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New York Divorce Essentials
Changing New York Court Orders and Judgments

By. J. Douglas Barics

Revised March 2016


Changing New York Orders"I think the court made a mistake in my divorce.. Can I have the judgment modified?"


"I was never served with papers and missed my court date, and the case went to trial without me. Can I appeal this decision?"


"I settled my support case but think I made a mistake. How can I fix this?"


"I recently discovered new information on my case and want to show it to the court. Can I file for a modification?"


"My custody order has the names mixed up. Can this mistake be fixed without a new hearing?"


Divorce and family law cases are confusing enough, but all too often procedural issues raise the most questions. Questions such as the above are very common, who for a number of reasons want to change an existing court order. There are a number of ways to change an existing order, but the appropriate one will depend on how the initial order was arrived at and what change is being requested.


1. THREE WAYS JUDGMENTS OR ORDERS ARE ISSUED


(a) Both sides participated in a trial


In this type of case, both sides are present at trial, were able to testify, call witnesses, conduct cross examination, and present any other evidence. The court will make a final decision after both sides have presented their case.


These orders may be:

  • Appealed
  • Reargued
  • Renewed
  • Modified
  • Resettled

(b) When one party defaults, resulting in either a dismissal or a judgment on default


When the plaintiff defaults, the case will very often be dismissed, resulting in an order dismissing the case. If the defendant defaults, the plaintiff may proceed alone, and will present their case without anyone opposing it.


These orders may be:

  • The subject of a motion to vacate
  • Modified
  • Reargue

(c) When a settlement is reached


Both sides have appeared, but instead of going to trial, have entered into a mutual agreement settling the case.


These orders may be:

  • The subject of a motion to vacate the settlement
  • Modified

2. MEANS OF CHANGING JUDGMENTS AND ORDERS


(a) Appeal


An appeal is available only for judgments or orders issued by the court following a full trial where both sides appeared and were heard. See CPLR 5701 and CPLR 5501. Pursuant to CPLR 5512, only appealable papers may be appealed, and only by a party who is aggrieved under CPLR 5511. No new evidence may be presented in an appeal, it is a request to a have a higher court review the trial on the basis that the trial court made mistakes that would affect the outcome. Such mistakes could be a mistake in deciding a fact or in applying the law. The procedure for appeals is rather complex, and different rules apply for each of the four judicial departments.


The following simple examples will illustrate the difference between a mistake of fact and mistake of law.


Mistake of fact - During a child support hearing, both parents testify they have one child, but the court concludes they have two children but correctly applies the formula for two children.


Mistake of law - During a divorce trial, the plaintiff alleges irreconcilable differences as grounds, and the divorce is granted. As New York does not allow a divorce based on irreconcilable differences, the court made a mistake of law.


(b) Modification


A modification seeks a new order based on new circumstances that exist now but did not exist when the original order was made. It does not seek change an old order retroactively.


(c) Motion to vacate default or vacate a dismissal due to non appearance


If a party fails to appear for a trial or fails to oppose a motion and a default is issued, that default may be challenged. A default order may not be appealed pursuant to CPLR 5511. In order to challenge a default, the remedy is to make a motion pursuant to CPLR 5015(a) seeking the vacate the default. This motion consists of two elements, both of which must be met. (a) excusable default existed in missing the trial, and (b) there is a meritorious cause of action or defense. See Wade v Village of Whitehall 2007 NY Slip Op 10449 [46 AD3d 1302], Matter of Joosten v Joosten 2006 NY Slip Op 06858 [32 AD3d 1030]


There is no appeal from a default order under CPLR 5511. However, an order resulting from a motion to vacate a default judgment may be appealed as of right pursuant CPLR 5701(a)(3).


(d) Motion to reargue


A motion to reargue under CPLR 2221(d) is similar to an appeal in that both claim the trial court made a mistake. The difference is that a motion to reargue is made before the same judge who heard the case initially, while an appeal is made to a higher court. As would be expected, most motions to reargue are denied.


No appeal lies from a motion denying reargument. , but a motion granting reargument may be appealed. See CPLR 5701(a)(2)(viii). which provides "an appeal may be taken ... from an order ... made on notice and it  .... grants a motion for leave to reargue..."



(e) Motion to renew


A motion to renew under CPLR 2221(e) is similar to a motion to reargue in that the same judge who heard the initial case will decide this motion. A motion to renew requires two elements. (1) new facts not offered in the original motion and (2) reasonable justification why these facts were not presented. A change in the law will also constitute a basis for a motion to renew.


The failure to present new facts will result in the court treating the motion as a motion to reargue. The failure to offer a reason why the new facts were not presented initially will result in a denial of the motion to renew, as the failure to exercise due diligence in the initial motion is not sufficient for a motion to renew. See Elder v Elder 2005 NY Slip Op 06897 [21 AD3d 1055], Cioffi v S.M. Foods, Inc. 129 AD3d 888. "[T]he Supreme Court lacks discretion togrant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion'"


An order granting or denying renewal may be appealed pursuant to CPLR 5701(a)(2)(viii) which provides "an appeal may be taken ... from an order ... made on notice and it  .... determines a motion for leave to renew..."



(f) Vacating a consent agreement


To vacate a consent order, a motion seeking to vacate the agreement must be made before the agreement is reduced to a final judgment. In order to prevail, the party must show that the stipulation was arrived at by fraud, duress, undue influence, or some other extreme fact. See Christian v Christian. 42 N.Y.2d 63 (1977).


Once the agreement has been reduced to a judgment, the remedy is to bring a plenary action under a new index number which seeks to set aside the agreement, but does not disturb the judgment.


There is no appeal from a consent order. However, an order resulting from a motion to vacate a stipulation may be appealed, as can an order or judgment from a plenary action to set aside a stipulation.


(g) Resettling a judgment or order


Settling an order has nothing to do with reaching a settlement. Settling an order is the terminology used to describe the process under which a judge signs a proposed order. Most judgments are based on a written decision or a stipulation of settlement, either in writing or read into the record in open court. In these instances, the attorney for one side will prepare a proposed order for the judge to sign, giving the other side advance notice of this order. The judgment (or order) must mirror the court's decision or the stipulation between the parties. This process of giving notice is called settling an order on notice.


If an existing order has a ministerial mistake, such as an misspelled name, swapping the parties, or an arithmetic mistake, the proper remedy to submit a corrected judgment by means of resettlement (i.e. resigning). Sometimes resettlement is done by way of motion.


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The article "New York Court Orders and Judgments" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.


Copyright © 1998-2017 by J. Douglas Barics, attorney-at-law. All rights reserved.
J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.



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