Motion for Re-Trial

[ice5146]

What is the name of your state? FL

Judge decided against my Motion for Custody Modification on Nov 23rd. My Attorney is Filing a Motion for Re-Trial. From what he explained, the Judge did not apply the Law to my case (sorry that's vague but all that was explained to date) and he's Filing the Motion within 30 days for a Re-Trial. My question is this....

What exactly will the Re-Trial accomplish? Will both of us be sitting at a Final Hearing again going over the same issues as the original Final Hearing or will different evidence be presented without us being present, please explain?

Is it the same Judge that agrees or disagrees if a Re-Trial should be granted?

Finally, my child support has been increased 4 times the amount due to me losing the case w/ effective date of 1st increase on Dec 1, 2005. Will the increase be placed on Stay pending the outcome of this Re-Trial or possibly an Appeal (we have grounds for both without a doubt my Attorney stated)?

Any input is greatly appreciated. Thank you in advance!

 

[GROIN PAIN]

What is the name of your state? FL

Judge decided against my Motion for Custody Modification on Nov 23rd. My Attorney is Filing a Motion for Re-Trial. From what he explained, the Judge did not apply the Law to my case (sorry that's vague but all that was explained to date) and he's Filing the Motion within 30 days for a Re-Trial. My question is this....

What exactly will the Re-Trial accomplish? Will both of us be sitting at a Final Hearing again going over the same issues as the original Final Hearing or will different evidence be presented without us being present, please explain?

Is it the same Judge that agrees or disagrees if a Re-Trial should be granted?

Finally, my child support has been increased 4 times the amount due to me losing the case w/ effective date of 1st increase on Dec 1, 2005. Will the increase be placed on Stay pending the outcome of this Re-Trial or possibly an Appeal (we have grounds for both without a doubt my Attorney stated)?

Any input is greatly appreciated. Thank you in advance!

Increased? Sounds like you've got some serious groin pain. Put some ice on it.

 

[rmet4nzkx]

These are questions you should ask your attorney.

I went back and reviewed some of your threads. You currently live in PA and your ex husband has prim ary custody in FL where you apparently lost custody of your children for some reason, perhaps to move to PA with a new boyfriend? It appears that you filed the modification 2 years ago and recently you lost. In the process your ex filed for an increase in child suport which potentially was over $17K with arreages and over $1700 per month for 3 children, but apparnetly the increased payments are ordered a/o 12-1-5 and not the larger amount.

Your attorney should have given you a realistic expectation for your chances of winning and the consequences of losing and why the delays may or not work in your favor. In other words, ROI and CL estimates.

FL has different custody rules for local within the Geo area, within state >geo area and out of state. As you know, as long as your ex lives in FL, FL will have jurisdiction over custody and child support for cases arising in FL and in some instances there may be slight variations in this rule e.g. military.

Why am I telling you all of this? Because the moment you left your children or lost custody to their father for what ever reason, you pretty much assured that any future modification to return or change custody to you would be difficult at best unless you could prove the father an unfit parent in the eyes of the court. This is because of the best interest of the child which is not gender specific.

So even if you have grounds for a new trial or an appeal, you still must contemplate the potential outcome and the cost involved for that litigation compared ot the cost of paying the ordered child support and waiting for your ex to have a house-full of teenagers to contend with. Or you might consider moving to FL, to the same town so that you might petition for increased parenting time and after a while prim ary custody. If you get a new trial you could be ordered to pay the arrearage in addition to court costs and attorney fees. Do you have the money for this type of fight that is not likely to change your custody in the end?

In general the courts don't see moving so far away for someone or something other than your children as in the best interest of the children.

 

[Gracie3787]

What is the name of your state? FL

Judge decided against my Motion for Custody Modification on Nov 23rd. My Attorney is Filing a Motion for Re-Trial. From what he explained, the Judge did not apply the Law to my case (sorry that's vague but all that was explained to date) and he's Filing the Motion within 30 days for a Re-Trial. My question is this....

What exactly will the Re-Trial accomplish? Will both of us be sitting at a Final Hearing again going over the same issues as the original Final Hearing or will different evidence be presented without us being present, please explain?

Is it the same Judge that agrees or disagrees if a Re-Trial should be granted?

Finally, my child support has been increased 4 times the amount due to me losing the case w/ effective date of 1st increase on Dec 1, 2005. Will the increase be placed on Stay pending the outcome of this Re-Trial or possibly an Appeal (we have grounds for both without a doubt my Attorney stated)?

Any input is greatly appreciated. Thank you in advance!

Just some info so that you'll be prepared for all possibilies:

1. Re-trials are seldom ever granted in Fl. family courts. The ones that are granted are usually due to lack of the responding party being legally served. So, don't get your hopes up too high for a re-trial.

2. If the reason for a re-trial is because the Judge didn't apply the law, that is usually better dealt with by an appeal, rather than a re-trial.

3. If a re-trial is granted, by law, the same Judge that heard the first trial will also be the one to hear the re-trial.

4. In a re-trial the same issues will be heard, the only difference is that both parties may present new evidence (laws).

5. A motion for re-trial does NOT stay the execution of an order (in this case the CS increase). However, a timely filed motion for stay of execution can. That motion needs to be filed within 10 days of the filing of the order to increase CS.

If your attorney thinks there are grounds for an appeal, why hasn't an appeal been filed?

 

[ice5146]

Thank you both very much for taking the time to respond. That was greatly appreciated. Just a bit of clarification on the comment about the assumption that I lost my children....

When custody was changed from me to my ex-husband in 2000, we lived 5 minutes from one another. He also Filed for the Modification of Custody and I had no means to pay a lawyer 3500.00 for a retainer fee. I was working a Commission Only job and he only paid me 450.00 a month for support which paid for my daycare for 3 kids, no other expenses for them.

Since that uncontested modification, he has refused to allow me to have visitation for 2 Summers in a row due to me having a Warrant for my arrest for failure to Failure to Appear back in FL for Child Support Hearing. I called Judge and said I have no way to appear since I was in PA and they denied a telephonic hearing. I moved to PA because I am from PA, had nowhere to live in FL after I lost job and car, and was only in FL due to his prior military orders to FL. I was working a Commission Only job a few months after moving back to PA but but not able to catch up on my arrearages so he blatently refused my phone and Summer Visitation.

Major issues of parental alienation have taken place since the original modification as well. Even down to the Step-Mother telling me I am not their Mother anymore, she is, and I do not have the right to make any decisions regarding the girls (we had an existing order for Shared Parental Responsibility). It would take a year to go into all the things both of them have said and done but every case was addressed in Court with both of their admissions to the allegations.

Both of them have even admitted to the Judge that my one daughter was diagnosed with ADD by school Doctor but Step-Mother refused treatment and only took her to Pediatrician for the confirmed diagonosis so she wouldn't fail her grade. They said they were simply filling a loophole so she wouldn't fail. Father didn't know about my daughter even being diagonosed since he was an over-the-road truck driver gone 6 days a week.

So to make a long story short, since I wasn't able to pay my child support immediately following the initial uncontested modification of custody, they have made my life a living Hell, admitted it was all about the money, and have said and done everything to get my girls to not want me as their Mother. They all even call the Step-Mother their Mother now. I had no choice but to file for a Mod of Custody.

I never lost them, I let him have mod of custoday uncontested since I was not in a financial position to fight him and we lived so close to each other. I never imagined that once the ex got the kids that he would start his own trucking business and go over the road with Step-Mother raising kids and denying my phone visitation. She has even called the VP of my previous company and screamed at him for not "taking child support money out of my check." Yes, she screamed at him he said. See, I can go on and on with this mess.

So Judge said we didn't prove Substantial Change of Circumstance, Alienation, or Detriment. Well FL Supreme Court said no more Detriment needs proved in 2nd DCA. We more than proved the Sub Change of Circumstance. That's why we're Filing for Motion for Re-Trial. My attorney said the Judge did not apply the correct Case Law to my case, she even listed in the Order that we didn't prove detriment which is no longer needed and that he feels an Appeal won't be necessary once the Jugde sees she ruled in error. She even based my increased child support of 2200.00 a month on my Financial Affidavit reading I earn gross commission of a certain amount monthly and didn't even take into consideration that I have a huge amount of unreimbursed business expenses I need to pay to earn that gross income.

As it stands, my attorney is Filing a Motion for Release of Judgment for increased support and Motion for Re-Hearing based on the error in Judgment and Judge applying wrong Case Law.