Post Judgment Procedures

After the trial of the dissolution case has taken place and the Judgment has been filed, there are several post-judgment procedures which are available, depending upon the situation.

Motion for New Trial

Where one of the parties feels that the judge made a mistake, a motion for a new trial can be filed. In such a motion the party is asking the same judge who heard the case to reconsider his or her decision. Obviously, because the judge is being asked to change his or her mind, rarely are motions for new trials granted.

Appeal

Any Judgment of the Superior Court can be appealed to the District Court of Appeal. Appeals are generally based on either the lack of substantial evidence justifying the decision or an abuse of discretion.

Where the trial judge did not have substantial items of evidence to justify his or her decision, the Court of Appeal has the power to reverse the decision. However, if the Court of Appeal finds that there was at least some evidence, the decision will not be overturned.

In other instances, the Court of Appeal may find that the trial judge committed an abuse of discretion by misinterpreting the law. Where this happens, the Court of Appeal will often send the case back to the trial judge to make a new decision based on the correct interpretation of the law.

Litigants commonly believe that, if they do not agree with the court's decision, they can "take it up on appeal." In reality, more than 95% of all appeals are not successful. Moreover, an appeal can cost in excess of $10,000. For these reasons, the decision to file an appeal should be carefully considered.

Motion to Set Aside the Judgment

The law provides that a party can file a motion to "set aside" the judgment. When such a motion is granted, the judge holds a new trial. A Motion to Set Aside the Judgment must be filed within a specific period of time, depending on the basis for the request. The most common grounds for a motion for new trial are the following:

Negligence - Within Six Months after Judgment

A judgment can be set aside if it was entered as the result of mistake, inadvertence, surprise or excusable neglect of one of the parties to the case. A motion to set aside the judgment on this basis must be filed not more than six (6) months after the judgment is signed by the judge.

Other Grounds

Even if more than six months has passed since the entry of the judgment, a motion to set aside the judgment can be filed if there appear to be one of the following:

  • Actual fraud - where the defrauded party was kept in ignorance or in some other manner, other than his or her own lack of care or attention, was fraudulently prevented from fully participating in the proceeding. A set-aside motion on this ground must be filed within one year after the entry of the judgment.
  • Perjury - in the preliminary or final declaration of disclosure or in the current income and expense statement. The motion must be filed within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.
  • Duress - within two years after the date of entry of judgment.
  • Mental incapacity - within two years after the date of entry of judgment.
  • Mistake - As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. A set-aside motion based on mistake must be brought within one year after the date of entry of judgment.