The first option to consider in challenging a trial judge’s ruling is whether to file a motion seeking to have the judge reconsider the ruling and grant a new trial. Reasons that a judge might throw out his or her decision include:
lack of evidence to support the decision;
misapplication of the law to the facts of the case; or
vitally important new evidence has arisen that could not have been discovered before the trial.
Another option to challenge an undesirable result in a trial court is to appeal the decision to a court of appeals. Changing a trial judge’s ruling on appeal can be difficult, because trial judges are afforded “judicial discretion,” which means that the appellate court refuses to reverse a trial judge’s decision unless it can be shown that the judge abused his or her discretion.
With either of these options, time is of the essence. Usually, the decision to challenge a trial judge’s decision must be made within 30 days of date the judge signs the order containing his/her decision.
A party can also seek to change a court order or settlement agreement dividing property based on fraud or duress. Sometimes, the time period for seeking to change the property division based on fraud or duress is longer than the time period for seeking a new trial or appeal.
Some issues in a divorce remain subject to modification even after the judge’s decision has become final. Issues such as conservatorship, possession of or access to children, child support, or maintenance can be modified if it is shown that there has been a change of circumstances since the last order was entered and the modification is in the best interest of the child. To modify a conservatorship order within one year of the previous order, a party must show some danger to the child’s physical health or emotional development.
Michelle May O’Neil, president of O’Neil Attorneys and a Certified Family Law Specialist by the Texas Board of Legal Specialization, is nationally recognized as a leader in family law. She focuses on child-custody disputes, complex marital-property litigation, and family-law appeals. May also acts as a mediator for other attorneys in resolving family-law disputes.