X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Family Law No. 05-02-01680-CV, 5/1/2003. Click here for the full text of this decision FACTS: Susan M. Wyatt (the mother) appeals from an order modifying the parent-child relationship. She and appellee James T. Wyatt (the father) were divorced in 1996. At that time, the father was granted only limited and supervised visitation of the parties’ two children. Father brought this suit seeking to obtain standard visitation. The trial court entered an order – ostensibly based upon the agreement of the parties – granting standard visitation with minor variations in timing and exchange arrangements. Mother filed a motion for new trial arguing that 1. she never agreed to the order’s provisions; and 2. the children had suffered since the father had been granted unsupervised visitation. Mother’s motion for new trial was denied, and she appealed. HOLDING: Affirmed. The court’s review of the record establishes there was an agreement by the parties to allow the father standard visitation with the modifications discussed above, including allowing the mother more flexibility in exchange times and extended possession time for church attendance with her children. The trial court entered its order based on that agreement, and the mother did not pose any objection prior to the rendition of judgment. She could not withdraw her consent to the agreement after the trial court rendered judgment. The trial court did not abuse its discretion when it entered the modification order based upon the parties’ agreement. The mother avers the trial court abused its discretion when it denied her motion for new trial. The mother testified in support of her motion, and she offered affidavits from her daughter’s physician and the children’s counselor. She testified initially that she had not agreed to the modified order at the time of the first hearing. Then the majority of her testimony – as well as the affidavit testimony – purported to describe harm to the children caused by unsupervised visits with the father following the modification of the possession order. The trial court solicited evidence that would be relevant to a new trial, specifically evidence that there was no agreement. However, the court refused to consider evidence that related to post-judgment issues, explaining that the mother would have to file a motion to modify the existing order if she wanted to bring that evidence before the court. These rulings appropriately maintained the distinction between complaints related to the father’s modification proceeding and complaints that arose after that proceeding was completed. The trial court did not abuse its discretion in rejecting post-judgment evidence at the hearing on the motion for new trial. The only evidence related to the modification proceeding was the mother’s testimony that she did not consent to the agreement underlying the court’s modification order. Because the mother testified differently at the hearings on the motion to modify and the motion for new trial, her credibility was dispositive. The trial court witnessed the mother’s testimony on each occasion. In its role as fact-finder, the trial court is the sole arbiter of a witness’s credibility and the weight to be given her testimony. The trial court clearly determined the mother had consented to the modification agreement. OPINION: FitzGerald, J.; O’Neill, Bridges and FitzGerald, JJ.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.