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Univ. of South Carolina School of Law

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Saturday, November 22, 2008

Blame Canada: Case Reveals Odd Texas Rule Of Evidence On Pre-Trial Notice For Foreign Law Arguments

The recent opinion of the Court of Appeals of Texas in In re S.N.A., 2008 WL 4938108 (Tex.App.-Fort Worth 2008), reveals that Texas has a pre-trial notice requirement for parties seeking to raise an issue concerning foreign law at trial.

In S.N.A., Canadian residents A.N.A. and B.B.P. were divorced in a Canadian court. The court awarded B.B.P. custody of the minor child of the marriage and ordered A.N.A. to pay child support.  When B.B.P. and S.N.A. later moved to Texas, B.B.P. filed a petition to register the Canadian judgment.

B.B.P. initially alleged that A.N.A. owed past due child support totaling "at least $105,300 without interest" and thereafter filed a petition to modify child support and reduce the unpaid child support to judgment.  Specifically, she alleged that A.N.A. had "failed and refused to make child support payments pursuant to the foreign order" and requested that the trial court issue an order establishing child support in accordance with Texas child support guideline.

In response, A.N.A. filed a general denial and asserted that he had paid B.B.P. "substantial sums of money" and was not indebted to her. After conducting a final hearing, the trial court rendered judgment against A.N.A. for (1) $134,039.27 in past due child support and interest, and (2) $8,900.00 in attorney's fees and costs of trial.

A.N.A. subsequently appealed, claiming, inter alia, that the trial court erred in calculating the amount of interest that had accrued on the arrearage he owed under the Canadian order based on Texas law and not Canadian law.  The court, however, found that A.N.A. had waived this argument because Texas Rule of Evidence 203 states that

     "a party intending to raise an issue concerning foreign law must give notice in the pleadings or 'other reasonable written notice,' and at least thirty days before trial furnish to all parties copies of any written materials or sources that the party intends to use as proof of the foreign law." 

And the problem for A.N.A., according to the court, was that while he

     "attached a copy of the Canadian order to his pleadings, he provided no notice in the pleadings or other written notice that he intended to assert that Canadian law be applied. Nor did he provide to B.B.P. or the trial court any materials proving Canadian law governing interest rates in arrearages."

I have never seen a rule of evidence similar to Texas Rule of Evidence 203, but it seems like something that certain Supreme Court Justices not named Breyer might enjoy.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2008/11/foreign-law-in.html

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