We had put in a cross motion to oppose emancipation and to reinstate alimony. In april, we went before the judge and she emancipated my daughter based on incorrect evidence. She then had us come back in to decide if a plenary hearing was necessary for alimony in May. I wrote her and explained how she wasn't taking the facts into consideration and to reconsider my daughter's emancipation as well as to show the importance of alimony. My daughter and I now live on my SSI check for a total 750 a month as I am on a liver transplant list. She took the letter into reconsideration, but stuck with her original decision, and provided a procedural history with all the incorrect facts, such as when my daughter is set to graduate. I want to appeal and want to know how do I appeal this.
As to the alimony, I had won a previous appellate court decision in 2005 that remanded the case back to family court for a plenary hearing. However, could not continue to pursue due to health problems and the fact that I would lose medicaid if I received any alimony. We made a agreement with the judge to be able to go in at a later time without prejudice. Now with Obamacare, I can accept alimony. However, the new judge decided against a plenary hearing stating too much time had passed and it was prejudicial to the defendant. Again she quoted incorrect facts, stating I did not want to lose ssi not medicaid as I corrected her, many times. Can I appeal this when I appeal the wrongful emancipation. I understand this is very complex, but there is no way for me to afford an attorney and legal aid won't take it. I am still paying for my last attorney.
If the Court entered an Order following its consideration of the motions, and your letter, then yes, you can appeal. You need to be careful that you do so within the appropriate guidelines and time frames for appealing a Trial Court decision. There are both appeals as of right and Notice of Motion for Leave to Appeal, depending on whether the Order issued by the Trial Court was final or interlocutory (interim). You should speak with an experienced family law attorney who has done significant Appellate Court work who can review the Orders, and the legal issues, and advise you accordingly.
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Family Law Attorney
I agree with my colleague and would like to add that you must be mindful of the deadlines for filing your appeal. You should also seek the guidance and assistance of an experienced family law attorney in filing your appeal.
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You can appeal, but appeals are complicated and governed by strict rules and time limits. Not something that should be handled on a pro se basis. Think about it. You've represented yourself so far, how has that worked?
Appeals are more complicated, and there is more legal analysis to be applied. Don't go it alone, and act fast!
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In order to obtain relief from an order or judgment from a trial court judge, you may file a motion to reconsider or an appeal. However, you cannot file a motion to reconsider an order that was entered as a result of a motion for reconsideration. A timely motion to reconsider will result in tolling the statute of limitations to file an appeal.
Motions to reconsider must be filed no later than 20 days from receipt of the order. It does not matter what the date of the order is, but rather the date that you receive the order, if they are different. In order to succeed on a motion to reconsider, you must demonstrate that the trial court judge entered his or her decision on a “palpably incorrect or irrational basis” or failed to consider the significant probative evidence presented.
Appeals must be filed no later than 45 days from the date of the order. The appellate division will review a trial court judge’s findings of law “de novo,” i.e. with no deference. On the other hand, the appellate division will, for the most part, give discretion to a trial court judge’s findings of fact and credibility, and only grant relief from them if the appellate division finds that they are the result of an abuse of discretion.
There generally are always bases to seek relief from an order or judgment of the trial court. It is important that you meet with some experienced family law attorneys right away to discuss the specific facts of your case and find out what rights you may have and what potential bases for reconsideration and/or appeal you may have. Failure to file for relief with the court within the time frames prescribed by the court rules set forth above may forever bar you from doing so, so it is crucial that you schedule some consultations with experienced family law attorneys right away.
Additionally, below are links to articles and information that may assist you with your case.
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