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In my last post, I talked about the steps you can take if you disagree with the temporary ruling passed down to you through the Boulder Country Magistrate. (Click HERE to read it now.)
However, if you disagree with permanent orders from a District Court Judge, the process of challenging that decision is far different. Here is what you can do if you find yourself in this situation.
Ask the Judge to Reconsider
Like any other decision, you can always ask the judge to reconsider. This is the right thing to do if you think the judge missed something important.
In my experience, this can frequently be a waste of time because what you’re really doing in this situation is saying, “Judge, you made a mistake,” and most judges believe they are very thorough in their considerations.
However, there are certainly instances when judges really do forget facts. For example, I was recently involved in a case where the judge said that she wanted to advise my client that he had a right to remain silent. When my client got on the stand, she forgot to say this, and I reminded her. She thanked me, and we proceeded with the case.
In another situation, the judge made a mathematical error – she forgot to apply something. We asked her to review the mistake, she agreed that she forgot the figure in question, and the new decision was in our favor.
So, in some cases, asking the judge to review a decision can work well if you believe that a fact or figure has been unintentionally left out or forgotten. But most often, asking the judge to review a well thought out ruling is like saying, “You’re an idiot, Judge. You didn’t listen to me the first time so maybe you’ll listen to me the second time.” The advantage of a Motion to Reconsider is that it is the cheapest and quickest way to get the ruling corrected.
However, it’s not always very effective.
Appeal to the Court of Appeals
The second thing you can do is appeal to a higher court. I’m thinking of a client I represented whose former spouse refused to agree to a settlement. Because of that, we went to trial – and my client did even better than the proposed settlement. The other party didn’t like that very much, so he appealed to the Court of Appeals.
There is something important that has to be considered in appeals: The appellate court generally will not re-evaluate the evidence or decide which testimony is most persuasive. If there is any evidence to support the District Court’s decision, the appellate court will generally not modify the original ruling. Appeals are generally to determine if the trial judge misapplied the law or to determine if there was any admissible evidence to support the trial court’s decision.
In my case, the Court of Appeals confirmed the case and additionally ruled that the other party had to pay $5,000 to my client for attorney’s fees.
There is an element of risk when going to the Court of Appeals that you still won’t receive the ruling you want but it can be a viable option. The Court of Appeals is obligated to take every case. However, cases to the Court of Appeals are expensive (you need a transcript of the entire trial) and are notoriously slow. Unless you obtain a “stay”, you are bound by the district court decision until the appeal is decided.
If you don’t like the ruling the Court of Appeals gives you, you still have the option of going to the Supreme Court; however, the Supreme Court only accepts cases they think are worth reviewing. Most often these cases are in areas of law that they think need clarification, etc.
All Cases are Subject to Modification
Finally, it’s important to remember that most issues in a divorce case are always subject to modification. By way of example, if, within five years of your ruling, you receive new information that your former spouse failed to disclose important financial information during the proceeding – you can reopen the case. Likewise, if there are substantial and continuing changes to a party’s financial situation, child support and, frequently, maintenance can be revisited. Additionally, if things have changed concerning the minor children, the Court can revisit parenting time.
If you find yourself in this situation and feel that your case should be reviewed or reopened, let’s talk. Call us at 303-449-1873 to set up a free consultation.