Appeal from the 309th District Court Harris County, Texas
Trial Court Case No. 2013-51075
consists of Chief Justice Radack and Justices Higley and
CARTER HIGLEY JUSTICE
Jacob filed a petition to modify her child support
obligations, which the trial court denied after a trial. In
four issues on appeal, Mary argues the trial court erred by
excluding evidence of her increased expenses and by failing
to file findings of fact and conclusions of law.
facts relevant to this appeal are not in dispute. Mary and
Adam divorced in 2010. They had one child. The parties agreed
to a couple of modifications, the last one on December 16,
2014. On August 26, 2015, Mary give birth to another child.
On September 11, 2015, Mary filed a petition to modify her
child support obligations. In her response to Adam's
requests for disclosure, Mary asserted, "The
circumstances of a child or a person affected by the current
order have materially and substantially changed:
specifically, Petitioner [Mary] had a baby since the date of
the rendition of the order to be modified, and the support
payments previously ordered should be decreased by
trial, Mary testified that her salary had stayed the same
since the last order setting child support but that she had
had a second child since that time. Mary's counsel
attempted to question Mary about how her living situation had
changed since she had a second child and about additional
bills resulting from the second child. Adam objected to these
questions, arguing the questions went "outside of
[Mary's] responses to [Adam's requests for
disclosure] and the discovery stating that the only reason is
because another child has been born. So, it should be reduced
by 2.5 percent. It says nothing of increased cost or anything
else." The trial court sustained the objections.
trial court denied the petition on July 26, 2016. On August
12, 2016, Mary filed a request for findings of fact and
conclusions of law. The trial court did not file findings of
fact and conclusions of law.
August 25, 2016, Mary filed a motion for new trial. In the
motion, Mary again asserted the trial court abused its
discretion by excluding her evidence of increased expenses.
She argued that her discovery responses established that Adam
was on notice that she intended to introduce evidence of her
increased costs at trial. In support, she attached some of
her discovery responses to the motion for new trial. The
motion was overruled by operation of law.
first issue, Mary argues the trial court abused its
discretion by excluding evidence of her increased costs after
having a second child on the basis that she had failed to
identify the increased costs in her response to Adam's
requests for disclosure. In her second issue, Mary argues
excluding the evidence functioned as a death penalty
sanction. In her third issue, the trial court erred by
excluding the evidence "because the best interest of the
child is the primary consideration." We hold these
issues have not been preserved for appeal.
preserve a complaint about excluded evidence, the offering
party must include the evidence in the record through an
offer of proof or a bill of exception. See Tex. R.
Evid. 103(a)(2); Tex.R.App.P. 33.2. An offer of proof serves
the dual purpose of allowing the trial court to reconsider
its ruling on the objection in light of the evidence and
assisting the appellate court in reviewing the trial
court's ruling. Garden Ridge, L.P. v. Clear Lake
Ctr., L.P., 504 S.W.3d 428, 439 (Tex. App.- Houston
[14th Dist.] 2016, no pet.).
sufficient to preserve error, an offer of proof must describe
or show the nature of the evidence specifically enough that
the reviewing court can determine its admissibility. Lone
Starr Multi-Theatres, Ltd. v. Max Interests, Ltd., 365
S.W.3d 688, 703 (Tex. App.-Houston [1st Dist.] 2011, no
pet.). While the offer of proof does not need to establish
the specific facts the evidence would reveal, the offering
party must reasonably summarize ...