Wednesday, July 29, 2009

I can appeal while reconsideration is pending

I filed this with the appeal court:
Opposition to AngryMom’s Motion to dismiss

AngryMom argues that the Feb. 2009 “statement of decision” was just a tentative decision. The court did not say that it was a tentative decision.

I was just trying to follow Rule 8.104 and Rule 8.108. Those rules say that a motion to reconsider extends the filing deadline for a notice of appeal, but delays can still cause the motion to be heard after the deadline.

Neff v Ernst (1957) 48 C.2d 628 said that it is not inconsistent or improper to simultaneously file a notice of appeal and a motion for a new trial.

AngryMom also argues that she is disadvantaged because the record is not complete. The motion for reconsideration was delayed for reasons outside my control, but that motion is scheduled to be heard on July 30th. Even under AngryMom’s reasoning, the case is likely to be final by the time you process this motion.
Unfortunately I only mailed one copy to the court, and the rules require four copies. I am mailing three more copies today.

One problem here is that only final decisions are appealable, and the family court never says whether or not a decision is final. Another problem is that my appeal rights can expire while the lower court is sitting on the case.


Anonymous said...

nice way to keep control by the lower judges/commissioners. Is is possible to ask if the decision(s) made on that hearing date are indeed final and have that as part of the record?

George said...

I am not sure a judge or commissioner even has authority to say whether or not an earlier decision is final. It depends on what he said at the time. If he happened to say that it is final or not final at the time he issues the decision, then it would be clear. But he never does that. Usually it is not even clear whether the oral decision or the written decision is the binding decision. If he had given the decision orally, then I guess I might have asked whether it was final. But he made the decision by mailing it a month later to the AngryMom, and mailing it three months later to me. I am stuck with whatever is in that written decision.

I know this sounds crazy, but that is how the court works, as far as I have been able to learn.

Anonymous said...

I'm sorry, I wasn't clear with my question. What I meant was, in order to CYA, at the time s/he's making a decision at that specific hearing, can you then follow up with a question asking if that is in fact his/her final decision on the matter, thus forcing them to state (hopefully unequivocably) what was just ruled then and there is final and for the record? Or perhaps at least precipitate a committment? Then at least you have a fighting chance to have a "drop dead date" to work your appeal from. I know, it's got to be difficult to pin them down, they no doubt want to give themselves an out should they change their minds down the road. I didn't mean to infer anything to do with past rulings. And yes, I believe you, been there many times myself with similar results.

Interesting your ex got the written ruling so much sooner than you, how's that? Oh yeah, the same clerks lost, and then found your check. Gee, can't wait to file a motion on my support amount with these guys.....

George said...

If the judge or commissioner is giving a decision orally in court, then you can try asking whether it is final. I have done that also, without success.