On March 19, 2015 a
Motion,Ex Parte
was filed
involving a dispute between
Duran, Osbaldo,
and
Gomez-Duran, Yadira M,
for Divorce - Children
in the District Court of Smith County.
Preview
Electronically Filed
11/12/2015 12:07:06 PM
Lois Rogers, Smith County District Clerk
Reviewed By: Jennifer Black
NO. 1s-0600-D
IN THE MATTER
THE
OF $ IN THE DISTRICT COURT
MARRIAGE OF $
$
YADIRA MARIANA GOMEZ $
AND S 321ST JUDICIAL DISTRICT
OSBALDO DURAN s
s
AND IN THE INTEREST OF $
E.M.D. AND R.D., CHILDREN $ SMITH COUNTY, TEXAS
FIRST AMENDED MOTION FOR NEW TRIAL
This Motion for New Trial is brought by Yadira Mariana Gomez, petitioner, who shows
in support:
l. On Octobet 16,2015 ajudgment was signed by this Court in this case.
2' A new trial should be granted to Movant because the evidence is legally and
factually insufficient to support this Court's judgment. Specifically, the evidence is legally and
factually insufficient to support this Court's judgment based on the following: The parties are
under a Harris County, Texas Order in Suit Affecting the Parent-Child Relationship and
Establishing the Parent-Child Relationship. Said order awards primary custody of the children to
the Movant and designates her as the conservator with the exclusive right to designate the
primary residence of the children. The Respondent is ordered to pay child support to the
Movant.
3' A new trial should be granted to Movant because (1) the following newly
discovered evidence has come to Movant's knowledge since the trial, (2) the failure to discover
the new evidence sooner was not for want of due diligence, (3) the new evidence is not
cumulative evidence, and (4) the new evidence is so material that it would probably produce a
different result if a new trial were granted: Material evidence has been discovered showing that
Movant was misled into signing divorce documents that award custody of the children to the
Respondent.
4' Respondent lied to Movant and to this Court in order to gain custody of the
children' It would not be in the best interest of the children that their custody be with the
Respondent.
5' The above errors amounted to such a denial of Movant's rights as was reasonably
calculated to cause and probably did cause rendition of an improper judgment in the case. Tex.
R. App. P. 44.1(a)(l).
6' Yadira Mariana Gomez has a meritorious defense to the cause of action allesed in
this case.
7. The granting of a new trial would not injure osbaldo Duran.
8. Justice will not be properly served unless a new trial is granted.
Yadira Mariana Gomez prays that the Court set aside the judgment signed on October 16,
2015 and grant a new trial.
Respectfully submitted,
ANTONIO BENAVIDES
855 Uvalde Road, Suite C
Houston, TX77015
Tel: (713) 455-5551
Fax: (713) 455-5558
State Bar 4031733
attorneybenavides@gmail. com
Attomey for Yadira Mariana Gomez
Verification
The undersigned states under oath: "I am the movant in this Motion for New Trial. I
have read the motion. The statements contained in parugraphs 3 and 4 in the motion are within
my personal knowledge and are true and correct."
SIGNED under oath before me on
RENEE MARTINU
Notary public
STATE OF TEXAS
My Conm, Erg,
ilcrembc
1S, Public, State of T
Affidavit of Yadira Mariana Gomez
Yadira Mariana Gomez appeared before me in person today and stated under oath as
follows:
"My name is Yadira Mariana Gomez. I am above the age of eighteen years, and I am
fully competent to make this affidavit. I am the movant in this Motion for New Trial. The facts
stated in this affrdavit are within my personal knowledge and are true and correct.
Movant is a party to the issue at hand and would never have signed any documents that
would have led to the custody being awarded to Respondent"
SIGNED under oath before me on
otary Public, State of !
NO. 15-0600-D
IN THB MATTER OF IN THE DISTRICT
$ COURT
THE MARRIAGE OF $
$
YADIRA MARIANA GOMEZ $
AND 321ST JUDICIAL
s DISTRICT
OSBALDO DURAN $
s
AND IN THE INTEREST OF $
E.M.D. AND R.D., CHILDREN SMITH COUNTY,
s TEXAS
Notice of Hearing
The above motion is set for hearing on at _. m. in the 321st
District Court of Smith County, Texas located at 100 N. Broadway, Tyler, Texas 75702.
SIGNED on
Judee or Clerk
Certificate of Service
I certify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on November
Attorney for Yfdira
AFFIDAVIT
N SUPPORT OF MOTION FOR NEW TRIAL
STATE OF TEXAS E
COUNTY OF HARRIS
$
BEFORE ME' the undersigned authority, on this day person ally appeared yadira Mariana
Gomez, who swore on oath that the following facts are true:
"My name is Yadira Mariana Gomez' I am over 18 years of age, of sound mind, and fully
competent to make this affidavit' I have personal knowledge of the facts stated herein and they are all
true and correct.
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SUBSCRIBED and sworn to before Ine or.r .2015.
Public
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1S,
My Commission Expires:
2
Document Filed Date
November 12, 2015
Case Filing Date
March 19, 2015
Category
Divorce - Children
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Preview
Electronically Filed 11/12/2015 12:07:06 PM Lois Rogers, Smith County District Clerk Reviewed By: Jennifer Black NO. 1s-0600-D IN THE MATTER THE OF $ IN THE DISTRICT COURT MARRIAGE OF $ $ YADIRA MARIANA GOMEZ $ AND S 321ST JUDICIAL DISTRICT OSBALDO DURAN s s AND IN THE INTEREST OF $ E.M.D. AND R.D., CHILDREN $ SMITH COUNTY, TEXAS FIRST AMENDED MOTION FOR NEW TRIAL This Motion for New Trial is brought by Yadira Mariana Gomez, petitioner, who shows in support: l. On Octobet 16,2015 ajudgment was signed by this Court in this case. 2' A new trial should be granted to Movant because the evidence is legally and factually insufficient to support this Court's judgment. Specifically, the evidence is legally and factually insufficient to support this Court's judgment based on the following: The parties are under a Harris County, Texas Order in Suit Affecting the Parent-Child Relationship and Establishing the Parent-Child Relationship. Said order awards primary custody of the children to the Movant and designates her as the conservator with the exclusive right to designate the primary residence of the children. The Respondent is ordered to pay child support to the Movant. 3' A new trial should be granted to Movant because (1) the following newly discovered evidence has come to Movant's knowledge since the trial, (2) the failure to discover the new evidence sooner was not for want of due diligence, (3) the new evidence is not cumulative evidence, and (4) the new evidence is so material that it would probably produce a different result if a new trial were granted: Material evidence has been discovered showing that Movant was misled into signing divorce documents that award custody of the children to the Respondent. 4' Respondent lied to Movant and to this Court in order to gain custody of the children' It would not be in the best interest of the children that their custody be with the Respondent. 5' The above errors amounted to such a denial of Movant's rights as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case. Tex. R. App. P. 44.1(a)(l). 6' Yadira Mariana Gomez has a meritorious defense to the cause of action allesed in this case. 7. The granting of a new trial would not injure osbaldo Duran. 8. Justice will not be properly served unless a new trial is granted. Yadira Mariana Gomez prays that the Court set aside the judgment signed on October 16, 2015 and grant a new trial. Respectfully submitted, ANTONIO BENAVIDES 855 Uvalde Road, Suite C Houston, TX77015 Tel: (713) 455-5551 Fax: (713) 455-5558 State Bar 4031733 attorneybenavides@gmail. com Attomey for Yadira Mariana Gomez Verification The undersigned states under oath: "I am the movant in this Motion for New Trial. I have read the motion. The statements contained in parugraphs 3 and 4 in the motion are within my personal knowledge and are true and correct." SIGNED under oath before me on RENEE MARTINU Notary public STATE OF TEXAS My Conm, Erg, ilcrembc 1S, Public, State of T Affidavit of Yadira Mariana Gomez Yadira Mariana Gomez appeared before me in person today and stated under oath as follows: "My name is Yadira Mariana Gomez. I am above the age of eighteen years, and I am fully competent to make this affidavit. I am the movant in this Motion for New Trial. The facts stated in this affrdavit are within my personal knowledge and are true and correct. Movant is a party to the issue at hand and would never have signed any documents that would have led to the custody being awarded to Respondent" SIGNED under oath before me on otary Public, State of ! NO. 15-0600-D IN THB MATTER OF IN THE DISTRICT $ COURT THE MARRIAGE OF $ $ YADIRA MARIANA GOMEZ $ AND 321ST JUDICIAL s DISTRICT OSBALDO DURAN $ s AND IN THE INTEREST OF $ E.M.D. AND R.D., CHILDREN SMITH COUNTY, s TEXAS Notice of Hearing The above motion is set for hearing on at _. m. in the 321st District Court of Smith County, Texas located at 100 N. Broadway, Tyler, Texas 75702. SIGNED on Judee or Clerk Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on November Attorney for Yfdira AFFIDAVIT N SUPPORT OF MOTION FOR NEW TRIAL STATE OF TEXAS E COUNTY OF HARRIS $ BEFORE ME' the undersigned authority, on this day person ally appeared yadira Mariana Gomez, who swore on oath that the following facts are true: "My name is Yadira Mariana Gomez' I am over 18 years of age, of sound mind, and fully competent to make this affidavit' I have personal knowledge of the facts stated herein and they are all true and correct. e4 €,*, ,'i ,,5 t'n ;Qoba A-.S aJyT J l,\) a lrl /a 'o! en fla J I WCI/ \e,.vo/un /' /, o'ril 1; u<_ /q I4e [r.y','o ^ '/<_ / C ri7rr,. r. 1 o /nr'.. ,tril I I hc: vQ e't e e.Se ,- (tc+/nlz fl" 'fY4. SUBSCRIBED and sworn to before Ine or.r .2015. Public ttfy Comm. Ery. No/enb€r 1S, My Commission Expires: 2