of the fact that the proceeding ended by agreement. We overrule Appellant's first issue.

         Appellant asserts in his second issue that the trial court erred in proceeding to judgment without the parties mediating the case. He contends that Section 154.002 of the Texas Civil Practice and Remedies Code requires mediation in cases involving children. Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (West 2011). This statute provides as follows: "It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures." He bases his argument that mediation is required in parent-child disputes on the use of the words "special consideration" in the statute. He also contends that the trial court violated its own orders and the applicable local rules requiring cases to be mediated prior to trial.

         Statutory interpretation is a matter involving a question of law that we review de novo. Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404 (Tex. 2016). Our fundamental goal when reading a statute "is to ascertain and give effect to the Legislature's intent." Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). To do this, we look to and rely on the plain meaning of a statute's words as expressing legislative intent unless a different meaning is supplied, is apparent from the context, or the plain meaning of the words leads to absurd or nonsensical results. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389-90 (Tex. 2014).

          We disagree with Appellant's contention that mediation is statutorily required in parent-child disputes. The statute that he relies upon is a policy statement enacted in 1987 that "encourages" alternative dispute resolution. See Downey v. Gregory, 757 S.W.2d 524, 525-26 (Tex. App.-Houston [1st Dist.] 1988, orig. proceeding). The reference to "special consideration" for disputes involving parent-child relationships is a statement to the effect that alternative dispute resolution is particularly encouraged in the parent-child context. There are specific provisions in the Family Code pertaining to the mediation procedures. Section 6.602(a) provides that "the court may refer a suit for dissolution of a marriage to mediation, " and Section 153.0071(c) provides that "the court may refer a suit affecting the parent-child relationship to mediation." Tex. Fam. Code Ann. § 6.602(a) (West 2006), § 153.0071(c) (West 2014). Use of the term "may" in statutes is usually construed as permissive, while the use of the term "shall" is usually construed as mandatory. See Tex. Gov't Code Ann. § 311.016(1), (2) (West 2013) ("'[m]ay' creates discretionary authority or grants permission or a power, " while "'[s]hall' imposes a duty"). Accordingly, mediation in a dispute involving a parent-child relationship is discretionary rather than mandatory.

         The record in this case does not indicate that the trial court abused its discretion in proceeding to judgment without mediation occurring. Appellant's trial counsel sought a continuance at the outset of trial based on the failure of the parties to mediate the case. The trial court noted that the pretrial order requiring mediation was entered approximately four months prior to the date of trial. The trial court also stated that the parties had ample time to complete discovery and conduct a mediation prior to trial. The attorneys noted that mediation had been scheduled on two occasions but that Appellant's attorney had conflicts both times. The trial court denied the motion on the basis that "the trial date is upon us." A trial court's decision to deny a ...

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