Paging Mr Breeze, Mr Breeze, I have a question.

[CJane]

What is the name of your state? MO

Stupidhead is (we're pretty sure) filing an appeal of the custody order.

Could you please either direct me to the information, or tell me... how long does he have to actually file the appeal and serve me with the info (from the date of the ruling)?

The ruling was amended. Did that extend his time to appeal? (does his time limit go from date of original order, or date of amended order?)

Does he have to list in his filing the reasons for his appeal - the specific errors of law that he believed took place?

What grounds other than error of law, is it possible to base an appeal on?

What's the process wrt appeals? Once he files, what happens next? What does the appeals court do?

If he doesn't win this appeal, what happens next? Is it all over and done with, or does he have additional remedies to seek?

 

[BelizeBreeze]

who amended the order (you or him) and why?

Yes, he must state for what reason the court should consider the appeal.
In Missouri, it doesn't have to be based solely on error of law. It can be clerical error also.

The appeal is handled just like a hearing. You will be served and you (or your attorney ) will have a chance to answer the summons. If a hearing is deemed necessary, you will offer evidence as to why the appeal should be denied.

Depending on the issue, he can appeal all the way to the U.S. Supreme Court.

 

[CJane]

who amended the order (you or him) and why?

Yes, he must state for what reason the court should consider the appeal.
In Missouri, it doesn't have to be based solely on error of law. It can be clerical error also.

The appeal is handled just like a hearing. You will be served and you (or your attorney ) will have a chance to answer the summons. If a hearing is deemed necessary, you will offer evidence as to why the appeal should be denied.

Depending on the issue, he can appeal all the way to the U.S. Supreme Court.

He actually filed a motion requesting that the order be thrown out and that we revert back to the original custody order - the one giving him sole legal custody. The stated reason was that I did not prove a change in circumstances warranting a change in custody to begin with.

At the hearing, the judge told him that 1) I was not required to prove change in circumstances 2) I had met my burden of proof wrt change of circumstances 3) Ex had filed his own counter motion based entirely on MY change in circumstances and 4) after a year, several hearings, many motions and amended motions, the involvement of a GAL and an 8 hour trial, if they felt that I was not meeting my burden of proof, they should have mentioned it.

At that point, his attorney began arguing that the order as written did not meet statutory requirements. The judge admitted that it did not, my attorney agreed that it did not, and the judge ordered that the order be amended so that it did meet statutory requirements. Specifically, it was amended to list exactly what was contained in the original parenting plan, and exactly what was changed in the new plan, along with specific reasons for the changes.

Stupidhead's attorney then began rearguing evidence already heard by the court during the trial. The judge reminded him that we were not there for a second trial, merely for an amendment hearing.

The GAL was asked for her input. She said that she agreed that the order should be amended to include the statutory requirements and that the typo should be fixed.

His attorney then stated that they would be appealing the order, and the judge said "That is, of course, your client's right. However, I would recommend that you think very carefully about how much of this or any other court's time you want to waste with this matter."

We got the amended order, and a week later, his attorney copied my attorney on a letter that he sent to the clerk requesting transcripts of all hearings in order to appeal the decision.

 

[BelizeBreeze]

He actually filed a motion requesting that the order be thrown out and that we revert back to the original custody order - the one giving him sole legal custody. The stated reason was that I did not prove a change in circumstances warranting a change in custody to begin with.

This is not ground for appeal. It's called Judicial Discretion

At the hearing, the judge told him that 1) I was not required to prove change in circumstances 2) I had met my burden of proof wrt change of circumstances 3) Ex had filed his own counter motion based entirely on MY change in circumstances and 4) after a year, several hearings, many motions and amended motions, the involvement of a GAL and an 8 hour trial, if they felt that I was not meeting my burden of proof, they should have mentioned it.

irrelevant to most points. If they did not bring up the level of proof supporting the decision at trial, they can't bring it up now.

At that point, his attorney began arguing that the order as written did not meet statutory requirements. The judge admitted that it did not, my attorney agreed that it did not, and the judge ordered that the order be amended so that it did meet statutory requirements. Specifically, it was amended to list exactly what was contained in the original parenting plan, and exactly what was changed in the new plan, along with specific reasons for the changes.

That is allowed under RSMO 454.

Stupidhead's attorney then began rearguing evidence already heard by the court during the trial. The judge reminded him that we were not there for a second trial, merely for an amendment hearing.

Good judge.

The GAL was asked for her input. She said that she agreed that the order should be amended to include the statutory requirements and that the typo should be fixed.

Not the GAL's job but also not reversable error.

His attorney then stated that they would be appealing the order, and the judge said "That is, of course, your client's right. However, I would recommend that you think very carefully about how much of this or any other court's time you want to waste with this matter."

smart judge

We got the amended order, and a week later, his attorney copied my attorney on a letter that he sent to the clerk requesting transcripts of all hearings in order to appeal the decision.

then within 30 days (or a bit longer if the clerk isn't on her/his toes) they will be required to file the appeal. When you get served, bring the summons here for discussion.

 

[CJane]

then within 30 days (or a bit longer if the clerk isn't on her/his toes) they will be required to file the appeal. When you get served, bring the summons here for discussion.

Thank you. That's within 30 days of the Filed Date that is stamped on the front of the amended order, not 30 days from the time the order was actually received by me (or him) in the mail, correct?

 

[BelizeBreeze]

Thank you. That's within 30 days of the Filed Date that is stamped on the front of the amended order, not 30 days from the time the order was actually received by me (or him) in the mail, correct?

correct, except if the clerk takes two or three weeks getting a copy of the record to the other attorney.

 

[CJane]

Ok, I got their filing in the mail today... and I'm a little confused.

The entire packet consists of a copy of the court order, a cover sheet w/the attornies names on it, and a sheet stapled to the back that says this:

FACTUAL BACKGROUND
This case involves the modification of a prior dissolution judgement. Under the initial judgment the Father had sole legal and sole physical custody, which was changed by the modification to joint physical and joint legal custody.

(1) The Mother has continued to visit Internet bulletin boards catering to adults, expressed an interest in bondage and posted pictures on the internet. (2)The Mother also moved to MY TOWN, MISSOURI where she moved in with and became pregnant by a man who had a pending assault charge.

ISSUES(S): (3)The jurisdiction of the Court pursuant to 452.410 to modify a prior custody order without a proper finding of a change of circumstances of the child or his custodian. (4)The authority of the Court to grant relief based upon a petition, which makes no factual allegations about the relief granted an only mentions the desire for the relief in the prayer. (5)The failure of the Court to make specific findings as to the reasons of the modification. (6)The failure of the Court to make factual findings on the issue of relocation.

I guess I'm confused because I expected different reasoning, or clearer reasoning or something.

The numbers are mine, to make asking my questions easier.

1) This was brought up repeatedly in the divorce, the modification trial, to the GAL, at the ammendment hearing, etc. I testified to all of it, including my ex-husband's part in it, and received custody anyway. However, they are OBSESSED with my sex life, I think I posted here before about the sexual questions that I was asked in my depositions.

2) Obviously, it's true that I moved. It's true that I became pregnant. It's also true that assault charges were filed against Babydaddy due to allegations made by an ex-girlfriend. They were later dropped. This was all addressed in depositions, with the GAL and during the trial.

3) I don't understand this, and I think it's the crux of their appeal. There are a few things... I didn't think that a change of circumstances was required in the state of MO in order to change custody IF the original order was entered as an agreed order, and not after a trial. Also, I moved - isn't that a change in circumstances? And shouldn't any concerns about a COC have been addressed at or prior to trial?

This is what the order says re: a change in circumstances

6. That since the endry of that Judgement, there has occurred significant changes in the circumstances of the children, the Petitioner and the Respondent, and that the modification is necessary to serve the best interests of the children.

7. The Court further finds that the children would substantially benefit if the parties have joint legal and residential custody of the minor children; and the best interests and welfare of the minor children would be served by the modification of their legal and residential custody pursuant to the Parenting Plan, which is incorporated and fully set out herein. The Court has considered all relevant factors and determined custody and parenting responsibilities in accordance with the best interests of the children as required by RSMo 452.375.2, including, but not limited to: ... See statute if interested, I'm not typing the whole thing. ...

4) I don't have any idea what this means.

5) See #7 in the quote above... isn't that the same thing?

6) I don't know what this means.

Help? I know that it wouldn't be the smartest thing in the world, but I may have to do this pro-se. I'm just not financially capable of paying anymore attorney fees right now.

 

[Zephyr]

soooo Janey.....you're an internet porn star huh????**************and to think you spend all this time with us little people

 

[CJane]

soooo Janey.....you're an internet porn star huh????**************and to think you spend all this time with us little people

Crazy, isn't it? But ya know, being a porn star in my ex-husband's head just doesn't pay the bills.

I forgot to add this part of the order (all you 'word for word' people ought to be thrilled!)...

Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent - the Court finds in favor of Respondent

Respondent is me.

The Court finds that both Petitioner and Respondent are fit and proper persons to have custody of the minor children; that there was evidence presented at trial that prir to the filings for this modification, the parties met quarterly to discuss the children and their activities; and that joint legal and physical custody will best assure both parents participate in such decisions affecting the health, education and welfare of their children, which the Court finds to be in the minor children's best interest.

 

[LdiJ]

What they are trying to do is find an error of law made by the judge, to justify an appeal.

The judge was fairly generic in the area of "factual findings" in the written order. However I am not sure that its generic enough to make a difference. Its almost as if they are grasping at straws.

However, it would seem to me that the worst that could happen is that the appeals court would remand it back to the trial court for specific findings of fact. An appeals court generally won't overturn a "best interests" decision unless the judge made a true legal error.

Its not a good idea to handle an appeal without an attorney. Once they file their brief you are going to have to file a response brief, and those briefs are complicated. His costs are going to be alot higher than yours.

I am confused though, because the paperwork you received didn't appear to contain any motions of any sort.

 

[casa]

Crazy, isn't it? But ya know, being a porn star in my ex-husband's head just doesn't pay the bills.

I forgot to add this part of the order (all you 'word for word' people ought to be thrilled!)...



Respondent is me.

I'm not sure about in your state~ But in CA that is EXACTLY the way the courts sway! I've seen the supposedly 'less fit' parent get custody because they allow frequent & continuing contact with the child(ren). This way, the child maintains bonds with both parents and the NCP is active enough in the child's life to balance/compensate &/or monitor the child's well-being.

In my own case, I won custody with a much smaller income than the nuttyX...as the court saw the X would/could afford visitation, which I would always allow~whereas if he were to be granted custody, I'd have to fight tooth & nail to even see her. We were/are both capable parents & always have been (No drug or abuse issues), but he is/was so controlling that he simply couldn't be trusted with being Primary.

As to the bondage deal...I guess I missed that thread!! LOL I'm assuming it's something similar to my husband alleging I brought "strangers into our marital bed for purposes of a possible sex addiction". He even submitted photos of me in bed with another woman! he he But that 'other woman' was my friend of years who was visiting from out of town...& the picture when blown up shows we have pajamas on...and it was REAL interesting when nuttyX got to explain why HE had taken this picture (that I never even knew existed! ) uh-huh That was fun to watch in trial

 

[CJane]

However, it would seem to me that the worst that could happen is that the appeals court would remand it back to the trial court for specific findings of fact.

What does the bold mean?

An appeals court generally won't overturn a "best interests" decision unless the judge made a true legal error.

Well, obviously, I'd like to think that he didn't.

Its not a good idea to handle an appeal without an attorney. Once they file their brief you are going to have to file a response brief, and those briefs are complicated. His costs are going to be alot higher than yours.

It's not very comforting to know that his costs will be higher than mine. I'm already nearly $20K in the hole on this one... and while I know he's deeper than that, he also has a trust fund that's nearly bottomless.

I am confused though, because the paperwork you received didn't appear to contain any motions of any sort.

That confused me too. Could those possibly come later?

 

[CJane]

I'm not sure about in your state~ But in CA that is EXACTLY the way the courts sway! I've seen the supposedly 'less fit' parent get custody because they allow frequent & continuing contact with the child(ren). This way, the child maintains bonds with both parents and the NCP is active enough in the child's life to balance/compensate &/or monitor the child's well-being.

In my own case, I won custody with a much smaller income than the nuttyX...as the court saw the X would/could afford visitation, which I would always allow~whereas if he were to be granted custody, I'd have to fight tooth & nail to even see her. We were/are both capable parents & always have been (No drug or abuse issues), but he is/was so controlling that he simply couldn't be trusted with being Primary.

I think that came through pretty clear in court w/my ex too. I was just surprised to see 'in favor of respondent'... that was the only place that it didn't say 'in favor of petitioner and respondent'.

As to the bondage deal...I guess I missed that thread!! LOL I'm assuming it's something similar to my husband alleging I brought "strangers into our marital bed for purposes of a possible sex addiction".

Yup. He took one post off of a message board, in which I said something about living with a cop to make use of his handcuffs, and turned it inot a HUGE SCARY DEAL. My entire sex life was on trial. Which was fun to turn around on him... after all, we were married nearly 10 years... I know a little about his proclivities too.

He even submitted photos of me in bed with another woman! he he But that 'other woman' was my friend of years who was visiting from out of town...& the picture when blown up shows we have pajamas on...and it was REAL interesting when nuttyX got to explain why HE had taken this picture (that I never even knew existed! ) uh-huh That was fun to watch in trial

I think it's possible we have the same ex.

 

[BelizeBreeze]

FACTUAL BACKGROUND
This case involves the modification of a prior dissolution judgement. Under the initial judgment the Father had sole legal and sole physical custody, which was changed by the modification to joint physical and joint legal custody.

That is within the court's discretion

(1) The Mother has continued to visit Internet bulletin boards catering to adults, expressed an interest in bondage and posted pictures on the internet. (2)The Mother also moved to MY TOWN, MISSOURI where she moved in with and became pregnant by a man who had a pending assault charge.

Was there any prohibition in the original order stipulating that you were NOT to do so?

ISSUES(S): (3)The jurisdiction of the Court pursuant to 452.410 to modify a prior custody order without a proper finding of a change of circumstances of the child or his custodian.

What was the reasoning for the court changing the original custody?

(4)The authority of the Court to grant relief based upon a petition, which makes no factual allegations about the relief granted an only mentions the desire for the relief in the prayer.

(5)The failure of the Court to make specific findings as to the reasons of the modification.

Is this the EXACT wording?

(6)The failure of the Court to make factual findings on the issue of relocation.

Who's relocation?

 

[LdiJ]

I spent a great deal of time trying to respond to your questions to me and then lost the whole thing ARG...so I am going to be more simplistic this time.

A "remand" is when the appellate court sends the case back to the original judge to either re-hear the case or to explain himself/herself better. I see a chance of a "remand" simply because your judge was sort of "generic" regarding his "findings of fact".

I don't think that your judge made any legal errors.

I realize that its not particularly comforting to hear that his costs will be higher than yours.
However you have to realize that a response to an appeals case is complicated and that it wouldn't be in your best interest to attempt to do it yourself.

However, its possible that his appeal will be rejected or will be so out in left field that you wouldn't have to respond....but you need a consult with an attorney experienced in appeals to determine that.

The paperwork you recieved didn't appear to contain any specific motion for appeal or "leave to appeal"....or even a motion for reconsideration to the judge. So, either your attorney left something out when he/she sent you the copies....or an appeal hasn't actually happened yet. You need to clarify that with your attorney.