Do all Appeals Cases get heard?

[ice5146]

What is the name of your state? FL

Sorry to ask what seems a bit frivolous here but if I had an Attorney that responded to calls and emails even once in a blue moon then I wouldn't need your advice!

My attorney Filed a Notice of Appeal for my Modification of Custody/Increased Child Support Case which I lost on 11/23/05. He Filed this Motion after he explained to me in great detail that he was not going to File and Appeal but rather a Motion for Retrial and Abatement of Increased Support Obligation. His reasoning for this was that he felt the Appeals Court would "kick this case back" to Trial Court for Retrial??? (Sorry, that stumped me too)

Do all Motions for Appeals get heard by the Appeals Court? If the Appeals Court wants the case sent back for ReTrial, does the same Trial Judge HAVE to hear the case since it was ordered by the Appeals Court?

Does anyone have any input as to how long the Appeals process "normally" can take? From the time I Filed my Motion for Modification of Custoday in 8/2003, the Final Hearing wasn't until April 2005 and then November 23rd until the Final Order Filed by Judge. That seemed excessively long since the purpose of changing Custody to begin with was the ex was in Contempt of Court on about 13 counts.

Thanks!

 

[Zephyr]

What is the name of your state? FL

Sorry to ask what seems a bit frivolous here but if I had an Attorney that responded to calls and emails even once in a blue moon then I wouldn't need your advice!

My attorney Filed a Notice of Appeal for my Modification of Custody/Increased Child Support Case which I lost on 11/23/05. He Filed this Motion after he explained to me in great detail that he was not going to File and Appeal but rather a Motion for Retrial and Abatement of Increased Support Obligation. His reasoning for this was that he felt the Appeals Court would "kick this case back" to Trial Court for Retrial??? (Sorry, that stumped me too)

Do all Motions for Appeals get heard by the Appeals Court? If the Appeals Court wants the case sent back for ReTrial, does the same Trial Judge HAVE to hear the case since it was ordered by the Appeals Court?

Does anyone have any input as to how long the Appeals process "normally" can take? From the time I Filed my Motion for Modification of Custoday in 8/2003, the Final Hearing wasn't until April 2005 and then November 23rd until the Final Order Filed by Judge. That seemed excessively long since the purpose of changing Custody to begin with was the ex was in Contempt of Court on about 13 counts.

Thanks!

your attorney is probable correct, the justification for filing for reconsideration or retrial is a lot lower than appeal, I think with an appeal there actually has to be an error in the proceedings, not just that you didn't like the out come

also in an appeal the judge can only hear the evidence presented at the first trial, nothing new, in a reconsideration they can take newly found eveidence and evidence or information that has occurred during the time between the ruling and the new case

 

[seniorjudge]

What is the name of your state? FL

Sorry to ask what seems a bit frivolous here but if I had an Attorney that responded to calls and emails even once in a blue moon then I wouldn't need your advice!

My attorney Filed a Notice of Appeal for my Modification of Custody/Increased Child Support Case which I lost on 11/23/05. He Filed this Motion after he explained to me in great detail that he was not going to File and Appeal but rather a Motion for Retrial and Abatement of Increased Support Obligation. His reasoning for this was that he felt the Appeals Court would "kick this case back" to Trial Court for Retrial??? (Sorry, that stumped me too)

Do all Motions for Appeals get heard by the Appeals Court? If the Appeals Court wants the case sent back for ReTrial, does the same Trial Judge HAVE to hear the case since it was ordered by the Appeals Court?

Does anyone have any input as to how long the Appeals process "normally" can take? From the time I Filed my Motion for Modification of Custoday in 8/2003, the Final Hearing wasn't until April 2005 and then November 23rd until the Final Order Filed by Judge. That seemed excessively long since the purpose of changing Custody to begin with was the ex was in Contempt of Court on about 13 counts.

Thanks!

I don't have a lot of faith in your lawyer (if what you are reporting is true).

Q: Do all Motions for Appeals get heard by the Appeals Court? If the Appeals Court wants the case sent back for ReTrial, does the same Trial Judge HAVE to hear the case since it was ordered by the Appeals Court?

A: No, a case could get affirmed with a one word decision. The appeals court may order it re-heard by the same judge or, if that judge was biased, order it to go to another judge.

It would seem your lawyer would want a re-trial.

Go camp out in his office till you get answers you can understand.

 

[ice5146]

Senior Judge, why would a Retrial be preferred more than an Appeal? What would be the reasoning? Thanks!

 

[seniorjudge]

Senior Judge, why would a Retrial be preferred more than an Appeal? What would be the reasoning? Thanks!

Because on a retrial, you would get a brand new trial.

An appeal will reverse a case only if there is some kind of legal error in the trial.

 

[ice5146]

My Attorney told me the Judge did not apply the correct Case Law to my case. He provided Case Law after the Final Hearing and said she did not apply that. The Judge also ruled that I did not prove it would be detrimental for the kids to remain with ex. The Supreme Court ruled that it is no longer a requirement for the 2nd DCA to prove Detriment as the 2 prong Test for Substantial Change of Circumstance/Detriment. They ruled on this case BEFORE my Final Hearing was heard but yet the Judge still ruled I didn't prove the Detriment factor. Do you feel this is an error in Judgment?

 

[seniorjudge]

My Attorney told me the Judge did not apply the correct Case Law to my case. He provided Case Law after the Final Hearing and said she did not apply that. The Judge also ruled that I did not prove it would be detrimental for the kids to remain with ex. The Supreme Court ruled that it is no longer a requirement for the 2nd DCA to prove Detriment as the 2 prong Test for Substantial Change of Circumstance/Detriment. They ruled on this case BEFORE my Final Hearing was heard but yet the Judge still ruled I didn't prove the Detriment factor. Do you feel this is an error in Judgment?

It doesn't make any difference what I "feel" since your lawyer said he is not appealing the case (according to your post).

If he did appeal, then it is up to the court of appeals to decide if there was an error.

Frankly, your post is so confusing, that I am not sure what stage of the proceedings you are in.

In any event, good luck and talk to your lawyer and ask your lawyer further questions and don't leave till you understand the answers.

 

[ice5146]

My attorney Filed a Notice of Appeal for my Modification of Custody/Increased Child Support Case which I lost on 11/23/05. He Filed this Motion after he explained to me in great detail that he was not going to File and Appeal but rather a Motion for Retrial and Abatement of Increased Support Obligation. His reasoning for this was that he felt the Appeals Court would "kick this case back" to Trial Court for Retrial??? (Sorry, that stumped me too)

My original post said he did file an Appeal after he explained to me he was not going to file one. It caught me completely off guard as to why he actually filed the Appeal and not the Motion for Retrial. Sorry if the post didn't sound to you like he did file the Appeal.

 

[john123456]

The case your attorney is citing is Wade v. Hirschman, 903 So.2d 928 (Fla. 2005). Here is a good sum**** of the decision:

http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/0/b742866ab1aa2ce4852570a7004be278?OpenDocument

 

[ice5146]

That is exactly the case I was referring to! I forwarded my attorney a memo etter from the FL Bar stating the Detriment factor that the 2nd DCA still used was not be considered any longer. My Judge who ruled against me put in the Final Judgment that I didn't prove Detriment. That was a bit strange I thought.