Q. I was in Court and the Judge ordered me to pay an amount in support
that I can afford. The Judge averaged my earnings over the past 12 months,
and then entered that information into the Dissomaster. She then told
me how much I had to pay for child and spousal support. My hours were
drastically cut back by my employer 10 days before the hearing and what
I have been earning is not what I will be earning. I was so nervous I
didn't explain this change to the Judge. What can I can do?
Motions For Reconsideration In California Family Law Cases
There are two important procedures that you can use to try to get a rehearing
or a reconsideration of a court's award or decision, a motion for
reconsideration and an application for
CCP § 473 relief. Each is tricky and they do not succeed too often. I know of no
statistics, but my guess is that court's will reconsider and reverse
or modify their earlier decisions less than 10% of the time. 473 relief
is more commonly granted.
The first is called a Motion for Reconsideration. The California statute
governing reconsideration motions is
California Code of Civil Procedure section 1008. It has at least two important parts: a) it must be timely filed and b)
it must be based upon new or different facts, circumstances, or law than
what was known or shown at the time the hearing took place.
When To File a Request that the Judge Reconsider His Ruling
The threshold requirement is timing: Section 1008(a) states that the motion
must be filed "within 10 days after service upon the party of written
notice of entry of the order." Courts consider that the failure to
timely file a motion to reconsider is jurisdictional - which means they
don't have the power to even consider your request if you are too late.
A literal reading of this statute suggests that the 10 day clock doesn't
start ticking until you receive a hard copy of the court's order or
ruling (typically through the mail or sometimes by personal service),
but this is generally not how judges view it. Typically a judge announces
their decision in open court. In the case of a Dissomaster or other support
calculation they may print it out and give each party or the attorney
for each party a copy. A minute order will be written by the court clerk,
and placed in the file. It usually goes out in the mail to both sides
the same day.
Sometimes a party or attorney will be directed by the Court to prepare
a formal order. That formal order is usually on a Judicial Council form.
The losing side is customarily asked to review and approve it before it
is submitted to the judge for signature, except that many courts do not
require an attorney to get the approval of an unrepresented party first
and so it may wind up just being prepared and approved by the drafting
attorney alone. Once the order after hearing gets signed by the court,
it is supposed to be served upon the other party but often through sloppy
practices or oversight it is not.
What this means is that you cannot rely on written notice as triggering
your obligation to get the reconsideration motion filed - and you definitely
cannot sit back and think that your time is not running just because no
written order has been received by you.
Where the Judge makes their ruling while you are present in court, in
most courts start the time running from the date of hearing regardless whether written notice or a formal written order is to follow.
An exception is where a judge takes the matter "under submission"and
makes her decision later, when a decision or ruling is mailed.
Many judges believe you have been "served" with the decision
when you hear it - and therefore that your time to file a motion for reconsideration
begins to run from that moment.
This means that the only safe practice is to file your reconsideration
motion no later than 10 calendar days after the hearing (not counting the first day, and if the 10th day falls on a weekend or
holiday, your time is extended to the next calendar day).
10 days is not a lot of time to put a Motion for Reconsideration together.
It needs to include a Notice of Motion form, an application form which
includes your detailed declaration, and it is a good idea to provide legal
Assuming you meet the deadline you will find that Judges don't like
to be asked to reconsider their decisions except for really good reason,
and do not appreciate parties that simply are unhappy with the outcome
and want to take another shot at it. They apply the technical rules technically
to avoid changing their rulings, which makes some sense in terms of court
efficiency because in litigation one side is almost always unhappy with
the outcome and would like to reargue the matter.
The second half of a motion for reconsideration requires you establish
that you have discovered "new or different facts or law." The
"new law" situation is rare and does not mean that you just
discovered that you quoted the wrong legal authorities to the Court and
so now have "new" ones to present; it is intended to cover situations
where the law changes or is clarified by statute or case decision in a
way that would caused the Court to make a different decision.
Asking the Court to Correct Its Own Mistakes -
Or Yours Under CCP Section 473
Another ground for reconsideration motions is the Court's inherent
power "to do equity" or correct its own mistakes. These motions
are complicated and this Blog is just to give you some familiarity with
them. These are the points I want to leave you with at the moment:
- If you can, try to research CCP section 1008, including looking at some
legal treatise or the reported appellate decisions that mention it
- New or different facts don't generally include things you forgot to
mention, unless you have some really credible explanation of why you forgot
- You must explain to the Court what you learned, how and when you learned
it, why you didn't learn it earlier, and why these new or different
facts matter enough that the Court should render a different outcome.
If the other party withheld facts that you became aware of only after
the hearing, you need to describe your reasonable diligence in having
attempted to first get all the facts
- New facts are not the same as different facts. Be specific
- Telling the judge you just think she was wrong is rarely helpful - judges
know they will be wrong some of the time, and they are trained as much
to just make a decision as to get it right (clearly they want to get it
right). Most of us don't like being told we are wrong and that is
rarely a useful persuasive tool. Instead, focus on the justice or injustice
of the situation and be humble
- Explaining that you made a mistake without more is also risky, because
lawyers and parties do make mistakes in presenting their cases but the
law favors finality in decision-making. Your mistake needs to have been
a reasonable one.
Always consider combining your reconsideration request with a request for
Code of Civil Procedure section 473, which is a very important statute that covers relief from orders or judgments
that result from your inadvertence, surprise, mistake, or reasonable neglect
In your situation the question will be: If you knew 10 days before the
hearing that your time had been cut back, why didn't you mention it?
If you did mention it, then the Court considered your evidence and ruled
against you, so this would not be new information.
Also, how different would the outcome have been if the Court had considered
or known of the cut backs in your work? For instance, if those cut backs
are partial and your income is 15% less than the Court supposed, this
may not seem so important to the Judge that she thinks she needs to correct
the unfairness of the result. If it is 40% less, she might. There are
no hard and fast rules that can be applied with consistency.
It is quite common for clients to wind up hiring attorneys after they
attempted to handle their case on their own, and it blew up at the hearing,
and now they need desperately to get more or better information in front
of the judge. It is very difficult to "un-ring the bell."
When these things happen they are a good lesson of why the adversarial
court process is to be avoided whenever possible, and of the importance
of finding and listening to a competent lawyer early on in your case.
Visit these pages to learn more about reconsideration motions.
Read here to learn about 473 excusable mistake motions.
And maybe FB like this page for our effort?
Author: Thurman W. Arnold