In family law cases, issues often arise regarding the admissibility of records that are maintained by a spouse or the household, like bank statements or children’s school records. Hearsay rules might seem to prevent admissibility of these documents unless they come directly from the bank or school. But that’s not the case.

Rule 806(6) permits records created by a third party person or entity to become the business records of another entity if the sponsoring witness has knowledge of the events recorded in the third party documents. The Texas Supreme Court reaffirmed this notion in the Duncan case, where the invoices of subcontractors became an integral part of the general contractor’s records showing the work, progress, and costs of the construction. Duncan Development Inc. v. Haney, 634 S.W.2d 811, 813-14 (Tex. 1982).

And, the personal records of a family can constitute business records. “…[P]rivate records, if kept regularly and if incidental to some personal business pursuit, are competent evidence.  Sabatino v. Curtiss National Bank, 415 F.2d 632 (5th Cir. 1969, pet. denied). There, check records, even if kept by an individual, clearly meets the test of trustworthiness and is routinely entered and checked record of fact, used to compute funds remaining in one’s account, which the maker would have no motive to falsify. Id. The definition of “business” under the evidence code is broader than the ordinary use of the term. “’Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.” Tex. R. Evidence 803(6).

The 1st District Court of Appeals in Houston provides a three prong methodology for determining whether a third party’s records may become part of another entity’s records as an exception to the hearsay rule. Those three tests are:

  1. The records of the third party have been incorporated and kept in the regular course of the testifying witness’ business;
  2. That business reasonably relies upon the accuracy of the third party’s documents; and,
  3. Circumstances exist indicating the trustworthiness of the third party documents.

Bell v. State, 176 S.W.3d 90 (Tex. App. – Houston [1st Dist.] 2004, pet. ref’d.). The following courts have upheld the Bell test:

  • Houston 1st Court: Simien v. Unifund CCR Partners, 321 S.W.3d 235 (Tex. App. – Houston [1st Dist.] 2010, no pet.);
  • Austin: Ruper v. CitiMortgage, Inc., No. 03-11-00887-CV (Tex. App. – Austin 2013, pet denied);
  • Dallas: Nat’l Health Resources Corp. TBF Fin., 429 S.W.3d 125 (Tex. App. – Dallas 2014, no pet)
  • Houston 14th Court: Ainsworth v. CACH LLC, No. 14-11-00502-CV (Tex. App. – Houston [14th Dist.] 2012, pet denied);

The Dallas Court has also since affirmed this concept of household business records. The case of Castillon v. Morgan held that the Bell exception to the hearsay rule for business records of an entity applies to a marital household or to an individual party as much as it applies to a business. Castillon v. Morgan, No. 2015-13-00872-CV (Tex. App. – Dallas 2015, no pet.).

So, all of this together, should mean that in family court, if a spouse keeps records of activities like bank statements, credit card statements, school records, and the like, those should be admissible as an exception to hearsay as a business record of the household or spouse.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.