Appeals and Motions for Reconsiderations in Scottsdale, AZ

Unfortunately, when a trial ruling does not go your way, your options are limited. Essentially, you can file a Post-Decree Motion (asking the judge to change and/or clarify their own ruling) or you can file an appeal.

In most cases, the Court of Appeals applies the abuse of discretion standard. That means, to prevail, the appellant must show either that the judge made a clear error of law or that a important factual conclusion the judge made is completely unsupported by the evidence (that’s different than the judge got it wrong—if the judge relied on something the other side said or presented, it is not an abuse of discretion, even if you disagree with the ruling or think the judge believed a lie).

An Appellate Brief is a document filed with the Court of Appeals, usually ranging between 40 to 60 pages that outlines the factual basis for the appeal. Appellate briefs require extensive work, as to succeed on an appeal, attorneys must conduct in-depth research and write detailed legal analysis on the case. Appeals demand high-level attorney work. Appellate attorneys need to have a thorough understanding of the law and the facts of the case. They have to make detailed citations to the record, statutes, and case law. An appellate attorney must be able to work through difficult legal questions and present a cohesive, comprehensible argument. The judges on the Arizona Court of Appeals and the Arizona Supreme Court are some of the best legal minds in the state.

While most appeals are decided on the briefs alone, some cases will require an oral argument. An oral argument is a three-judge panel from the Court of Appeals who directly addresses the appellate attorney with questions, poking holes in arguments, and asking them to explain the weaknesses of their case.

Once the briefs and oral argument (if one is held) are done, the three-judge panel takes over. The panel reviews the briefs, researches the law, and renders a written decision. This process can take time, and it may be months before the make their decision. If they issue a published decision (i.e., a ruling that sets legal precedent in the state of Arizona), it will often take even longer because they circulate the draft of their opinion to the other Courts of Appeals judges for feedback (even though the decision will still be made by just the three judges assigned to the case). Most appeals take at least one year from start to finish—and some may take as long as 18 months.

The most common misconception is that an appeal is a “second trial,” and you get to put on your case for a different judge. Not so. The Court of appeals will not hold a trial. Most appeals are done almost entirely on paper.

Another common misconception is that you get to introduce evidence that you didn’t present at the first trial. In an appeal, you can only use the evidence presented at trial. The Court of Appeals will not even consider evidence or testimony that was not heard a trial.

Winning an appeal is not a guarantee that you will get the outcome you want. In most instances, the Court of Appeals sends the case to the trial judge to try again.  Trial court judges have a lot of discretion when making their rulings. So, even after prevailing on an appeal, the judge often has a low threshold to comply with the Appellate Court’s decision; they can make minor changes to their original ruling to meet the legal standards required by law.

Use the following criteria to determine if there is an issue worth appealing:

• Even if the appeal prevails, is it going to be worth the time and cost? 
  • Many times, we know immediately if the case is not worth pursuing. If you’re going to spend more financial resources on the appeal than you would receive if the appeal is successful, then an appeal is probably not worthwhile. We also need to consider that a client is signing up for another year of litigation and attorney bills when they are deciding to pursue an appeal. Additionally, there may be alternatives available to a client that better serve their needs than an appeal.
• Did the judge make a clear legal error?
  • To succeed on appeal, it’s not going to be enough to just show the judge got it wrong. You need to show the judge misapplied the law.
• Did that legal error affect the outcome of the case?
  • Even if you can show a legal error, if it does not affect the outcome of the case, then it is not something you can appeal.
• Does the record contain the testimony and evidence that you need to succeed on an appeal? 
  • We cannot appeal what is not in the record. If the judge did not hear it at the trial, the Court of Appeals is not going to consider it on appeal.
• Was the argument we want to make presented at trial?
  • On an appeal, you cannot make an argument that you did not make at trial. The Court of Appeals considers neither new evidence nor new arguments, as their focus is solely on what the judge heard in the trial court.

• Issues, Evidence, or Testimony Not Presented at Trial. We often hear from people pondering an appeal that either they (if self-represented) or their attorney (if represented) did not present something at trial that would have made the difference. They want to appeal to get that issue, that evidence, or that testimony into the record. But you cannot do that on appeal. Again, an appeal is putting the judge on trial—to win, you must show the judge made an error. A judge cannot make an error if an issue or testimony is not presented to the judge. Therefore, you cannot appeal what you should have argued at trial; you can only appeal the arguments you actually made at trial. And you are limited to the issues, evidence, and testimony that was presented at trial.

• Untimely matters. Appeals involve very strict deadlines. The Legislature has limited the Court of Appeals’ jurisdiction to only those matters that are timely appealed. Generally, you have thirty (30) days from when a final judgment issued to file your Notice of Appeal (whether a final judgment has been issued is sometimes a complicated legal question). If you miss it, the Court of Appeals cannot hear your case because they lack jurisdiction to do so.

• Poor attorney work. Commonly, we hear people complain of the work their attorney did in the trial. They did not ask this question; they did not present this evidence. But even if the reason you lost is solely because of your attorney, in family court matters, an attorney’s poor performance is not grounds for an appeal. That option is reserved solely for criminal matters because of the Constitutionally protected right to an attorney in criminal cases.

• Temporary Orders. A temporary order is not a final order; therefore, it is not appealable. Under very limited circumstances, it may be possible to file a Special Action in the Court of Appeals.

• Enforcement/Contempt Rulings. Enforcement and contempt rulings cannot be appealed. But, again, under very limited circumstances, a Special Action may be an option.
• Time Management at Trial. The decision on how to spend one’s allotted trial time is the party’s decision, not the judge’s; therefore, it is not error if you run out of time. The judge is not required to give a litigant more time to present their case if they run out of time. And an argument that more time should have been given will, in most instances, not succeed on appeal. The most common example of this is when a party spends all their time cross-examining the other party and their witnesses and runs out of time to present their case.  That is an issue that cannot be successfully appealed.

• Child custody cases: These cases are rarely going to be worth an appeal for the simple reason that even a successful child custody appeal does not put the parent in a better position than they would be in if they had not appealed. That may seem counter-intuitive, but here is why:
  • The typical child custody appeal takes a year or longer.
  • The reward for a successful child custody appeal is almost always a new trial.
  • The trial court’s custody order is not stayed while the matter is on appeal.

Meanwhile, a parent who does not appeal is eligible to file a modification in a year’s time, and that modification will provide them with a new trial. So, we have a situation where a person who successfully appeals a ruling is in the same position they would have been had they done nothing. That makes the trouble and expense of a child custody appeal not worthwhile. For this reason, we rarely recommend appealing a child custody ruling—the only time we do is if the ruling may have a significantly negative impact on a parent’s ability to successfully modify the orders down the road.

• Ongoing child support amounts. For similar reasons, a possible appeal involving only the ongoing child support amount is rarely worthwhile. The costs associated with an appeal are almost certainly going to be greater than what the parent would save if they win their appeal. Additionally, child support is always modifiable, which means a party might be appealing an amount that be in place for only a few months. Moreover, they may get the Court to fix its error in a subsequent modification proceeding. That makes it difficult to justify the time, costs, and expenses associated with a child support award.
• Cases where the amount in controversy does not justify the costs of the appeal. The juice has got to be worth the squeeze, i.e., the amount in controversy has to be worth what it costs to pursue an appeal. The famous case in this regard is ABC v. Edwards, 191 Ariz. 48 (1996) where the appealing party spent $30,000 fighting over $6,000. Quite obviously, spending more on attorney fees than the amount in controversy is nonsensical.
• Factual Findings. The judge may have come to the wrong factual conclusion, but that does not mean the Court of Appeals is going to overturn the ruling. If the trial court has any evidence or testimony from either party that supports its finding, it will be upheld. Additionally, if neither party requested Findings of Fact and Conclusions of Law prior to the trial, the Court of Appeals will assume the trial court made the findings necessary to support its ruling.
• Judicial bias. Many people that lose a case think the judge had it out for them. Even if they did, it is very difficult to win this issue on apeal. Here are judicial bias arguments that will not succeed on appeal:
• Arguing that the judge repeatedly made unfavorable rulings against you. By law, the fact a judge made unfavorable rulings can never, by itself, be sufficient to establish judicial bias. See Simon v. Maricopa Medical Center, 225 Ariz. 55 (App. 2010) (ruling litigant failed to show judicial bias when he did nothing more than argue the judge consistently ruled against him).
• Suspicion or speculation. If you’re going to allege judicial bias, you better have rock-solid evidence to back it up. (And we know from experience, that many litigants think they have that evidence when they do not).
• A six-degrees-of-Kevin-Bacon argument. Saying the judge knows this person who knows the opposing party is not going to get your anywhere. Nor will the suggestion that the judge and attorney know each other. It really does not matter whether a judge knows a particular litigant or attorney; it matters whether they can act neutrally despite whatever relationship they may have with a litigant/attorney. Because if you can prove a relationship, you must prove (1) the judge was aware of it, and (2) you were prejudiced. Also, if you have such concerns, you cannot raise them for the first time on appeal; it is something that should be addressed with the trial judge before trial. See e.g. LeMay v. LeMay, No. 1 CA-CV 20-0425 FC (ruling it was not material that the judge’s husband was involved in the prosecution of the father in his criminal case where the judge was unaware of the conflict and the father never brought it to the Court’s attention).

In general, our advice with a judicial bias argument is—don’t go there. Ironically, arguing judicial bias could subject you to another form of bias, as there is a stigma that surrounds those who make judicial bias arguments that those people are unreasonable. So, raising a judicial bias argument could weaken your chance of succeeding on other issues.

• Time Allotted for Trial. Family court trials are short—and in recent years, they’ve been getting shorter. Except in very rare circumstances, the time allotted to trial is not going to result in successful appeal.

STAGE 1: Considering Post-Decree Motions

One of the most valuable assessments an appellate attorney can provide is an outline of the options you have based on your circumstances. In almost every case, your best (and most cost effective) available option may be a post-decree motion instead of an appeal. And you can do both. And, for some legal matters, such as a default ruling, you must file a post-decree motion before you can appeal. We discuss Post-Decree Motions in a subsequent section of this page.

STAGE 2: Deciding Whether to Appeal

Disappointing rulings often cause one to immediately consider an appeal, but wanting to appeal the ruling and having legal grounds to do so are two very different things. The standards for an appeal are difficult because you are essentially putting the judge in your case on trial, and it is your burden to show the judge made a mistake, and the standard you have to meet on appeal heavily favors upholding the ruling.

Appeals are a highly technical endeavor. To be frank, it can be very difficult for a non-attorney to succeed at overturning a ruling on their own. Appellate work is time and fact intensive, to the point that most family law attorneys choose to refer out appeals rather than take them on themselves.

Any good appellate attorney will need to dive into the facts of your case before they can say whether you have grounds. But before you spend considerable time, money, and energy on an appeal, you should know what your chances are going to be. That is going to require an open and honest consultation with an attorney.

Smart litigants pause long enough to question whether their appeal is viable and whether an appeal is the right route for them.

Who can appeal? Only the parties involved in the matter may file an appeal; no new parties can insert themselves into the case to appeal a ruling.

What can they appeal? Pretty much any part of a final ruling is subject to an appeal except those matters that must be challenged in the first filing (e.g., venue) and were not challenged. However, temporary orders and contempt orders cannot be appealed (though you may seek their review through the process of a Special Action).

Remember: On appeal, you are essentially putting the judge on trial, not the other party. The Court of Appeals will determine if the judge did what they were supposed to do. Whatever the other party may have said or done is relevant but only if it goes to the questions of whether the judge applied the law correctly and followed the correct procedure. What you did not present or ran out of time to present is not relevant on appeal.

When can they appeal?  After the final order comes out, anyone wishing to appeal has thirty days to do so. Be aware that final orders require all issues to be resolved, including attorney’s fees. However, there are exceptions, such as if a Court certifies the ruling as final and appealable under Rule 78(b). Appellate deadlines from start to finish are extremely strict with no leeway.

Where is an appeal filed? An appeal begins at the Superior Court level (the same court you’ve been litigating in) by filing a Notice of Appeal. The Superior Court will then notify the Court of Appeals and prepare the Index of Record (all the filings in the case) and send it to the Court of Appeals. Thereafter, the matter will be in the hands of the Court of Appeals.

Which Court hears the appeal? The appeal will be heard by the Court of Appeals. A three-judge panel will be assigned to your case to read the briefs, transcripts, and other relevant documents. They will determine whether the judge in your case followed the law or not.

Why file an appeal? That answer varies from case to case, but the common thread through all appeals is that the person and counsel appealing believe the judge made a mistake. Such mistakes may be reaching a wholly unsupported conclusion by the evidence, applying the wrong legal standard, or violating the Rules of Procedure.

Can I appeal again if I don’t like the Court of Appeals ruling? Yes, you may file a Petition for Review with the Arizona Supreme Court. Unlike the Court of Appeals, the Arizona Supreme Court does not have to hear your case. In fact, it rejects most petitions outright. When it wants to hear a case, it accepts jurisdiction by issuing a Writ of Certiorari (this Writ simply means that it will hear the case).

How long does an appeal take? Appeals are not quick. We have seen appeals last anywhere from 9 to 18 months. In general, we expect an appeal to last approximately a year.

How much work is involved? The amount of work involved in appeal is significant and extensive. This is particularly true of the briefs, which require high-level attorney work and a substantial investment in reviewing the record, researching the issues, and writing the briefs. The Briefs are lengthy often 40 to 60 pages and involve extensive citation to the record and to the law. Appellate work requires many hours of attorney work, and for that reason, appeals are generally not viewed as a cheap option.

Additionally, most of the work in an appeal falls on the Appellant, i.e., the person who filed for the appeal. It is their responsibility to file the Notice of Appeal, have the trial and other relevant hearings transcribed and submitted to the Court of Appeals, and file the Opening Brief and Reply Brief. The Appellee (i.e., the person who did not file for the appeal) has the sole job of filing the Answering Brief.

What are the legal standards involved? In the trial court, the issues were on trial. On appeal, the trial court judge is on trial. This distinction is important—the Court of Appeals is not here to give you a second trial. The Court of Appeals’ job is not to say how the judge should have ruled. Rather, the Court of Appeals’ job is to ask whether the judge followed the law in reaching their decision.

The Court of Appeals generally applies one of two standards—an abuse of discretion standard or a de novo standard. Every appellant wants them to apply de novo, and every appellee wants them to use an abuse of discretion. Why? Because when an abuse of discretion standard is used, appellants have a very difficult time winning. Most cases apply an abuse of discretion standard.

What does abuse of discretion mean? When the Court of Appeals applies an abuse of discretion standard, the appellant must show either that (1) no evidence at all supported the court’s ruling, or (2) the court made a legal error in reaching its decision. Please note that the Court of Appeals does not reweigh evidence; it does not say, “The judge should have ruled this way.” They are simply looking at whether any evidence supports its ruling or if there was a legal error committed.

What does de novo review mean?  In contrast, when applying a de novo standard, the Court of Appeals looks at the issue with open eyes. It is as close as you are going to get to a second trial. De novo review is generally limited to purely legal issues—for example, “what does a statute actually mean?” or “is that item really community property?” etc.

Sometimes, the Court of Appeals will bifurcate the issue meaning they will review the statute de novo and review the ruling for an abuse of discretion.

What are the possible outcomes? Before you appeal, you should know what relief is available to you. Generally, one of three things can happen:

• Affirm – This is when the Court of Appeals upholds the trial court’s ruling and that ruling remains in effect.
• Reverse – This is when the Court of Appeals entirely changes the ruling and expects the trial court to enforce it. It is rare for the Court of Appeals to do this.
• Remand – This is when the Court of Appeals requires the trial court to hold another trial and not make the same mistake it made the first time. Note: if a case is remanded, the right to strike the trial judge is renewed, so long as it was not used previously. Remanding is the most common outcome when the appellant prevails. Beware if you prevail on the issue of whether the trial court’s findings were insufficient, the Court may remand the case simply to have the trial court make additional findings.

STAGE 3: Starting The Appeal

Notice of Appeal. The appeal starts when the person who wants to appeal files a Notice of Appeal with the trial court. Yes, you file first with the same court who issued the ruling. The superior court will then notify the Court of Appeals, and the superior court will also send the Court of Appeals all the documents filed in the case and all the exhibits submitted at trial. Ariz. R. Civ. Proc. Rule 8(a)

Amended Notices of Appeal. If you are not sure when your appellate deadline has started, or, if you want the Court of Appeals to also consider the trial court’s ruling on your post-decree motion, then you need to file an Amended Notice of Appeal. When to file a Notice of Appeal can be complex and difficult, when in doubt, file a Notice, and file an Amended Notice at the next opportunity; this will prevent you from missing your opportunity to appeal.

Notice of Cross-Appeal. The party who does not file for an appeal can file for a cross-appeal to challenge the rulings they do not agree with. Ariz. R. Civ. Proc. Rule 8(b)

The Court of Appeal’s Initial Scheduling Order. The Court of Appeals will issue an initial scheduling order with deadlines for paying the filing fees and submitting the Case Management Statement and Opening Brief.  Ariz. R. Civ. Proc. Rule 12(b).

Trial Transcript. The appellant (the person appealing) is responsible for getting a transcript of the trial prepared and submitted to the Court of Appeals. This generally involves getting a recording of the trial from the superior court and hiring a certified court transcriptionist to prepare the transcript. If other hearings are held that you want the Court to review, you can also transcribe those hearings as well. Ariz. R. Civ. Proc. Rule 11(c).

Case Management Statement. The Appellant must also fill out the Case Management Statement, which is a form that the Court of Appeals Division One (Phoenix) requires but Division Two (Tucson) does not. Ariz. R. Civ. Proc. Rule 12(d).

STAGE 4: The Briefs

Appellate briefs tend to be some of the most thorough and difficult work attorneys do because at the appellate level, only well-researched, well-reasoned, and well-cited work will suffice. The Court of Appeals is no joke and not a place to cut corners. Judges’ positions on Court of Appeals are highly coveted and, with Arizona’s merit-based judicial selection process, only the very best candidates are considered. In turn, appellate judges expect high-quality work from the lawyers who appear in front of them.

Anyone working on appeal needs to have extensive legal knowledge of their area of law; they must know every detail of what happened in your case; they must have the ability to research and think through complex legal problems; and they must be able to write their arguments clearly and effectively.

Briefs are lengthy, well-researched documents into which the attorneys invest significant time and thought. Demonstrating that a judge made a legal error is not an easy task. Briefs have a 14,000-word limit, which loosely translates into a 60-page document. Arizona Rules of Civil Appellate Procedure (ARCAP) Rule 14(a).

Opening Brief. The Appellant’s Opening Brief must contain the Appellants’ full argument as to why the trial court’s judgment must be vacated or reversed. It must contain specific citations to the record and to statutes and case law. A brief generally contains the following parts, as required by Rule 13 of the Arizona Rules of Civil Appellate Procedure:

• Table of Contents. This should include page numbers and, if filed electronically, bookmarks for the sections. ARCAP Rule 13(a)(1).
• Table of Citations. This is a bibliography for every authority (statute, rule, case, etc.) you cite to in the Brief. You must cite the specific page numbers on which the authority is cited in your brief. ARCAP Rule 13(a)(2).
• Introduction. The rule’s only requirement for this section is that it be short. ARCAP Rule 13(a)(3).
• Statement of the Case. This gives an overview of what has happened previously with the issues the Appellant wishes to challenge on appeal. ARCAP Rule 13(a)(4).
• Statement of Facts. This goes through the factual history of the case. If the Statement of the Case is sufficiently detailed, this may be omitted. ARCAP Rule 13(a)(5).
• Issues Presented. This lists, in question form, the issues the Appellant is raising on appeal. ARCAP Rule 13(a)(6).
• Argument. This is the primary section. Here, the Appellant states all their reasons for why the trail court erred and backs up those assignments of error by reviewing the law and making arguments about what the Court of Appeals did. ARCAP Rule 13(a)(7). Additionally, an argument should start with these two pieces of information:
  • Jurisdictional Statement. This is a short statement, explaining why the Court of Appeals has jurisdiction. In most cases, the Court of Appeals will have jurisdiction under A.R.S. § 12-2101(A)(1).
  • Standard of Review. The Appellant states whether the Court of Appeals should review it under an abuse of discretion standard or a de novo review standard.
• Request for Attorney’s Fees. If requesting attorney’s fees on appeal, a request needs to be made here.  ARCAP Rule 13(a)(8).
• Conclusion. A summary of the reasons for why you prevail and your requested relief. ARCAP Rule 13(a)(9).

Answering Brief. The requirements for the Answering Brief are somewhat identical to that of the Opening Brief, though the Statement of Case, Facts, or Issues are optional. Under the Appellant has filed a cross-appeal, they are simply responding to the issues the Appellant raised in the Opening Brief.

Reply Brief. The Reply Brief is an optional filing and is limited to 7,000 words and addresses only the arguments in the Answering Brief.

Certificate of Service. For every filing in the Court of Appeals, there needs to be a separate Certificate of Service filed that states the party has provided a copy of the filing to the other party (or parties).

Certificate of Compliance. For every brief filed in the Court of Appeals, there needs to be a Certificate of Compliance that states that the brief is below the word limit and is presented in Times New Roman 14-point font and is double-spaced. ARCAP Rule 14(a)(5).

STAGE 5: Oral Argument (If Scheduled)

An oral argument is an optional last step. Either party can request an oral argument, or the Court of Appeals can set one on their own. During an oral argument, each side has 20 minutes to present their arguments to the three-judge panel on the Court of Appeals. The judges can interrupt the attorneys frequently and ask very detailed questions, challenging the attorneys on certain points. This requires each attorney arguing in front of the Court of Appeals to have an incredible depth of knowledge of both the facts and the law to answer all the questions.

STAGE 6: Ruling 

Once the case is submitted to the Court of Appeals, the waiting begins. It could be several months before a ruling is issued. Many appellants find the waiting frustrating, but the Court of Appeals can take anywhere from 3 to 9 months to issue a ruling, and the timing of that is entirely in the hands of the judges.

STAGE 7: Petition For Review or Wait for Mandate

Once the ruling is issued, the party who did not succeed on appeal has the choice to ask the Arizona Supreme Court to review the ruling. They can do so by filing a Petition for Review with the Arizona Supreme Court, and the other party will have a chance to file a Response. Unlike the Court of Appeals, the Arizona Supreme Court does not have to take the case; in fact, they grant certiorari (i.e., agree to consider a case) for just a few dozen cases each year. The Court of Appeals may then set an oral argument, which will have to be attended by both parties.

Many people who receive a bad ruling believe an appeal is their only option. It is not. In fact, an appeal may not even be their best option. The best option for many litigants is a post-decree motion.

A post-decree motion is one that asks the Court to change some aspect of its ruling. This option is cheaper, quicker, and more efficient than an appeal. The best part is that these options are not exclusive of each other. You can file a post-decree motion and pursue an appeal.

What to know about post-decree motions

Here is what you need to know about post-decree motions:

• Post-decree motions must comply with the rules. The different kinds of post-decree motions described below all have different criteria that you must meet to be successful.
• Most post-decree motions have deadlines. As with filing an appeal, you need to move quickly in filing a post-decree motion.
• The same judge who ruled in your case will rule on your post-decree motion. This means your motion must be highly persuasive. If you believe the judge came to the wrong conclusion, you must clearly show them where the mistake occurred. Fortunately, most judges, in our experience, want to get it right, even if it means admitting their initial ruling was incorrect.
• In most cases, the other party cannot file a Response unless ordered to by the judge. The purpose of this rule is to minimize fees and, in turn, minimize the risk that the person filing motion is ordered to pay the other side’s attorney’s fees.
• A judge cannot grant your motion without giving the other party a chance to respond. This means that, in many cases, the Court will just deny your motion without even waiting for a Response. If a judge orders a Response, it can be a good sign. It means the judge believes your motion has merit and they want additional information.

Types of post-decree motions

A post-decree motion can only be brought if it fits under one of the rules. Fortunately, there are several options, and most of them have multiple grounds under which you can file. The deadlines for each vary, and even some of the more wide-open options have been restricted through case law.

• Motion to Alter-Amend. This is generally the strongest of the options. It is governed by Rule 83 of the Arizona Rules of Family Law Procedure and has a deadline of 25 days from a final judgment or order being entered. The Motion to Alter-Amend asks the Court to change its position. Because it has rigid standards, it is stronger than the comparable Motion to Reconsider.

• Motion to Clarify. This option is solely used to clarify confusing orders. One of its prerequisites is that the order must be ambiguous. Because the Court may need to clarify its ruling as confusion arises, time limits do not apply to this motion. Rule 84 applies to Motions to Clarify.

• Motion for Relief from Judgment. If a judgment has been entered against you, you can ask the court to release you from it under certain circumstances. Rule 85 applies to Motions for Relief. Half of the options have a six-month time limit; the others just need to be brought within a “reasonable time.” Be aware that while Rule 85(b)(6) seems open-ended, the law has clarified that it can’t be used if the motion could have been brought under Rule 85(b)(1)-(5).

• Motion to Reconsider. Governed by Rule 35.1, this option is the most wide-open and seemingly standardless, as it lists no grounds and no time frame. That makes it the most flexible option, but also the weakest. Bringing a motion under clear guidelines makes it easier for a judge to grant. Where the guidelines are murkier and more uncertain, judges are less likely to reconsider their position.
• Motion for Amended Findings of Fact. Of all the post-judgment motions, this is the one least utilized—and, for good reason, since it usually does not benefit anyone to change the findings of fact. More often, litigants wish to change the outcome, not the findings. However, there may be times where you may want or even need the court to amend its findings of fact. The most obvious would be where you have prevailed in a custody case that the other side is appealing, and the court did not make best interest findings or did not make written findings where it was required to do so. That leaves the ruling vulnerable to being overturned on appeal. In that situation, you would probably want the court to amend its findings to include its best interest findings. Another example may be where the Court’s findings could hurt your chances to modify the ruling later. Rule 82 applies to this type of motion.

To appeal or modify

In family law, many orders can be modified. These include legal decision-making, parenting time, child support, and most spousal maintenance orders. In those cases, waiting to modify is one of the alternatives to an appeal that should be considered.

With all of those rulings, they can be modified once a change of circumstances has occurred (what counts as a change of circumstances varies). For rulings deciding the custodial issues of legal decision-making or parenting time, such orders must remain in place for at least a year before they are modified. That also is roughly the length of time it takes to complete an appeal. For that reason, we recommend modifying custody only when the ruling might make it difficult for you to modify the decision later or would put you at a disadvantage in a later proceeding. Otherwise, an appeal puts you in the same place you would be if you just waited to modify.