Divorce can be messy, and when a divorce is final, one spouse sometimes wishes she could have a “do-over.” It’s not easy to undo a disappointing divorce decree, but court rules allow for modifying or entirely wiping away a divorce decree under certain, limited circumstances.
Appeal: The method of challenging an unfavorable divorce decree which most people have heard of is an appeal. When a person appeals an Arizona divorce decree, the person is asking a higher court–specifically the Arizona Court of Appeals–to reverse one or more points of the trial court’s decision. The deadline to file an appeal is 30 days after the trial judge’s ruling is filed with the clerk of the court.
Most appeals are unsuccessful. The Court of Appeals reverses the trial court probably less than 20% of the time. Factual findings made by the trial judge are almost never seriously questioned, but legal errors are more likely to be corrected/reversed on appeal.
Aside from an appeal, every other method by which a person may seek to undo all or part of a divorce decree requires that the trial judge modify or set aside her own ruling. The procedures available to modify or unwind an unfavorable divorce decree include the following: 1) motion for new trial or amended judgment; 2) motion for reconsideration or clarification; and 3) motion for relief from judgment or order, commonly referred to as a “motion to set aside.” Each will be addressed under a separate heading below.
Motion for New Trial or Amended Judgment: Rule 83 of the Arizona Rules of Family Law Procedure allows a motion for a new trial or amended judgment based on any of the following grounds which “materially affect” the aggrieved party’s rights:
1. irregularity in the proceedings of the court or a party, or abuse of discretion, whereby the moving party was deprived of a fair trial;
2. misconduct of a party;
3. accident or surprise which could not have been prevented by ordinary prudence;
4. material evidence, newly discovered, which with reasonable diligence could not have been discovered and produced at the trial;
5. error in the admission or rejection of evidence or other errors of law occurring at the trial or during the progress of the action;
6. that the ruling, decision, findings of fact, or judgment is not justified by the evidence or is contrary to law.
A motion for new trial or a motion to alter or amend under Rule 83 must be filed within 15 days after the decree or order is entered/filed. A Rule 83 motion is the best “first step” in seeking relief from an unfavorable divorce decree because it stays, or tolls, the 30-day time limit for filing a notice of appeal. If the Rule 83 motion fails, an appeal is still an option.
Motion for Reconsideration or Clarification: Rule 84 of the Arizona Rules of Family Law Procedure allows a motion for reconsideration or clarification for any of the following reasons:
1. The court did not properly consider or weigh all of the admitted evidence;
2. The court did not properly consider, interpret or apply the controlling law;
3. The court mistakenly overlooked or misapplied uncontested facts, including mathematical errors, that were necessary to the ruling; or
4. The ruling is confusing or susceptible to more than one reasonable interpretation.
A motion for reconsideration or clarification based on any of the first three grounds outlined above must be filed within 30 days after entry the order. A motion under #4 may be made “at any time deemed appropriate by a party or the court.”
Unlike a Rule 83 motion, a motion for reconsideration or clarification under Rule 84 does NOT toll the time to file an appeal, so it would generally be advisable to file a Rule 84 motion only if no appeal is intended, even if the Rule 84 motion is unsuccessful, or if more than 30 days have passed since entry of the decree/order and the motion is appropriate under #4.
Motion for Relief from a Judgment or Order: Motions for relief from a judgment or order, commonly referred to as “motions to set aside”, are governed by Rule 85 of the Arizona Rules of Family Law Procedure. This post will be limited to motions brought under Rule 85, subsection (C)(1). The time deadlines for filing rule 85(C)(1) motions are more liberal than those for motions under Rules 83 and 84, so a Rule 85(C)(1) motion is typically used when the deadlines have lapsed to file an appeal or a motion under Rule 83 or 84.
Under Rule 85(C)(1), a court may relieve a party of a final order, such as a divorce decree, for any of the following reasons:
a. mistake, inadvertence, surprise, or excusable neglect;
b. newly discovered evidence, which by due diligence could not have been discovered in time to move for a new trial under Rule 83(D);
c. fraud, misrepresentation, or other misconduct of an adverse party;
d. the judgment is void;
e. the judgment has been satisfied, released, or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
f. any other reason justifying relief from the operation of the judgment.
Any motion under rule 85(C)(1) must be filed “within a reasonable time” after entry of the final order, but under subsections (a) – (c), there is an outside time limit of six months.
A whole body of Arizona case law examines and gives guidance on what kinds of facts and circumstances may support a successful Rule 85(C)(1) motion. It is impossible to explore all those precedents and nuances in this post. The law strongly favors finality of judgments, however, and anyone wishing to file a motion to set aside his divorce decree should be aware that Rule 85(C)(1) motions are very difficult to win.
Modification of Child Custody and Child Support Orders: Child custody and child support orders are unique and, after certain waiting periods, may be modified during the children’s minority based on a showing of changed circumstances. Modification of these orders is not limited to filing a motion under Rules 83-85.
While it is difficult to “undo” a divorce decree, it is possible to obtain relief under certain circumstances. There are strict time limits on when motions to modify or set aside decrees can be made, however, so if you are dissatisfied with your divorce decree, you should schedule a consultation with an experienced family law attorney at Scoresby Family Law right away.
© 2016 J. Kyle Scoresby, P.C. All rights reserved.
