On behalf of The Marks Law Firm, L.L.C. posted in Appeals on Thursday October 3, 2013
Family court cases involve a multiplicity of difficult issues involving your livelihood and your children. Dividing property, determining support obligations and constructing a custody plan often seems like a no-win situation for the family court, and each party likely will feel some disappointment with the final judgment.
But sometimes parties feel more than just disappointed – they feel wronged by the outcome. What are the remedies in this situation?
A family court judge must make decisions that relate to facts and to law. If a judge errs, it can be from an incorrect reading of the facts, an incorrect application of the facts to the law, an incorrect understanding of the governing law, or some combination of these scenarios.
After a court issues its judgment, it does not become final for thirty days. In that time period, a party upset with some part of the judgment should consult with his or her attorney and consider a post-trial motion.
The first such motion is a motion to amend the judgment. In this motion, the moving party seeks to correct specific parts of the judgment. For example, suppose a party takes issue with the amount of child support and asserts the court used the wrong amounts for income or health expenses. Such mistakes of fact are perfect candidates for motions to amend. Or suppose the court ordered maintenance even though the other party failed to request it. Such legal errors can be corrected in a motion to amend.
Courts actually grant motions to amend rather frequently, because they never like to leave factual errors in the judgment. So, if a Parenting Plan has a mistake, for example, the courts want to cure that error rather than have it create problems it will only have to redo later in a motion to modify. Also, clear errors of law do occur, and a court would rather cure them itself rather than face a likely reversal by an appellate court.
The second post-trial motion is the motion for new trial. Sometimes a party may feel the judgment so filled with problems that the only remedy would be for the court to hold another hearing, consider new evidence possibly and reevaluate the case from the beginning. Motions for new trial are rarely granted, in comparison to the motions to amend.
If the trial court receives a post-trial motion, it must hear the attorneys and make a decision within 90 days of the filing of the motion. If it does not rule within that time period, the motion is deemed denied.
If you succeed on your motion to amend, congratulations! If you do not get the relief you requested, do you have further remedies? Yes – an appeal, which we will discuss in the next post.
If you have questions about post-trial remedies in your family law matter, contact us – we can help.