Step 13 – Post-Trial Motions
As noted in prior sections, after the final trial has occurred, the presiding judge will generally request one party (or both parties’ collectively) to prepare a journal entry detailing the judge’s ruling and decree. Once this journal entry is prepared, the judge will approve it, sign it, and file it as the decree of divorce—assuming the journal entry appropriately recited the judges findings and orders. At this point, either side may have objections to the outcome of the final trial based upon various occurrences at trial. These concerns can be raised via post-trial motions. Timing is always an important and critical concern with post-trial motions, as essentially any post-trial motion one could file must be submitted within a set time frame, and it is usually within a short window of time, and can even be as little as ten days for some post-trial motions.
Motion To Reconsider, Or Motions To Alter Or Amend
A Motion to Reconsider, more formally referred to as a Motion to Alter or Amend, asks the court to revisit a decision made in the divorce decree. Reconsideration can be based upon a change in the law, an allegation that a formal error was made, or some other factor that would prevent injustice. For example, the Kansas Supreme Court approved of a motion to reconsider in re Marriage of Willenberg where the district court made a mistake concerning the effect of bankruptcy on the property division. The key to this motion is that it requires re-examination of facts already presented to the court. As the court noted in re Marriage of Blagg, when truly new evidence is needed, this motion is not always proper because other motions can accommodate the inclusion of those new facts. This motion is more traditionally limited to giving the trial court the opportunity to reexamine the facts it was presented with. What is always permissible in such a filing, however, is presentation of new case law or a corrected application of law. Because formal case law is generally not required to be presented as evidence at trial, the court can and should consider cases that show a different outcome was appropriate when timely submitted and requested.
Motion For A New Trial
A motion for a new trial goes beyond the scope of what happened during the trial. Unlike a motion to reconsider, the motion for a new trial will generally focus on something outside the evidence presented or on a very serious error. Common grounds for granting a new trial under K.S.A. S 60-259 include the decree being wholly against the weight of the evidence, newly discovered evidence that was not presented at trial, a decision issued under passion or prejudice, or substantially changed circumstances. These motions will generally require presenting new facts to the court. However, there must be a valid excuse for failing to present these facts the first time around. This may be misconduct by the opposing party, such as hiding assets throughout the litigation. Alternatively, circumstances may substantially change just after trial, causing the decree to become unjust. This may include the destruction of a key piece of property, such as the martial home, without insurance covering for such loss.
This motion can become difficult to discern from a motion to reconsider when it is based on the evidence present at trial being insufficient to support the decree. A motion for a new trial suggests that the entire decree is flawed based upon an egregious error. This is contrasted by the motion to reconsider, which simply looks to correct an aspect of the decree, not to correct the entire matter. In addition, the huge switch in outcome requires re-trial of the matter. When there is a simple mistake, the court can simply reconsider the mistake and modify the decree without retrying the case.
Motion For Relief From Final Judgment
When the grounds for reconsidering or retrying the case are not known or quickly discovered, the spouse may still seek relief through another type of motion. This motion seeks to relieve the spouse from the obligations of the judgment based upon one of six specified grounds. First, mistake may justify relief when the mistake is discovered beyond the time allowed for retrial or reconsideration. The same holds true when new evidence is discovered. Third, if fraud or misrepresentation are found to have been used by the opposing party, the court can grant appropriate relief for the obligation. Fourth, avoid judgment—one issued outside of the court’s power—can be grounds for this motion. For example, if the Kansas federal district court had granted a divorce decree, either spouse would be permitted to escape his or her obligations because the federal court cannot hear divorce proceedings. Fifth, relief may be granted when the obligation has been satisfied or it is no longer fair to apply the obligation. An example of this ground may be the remarrying of a spouse, negating the need for alimony. Finally, any other reason justifying relief may be considered and form the basis of the court’s decision to relief a spouse for the obligations of a decree of divorce.
Modification of certain aspects of a divorce decree may be obtained by filing a request for modification. Child custody orders can be modified pursuant to K.S.A. S 23-3221. This type of modification is appropriate any time that modification would be in the best interest of the child, and a parent can show a material change in circumstance. Reasons that support this type of modification may include the incarceration of the custodial parent or refusal of the custodial parent to honor visitation rights. The modification is completed by filing a motion with the court to modify the decree of divorce concerning child custody.
Child support orders may also be modified at the request of either the receiving or paying parent. Kansas Statute Annotated Section 23-3005 controls the modification of child support orders. Two alternative criteria are set out for modifying child support. First, the orders may be revisited and modified if the order was issued or modified more than three years ago. This is because circumstances are likely to have changed in such a period of time, warranting recalculation of the amount of support owed. Alternatively, the orders can be modified within three years if a material change in circumstances can be shown by the parent seeking modification. These types of changes can include changes in employment or compensation. Changes in child custody agreements may also justify altering support obligations.
Finally, spousal support may be modified pursuant to K.S.A. Section 23-2903. The moving party must show a substantial change in circumstances justifying modification. However, the decree serves as a ceiling—the paying spouse cannot be forced to pay more than the original decree requires. Instead, the amount is limited to reductions based on changed circumstances.
In the interest of being clear, property division is generally not modifiable, outside of taking one of the other post-trial routes/motion filings listed above. The idea behind such limitations is that the property division should be determined at the time of divorce, based upon those circumstances. Any change in circumstances is irrelevant to distributing property acquired during the marriage, absent the situations already covered by post-trial motions. Additionally, ex-spouses should be allowed to feel secure in the property after divorce. Each spouse will want to get on with their life, including using the property as they see fit. Simply stated, it would be too difficult, and unreasonable, to require ex-spouses to account for marital property or funds therefrom years and years after a divorce decree has been entered.
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