Evidence, Predicates, & Rule 408: Opinions, May 1, 2018

This morning, the Fourteenth District Court of Appeals released a memorandum opinion in In re J.C.K., No. 14-17-00082-CV, an appeal from a modification in which the father was ordered to pay attorney’s fees in the amount of $252,996.55. But most of the father’s issues on appeal and much of the twelve-page opinion revolve around evidentiary rulings and a packet of documents–a MacGuffin–that was never entered into evidence.*

In April, 2010, the trial court entered a divorce decree which named the parents JMCs of the child. In December, 2010, mother’s attorney sent a letter to father’s attorney which included a proposed modification order, a packet of other documents, and an affidavit by the mother which alleged the father had assaulted her as well as several other women and had drug and alcohol problems. At the time, the father was on deferred adjudication for a previous assault of the mother that had occurred prior to the divorce. In the letter, the mother’s attorney expressed a desire that the parties could reach an agreement regarding the modification based on the attached documents or the mother would have to file the mod with the affidavit attached. According to the father, the proposed modification order would have effectively ended his right to see his son as the proposed order made visitation at the mother’s sole discretion and would have required him to pay exorbitant sums in child support. As mentioned above, the packet of documents which accompanied the letter from mother’s lawyer was also at issue at trial and the appeal. In his brief, father calls this letter from mother’s lawyer an extortion attempt.

Mother filed the modification (without the affidavit attached), seeking to be named SMC, limiting the father’s possession and access, and requesting an increase in child support and payment of the mother’s attorney’s fees. The father counterpetitioned. At the conclusion of the trial, the court named mother SMC and ordered father’s visitation be reduced, supervised, and contingent on him meeting certain requirements, such as him attending drug therapy, and avoiding conviction for domestic violence. The court also ordered him to pay $252,996.55 in attorney’s fees. The court’s findings of fact and conclusions of law found mother had presented credible evidence of father’s drug abuse and violence against women and that it was in the child’s best interests to modify the order.

During the trial, father offered the attorney’s letter which preceded the suit and the mother’s affidavit into evidence. They were admitted. He also evidently “indicated a desire” to enter into the record the entire packet of documents that accompanied the letter and affidavit, but evidently did not offer them. Then, after trial, he attempted to enter into the record a formal bill of exception containing the document packet, but the trial court sustained mother’s objection and refused to accept or sign the bill. Specifically, the trial court found father failed to lay the proper predicate or mark and offer the packet into evidence. Also, he failed to timely comply with all requirements to obtain a completed formal bill of exception.

The father’s first seven issues on appeal assert the trial court erred by not admitting into evidence or considering the packet of documents. Father submitted a bench brief in which he argued the packet of documents was admissible. Mother argued the documents constituted part of a settlement offer and thus were inadmissible. The trial court found that, at that point during the trial, the documents were part of a settlement offer, but did state that the court had not yet heard testimony which would support admitting the documents into evidence under one of the other purposes Rule 408 allows for settlement-related material. On appeal, father argued this was a final ruling regarding the admissibility of the documents; mother argued the trial court did no more than offer a preliminary indication of its ruling which could  change subject to later testimony and potential predicate-laying.  The Court of Appeals found father failed to actually offer the packet of documents into evidence, failed to lay a predicate, and thus failed to preserve the issue of the admissibility of the packet. The issues were overruled.

In his eighth issue, the father challenged the legal and factual sufficiency of the evidence to support the award of attorney’s fees. The trial court found mother had incurred $414,809.80 in reasonable attorney’s fees and ordered father to pay $252,996.55 to mother’s attorney. The Court of Appeals found that though the evidence supporting the reasonableness of the fees “[was] quite succinct,” it was sufficient to support the award.

The trial court was affirmed.

*Because the packet of documents was not entered into evidence and was not part of the record, the court’s opinion does not indicate what the packet contains.

 

 

 

 

 

 

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