By: Jessica A. Saldin,
In any family case, so much focus is put on going through your case and getting to the final orders, but what happens when you get an order and you aren’t happy? This article lays out your option when you get an order from the court that you do not agree with.
The first step is making sure you have a written, signed order. Nothing can be filed regarding changing the order until it is put in writing and signed by the judicial officer. While this may seem fairly obvious, there are circumstances that can occur that lead people to forget this first step. For example, often at the end of a hearing the court will simply enter an oral ruling and, if you are not happy with that ruling, it is easy to want to jump to the next step to seek relief from that order. But until the oral ruling is reduced to writing and signed by the judicial officer, it is premature to file any documents seeking relief. Another issue to be aware of is the effect of a minute order. During court proceedings it is common for the court clerk to be typing a record of the proceedings, which is known as a minute order. If the judicial officer signs that minute order, that is sufficient to serve as a final written order to start the deadline for relief from that order. However, if the judicial officer does not sign the minute order, you still need a signed order before you can proceed to seek relief from the order.
The next step is to determine whether the order was issued by a magistrate or a judge because that impacts the process you follow to seek relief from the order. If the order was issued by a magistrate, in most instances the only procedure to seek relief from the order is to file a petition for review pursuant to C.R.M. Rule 7. You cannot ask a magistrate to reconsider their order, clarify their order, amend their order, etc. The petition for review is the only avenue for relief. Additionally, if you do not file a petition for review, you cannot file an appeal of the order to the appellate court. The petition for review is a prerequisite of being able to file an appeal. The petition for review must be filed 14 days from the date of the order if the parties are present when the order is entered, or 21 days from the date of the order if the order is mailed or otherwise transmitted to the parties. To clarify, if the court enters an oral ruling, but the written and signed order is issued later, and mailed or electronically submitted to the parties, that will still follow the 21 day deadline. You only follow the 14 day deadline if the court hands you the written and signed order in court.
The petition for review lays out the alleged errors you believe are in the magistrate’s order. Additionally, if you think errors occurred during trial (for example, you think the magistrate misunderstood evidence, made a finding of fact not presented in evidence, etc.) then you must submit the transcript with the petition for review. If you do not submit the transcript, the reviewing judge will assume the trial record supports the court’s order. If you are unable to get the transcript in time to submit with your petition for review, the best course of action is to file your petition for review and a motion for extension of time to submit the transcript, laying out your efforts to get the transcript and when you anticipate receiving such. After your petition for review is filed and served, the other party has 14 days to submit a brief in opposition to such. After both briefs are submitted, the issue is then presented to a reviewing judge who decides if the magistrate’s order should be upheld, rejected, modified, if more evidence should be taken, or if the matter should be sent back down to the magistrate for a new hearing. It should be notes that in some instances, tied into consent to a magistrate hearing permanent orders, the same post-order rules for seeking from a judge’s order will apply.
Generally, if your order is entered by a judge, you have two different options for relief. The first option is to ask the judge directly to clarify or amend their order, or to even hold a new hearing. This is a motion that can be filed under the Colorado Rules of Civil Procedure, Rule 59. It must be filed within 14 days of the date of the order. This option is good if you think the court made an error (for example, if they should have used $2,500 for a party’s income but transposed the numbers and used $5,200) or if you need clarification as to what the judge intended by their order. This motion basically gives the judge an opportunity to correct errors they made before the matter is taken to the appellate court (though you don’t have to file this type of motion before filing an appeal). However, keep in mind that you are asking the judge that made the order to change their order. Therefore, the motion should be worded artfully and persuasively in order to try to convince the judge they made an error. It is also probably not the best course of action when the judge’s order is clear, obviously what the intended, and you simply disagree with such. In those instances, it is unlikely the judge will overturn themselves, so the best course of action may likely be going straight to an appeal.
An appeal to the appellate court is the second option for relief from an order by a judge. However, in general, the appeal can only be filed regarding final orders. For example, if you get temporary orders in your case you would have to file a special kind of appeal, known as an interlocutory appeal, as you do not yet have a final order to take to the appellate court. An appeal generally has to be filed within 49 days of the date of the court’s final order. However, if a Rule 59 motion (see above paragraph) has been filed, that tolls the timeline for the filing of an appeal until the court rules on such or, if the court has not ruled within 63 days of the date the motion is filed, it is considered denied and the clock for the filing of an family law appeal starts to toll again. For further detail regarding the appellate procedure, please see prior blog posts.
Thus, prior to seeking relief from any order, it is very important to make sure you have a final, written and signed order, and that you know the proper procedure for relief from a judge’s order versus a magistrate’s order because filing the wrong pleading could cost you the ability to seek relief from the order.