Hearsay Evidence Is Allowed (Sometimes)

Rich Shea — Thu, 24 Jun 2010 10:44:49 +0000

You have to prove your case. At the end of the day no matter how many horrible accusations are traded between you and your ex it is your Woodlands Divorce Attorney’s job to prove your case with the evidence. If a certain piece of evidence is not legally admissible then it cannot be used to prove your case or used against you. Hearsay evidence is generally not allowed, even in a Woodlands divorce case and even if the evidence is offered by the Attorney General. In a recent child support case a trial court allowed hearsay evidence from the Attorney General’s office, but did not exclude it under a narrow exception to the hearsay rules. Let’s take a closer look at what happened.

The Arguments on Appeal

The father in this was is A.J. A.J. argues that the trial court admitted inadmissible hearsay to prove his 2004–2007 earnings for the purpose of calculating child support. The Attorney General argues that Hardy can testify on the basis of hearsay sources because she qualifies as an expert per the Texas Rules of Evidence.

The Court’s Analysis

The trial court found where the parties have adequately complied with their discovery obligations, experts can generally testify regarding their opinions and give the reasons they hold their opinions without prior disclosure of facts or underlying data, unless the court orders otherwise. Trial courts are not automatically required to exclude the expert’s underlying facts or data, even if inadmissible, but instead must only do so when “the danger that they will be used for a purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial.”

In this case, the Attorney General’s calculation of A.J.’s child support obligation depended, in part, on his earned income for the 2004–2007 period. Although the Attorney General had obtained information on A.J.’s earned income through a subpoena, the underlying records that she apparently received were not properly proven up and thus, inadmissible hearsay. Thus, the court concluded that the Attorney General’s testimony about A.J.’s levels of income between 2004 and 2007 was inadmissible hearsay. Nevertheless, A.J. also testified about his income for the period 2004–2007. According to A.J., it was more likely than not that he had made more than $100,000 every year since 2004.

Hearsay Not Prejudicial

The court ruled that in light of A.J.’s testimony that his income exceeded $100,000 for each year at issue, the evidence supported the trial court’s use of the figure of $6,000 per month as A.J.’s net monthly income. On this record, other admissible testimony, consisting of A.J.’s testimony about his income, supports the figure the trial court used to calculate A.J.’s child support obligation. Therefore, the admission of the Attorney General’s testimony to explain the basis of her opinion was not unfairly prejudicial.

About the Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a divorce lawyer in The Woodlands, TX today and protect your rights. Contact The Shea Law Firm at (832) 426-3913.

Your Child Support and the Attorney General

Rich Shea — Wed, 27 May 2009 19:25:17 +0000

The Attorney General has some enforcement authority to pursue assets to satisfy child support obligations. Sometimes they go too far.

In The Interest of R.C.T. 2009-TX-0408.559 gives us an example of when a Texas Attorney General goes too far to collect assets for child support. In the case, the husband and wife agreed to a figure of $9,024 that the husband owed in retroactive child support. The Court also approved an agreement for the husband to repay the retroactive support by monthly installments of $150. The Attorney General was not satisfied with this resolution.

The Attorney General did not want to wait for monthly installments of $150. After the Court approved the order, the Attorney General

filed a child support lien against the husband and notified the U.S. Department of Treasury that the husband owed past-due support in excess of $500. The Treasury Department then informed the husband that his tax refund of almost $4,000 would be intercepted and paid to the Attorney General’s office in payment of the retroactive child support.

In order for the Attorney General to legally intercept the husband’s tax refund the husband must be “delinquent” in his child support payments. Until this case, the Court had not interpreted exactly what qualifies as “delinquent” for the purpose of intercepting a tax refund. In its discussion, the Court concluded that in order for a person to be delinquent on their child support obligation they must have failed to comply with the court order concerning child support.

In this case, the court order for payment of the retroactive child support was $150 per month. At the time the Attorney General attempted to intercept the husband’s tax refund the husband was in compliance with the court order. As a result, the Court concluded the retroactive child support balance was not “delinquent” and therefore the Attorney General could not act against the tax refund. If the husband had not made his monthly payments of $150 then the outcome may have been different.