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So you have been given a decision in your case and you don't like all or part of it. Unfortunately, in family law related cases in particular, there are 'winners' and 'losers' because of the nature of the practice area. Judges must make decisions based on the policy of the law and the weight of the evidence, but from the perspective of the parties involved the judge's decision often does not seem right or fair. Such a belief is understandable in light of the deep emotional feelings people have about the issues involved – the things people (often) hold most sacred, their children and their wealth, have just been impacted significantly.

So what does an unhappy family law litigant do? Understanding what one's rights and options are after the decision is the place to begin in evaluating the next step. This article is intended to inform you of those options in general, the time frame in which they must be utilized, and the grounds they must be based on.

There are options available at the trial court level, including:

  • Motion for Reconsideration
  • Motion for New Trial
  • Motion to Vacate and Enter Different Judgment
  • Set Aside Motion under CCP § 473
  • Set Aside After CCP § 473 Time Period Expires
  • Omitted Property Adjudication
  • Motion per Fam. C. § 1101 for Breach of Fiduciary Duties
  • Post-judgment Modification Motions

What are Motions for Reconsideration?

Beginning with the trial court options, the most commonly used option appears to be a Motion for Reconsideration under Code of Civil Procedure § 1008(a). A party's application for reconsideration must be based upon new or different facts, circumstances or law. It requires a noticed motion set for hearing on the usual minimum notice prescribed by CCP § 1005(b). It must be heard by the same judge or court that made the order for which reconsideration is sought. It must be made within 10 days after service upon the party seeking reconsideration of written notice of entry of the order. The motion must be accompanied by a sworn declaration stating: what application, motion, or order/judgment was made before, when the prior application, motion, or order/judgment was made and to what judge, what order or decisions were made in the order/judgment, and what new or different facts, circumstances or law are intended to be shown in the motion. The supporting declaration must also state a satisfactory reason for the failure of the moving party to present the alleged "new" or "different" evidence or law earlier in the case. New York Times Co. v. Super.Ct. (Wall Street Network, Ltd.) (2005) 135 CA4th 206, 208, 37 CR3d 338, 340.

Please visit our blog is you have questions about reconsideration motions.

What Are Motions for a New Trial?

A Motion for a New Trial can be brought by any party to the judgment, asking the court that rendered the decision to reexamine an issue of fact and render a modified or different decision. CCP §§ 656, 657. While there are seven grounds authorized under CCP § 657, the following are most commonly found in family law proceedings: irregularity in the proceedings of the court or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; accident or surprise, which ordinary prudence could not have guarded against; newly-discovered evidence, material to the moving party, which could not, with reasonable diligence, have been discovered and produced at trial; insufficiency of the evidence to justify the court's decision, or the decision is against the law; and error in the application of the law occurring at the trial and excepted/objected to by the moving party.

The motion for new trial is raised by serving on each adverse party and filing with the court a "notice of intent" (i.e. notice of motion), specifying the applicable grounds for new trial and whether the motion will be made on affidavits, court minutes, or both. CCP § 659. It must be filed and served no later than the earlier of (i) 15 days after the clerk's mailing of notice of entry of judgment pursuant to CCP § 664.5, (ii) 15 days after a party's service on the moving party of written notice of entry of judgment, or (iii) 180 days after entry of judgment. CCP § 659(2). The deadline cannot be extended by mailing under CCP § 1013, and it cannot be waived or otherwise extended by the parties by agreement.

If the motion is made on grounds of irregularity in the proceedings or abuse of discretion, accident or surprise, or newly discovered evidence (i.e. under CCP § 657(1),(3) or (4)), the applicant must also present supporting affidavits or declarations under penalty of perjury. A motion on other grounds may be made simply on minutes of the court, including depositions and documents offered at the trial and the reporter's transcript. CCP §§ 658, 660. Additionally, all new trial motions must be accompanied by a "memorandum in support," which should include points and authorities.

What Are Motions to Vacate a Judgment?

A Motion to Vacate and Enter Different Judgment may be made on the ground of incorrect or erroneous legal basis for the decision not consistent with or not supported by the facts ... provided such inconsistency materially affects the moving party's substantial rights, entitling him or her to a different judgment. CCP § 663. This motion is used where the evidence supports the statement of decision but the judgment is not consistent therewith, and as such the moving party is not asking for a new trial. A "notice of intention" specifying the grounds and the particulars in which the legal basis for the decision is inconsistent with the facts must be served and filed within the same time a motion for new trial could be filed. CCP § 663a.

What are 473 Motions to Set Aside A Ruling?

A CCP § 473 Set Aside Motion allows the trial court, upon "any terms as may be just," to grant relief to a party from a "judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." CCP § 473(b). Relief under this provision usually is discretionary with the trial court, with the exception being a motion for relief from default, default judgment, or dismissal based on an attorney (but not a self-represented party) affidavit of fault making set aside mandatory if within the jurisdictional time-frame.

Mistake can be of fact or of law. Mistake is tested by "the reasonableness of the misconception and the justifiability of the failure to determine the correct law". Marriage of Jacobs (1982) 128 CA3d 273, 286–287, 180 CR 234, 241–242. A mistake resulting from ignorance of the law or unjustifiable negligence in discovering the law is not ground for CCP § 473(b) discretionary relief. Henderson v. Pacific Gas & Elec. Co. (2010) 187 CA4th 215, 229, 113 CR3d 692, 702.

"Surprise, inadvertence or excusable neglect" allowing for CCP § 473(b) relief must be such as could not have been avoided through the exercise of reasonable care and prudence. Luz v. Lopes (1960) 55 C2d 54, 62, 10 CR 161, 165–166. "[S]urprise" refers to situation where party "is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against". Henderson v. Pacific Gas & Elec. Co., supra, 187 CA4th at 230, 113 CR3d at 702–703. Being too busy, being inexperienced in court proceedings, and an 'unfair' outcome are not forms of justifiable surprise.

An "application" for CCP § 473(b) relief must be made by notice of motion specifying its grounds, be timely filed with the court, and be personally served on the opposing party. The moving party's papers must include "a copy of the answer or other pleading proposed to be filed" in the action. In addition, the application must be accompanied by supporting declaration(s) showing the reasons for the inadvertence, mistake, surprise or neglect, as well as a reasonable explanation for any failure to bring the motion diligently (i.e. the motion is approaching the applicable deadline for filing).

If seeking "mandatory" relief on the basis of attorney fault, the application must be accompanied by the attorney's sworn statement attesting to his or her "mistake, inadvertence, surprise or neglect" that gave rise to the default, default judgment or dismissal, and the set-aside application must be made (i.e. both filed and served) "no more than six months after entry of judgment" running from the clerk's entry of judgment. CCP § 473(b); Sugasawara v. Newland (1994) 27 CA4th 294, 296–297, 32 CR2d 484, 485–486.

Where § 473(b) relief is sought under the discretionary provisions (i.e. not based on attorney fault), the application must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." CCP § 473(b). The application is timely "made" only if the notice of motion is both filed with the court and served on the opposing party before expiration of the reasonable time/six-month deadline. Arambula v. Union Carbide Corp. (2005) 128 CA4th 333, 341–342, 26 CR3d 854, 858–859.

The public policy preference for trial on the merits favors resolving doubts in favor of the moving party; thus, except in cases of clear insufficiency of the excuse or unjustified delay in bringing the motion to the other party's prejudice, an order granting § 473(b) relief will be upheld on appeal. Berri v. Rogero (1914) 168 C 736, 740, 145 P 95, 97. The court can condition discretionary § 473(b) relief "upon any terms as may be just." For example, it can order the moving party to pay the other side's costs and attorney fees attributable to the mistake, inadvertence, surprise or neglect, including costs and fees incurred in resisting the motion and expenses that might be suffered by granting the motion.

What Are Set-Aside Motions?

Set-aside motions come in a ton of different flavors, depending what is at invovled, whether property division, support orders, paternity orders and so on. You might visit our Family Code Statute's Page to help make your research more efficient.

A Set Aside Motion under Fam.C. § 2120, et seq., is also available after the six month time period has run out to make a § 473 motion based, in post-1992 family actions for judgment involving property division or support as an exclusive remedy. For judgments not involving these issues, the traditional equitable grounds of extrinsic fraud or mistake are applied (e.g. concealment of community property, false service, inability to participate in proceeding, fraudulent inducement by one party to have other not retain counsel or respond in case, or taking matter to judgment while simultaneously reconciling).

Set-Asides Relating to Division of Marital Property

Fam.C. § 2120, et seq. works with the provisions of Fam.C. § 2100, et seq. regarding mandatory declarations of disclosure in marital status actions. The moving party's burden is to establish both the presence of at least one of the statutory grounds for relief (see below) and that this resulted in a material disadvantage to him or her. Marriage of Kieturakis (2006) 138 CA4th 56, 89, 41 CR3d 119, 143. Each ground has its own absolute time limit. The grounds and the time limits are: one year for actual fraud; one year for perjured financial statements (i.e. declaration of disclosure, income and expense declaration, etc.); two years for duress (which includes whatever destroys one's free agency and constrains him or her to do what is against his or her will; see Marriage of Balcof (2006) 141 CA4th 1509, 1523, 47 CR3d 183, 193); two years for mental incapacity (i.e. impairment sufficient to avoid a contract or testamentary disposition); one year for mistake as to stipulated or uncontested judgments (but not default judgments); and one year for non-compliance with the statutory disclosure requirements.

Fam.C. § 2120, et seq., set aside proceedings are initiated by "motion" in the underlying family law action or by an "action" to set aside the judgment. Fam.C. §§ 2122, 2125 & 2127. Like all post-judgment motion matters, a § 2120, et seq., motion must be served on the opposing party personally; service on the party's attorney of record alone will not suffice. Fam.C. § 215(a). The party seeking relief bears the burden of proof and must establish both the presence of at least one of the grounds for relief and that this resulted in material disadvantage to him or her.

Upon finding a proper ground for relief (above), the court may set aside only those provisions of the judgment "materially affected by the circumstances" leading to the decision to grant relief, or it may set aside the entire judgment. Fam.C. § 2125.

Coexistent with the set aside motions, an omitted property adjudication under Fam. C. § 2556 may be used to divide assets and debts not disposed of in a judgment. Fam.C. § 2120, et seq., applies when either party is seeking to undo a property division judgment that adjudicated particular assets or liabilities (even partially omitted asset and debts in some situations). In contrast, those statutes have no effect on proceedings to determine community interests in assets and liabilities that were unadjudicated or omitted from the judgment. In the latter situation, either party may seek post-judgment relief under Fam.C. § 2556, for which the court has continuing jurisdiction even without an express reservation of jurisdiction over division of assets and debts (i.e. there is no time bar for a Fam. C. § 2556 adjudication action). Marriage of Moore & Ferrie (1993) 14 CA4th 1472, 1483, 18 CR2d 543, 549, fn. 9. However, prior denial of a set-aside motion is res judicata, thus barring later attempts to relitigate essentially the same issue under the guise of a § 2556 motion. Marriage of Mason (1996) 46 CA4th 1025, 1028, 54 CR2d 263, 265.

In an appropriate case, a party aggrieved by a breach of fiduciary duty of disclosure may pursue an alternative Motion per Fam.C. § 1101(g) or (h) (e.g. for 50% or 100% of the community asset undisclosed or transferred in breach of fiduciary duty, plus attorney fees and costs; 100% if breach amounted to fraud, oppression, or malice shown by clear and convincing evidence). Marriage of Rossi (2001) 90 CA4th 34, 38–39, 108 CR2d 270, 274 (for W's concealment of CP lottery winnings, H sought alternative remedies of set-aside, breach of warranty, § 1101(h) 100% value award and § 2556 omitted asset adjudication; § 1101(h) 100% value ultimately awarded). Generally, a § 1101 action must be commenced within three years of the date the claimant spouse acquired "actual knowledge that the transaction or event for which the remedy is being sought occurred." Fam.C. § 1101(d)(1). Also, they do not apply to failures to disclose separate property assets that are undisputed as such.

Set Asides Relating to Paternity Cases

Additionally, there are some special procedures available to set aside parentage/paternity (filed within two years of the child's birth if paternity established by a Voluntary Declaration of Paternity), for Department of Child Support Services actions (e.g. for 'presumed income' cases and for 'mistaken identity' cases), for clerical errors, and for renewals of judgments.

Bear in mind that many common family law orders such as child support, child custody, and visitation schedules, rather than being re-litigated or set aside, are subject to post-judgment modification by motion (generally based on changed circumstances). Often a modification motion is less expensive than a direct attack on an order or judgment at the trial level or the appellate level, and should be analyzed in conjunction with the options described in detail her.

Conclusion on Remedies for the Court Rulings That You Hate!

Any of the foregoing trial-level relief options should be utilized immediately; litigants should not wait until the 'eleventh hour' to go see an attorney about evaluating or making any of these motions. Preparation is time consuming and, because of the pre-deadline filing and service requirements, might take a long time to perfect (e.g. to get personal service accomplished, even after the motion is drafted and filed, within an applicable time period). Also bear in mind that this article is intended for introductory and educational purposes only; it does not reflect many sub-issues that might be present in a particular case with its particular facts and history.

The bottom line is that a litigant should consult with and retain an attorney as early as possible after any adversely-perceived decision, order, or judgment (some options are lost as soon as ten days after the order or judgment is noticed). A litigant should consider retaining new counsel, or get a second or third opinion at minimum, should they feel their present counsel has not advocated for them effectively or informed them of their rights and options immediately after an adverse outcome. DO NOT WAIT, AND BE PROACTIVE.

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Michael C. Peterson , Esq.