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Order of Judgment with financial errors; Judge refuses to grant stay

Parrish, FL |
Filed under: Divorce Divorce appeals

My husband has fallen victim to a FINAL ORDER OF JUDGMENT that is full of financial errors which were NEVER corrected as he was told would happen during his trial. The opposing counsel had thrown out there that his income was DOUBLE what it is and when he raised his objections the Judge told him to present evidence and he did; then he was told that it would be corrected but it wasn't. He has motioned the court for a retrial; it was denied; he's filed motions for a Stay Pending Appeal; denied....over and over again no matter what he does the lower trial judge denies him.....so he filed for an appeal with 2nd District Court of Appeals.......Is there an authority or rule that allows the appellate court to force the lower court to set terms of a stay of judgment when the lower court refuses?

We are preparing a reconstructed record off of best recollection as FRAP 9.200 (b)(4) allows for; however, it doesn't specify if witnesses can be noted

Attorney Answers 4

Posted

The Court of Appeal has the ability to review the entirety of the record of the lower court. That being said, there are different standards of review for different aspects of the lower court's decisions and proceedings. If the lower court is violating the law by refusing to grant a stay of execution of the judgment, then, yes, the Court of Appeals would definitely be able to order the lower court to issue a stay.

Without knowing all the facts of your case, it's hard to give you a better idea about what you could reasonably expect to achieve on appeal. I recommend that you seek out an attorney for a consultation immediately. Many attorneys offer free consultations.

Sincerely,
Andrew M. Bonderud, Esq.
The Bonderud Law Firm, P.A.
Office: 904-438-8082

Andrew M. Bonderud, Esq. is an attorney with The Bonderud Law Firm, P.A. He offers free consultations 24/7. Andrew's posting here is not to be considered legal advice nor does an attorney-client relationship exist.

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3 comments

Asker

Posted

Can one appeal to them in an emergency motion to review the ones the lower court denied? Even before they've had a chance to review the whole thing? I haven't been able to find any rules on that issue. I could easily file a motion with the appellate court but is that even allowable is what I am trying to research...thanks!

Will Murphy

Will Murphy

Posted

Yes, you can make a motion for immediate relief. I am not saying it will be granted but the court generally has some power to grant meaningful relief where appropriate. Appeals are not good candidates for pro we representation.

Asker

Posted

I know, but with the current order in place he is penniless....we're forced to be pro se---thank you for your help

Posted

I agree with my colleague that you need to get an attorney in your corner immediately. I'm not sure if you could obtain a stay without a bond; perhaps an appellate attorney will grace us with more information. Good luck.

Bill Rosenfelt 407-462-8787

Please be advised that any answers or information disseminated above do not constitute legal advice and that the attorney responsible for this posting is merely attempting to participate in a Q & A session intended to be helpful but certainly not intended to be legal advice. It is important that you understand that no attorney-client relationship has been formed and that the attorney has no obligation to follow up with you with your legal issue unless you separately contact said attorney and arrange for him to legally represent you.

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1 comment

Asker

Posted

He asked that the judge revert back to the original order that the respondent has been living off of for the last 15 mos as the condition of the bond--he never implied that he didn't want nothing in place. This whole thing has been a nightmare!

Posted

He needed an attorney then and he most certainly needs one now. Appeals are complicated and difficult, and without a complete record, he will surely lose. Was the trial transcribed by a court reporter? If not, the DCA has nothing to review, except in certain very limited circumstances. Get appellate counsel.

R. Jason de Groot, Esq., 386-337-8239

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4 comments

Asker

Posted

We are doing a reconstructed record off best recollection and submitting to the lower court for approval prior to sending it to the appellate court

Robert Jason De Groot

Robert Jason De Groot

Posted

Excellent.

Asker

Posted

Do you know if in doing a reconstructed record, can you add witnesses or affidavits to the record?

Robert Jason De Groot

Robert Jason De Groot

Posted

No you cannot add anything to the record, it can only be what happened at trial.

Posted

Yes, you can appeal from the trial court's order denying a stay. You don't file a separate appeal; you just have a mini-appeal within your existing appeal, and, in the appeals court, it's called a "motion" for review of the trial court's denial of the motion for a stay. Careful, there is a deadline to meet to file the motion. And you have to prepare a record to show the trial court abused its discretion in denying the motion for a stay.

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1 comment

Robert Rivas

Robert Rivas

Posted

You really need an appellate lawyer. The court and other party are never going to approve your "best recollection" of what happened, as required pursuant to FRAP 9.200(b)(4). In any event, such a statement of the record has nothing to do with review of a trial court's denial of a motion for a stay. The record in support of review of a motion for a stay is compiled as an appendix, not a statement pursuant to FRAP 9.20(b)(4). When you say FRAP 9.200(b)(4) doesn't say whether "witnesses can be noted," in all of Rule 9.200 and elsewhere, the testimony of witnesses is contained in the transcript. Are you saying you don't have a transcript of the testimony? If so, based on what you've said, you have no hope of succeeding in an appeal.

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