Modification of Custody Appeal

[ice5146]

What is the name of your state? FL

I lost a Mod of Custody case due to not being able to prove a Substantial Change of Circumstance for the Modification. When I filed the Modification and Motion for Contempt of Court back in 8/2003, my ex Filed a Motion for Increased Support at the same time. The Increased Support Order has been in effect effective 12/1/05.

My Attorney Filed an Appeal on 12/22/05. Does the Motion for Appeal automatically place a Stay on the increase or do I have to have a Hearing with the Trial Court that ordered the increase to have a Stay placed on the increase until the Appeals Court orders a Retrial or takes my case?

Thank you in advance!

 

[Bali Hai]

What is the name of your state? FL

I lost a Mod of Custody case due to not being able to prove a Substantial Change of Circumstance for the Modification. When I filed the Modification and Motion for Contempt of Court back in 8/2003, my ex Filed a Motion for Increased Support at the same time. The Increased Support Order has been in effect effective 12/1/05.

My Attorney Filed an Appeal on 12/22/05. Does the Motion for Appeal automatically place a Stay on the increase or do I have to have a Hearing with the Trial Court that ordered the increase to have a Stay placed on the increase until the Appeals Court orders a Retrial or takes my case?

Thank you in advance!

You are bound by the current court orders.

Your attorney should be able to answer those questions.

 

[seniorjudge]

Q: Does the Motion for Appeal automatically place a Stay on the increase?

A: Probably not unless the court (either trial or appeal) ordered it stayed.

 

[Gracie3787]

What is the name of your state? FL

I lost a Mod of Custody case due to not being able to prove a Substantial Change of Circumstance for the Modification. When I filed the Modification and Motion for Contempt of Court back in 8/2003, my ex Filed a Motion for Increased Support at the same time. The Increased Support Order has been in effect effective 12/1/05.

My Attorney Filed an Appeal on 12/22/05. Does the Motion for Appeal automatically place a Stay on the increase or do I have to have a Hearing with the Trial Court that ordered the increase to have a Stay placed on the increase until the Appeals Court orders a Retrial or takes my case?

Thank you in advance!

No sorry, filing an appeal does not stay the increase.

What happened with the motion for retrial that your lawyer filed?
Gracie

 

[seniorjudge]

What happened with the motion for retrial that your lawyer filed?

Generally, in an appeal situation, this motion is denied by the trial court (exhausting the remedies and all that) so the folks can then appeal.

 

[ice5146]

Hi Gracie..hope you had a nice Christmas! I spoke to my lawyer last week right before my 30 day deadline for filing the Appeal for the Modification of Custody. He told me he is filing a Motion for Retrial one day before deadline and also with that, a Motion for Abatement of increased support since the Judge did not calculate correctly.

When I followed up with Clerk of Courts to make sure it was filed on time, the Clerk told me an actual Appeal was filed. I was shocked because my lawyer told me that he was definitely not filing an Appeal because he figured the Appeals Court would kick it back for a Retrial. I'm still not sure as to why the Appeal was filed in lieu of the Motion for Retrial. He specifically told me that the Appeal would put a Stay on the increased support. I come to find out this is not the case.

Lawyer read off to me the Motion he was filing for the support and so forth, all I got was a one page letter that has Notice of Appeal on top and it was faxed to me w/ the Final Judgement from Trial Court.

 

[Gracie3787]

Hi Gracie..hope you had a nice Christmas! I spoke to my lawyer last week right before my 30 day deadline for filing the Appeal for the Modification of Custody. He told me he is filing a Motion for Retrial one day before deadline and also with that, a Motion for Abatement of increased support since the Judge did not calculate correctly.

When I followed up with Clerk of Courts to make sure it was filed on time, the Clerk told me an actual Appeal was filed. I was shocked because my lawyer told me that he was definitely not filing an Appeal because he figured the Appeals Court would kick it back for a Retrial. I'm still not sure as to why the Appeal was filed in lieu of the Motion for Retrial. He specifically told me that the Appeal would put a Stay on the increased support. I come to find out this is not the case.

Lawyer read off to me the Motion he was filing for the support and so forth, all I got was a one page letter that has Notice of Appeal on top and it was faxed to me w/ the Final Judgement from Trial Court.

I would assume that an appeal was filed instead of the motion for retrial because of the time limitations. A motion for retrial is what is called a 10 day motion, meaning that it has to be filed within 10 days of the entry of the order. It sounds like your attorney missed that 10 day deadline, so the next best thing is to file an appeal, knowing that the appeals court will remand back to trial court for a retrial. It's another way of getting a retrial, only it takes longer and is more expensive.

As you know, the appeal does not stay the increase, and even though a motion to abate has been filed, it will be a little more difficult to get it heard. Once an appeal has been filed with the apellate court, your attorney will have to file a motion with the apellate court, asking that the motion to abate may be heard by the trial court while the appeal is pending.

The papers you got, the notice of appeal with the final judgement is the only thing that your lawyer had to file with the appeals court at this time. Then there is a set amount of time in which your attorney has to file the initial brief (quite often this time limit is extended by the apellate court). So be prepared for all of this to take awhile. In the mean time, the increased support will remain in effect until a court orders otherwise. Sorry.
Gracie (BTW- Yes, I had a wonderful Christmas with family and my grandson.)

 

[ice5146]

So the Appelate Court has to authorize the Motion for Abatement for Increased Support and then the original Trial Judge will hear the new Motion? Is this right?

I'm assuming this could take a few months before I even get a hearing for the Abatement?

I'm income deducted for the increase. I pay the increase and then the Judge sees the income was calculated incorrectly and I never should have been paying so much, I'm out the money I paid for increase in error of the court??

What happens to the increase if I win in Appeals or Retrial? It doesn't get refunded to me does it? Mind you, Arrears are also being tacked on for the past 2 years since I filed for Modification of Custody in 2003 and he countersued for increased support at that time. Arrears are over 37k and his attorney fees are 8k. That increase is going to be ordered on top of my current obligation at 10%. The increase is totally miscalculated. I'm a bit confused.

 

[Gracie3787]

So the Appelate Court has to authorize the Motion for Abatement for Increased Support and then the original Trial Judge will hear the new Motion? Is this right?

I'm assuming this could take a few months before I even get a hearing for the Abatement?

I'm income deducted for the increase. I pay the increase and then the Judge sees the income was calculated incorrectly and I never should have been paying so much, I'm out the money I paid for increase in error of the court??

What happens to the increase if I win in Appeals or Retrial? It doesn't get refunded to me does it? Mind you, Arrears are also being tacked on for the past 2 years since I filed for Modification of Custody in 2003 and he countersued for increased support at that time. Arrears are over 37k and his attorney fees are 8k. That increase is going to be ordered on top of my current obligation at 10%. The increase is totally miscalculated. I'm a bit confused.

That's correct, the apellate court has to first give the okay for the trial court to hear the motion. This is because when an appeal is filed, the jurisdiction of the case goes totally to the apellate court. It's kinda confusing, the trial court right now cannot hold any hearings without getting "leave" from the appeals court.

As for you being refunded the increase paid if you win- sometimes it is done at a retrial, sometimes it has to be requested. Usually it will be refunded by giving credit toward future support or credit toward arrears owed (if it is refunded at all). I advise against counting on getting a cash refund, because that doesn't happen very often. You should ask your attorney about getting any refund credited toward arrears.

Yes, it will probably take a few months for the motion to be heard, unfortunately the apellate court is very slow, so you'll have to be patient.
Gracie

 

[ice5146]

So do I have these 3 options pending at this point? 1) Appeals Court remands for Retrial based on error in Trial Court Judgment? 2) Appeals Court Affirms w/o remanding for Retrial? 3) Affirms w/o remanding for Retrial? Thanks for your help Gracie!

 

[ice5146]

Sorry for mistake in above post..3) Reverses in Appeals w/o remanding for Retrial

 

[seniorjudge]

So do I have these 3 options pending at this point? 1) Appeals Court remands for Retrial based on error in Trial Court Judgment? 2) Appeals Court Affirms w/o remanding for Retrial? 3) Affirms w/o remanding for Retrial? Thanks for your help Gracie!

4) Appeals court rejects appeal
5) Appeals court affirms judgment
6) Probably three or four more options

 

[Gracie3787]

So do I have these 3 options pending at this point? 1) Appeals Court remands for Retrial based on error in Trial Court Judgment? 2) Appeals Court Affirms w/o remanding for Retrial? 3) Affirms w/o remanding for Retrial? Thanks for your help Gracie!

seniorjudge is correct, there are so many possibilities that really it's going to drive you crazy trying to guess what might or will happen.
When dealing with the apellate court, anything can happen and you're better off just waiting it out instead of worrying about it. The time to worry about it will be when the court has made some decision, then you can decide where to go from there. Sorry, I know it's hard, but patience is really helpful in your situation.
Gracie

 

[ice5146]

I appreciate your inputs very much. I'll keep you updated.