Danny Joe Eversole v. Pamela Sue Eversole--Appeal from 378th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-00-380-CV

DANNY JOE EVERSOLE,

Appellant

v.

PAMELA SUE EVERSOLE,

Appellee

From the 378th District Court

Ellis County, Texas

Trial Court # 59676

MEMORANDUM OPINION

Pamela and Danny Eversole were divorced and their property was divided. Danny brings two issues on appeal: (1) the trial court erred by denying his motion for new trial based on newly discovered evidence and; (2) the trial court erred by denying his motion to abandon the mediated settlement agreement (MSA). We affirm the judgment.

NEWLY DISCOVERED EVIDENCE

The denial of a motion for new trial is subject to review under the abuse of discretion standard. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. App. 1983). The trial court s ruling will not be disturbed on appeal unless an abuse of discretion occurred. Id. at 809. We look to see if the refusal to grant a motion for new trial involved the violation of a clear legal right or a manifest abuse of judicial discretion. Id. Every reasonable presumption will be made on review in favor of orders of the trial court in refusing new trials. Id.

To obtain a new trial based on newly discovered evidence, the movant must satisfy the court that first, the evidence came to his knowledge since the trial; second, that it was not owing to the movant s lack of due diligence that the evidence did not come to his knowledge sooner; third, that the evidence is not cumulative and; fourth, that the evidence is so material that it would probably produce a different result if a new trial was granted. Jackson, 660 S.W.2d 807, 809 (Tex. App. 1983).

One of the elements Danny was required to prove, in order to show he was entitled to a new trial based on newly discovered evidence, was that the evidence was so material that it would probably produce a different result if a new trial was granted. Id. Property in the possession of either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. 3.003 (a) (Vernon 1998 & Supp. 2002). Separate property must be established by clear and convincing evidence. Tex. Fam. Code Ann. 3.003 (b) (Vernon 1998 & Supp. 2002).

In order to meet the fourth element, Danny was required to produce newly discovered evidence that was so material it would probably change the property division. To meet this burden Danny presented evidence he contends established certain amounts held in his retirement accounts were his separate property. If the amounts were his separate property, the trial court could not divide them as part of a just and right division. But the documents presented to the trial court by Danny do not rebut the community property presumption. There is a substantial gap in time between the date of the balances on the documents and the date of the dissolution of the marriage. Additionally, the amounts were substantially different and the difference was not explained by the evidence presented at the motion for new trial.

Accordingly, Danny did not meet the fourth element required for the granting of a motion for new trial. We need not analyze the first through third elements. The court did not err by denying Danny s motion for new trial based on newly discovered evidence. We overrule Danny s first issue.

MOTION TO ABANDON MEDIATED SETTLEMENT AGREEMENT

In his second issue, Danny complains that the trial court erred by denying his motion to abandon the MSA because the property division was not just and right. Tex. Fam. Code Ann. 7.001 (Vernon 1998 & Supp. 2002). Danny s complaint is based on his assertion the property held in his retirement accounts is his separate property, and because the property was divided as community property, the division was not just and right. We will assume without deciding the trial court was obligated to determine the property division as agreed to by the parties and documented in the MSA was just and right before entering judgment.

The trial court has wide discretion in dividing the marital estate. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The trial court s decision will be reversed only if it appears from the record as a whole that the court abused its discretion. Gillespie, 644 S.W.2d at 451. A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Worford, 801 S.W.2d at 109.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed June 26, 2002

Do not publish

[CV06]