On February 12, 2018 a
!RESPONSE
was filed
involving a dispute between
Mayol , Stephen Joseph,
and
Goff , Paepin Denise,
for PARENT CHILD RELATIONSHIP TRNS (FAMILY LAW)
in the District Court of Travis County.
Preview
11/19/2018 5:32 PM
Velva L. Price
District Clerk
Travis County
NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA D-1-FM-18-001080
Irene Silva
e
NO. D-l-FM-18-001080
ic
Pr
IN THE INTEREST OF § IN THE DISTRICT COURT
§
EVAN GABRIEL MAYOL AND § 126TH JUDICIAL DISTRICT
L.
SOPHIA LYNN MAYOL §
§
a
CHILDREN § TRAVIS COUNTY, TEXAS
lv
Ve
RESPONSE TO RESPONDENT’S MOTION FOR OFFER OF PROOF
This Response to Respondent’s Motion for Offer of Proof is brought by STEPHEN
k
er
MAYOL, Petitioner, who shows in support:
Cl
A. Background
ct
On October 18, 2018, the Court heard testimony and argument on Petitioner’s Petition for
tri
Enforcement, Motion for Temporary Orders, Motion to Confer with Child and Motion for
D is
Guardian Ad Litem, and Respondent’s Motion for Interim Attorney’s Fees. The parties
.
Co
announced for a two hour hearing in which each party had time to present their evidence and
argument. Both parties ran out of time to present evidence and argument. At the end of the
is
hearing. Respondent requested additional time which was denied. Additionally, the Court
av
Tr
requested each party prepare a trial brief with case law and closing arguments as to the contested
matters before the Court. The briefs were to be exchanged and submitted to the Court at an
y
op
agreed time. After trial briefs and responses were submitted to the Court, Respondent filed a
c
Motion for Offer of Proof. Respondent’s Offer of Proof contains an affidavit and three additional
l
ia
pieces of evidence. None of which was offered during the hearing.
fic
B. Summary of Relevant Statutory Law and Case Law
of
An offer of proof is a trial-time offer of evidence the court excluded. See TRE 103 (a)(2);
Un
TRAP 331.(a)(1)(A). A party makes an offer by presenting the excluded evidence in the form of
Response to Respondent’s Motion for Offer of Proof -Page 1 of 4
a summary or in question-and-answer form, outside the presence of the jury. When the trial
e
court rules evidence is not admissible and exclusive, the party who offered the evidence should
ic
Pr
make an offer of proof to get the evidence into the records for the appeal. TRE 103 (a)(2). Before
a party is entitled to make an offer of proof, it must offer the evidence at trial. Ulogo v.
L.
Vallanueva, 177 S. W. 3d 496, 501 (Tex.App. Houston [1®* Dist.] 2005, no pet.); Estate v.
a
lv
Veale v. Teledyn Indus., 899 S.W.2d 239, 242 (Tex.App.—Houston [14* Dist.]1995, writ
Ve
denied). Before a party is entitled to make an offer of proof, the Court must make a ruling that
k
he evidence is inadmissible. TRAP 33.1(a)(2); Ulogo v. Vallanueva, 177 S. W. 3d 496, 501
er
Cl
(Tex.App. - Houston [H' Dist.] 2005, no pet.); Estate v. Veale v. Teledyn Indus., 899 S.W.2d
ct
239, 242 (Tex.App.—Houston [14* Dist.]1995, writ denied).
tri An offer of proof must be made as
soon as practicable before the jury charge. See TRE 103 (c). To preserve testimonial evidence.
is
the party offering it must made an offer of proof in the presence of the judge, the court reporter
D
and the opposing counsel, but outside the presence of the jury. See TRE 103 (d). When making
.
Co
an offer of proof, the attorney should make a concise statement of what testimony be elicited
is
from the witness. In re N.R.C., 94 S.W.3d at 806. To preserve documentary evidence, the party
av
should , at the time the documents is excluded, make an offer of proof and request the document
Tr
be filed with the record. TRCP 75a; see Owens III.,Inc. v. Chatham, 899 W.W.2d 722, 731
y
(Tex.App—Houston [14* Dist.] 1995, writ dism’d).
op
C. Argument
l c
Respondent’s Offer of Proof is not timely and should be excluded. Respondent did not
ia
fic
make an offer of proof at the time of hearing thereby preserving the record. Respondent’s request
of
for the Court to hear evidence after trial briefs have been exchanged and closing arguments have
Un
been made is untimely and nothing more than a request to put on additional evidence after
Response to Respondent’s Motion for Offer of Proof -Page 2 of 4
Petitioner’s entire argument and closing argument have been submitted to the Court. Ms. Goffs
e
Motion for Offer of Proof must be denied because no request was made by Respondent at the
ic
Pr
time of hearing for an offer of proof. The newly proposed evidence now proposed to the Court is
being offered 21 days after the hearing concluded.
L.
Additionally, Respondent’s Offer of Proof has been improperly offered to the Court. In
a
lv
order to make an offer of proof as to testimony, the attorney should make concise statement or an
Ve
offer to be made in question-and-answer form, not a six page affidavit prepared three weeks after
k
the hearing. Respondent has included three additional exhibits in her offer of proof which were
er
Cl
never offered as evidence at the time trial. In addition to not properly offered, there are additional
ct
evidentiary objections to the proposed exhibits as to their admissibility.
tri
Respondent is attempting to circumvent the legal process by submitting ex-parte
is
testimony and inadmissible evidence to the Court after the time for evidence has been concluded.
D
Additionally, this evidence was prepared and proffered to the Court, after supporting briefs were
.
Co
submitted to the Court outlining arguments and support. Respondent’s attempt to present
is
evidence after a closing argument is disingenuous and improper.
av
STEPHEN MAYOL prays that the Court deny Respondent’s Motion for Offer of Proof
Tr
Respectfully submitted.
y
op
CORDELL & CORDELL PC
301 Congress Avenue, Suite 1800
c
Austin, Texas 78701
l
Tel: (512) 271-5735
ia
Fax: (512)692-3831
fic
By:
of
Coleen Kinsler
State Bar No. 24067709
Un
austoffice@cordelllaw.com
Attorney for STEPHEN MAYOL
Response to Respondent’s Motion for Offer of Proof -Page 3 of 4
e
ic
Certificate of Service
Pr
I certify that a true copy of the above was served on each attorney of record or party in
L.
accordance with the Texas Rules of Civil Proeedure on November 19, 2018.
a
lv
Ve
Coleen Kinsler
Attorney for STEPHEN MAYOL
k
er
Cl
ct
tri
D is
.
Co
is
av
Tr
y
op
c
l
ia
fic
of
Un
Response to Respondent’s Motion for Offer of Proof -Page 4 of 4
Document Filed Date
November 19, 2018
Case Filing Date
February 12, 2018
Category
PARENT CHILD RELATIONSHIP TRNS (FAMILY LAW)
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
11/19/2018 5:32 PM Velva L. Price District Clerk Travis County NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA D-1-FM-18-001080 Irene Silva e NO. D-l-FM-18-001080 ic Pr IN THE INTEREST OF § IN THE DISTRICT COURT § EVAN GABRIEL MAYOL AND § 126TH JUDICIAL DISTRICT L. SOPHIA LYNN MAYOL § § a CHILDREN § TRAVIS COUNTY, TEXAS lv Ve RESPONSE TO RESPONDENT’S MOTION FOR OFFER OF PROOF This Response to Respondent’s Motion for Offer of Proof is brought by STEPHEN k er MAYOL, Petitioner, who shows in support: Cl A. Background ct On October 18, 2018, the Court heard testimony and argument on Petitioner’s Petition for tri Enforcement, Motion for Temporary Orders, Motion to Confer with Child and Motion for D is Guardian Ad Litem, and Respondent’s Motion for Interim Attorney’s Fees. The parties . Co announced for a two hour hearing in which each party had time to present their evidence and argument. Both parties ran out of time to present evidence and argument. At the end of the is hearing. Respondent requested additional time which was denied. Additionally, the Court av Tr requested each party prepare a trial brief with case law and closing arguments as to the contested matters before the Court. The briefs were to be exchanged and submitted to the Court at an y op agreed time. After trial briefs and responses were submitted to the Court, Respondent filed a c Motion for Offer of Proof. Respondent’s Offer of Proof contains an affidavit and three additional l ia pieces of evidence. None of which was offered during the hearing. fic B. Summary of Relevant Statutory Law and Case Law of An offer of proof is a trial-time offer of evidence the court excluded. See TRE 103 (a)(2); Un TRAP 331.(a)(1)(A). A party makes an offer by presenting the excluded evidence in the form of Response to Respondent’s Motion for Offer of Proof -Page 1 of 4 a summary or in question-and-answer form, outside the presence of the jury. When the trial e court rules evidence is not admissible and exclusive, the party who offered the evidence should ic Pr make an offer of proof to get the evidence into the records for the appeal. TRE 103 (a)(2). Before a party is entitled to make an offer of proof, it must offer the evidence at trial. Ulogo v. L. Vallanueva, 177 S. W. 3d 496, 501 (Tex.App. Houston [1®* Dist.] 2005, no pet.); Estate v. a lv Veale v. Teledyn Indus., 899 S.W.2d 239, 242 (Tex.App.—Houston [14* Dist.]1995, writ Ve denied). Before a party is entitled to make an offer of proof, the Court must make a ruling that k he evidence is inadmissible. TRAP 33.1(a)(2); Ulogo v. Vallanueva, 177 S. W. 3d 496, 501 er Cl (Tex.App. - Houston [H' Dist.] 2005, no pet.); Estate v. Veale v. Teledyn Indus., 899 S.W.2d ct 239, 242 (Tex.App.—Houston [14* Dist.]1995, writ denied). tri An offer of proof must be made as soon as practicable before the jury charge. See TRE 103 (c). To preserve testimonial evidence. is the party offering it must made an offer of proof in the presence of the judge, the court reporter D and the opposing counsel, but outside the presence of the jury. See TRE 103 (d). When making . Co an offer of proof, the attorney should make a concise statement of what testimony be elicited is from the witness. In re N.R.C., 94 S.W.3d at 806. To preserve documentary evidence, the party av should , at the time the documents is excluded, make an offer of proof and request the document Tr be filed with the record. TRCP 75a; see Owens III.,Inc. v. Chatham, 899 W.W.2d 722, 731 y (Tex.App—Houston [14* Dist.] 1995, writ dism’d). op C. Argument l c Respondent’s Offer of Proof is not timely and should be excluded. Respondent did not ia fic make an offer of proof at the time of hearing thereby preserving the record. Respondent’s request of for the Court to hear evidence after trial briefs have been exchanged and closing arguments have Un been made is untimely and nothing more than a request to put on additional evidence after Response to Respondent’s Motion for Offer of Proof -Page 2 of 4 Petitioner’s entire argument and closing argument have been submitted to the Court. Ms. Goffs e Motion for Offer of Proof must be denied because no request was made by Respondent at the ic Pr time of hearing for an offer of proof. The newly proposed evidence now proposed to the Court is being offered 21 days after the hearing concluded. L. Additionally, Respondent’s Offer of Proof has been improperly offered to the Court. In a lv order to make an offer of proof as to testimony, the attorney should make concise statement or an Ve offer to be made in question-and-answer form, not a six page affidavit prepared three weeks after k the hearing. Respondent has included three additional exhibits in her offer of proof which were er Cl never offered as evidence at the time trial. In addition to not properly offered, there are additional ct evidentiary objections to the proposed exhibits as to their admissibility. tri Respondent is attempting to circumvent the legal process by submitting ex-parte is testimony and inadmissible evidence to the Court after the time for evidence has been concluded. D Additionally, this evidence was prepared and proffered to the Court, after supporting briefs were . Co submitted to the Court outlining arguments and support. Respondent’s attempt to present is evidence after a closing argument is disingenuous and improper. av STEPHEN MAYOL prays that the Court deny Respondent’s Motion for Offer of Proof Tr Respectfully submitted. y op CORDELL & CORDELL PC 301 Congress Avenue, Suite 1800 c Austin, Texas 78701 l Tel: (512) 271-5735 ia Fax: (512)692-3831 fic By: of Coleen Kinsler State Bar No. 24067709 Un austoffice@cordelllaw.com Attorney for STEPHEN MAYOL Response to Respondent’s Motion for Offer of Proof -Page 3 of 4 e ic Certificate of Service Pr I certify that a true copy of the above was served on each attorney of record or party in L. accordance with the Texas Rules of Civil Proeedure on November 19, 2018. a lv Ve Coleen Kinsler Attorney for STEPHEN MAYOL k er Cl ct tri D is . Co is av Tr y op c l ia fic of Un Response to Respondent’s Motion for Offer of Proof -Page 4 of 4