An Unwelcome Decision

Chances are you'll be unhappy with a judge's decision. In fact, some judges say they know they've done a good job when both sides are unhappy with a decision. What they're really saying is that mutual dissatisfaction reflects the impartiality of the decision.

On the Lookout for Mistakes

When you and your lawyer review the judge's decision, be on the lookout for certain things. Did the judge get the facts right? Did he make computation errors? Did he confuse the parties? Did the judge make enough findings to support his conclusions? Does he have a basis for facts he found after hearing contested evidence? Parts of the judge's decision may reflect the use of judicial discretion, where the judge interprets the evidence after considering words, documents, and behavior. Remember, what the judge sees in the courtroom influences his interpretation of the evidence.

Did the judge make a legal error? Here you'll have to rely on your lawyer. If the judge did make an error based on the law, does this mistake support a motion asking the judge to reconsider? Can the mistakes be corrected easily by conferring with the judge? That is, would the other side agree to these changes, too, because they're clearly the result of confusing the parties or making a computation error? Do the mistakes require going back to the trial judge before considering an appeal? Can you go back to the trial judge? Should you appeal?

Don't get an attitude if you find the judge has made a mistake. This doesn't mean you'll end up getting what you wanted. Mistakes can be corrected without changing the judge's decision. If the mistake is serious enough, your lawyer may have to appeal the decision to a higher court. Even then, it doesn't mean you will get what you wanted.

Conferring with the Judge

If a judge has made obvious factual errors, such as a mathematical error in computing child support or getting the parties mixed up, your lawyer and your spouse's lawyer can correct these by conferring with the judge. If the judge is willing, this can be done by conference call. If correcting these errors leads to an outcome the judge didn't intend, she may want to have a hearing about these errors, with arguments on what the outcome now should be.

If the judge believed your spouse instead of you, you'll have a hard time getting the judge to change her mind, even if you can correct certain factual errors in your favor. On top of that, appeals courts are very reluctant to reverse trial court judges' decisions when these decisions are, in effect, a judgment call (rather than a factual error) on the trial judge's part. This is that judicial discretion concept. Unless a trial judge was clearly wrong, an appeals court will affirm a trial judge who has had the advantage of seeing witnesses and determining their credibility.

You might consider making your spouse a new settlement offer, a better one than before trial but still preferable to the judge's decision. If the judge was skating on thin ice in the decision, your spouse may choose to settle rather than let the courts take another shot at both of you.

Here's an example. You might offer to pay your spouse a lump-sum payment instead of paying monthly alimony. Your spouse could invest the money and live on the income. The two of you wouldn't have to deal with each other every month and could move on with your lives. Plus, spousal maintenance wouldn't depend on your staying alive and employed.

Back to the Trial Judge

If you and your lawyer think the judge made mistakes that support an appeal, you probably should first ask the trial judge to take another look. This is called making a Motion for Reconsideration or a Motion for Amended Findings or a New Trial. Some states make such a motion a precondition for appeal. The appeal is based on denial of a new trial, assuming the judge denies the motion, and that's a pretty safe bet.

Judges hate to be reversed by appeals courts. Appeals court decisions are public, and all the lawyers and other judges can read them. Your judge will take your motion for amended findings seriously and may make corrections in response to your motion.

In a motion for reconsideration or amended findings, you'll raise the issues you would raise on appeal. You might argue the judge simply didn't make enough findings about your parenting skills to deny custody. Or you might argue the judge ignored some important evidence, but this is a little chancy because the judge might flat out say he didn't believe that testimony. Or you may cite other cases to show the judge applied the law incorrectly.

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