Ex filed a motion for new trial after we did an order modifying spousal support

Cannonball

New Member
Jurisdiction
Texas
I live in Texas. Was divorced more than a decade ago in another state. Case was later transferred to Texas. The ex-spouse now lives in Texas as well. In the original divorce in the other state, I was pro se and agreed to spousal maintenance of x amount per month, via wage garnishment, that would end only if one of us died or she remarried, which she has not.

Many years later, in Texas I tried to modify or terminate the spousal maintenance. I failed a couple of times. Ordered to pay past due support plus reinstate the wage garnishment from current employer. For the past year I had an attorney of my own for the first time, because the ex was seeking contempt, past due support, reinstatement of garnishment at my new job, etc. But he lost the case. The only thing he accomplished was keeping me out of jail.

However, after that most recent judgment this summer that went in the ex-spouse's favor, the ex-spouse had a change of heart. She contacted me and asked me if a proposal that I had floated to her a year ago was still on the table. I told her it was. She fired her attorney (who refused to entertain the proposal for a year), and she and I signed a notarized agreement. This agreement basically says that I pay a much-reduced amount via wage garnishment for a finite period of time. If I pay on time for the full amount of time, then at the end of that period the obligation ceases, including the past due amount and any future amount.

We went before the judge pro se, he reviewed the paperwork and asked some questions. He wanted to make sure the ex understood what she was agreeing to, and she told him she did. He made sure she wasn't coerced; she told him she wasn't. He then signed the order. I had a pending appeal in the Court of Appeals which I then dropped that same day. That was earlier this summer.

Yesterday, I received a notice of hearing on a Motion For New Trial from the judge, for 10 days from yesterday. I never received the actual Motion. So I don't have a Motion, or any supporting Affidavit. I have no idea what her reasoning is for wanting a new trial. Buyer's remorse, perhaps.

Anyway, my questions relate to time limits and grounds for bringing a Motion For New Trial. First, isn't that Motion one that the adversely-affected party would bring? She actually won a judgment - got everything she asked for - but then of her own free will entered into a separate agreement, and the judge signed an Order Modifying Spousal Maintenance in acceptance of that agreement. So is she entitled to a new trial?

And what about time limits for bringing this motion. According to my research into Rule 329b of the Texas rules of civil procedure, you have 30 days from a signed judgment to bring a Motion for New Trial. I think she filed her motion outside that window (although it will be after the labor day holiday before I can go to the courthouse and check the file date on the motion, since I never got the motion). So wouldn't it be true that the trial court no longer has plenary power to grant a motion for new trial?
 
So wouldn't it be true that the trial court no longer has plenary power to grant a motion for new trial?

You really need to hire yourself a lawyer.

You've flummoxed a couple of times, and now you're going to be bamboozled.
 
You really need to hire yourself a lawyer.

You've flummoxed a couple of times, and now you're going to be bamboozled.

I'm looking for answers to my questions. If I could or wanted to hire a lawyer, I wouldn't be here asking questions. The one time I did hire an attorney was a year ago, and a $2,500 retainer and $4,000 additional bill later, he lost.

Besides, I'm in a much stronger position than before. She agreed to and signed a modification.
 
You don't get it. You are in over your head. The ONLY one who can accurately answer your questions is an attorney licensed in your state.

Yes, attorneys are expensive- you are paying for expertise in their field. There is never a guarantee of a "win" - there has to be a winner and a loser in each situation.

You're in a stronger position now? Good, then the attorney fees should not be as high.
 
You don't get it. You are in over your head. The ONLY one who can accurately answer your questions is an attorney licensed in your state.

Yes, attorneys are expensive- you are paying for expertise in their field. There is never a guarantee of a "win" - there has to be a winner and a loser in each situation.

You're in a stronger position now? Good, then the attorney fees should not be as high.


Thank you.
 
You don't get it. You are in over your head. The ONLY one who can accurately answer your questions is an attorney licensed in your state.

Yes, attorneys are expensive- you are paying for expertise in their field. There is never a guarantee of a "win" - there has to be a winner and a loser in each situation.

You're in a stronger position now? Good, then the attorney fees should not be as high.
No. I get it. This forum exists for people to come for legal advice. But the only advice you have to give is "go get a lawyer." So put that message on the front page and save people from wasting their time trying to get info that you're not going to give.
 
Many legal issues are well beyond the scope of an Internet forum. Period.
A legal forum is designed to be a crowdsourced place for answers. Since you don't speak for every other poster who might answer and don't know their expertise, you're acting counterproductively to the purpose of the forum when you try to advise a questioner to stop seeking answers and just call a lawyer instead. So why not just remain silent and let the question either go unanswered or let knowledgeable posters answer? Thanks.
 
All of the regular posters here clearly understand the limitations of this forum and when it is best to seek professional legal advice.

So if you want to play Perry Mason, be our guest.
 
All of the regular posters here clearly understand the limitations of this forum and when it is best to seek professional legal advice.

So if you want to play Perry Mason, be our guest.
There you go speaking for everyone again. You're very annoying.

There are quite a few facets to my situation. I didn't need any one poster to solve everything. I think it's very reasonable to hope one or two or three posters might chime in on a facet that they have personal experience with. If, that is, you haven't already beaten them into submission with the "what ya need to do, bub, is get a lawyer" mantra.

If I wanted to play Perry Mason, I would have gone to law school, I didn't, and the last Perry Mason took all my money. So that's why I'm asking for advice from those who may be attorneys, or may have been represented in similar situations. With that said, I am done explaining myself to the guy who has no subject matter expertise to offer me. Please make way for those who might.
 
I'm late to this party but let's see if I can make some helpful comments.

Yesterday, I received a notice of hearing on a Motion For New Trial from the judge, for 10 days from yesterday. I never received the actual Motion. So I don't have a Motion, or any supporting Affidavit. I have no idea what her reasoning is for wanting a new trial. Buyer's remorse, perhaps.

That seems to be the crux of your issue and you have mentioned going to the courthouse tomorrow to look at the date of the motion.

You should also get a copy of it to take home and review. Better yet, get the whole case file so you have all the papers to review so you don't have to rely on memory.

Then you should take the opportunity to write a response to the motion. Your response should say why the judge shouldn't grant whatever is requested in the motion. You'll need to file that with the court in advance of the hearing to get it on record though, if you don't get it filed by the hearing date, you can still present it to the judge at the hearing.

Grounds for filing your objections could include the timeliness of the filing (as you suggest) but there are likely other things in the motion that you can object to for a variety of reasons. You don't want to hang your hat on just that rule that you cited (or the lack of service) because judges have the power to waive rules, or excuse non-compliance, if there are reasons for doing so.

It's always best to respond to a motion based on what is being asked for in the motion rather than dwelling on technicalities as judges prefer ruling on the merits of the case.

That's about all I can contribute without reading her motion.
 
I'm late to this party but let's see if I can make some helpful comments.



That seems to be the crux of your issue and you have mentioned going to the courthouse tomorrow to look at the date of the motion.

You should also get a copy of it to take home and review. Better yet, get the whole case file so you have all the papers to review so you don't have to rely on memory.

Then you should take the opportunity to write a response to the motion. Your response should say why the judge shouldn't grant whatever is requested in the motion. You'll need to file that with the court in advance of the hearing to get it on record though, if you don't get it filed by the hearing date, you can still present it to the judge at the hearing.

Grounds for filing your objections could include the timeliness of the filing (as you suggest) but there are likely other things in the motion that you can object to for a variety of reasons. You don't want to hang your hat on just that rule that you cited (or the lack of service) because judges have the power to waive rules, or excuse non-compliance, if there are reasons for doing so.

It's always best to respond to a motion based on what is being asked for in the motion rather than dwelling on technicalities as judges prefer ruling on the merits of the case.

That's about all I can contribute without reading her motion.

Thank you very much. I did go down and look this morning. The motion was timely filed on day 27, so there's that. The certificate of service says that he sent me a copy (he didn't) on the _____ day of August, which he left blank. The bad thing is, this man is not only a private attorney but also the county attorney. He should know better.

The motion says I, along with our daughter, coerced her into the agreement. Absolutely didnnot happen. She stood before the judge at the hearing and attested that she understood what she was doing and that she wanted to do it.

I actually have a recording on my phone of a 30-min conversation with her two days after the order was signed. It really goes to her state of mind because she says that all the court proceedings had just become stressful (I had filed an appeal that was pending at the time) and that she wanted it over. She never mentioned coercion or the daughter even once. In fact she was friendly and was telling me all about a house she wanted to buy and trying to talk me into giving her a large downpayment. Keep in mind, we've been divorced since 2001. At one point she implies that she could always try to take me back to court at any time but if I give her the down payment she won't have to. That's pretty shady.

Any advice on how to get the recording admitted into evidence? I'm a relatively intelligent guy but still fuzzy on how to do that despite asking my friend Google. I can transcribe it word for word and will do so.
 
Any advice on how to get the recording admitted into evidence?

Getting something into evidence means you must first establish its authenticity.
If you don't bother to do that, even a first year attorney will thwart you at every turn.
You need to be able to PROVE, not just assert that the conversation was held by the parties in question on the date so ascribed, and the recording (and transcript of the recording) hasn't been "doctored" or "fabricated".
Trust me, that takes much more the mere ability to transcribe the alleged conversation.

To start with, you'll need records from the wireless or telephone company proving that such a call was made.

Then you'll need to prove that Bill talked with Molly.

That could require you to hire a voice print analyst.
However, voice print analysis isn't 100% accurate, like DNA or fingerprints.
Your adversary could bring in experts to debunk your recording and assertions.

Again, what you're attempting to do involves far more than transcription, or even presentation.
 
The motion says I, along with our daughter, coerced her into the agreement. Absolutely did not happen. She stood before the judge at the hearing and attested that she understood what she was doing and that she wanted to do it.

I suggest you get a transcript of that hearing, make several copies, one for you, one for the judge and one to hand her when she's testifying under oath and give her the "did you say this?" "did you say that?" routine.

I actually have a recording on my phone of a 30-min conversation with her two days after the order was signed. It really goes to her state of mind because she says that all the court proceedings had just become stressful (I had filed an appeal that was pending at the time) and that she wanted it over.

I think that will do you more harm than good because it makes you a witness to her saying what she is also saying now. It's up to you but I think that recording might go against you where a transcript of her statements at the settlement hearing would work for you.
 
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