C v. C

This is a contest in a divorce suit between the mother and father for managing conservatorship (custody) of their eight-year-old daughter and four-year-old son. Trial was to a jury, which found that it was in the best interests of the children that the father-appellee be appointed managing conservator. Acting on the jury verdict the trial court rendered judgment appointing the father managing conservator. After trial the mother discharged her trial counsel and retained her present attorneys who filed a motion for new trial. As one of the grounds for a new trial, appellants present counsel attached affidavits which portray appellee as a man of violent temper who disciplines the children harshly and cruelly. Although some, but not all, of these affiants had been called as witnesses at trial, this testimony had not been elicited from them. Notwithstanding these affidavits, the trial court overruled the motion for new trial. The mother appeals. We reverse and remand because we conclude that the trial court abused its discretion in denying a new trial.