New Discovered Evidence that Isn’t

August 2, 2016 § Leave a comment

In the divorce action between Paul and Laura Lacoste, the chancellor awarded Laura sole physical and legal custody of their two children, equitably divided the marital estate, and awarded Laura rehabilitative alimony.

After the final judgment was entered, Paul filed a R59 motion claiming that there was newly discovered evidence that: (1) Laura had moved to the Mississippi Gulf Coast, taking the children with her; (2) Laura had cashed out a retirement account, sticking him with a more than $13,000 tax bill; (3) the accounting bill for the 2013 taxes had increased; and (4) his income had decreased. The chancellor ruled that the issues raised in Paul’s motion were more properly modification issues, and denied him rehearing. Paul appealed on this and several other points.

In Lacoste v. Lacoste, decided July 19, 2016, the COA affirmed. Judge Barnes wrote for the majority:

¶55. A motion for a new trial under Mississippi Rule of Civil Procedure 59 based on newly discovered evidence “is an extraordinary motion, and the requirements of the rule must be strictly met.” McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013). Newly discovered evidence is evidence that existed at the time of trial, but was discovered after trial; it does not include “evidence that did not exist at the time of trial.” In re V.M.S., 938 So. 2d 829, 834 (¶10) (Miss. 2006) (citing Gray v. Gray, 562 So. 2d 79, 82 (Miss. 1990) (stating that authorities interpreting Federal Rule of Civil Procedure 60(b)(3) “seem unanimous in holding that” newly discovered evidence “must have been in existence at the time of trial or at the time of the judgment which is allegedly in need of correcting”)).

¶56. None of Paul’s claims are newly discovered evidence. Laura’s alleged move occurred posttrial. Thus, Laura’s alleged move cannot qualify as newly discovered evidence. The additional tax burden resulting from Laura cashing out a retirement account is likewise not newly discovered evidence. Paul testified at trial that he was aware that Laura cashed out the account in 2013. He testified that he did not know if Laura had withheld taxes when she cashed out the account, but that he realized if she did not, it would “greatly” impact the parties’ tax liability if they filed jointly. Laura admitted at trial to withdrawing the money from her retirement account, and she testified there would be penalties and additional taxes as a result of her doing so. Paul had a CPA whom he typically contacted on a monthly basis who could have investigated the tax consequences of the retirement account’s liquidation. The fact that he failed to request the CPA to do so until after trial does not make this evidence newly discovered. Finally, Paul’s argument that his income had decreased in the first three months of 2014 is not newly discovered evidence, as this did not occur until after trial.

¶57. As to Paul’s arguments regarding Laura’s alleged move, the chancellor recognized his concern regarding this in her opinion, stating, “Paul was concerned about Laura moving from the Madison area to be near her family and friends in the Atlanta or Ocean Springs area.” So the chancellor was aware Laura’s moving was a possibility and was able to consider it when rendering her opinion. Regardless, none of Paul’s assertions are newly discovered evidence, and the chancellor correctly excluded them from consideration posttrial. This issue is without merit.

From this case you can take away at least the following:

  • Evidence that is newly discovered must be evidence that was in existence at the time of the trial, but was unknown to or concealed from the movant so that it prevented from having been presented.
  • Newly discovered evidence does not include matters which were known to the movant but, for whatever reason, were not presented at trial to the court, or which by due diligence could have been known and presented.
  • Facts that arise after entry of the judgment are matters that are properly presented as a contempt or modification.


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