Opinion
NO. 02-15-00202-CV
08-11-2016
IN THE INTEREST OF H.L. AND K.L., CHILDREN
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. D2007254 MEMORANDUM OPINION
I. INTRODUCTION
Appellant J.L. (Father) appeals the trial court's child-support modification order. In one issue, Father argues that the trial court abused its discretion by denying his repeated request that the trial be reopened for evidence. We will affirm.
II. BACKGROUND
Father and K.W. (Mother) divorced in February 2009. Per the trial court's original order, Father was to pay $675.25 per month in child support to Mother. On August 14, 2014, Father petitioned for a postjudgment modification, seeking credit toward future child support payments for monies he alleged Mother received from Social Security Disability for the children.
The trial court called the case for a bench trial on January 21, 2015. At the onset of trial, the parties agreed to stipulate to the fact that since the original order, Mother had received $35,023 for the support of the children from Social Security Disability payments in addition to Father's child support payments. During trial, Mother proffered a Dallas court of appeals case to support her argument that Father was not entitled to reimbursement, in the form of future credit against his child support payments, for the overpayment. By agreement between the parties, the trial court delayed its final ruling and granted Father's request for additional time to prepare and file a brief to refute the case Mother proffered.
On February 3, 2015, Father filed his brief citing cases he alleged stand for the proposition that a party's intent is paramount in determining whether a party should be credited for overpaying child support payments. In his brief, Father requested that the trial court reopen trial and permit Father to testify to his intent and reasons for overpaying.
On February 12, 2015, the trial court issued a letter ruling denying Father's request "that he be refunded any overpayment of child support" and denying Father's "request that he be allowed a credit against future child support for any overpayment of child support in the past." The trial court did not make an express ruling on Father's request to reopen evidence.
Later, Father filed motions on February 12, 2015, and March 2, 2015, seeking to reopen the trial for the submission of evidence. The trial court denied both motions without a hearing. On April 21, 2015, Father filed a motion for new trial. Attached to his motion, Father submitted an affidavit wherein he stated that he had not previously sought a modification in child support because his Social Security Disability caseworker had told him that he would not qualify for credit against his child support obligation. He also averred that he was unaware of the family code provision that would have entitled him to seek an offset in his child support obligations against the disability benefits his children were receiving as part of Social Security Disability. He also averred that he never "intended to pay any more child support than was required of [him] by law."
The trial court heard Father's new-trial motion on June 18, 2015, at which time Father's attorney summarized Father's anticipated testimony, which is the same as stated in Father's affidavit. The trial court denied Father's motion. This appeal followed.
III. DISCUSSION
In one issue, Father argues that the trial court abused its discretion by denying his request to reopen evidence. Mother responds that the trial court did not err because Father was not diligent in producing Father's testimony prior to closing and because the testimony that Father sought to admit would not have been decisive in this case.
Texas Rule of Civil Procedure 270 provides that a trial court may permit additional evidence to be offered at any time when it clearly appears necessary to the administration of justice. Tex. R. Civ. P. 270. Rule 270 allows, but does not require, a trial court to permit additional evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex. App.—Corpus Christi 2001, no pet.). In determining whether to permit additional evidence, a court should consider whether (1) the moving party showed due diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) reception of such evidence will cause undue delay; and (4) granting the motion will cause injustice. Hernandez v. Lautensack, 201 S.W.3d 771, 779 (Tex. App.—Fort Worth 2006, pet. denied).
Absent a clear abuse of discretion, a reviewing court should not disturb a trial court's refusal to reopen a case for the purpose of admitting additional evidence. See Word of Faith World Outreach Ctr. Church, Inc. v. Oechsner, 669 S.W.2d 364, 366 (Tex. App.—Dallas 1984, no writ); see also Naguib v. Naguib, 137 S.W.3d 367, 372 (Tex. App.—Dallas 2004, pet. denied); Lopez, 55 S.W.3d at 201. And "a trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion." Lopez, 55 S.W.3d at 201 (citing Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex. App.—Fort Worth 1998, no pet.)); see Hernandez, 201 S.W.3d at 779.
After an independent review of the record, we can find nothing showing that Father was diligent in attempting to produce his testimony in a timely fashion. The record indicates that Father was available at trial but never called. The record also indicates that Father was aware of the facts that he wished to testify to at the time he filed his petition for modification. Furthermore, it is difficult to understand how reopening of the evidence for the admission of Father's testimony would have changed the outcome at trial. Father's entire premise in his petition seeking modification was that he had unintentionally overpaid his child support obligations. In fact, the parties stipulated that he had overpaid, and the parties stipulated to the very amount. Based on this record, we cannot conclude that the trial court clearly abused its discretion by refusing to reopen evidence. Lopez, 55 S.W.3d at 201. We overrule Father's sole issue.
IV. CONCLUSION
Having overruled Father's sole issue on appeal, we affirm the trial court's judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ. WALKER, J., concurs without opinion. DELIVERED: August 11, 2016
See Tex. R. App. P. 47.4.