In family law disputes, whether it be a divorce, paternity, grandparent visitation or third party custody, or post-divorce decree (original determination of custody of some type) issues, sometimes the result is unfavorable. There is an old saying that everyone loses in divorce. But what if the result is unfavorable to you, and it is incongruent with the law and the evidence? What remedies do you have?
There are several options to handle an order that is unfavorable to you. Two, a Motion to Correct Error and/or Appeal are immediately available in most cases involving final orders. One is that you can just accept the outcome (and is choice many litigants sometimes do not consider) and try to live with it. Most people do not like this option, but you should consider the costs and benefits to fighting an order you do not agree with in terms of money and impact on the children.
The second option is a Motion to Correct Error1, which asks the trial court to relook at the case, and correct any error that occurred. A Motion to Correct Error is not optional in most cases, but must be filed within thirty (30) days of the judgment or order. This Motion must specify exactly what error occurred. A good use of a Motion to Correct Error is one that seeks to correct a mathematical error or misapplication of the law. A Motion to Correct error is required in a few situations that typically do not apply in domestic cases.
A Motion to Correct Error may not be favorable to a person who received an unfavorable judgment, because the same judge that made the judgment is the same judge who will grant or deny the Motion to Correct Error. In some cases, a Motion to Correct Error is a good option, as the strategy of which option to chose largely depends on the unique facts and circumstances of the case. Cases just asking the Trial Court to reweigh the facts are not good candidates for a Motion to Correct Error.
Another or third option is an Appeal. Appeals gives the party who received a final order a chance to have it reviewed by a different and new set of judges, who have no personal knowledge of trial court’s proceeding. An Appeal must be filed within thirty (30) days of the final order.2
However, appeals do have some drawbacks; they can be lengthy in terms of time, but family law cases are expedited through the appellate process, and costly, and do not give an immediate relief from the unfavorable judgment. Moreover, only the evidence introduced at trial can be reviewed by the Court of Appeals; therefore, anything that has happened since the final order cannot be reviewed by the Court of Appeals in making its decision.
After the time for a Motion to Correct Error and/or Appeal passes, there are other ways to change a current order of the trial court.
The fourth option is Modification, but this applies only to custody matters and not property issues. Modification of an Order generally arises with respect to custody, parenting time, and child support. To have the Order modified, there is generally a waiting period, for example, one must wait at least a year from the last Order to modify child support.3 However, if one can prove that the amount of child support ordered in the previous Order is unreasonable given a substantial change in circumstances, such as loss of a job, the one (1) year waiting period may be inapplicable.4
Regardless of if the one (1) year waiting period is applicable in your case or not, to be granted a modification of custody or parenting time in a prior order, one must prove that there is a substantial and continuing change in the circumstances. Thus, just because a judgment is unfavorable, if there is not a change in circumstances, it is unlikely a court will grant a motion for a modification, because essentially, you are asking the court to modify based on the same circumstances it reviewed in making its original order. Id.
Another, or fifth, option is a Motion for Relief from Judgment.5 A Motion for Relief from Judgment must be filed within one (1) year in most cases, but in others it must be filed within a ‘reasonable time,’ thus, it is not advisable to delay in filing this Motion. Some, but not all, examples of errors are: mistake, surprise, or excusable neglect; fraud, misrepresentation, or other misconduct of an adverse party; entry of a judgment by default that was entered against a party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings. Mostly of the time, this is an extreme request and not likely to succeed and is used after the time for a Motion to Correct Error or Appeal has passed.
It is always advisable to seek advice from counsel, as many of these issues are complex. We hope that this blog post has been helpful in distinguishing the different types of communication. This blog post was written by attorney Lori Schmeltzer, Ciyou & Dixon, P.C., who practice throughout the State.