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Jacob v. Jacob

Court of Appeals of Texas, First District

May 10, 2018

MARY JACOB, Appellant
v.
ADAM JACOB, Appellee

          On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2013-51075

          Panel consists of Chief Justice Radack and Justices Higley and Bland.

          MEMORANDUM OPINION

          LAURA CARTER HIGLEY JUSTICE

         Mary 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.

         We affirm.

         Background

         The 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 2.5%."

         At 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.

         The 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.

         On 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.

         Exclusion of Evidence

         In her 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.

         To 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.).

         To be 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 ...


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