POST-DECREE MOTIONS - ALTERNATIVES TO AN APPEAL

Max N. Hanson, Esq.

So now that we know what all is entailed in filing an appeal of the final ruling or judgment in your case, you may have some concerns over the cost and length of time that an appeal requires.

Are there any other options besides filing an appeal to “fix” things if the judge got it wrong?

Yes, there are some alternative options before deciding on filing an appeal, particularly if cost and time are an issue, but each have their own advantages and pitfalls to consider.

Rule 83 of the Arizona Rules of Family Court Procedure allows parties to file a Motion for New Trial if you were deprived of a fair trial because:

(1) there was irregularity in the proceedings or an abuse of discretion by the judge;

(2) misconduct by the other party;

(3) an unforeseeable accident or surprise;

(4) you were unable to present newly discovered material evidence which could not have been discovered or produced at trial;

(5) an error in the admission or rejection of evidence or errors of law made by the judge during the trial; or

(6) the ruling or judgment is not justified by the evidence submitted at trial or is contrary to law.

Although you might think it may be easy to show all or any of those happened in your case, the actual legal standard for proving it is very strict and onerous – you have to show not only did it actually occur but that it was material, ie.“but for” that happening the outcome would have been completely different.

Furthermore, as this motion is filed with the trial court, you also have to convince the same judge that ruled against you in the first place that they made a mistake or got it wrong and should give you a new trial.

Nobody likes to admit when they are wrong and judges are no exception.

Finally, if you decide that you want to file a Motion for New Trial, it has to be done within fifteen (15) days after entry of the judgment in question – usually not enough time to order and receive, let alone review, transcripts of the trial or carefully prepare exhibits and arguments to include in such a motion.

The good news, however, is that the filing of a Motion for New Trial does stay and extend the time to file a Notice of Appeal until thirty (30) days after the entry of the ruling on the motion, so you still have time to decide to whether or not to appeal the judgment anyway.

You also have the option to file a Motion to Correct Mistakes and/or for Relief from Judgment pursuant to Rule 85, Arizona Rules of Family Law Procedure. The grounds for relief from the judgment are similar to the Motion for New Trial, but are limited to basically either simple clerical errors or much more significant legal issues or problems with the proceedings such as actual fraud committed by the other party.

Again, as with the Motion for New Trial, the legal standards that such motions are subject to are fairly strict and difficult to meet and entail convincing the same judge that you had at trial that there were serious and significant problems with their ruling. This Motion also stays the time for filing a Notice of Appeal.

Finally, pursuant to Rule 84, you can file a Motion for Reconsideration.

As the name indicates, it asks the trial judge to reconsider its findings of fact or ultimate rulings in light of what the evidence and testimony was at trial and in consideration of any all applicable law.

In short, it tells the judge we think you got it wrong and here’s why. You are not limited to only specific grounds as you would be in an appeal or in the other post-decree motions and you have up to thirty (30) days to file the motion after entry of the judgment in question.

However, again you are having to convince the same judge that ruled against you that they somehow made a mistake and got it wrong. Additionally, a Motion for Reconsideration does not toll or stay the time for filing the Notice of Appeal (which is also 30 days after entry of the ruling), and if an appeal is filed, then the trial court is not allowed to continue to consider or rule on any pending matters, including a Motion for Reconsideration, while the appeal is proceeding.

In practical terms, this means that you probably will not be able to do both a Motion for Reconsideration and file an appeal – instead you will need to choose which one you are going to proceed with.

If you are unhappy with the Court’s ruling after trial, an attorney experienced in post-decree motions and appeals can advise you on the available options and what may work best for you in your case.

If you would like to work with one of our experienced Attorneys, please call OWENS & PERKINS at (480) 630-2464 to schedule your free 30 minute consultation.

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