One of the challenges of litigating a case in the Probate & Family Court is that often the litigation continues even after a Judgment. Mediation and Collaborative Law are designed to reach more lasting agreements than litigation, but even cases that are settled sometimes return to court. Below we have provided more information about the most typical post-judgment actions: appeals, contempt actions, and modification actions.
If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
At Skylark, we follow the Massachusetts Appeals Court and Supreme Judicial Court decisions very closely, especially those that pertain to Family and Probate Court matters. We post articles frequently regarding pending appeals and recent decisions at our blog.
If you believe that a decision you received from a Massachusetts Probate & Family Court is incorrect, you may want to consider appealing the decision. If you would like to learn more about appealing your case, below we have provided some information about appeals in Massachusetts or you can click here to contact us for more information.
Appealing a divorce or other family law matter is very time sensitive. You have 30 days from the date of the entry of judgment to file a notice of appeal in a family law case. In some instances, your situation might not require an appeal but might be better resolved with a post-trial motion. These types of Motions typically must be filed within 10 days of entry of the judgment in a family law case. If you would like to engage Skylark to pursue your appeal or post-trial motion you need to act immediately before time runs out on these options. Click here to contact us.
Once you have notified the court that you intend to proceed with an appeal, you or your counsel must begin the process of assembling the record from the trial to submit to the Appeals Court. This will include a trial transcript, as well as exhibits from the trial. The Appeals Court will set a deadline for submitting an appellate brief, which is a packet in which you must set forth your arguments for why the result at trial was flawed. If the other side is appealing the judgment, you must file a brief explaining why the judgment was proper.
Most cases are decided after a panel of judges review the briefs and an oral argument is heard. During the oral argument judges ask your attorneys questions about the case, and the law. Oral argument is scheduled months after the briefs are submitted, and decisions can often take months to be announced.
In some cases, appealing may not be your only, or best, option. Because the appeals process can take a long time, you may want to continue exploring options such as mediation to resolve your case, even while an appeal is pending. Many people with a trial approaching, focus only on that aspect of their case. However, there are many benefits, especially in Probate & Family Court cases to considering settlement or discussion through mediation. Even when an appeal is pending, it is possible that skilled mediators might settle your case. At Skylark we also mediate cases and if this is an option you are interested in please do not hesitate to contact us.
If you have missed the period of time allowed to file a notice of appeal, or something has changed relevant to your ongoing rights and obligations, you may qualify for a Modification of your Judgment. In the same way that Collaborative Law and Mediation can help parties settle their divorce case inexpensively and amicably, collaborative law and mediation can also help you agree to changes that need to be made to your Judgment to deal with new circumstances. Continue reading below for more information about modifying a Judgment.
If there has been a significant change in your life you may be entitled to receive a change in your Court Orders and Judgments. In the same way that Collaborative Law and Mediation can help parties settle their divorce case inexpensively and amicably, collaborative law and mediation can also help you agree to changes that need to be made to your old agreements to deal with new circumstances. Whether you reach an agreement or go to court to request changes, the following information should help you better understand what you need to know about modifying court orders or judgments. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
A Complaint for Modification is the action by which you can request that the Court make a change to the past Court Judgments. If the Orders that you want changed are only Temporary Orders then you must request a change by Motion or try to reach new agreements. A Complaint for Modification is the beginning of a new action and should only be used to change permanent orders which are called Judgments.
To succeed on a Complaint for Modification you must prove two things: first you must typically prove that there has been a “significant material change in circumstances;” and second you must prove that the change in circumstances warrants a change in the Order. The standards for succeeding on a Complaint for Modification are explained at further length below.
A “significant material change in circumstances” is simply explained as a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is an alimony order, then you must demonstrate that there has been a change to the factors that affect an alimony determination, such as the income of the parties or the expenses of the parties. In addition, you must demonstrate that that change is significant. In alimony cases a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the alimony order.
A 2013 SJC decision in Massachusetts, Morales v. Morales SJC 11104, differentiates this standard for Child Support. In child support modification cases, the SJC has indicated that “modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the Guidelines.” To calculate what would be paid under the Guidelines visit our Child Support Calculator.
Upon the filing of a Complaint for Modification the Court will issue a Tracking Order. The Tracking Order tells you who your Judge will be for the entire length of your case, and designates a timeline for the completion of your case, currently eight (8) months. This means that the goal of the Court is to hold a trial on your case within eight months if you are unable to settle your case before that. The Court will typically not allow a change prior to settlement or a trial unless there is an emergency that warrants a change. If you request an immediate change via Motion you should also file an Affidavit of Emergency to inform the Court why an immediate change is necessary. If you are not sure how to decide whether your circumstances warrant an emergency order, you should consult with an attorney.
If the other party in your case is failing to meet the obligations and requirements of Court Orders or Judgments then you may be entitled to Contempt sanctions against them. In the same way that Collaborative Law and Mediation can help parties settle their divorce case inexpensively and amicably, collaborative law and mediation can also help you agree to changes that need to be made to your old agreements to deal with new circumstances.
Below we have provided answers to many of the common questions that we are asked by our clients involved in Complaint for Contempt disputes. If you would like more information please do not hesitate to call us at 508.655.5980 or e-mail us.
A Complaint for Contempt is the action by which you can request that the Court make a finding and issue sanctions for failure of one party to meet the obligations and requirements of a Court Order or Judgment. To succeed on a Complaint for Contempt you must prove two things: first you must prove that there has been a “clear and unambiguous” order or judgment and second you must prove that the other party “knowingly violated” the order. The standards for succeeding on a Complaint for Contempt are explained at further length below.
A “clear and unambiguous” order or judgment is simply explained as an order or judgment that cannot be mistaken to mean something else. For example, if the Order that you want to enforce is vague or unspecific in any way, then the opposing party may not have failed to comply on purpose, but simply interpreted the order differently. If you want to clarify orders that are vague, you might be better off filing a Motion (if the order is not final) or a Complaint for Modification (to change final orders).
A “knowing violation” is simply explained as a purposeful failure to comply with the order. In most cases this is clear. For example, if a payor fails to pay child support, then the violation is most likely with knowledge that they are supposed to be making said payments. If, however, payment was missed by mistake (for example the recipient moved and failed to notify the payor), then the violation was by accident and therefore not a Contempt of the court order.
If a Defendant is found to have knowingly violated a clear and unambiguous court order or judgment and they had the ability to comply, then the Court can order them to comply, can make related orders, and can impose sanctions for an ongoing failure to comply. For example, in a failure to pay child support case, the court can order the defendant to make payment either immediately or over time on a payment plan, can order the defendant to search for a job, and can even order payment of the Plaintiff’s attorneys fees and costs or in extreme cases jail time.
A defense to a Complaint for Contempt is an inability to comply with the order. For example, an inability to pay a support order can be a defense that might keep a payor out of jail, although the court can still order the payor to make changes that could lead to an ability to comply, such as searching for a job.