Matrimonial judges aren’t infallible and they can make mistakes in their decisions. When that happens, you have a few options to try to rectify it. While you’re taking these steps, however, you also want to stop enforcement of the court order so you don’t have to comply with it.
Challenging a Judge’s Decision
If you believe the judge erred in deciding an issue, generally, you can file a motion to reargue and/or file a Notice of Appeal. Often, it’s best to pursue both paths simultaneously.
In a motion to reargue, you ask the court to reconsider its ruling. However, you must explain what the court got wrong, such as that it overlooked or misapprehended the relevant facts or misapplied a controlling principle of law. Rearguments are generally not granted unless the mistake is blatant.
When seeking an appeal, you must show that the judge made a significant legal mistake, misapplied the facts to the governing law or there was an abuse of discretion resulting in harm to a party. Appellate courts give deference to lower courts because the lower court heard the case and knows the issues best. On appeal, the appellate court will only review what was before the lower court, including the trial judge’s decision. It’s best that the appealing party exhaust the reargument option to get the judge to change his or her decision so that the appellate court sees that you have no other choice but to appeal.
You must file for both reargument and appeal within 30 days of the court’s decision being entered with the county clerk’s office. Given this deadline, it is incumbent upon you to pursue both options at the same time. Doing so won’t interfere with either case because you have 6 months to perfect your appeal. That means your motion for reargument should be briefed, argued and decided before you have to focus on your appeal. If your motion for reargument is successful, you can abandon the appeal. You are not required to proceed just because you filed a Notice of Appeal.
Importantly, you cannot introduce new facts or issues not raised in your original moving papers in rearguing the court’s decision or making an appeal thereto. You must work from the record that was before the original court as the appellate court particularly will not consider anything that was not before the lower court.
Stopping Enforcement of the Court Order
In making the motion to reargue, you will want to ask the court to issue a stay of enforcement of the order you’re challenging while the matter is pending. In this way, you don’t have to comply with the order. Keep in mind, however, that the court is not likely to grant the stay unless it feels an error was made in the decision.
To the extent the lower court refuses your request for a stay, you can also ask the appellate court to stay the lower court’s enforcement of the order pending the outcome of the appeal. The appellate court may grant the stay but that doesn’t mean you won the appeal. The two issues are separate.
If you are considering contesting a decision in your divorce, contact us to discuss the best way to resolve your matter.
