How do I appeal a Temporary Order from the Probate and Family Court???

Asked 12 months ago - Tewksbury, MA

I just got an order that is based on a facts (quoted in the order) that are patently untrue. It's like it is someone else's order.

Attorney answers (8)

  1. Joshua N Robbins

    Pro

    Contributor Level 16

    5

    Lawyers agree

    Answered . I am sorry you are faced with this. You can seek intermediate relief but it is unlikely you will be successful absent a showing of judicial misconduct / breach of judicial discretion - very hard to show also very costly.

    You can also file a motion for relief from temporary order. Speak with an attorney as they can guide you through this process.

    I wish you all the best.

    LEGAL DISCLAIMER: I am licensed to practice law in the Commonwealth of Massachusetts and have an office in Waltham.... more
  2. Steven Edward Zlochiver

    Pro

    Contributor Level 12

    4

    Lawyers agree

    Answered . You might have gotten someone else's order. Stranger things have happened and can more easily happen in underfunded and understaffed courts. If you think the Court made a mistake you can try to use Rule 60(a) of the Rules of Domestic Relations Procedure which states - "Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party." Or, you might try Rule 60(b)(1): "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect". There is a catch-all subsection (6) under which the Court can allow your motion for "any other reason justifying relief from the operation of the judgment" (and, presumably, an order).You have to research these rules and how they have been applied. In filing a Rule 60 motion you must adhere to Standing Order 2-99 which sets out requirements for the drafting of the motion. And for that you should see the updated version that is not in the most recent Rule book, but can be found at the Probate and Family Court Web site. There used to be such things as Motions for Reconsideration and for Clarification, but they appear to have been deleted from the new Standing Order 2-99.

  3. Eric Schutzbank

    Contributor Level 11

    3

    Lawyers agree

    Answered . In order to answer your question, additional facts would be necessary. It was unclear whether the facts quoted were from statements made at the hearing itself as you labeled them "patently untrue" rather than having nothing to do with your case. The other side stating false or inaccurate facts is different than facts that were not even brought up as part of your hearing of in the pleadings. If the latter, it is likely a mistake and something that can be changed. If it is the former, that is more difficult and it may makse sense to focus on what to do going forward to ensure that these orders are not made a part of any final judgment. I would be happy to talk with you to discuss and see if I can be of any assitance. Good luck!

    Attorney Eric Schutzbank is licensed to practice in Massachusetts and New Hampshire. The above information is not... more
  4. Stephen Scott Pearcy

    Contributor Level 12

    4

    Lawyers agree

    Answered . If it's a temporary order, it'll probably be easier to get an attorney to help you prepare to oppose making that order permanent at the next hearing.

    If this information has been helpful, please indicate below. Stephen Pearcy is licensed to practice law in... more
  5. Henry Lebensbaum

    Contributor Level 20

    2

    Lawyers agree

    Answered . Motion for reconsideration. Likelihood of success is remote. Consult a lawyer


    henry lebensbaum esq 300 Brickstone Sq Ste 201 andover, ma -- attorneylebensbaum@verizon.net (978) 749-3606.
    Criminal Law (all courts), Drunk Driving, Drugs, Violence, Sex Offenses, theft, SORB, Divorce Child Custody Alimony Child Support & Modification, Contempts & Paternity Juveniles Domestic Violence & Restraining Orders, Business Law, Personal Injury, Guardianship, Conservatorship & Estate Administration & Legal Malpractice. For these & other areas, contact me. Email sent may be copied intercepted or held by computers.

    Criminal Law (all misdemeanor & felonies in District and Superior Courts), Drunk Driving and Drug arrests, Sex... more
  6. Julie Court Molloy

    Contributor Level 15

    2

    Lawyers agree

    Answered . As Attorneys Robbins and Zlochiver said, it is entirely possible this is an honest-to-goodness mistake, and, yes, stranger things have happened. You should follow their advice, and immediately go to the Court to bring this to the Court's attention. From a "human" perspective, consider if you had to sit there all day listening to story after story of misery in other people's most personal lives, and ask yourself how well you would do, or whether, on rare occasion, these stories got a little mixed up in terms of what names go with which cases!?!?!?

    So, rather than approaching the Court with "outrage," be respectful and polite, and state very simply that there must have been some mistake.

    You also should contact experienced family law counsel, expensive though this may be -- it is worth it, since this is what we are "trained" for, by education and experience. My colleagues and I take our obligations very seriously -- knowing how well we do our jobs handling how you will live your life -- whether with regard to an ex-spouse or your children -- is something we take very seriously and we do our very best in this regard for each and every client.

    No attorney-client relatonship is created in responding to this question, and advice provided is based solely on... more
  7. Lloyd David Godson

    Contributor Level 5

    2

    Lawyers agree

    Answered . Appealing a temporary order is usually a waste of time and money. Less than one percent of interlocutory appeals are successful. You don't mention whether you are represented or not. If you are, you need to talk with your attorney about a proper strategy going forward to set the stage for trial and to set the facts down for an appeal after judgment.

    If you are not represented, you need an experienced trial lawyer to review the facts, advise you as to whether the order is as out of line as you think it is, and to help you place the proper facts into the record through trial.

  8. Heather M. Ward

    Contributor Level 3

    1

    Lawyer agrees

    Answered . If you do so in a timely fashion, you may file a "Motion for Reconsideration" of the judge's (temporary) order. See the Standing Order rules in MA Probate & Family Court on how to file such a motion.

    Otherwise, as some of my colleagues have stated, absent error of law on the judge's part you may have to wait until a final judgment in entered for relief. If there was an error of law, however, you could try to file an Interlocutory Appeal in the MA Appeals Court.

    Please know that any information you submit to this attorney will be held confidential, however, it does not... more

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