Inadequate Findings in a Factor Case = Remand
August 21, 2013 § 3 Comments
Most lawyers, when they are through with a case, don’t want to revisit it. That’s what makes a remand so detestable. Those do-overs are a pain.
The most sure-fire way to get a do-over is for the trial judge not to address the factors in a factor case. For those of you who have not been paying attention, certain kinds of cases require that the chancellor consider certain factors in making an adjudication. I have called it Trial by Checklist. When the chancellor does not tick off the items on the checklist, remand is practically automatic.
The latest example is the COA’s August 13, 2013, decision in Pelton v. Pelton, in which the chancellor did not: classify the assets as marital or non-marital; do an analysis of the Ferguson factors in making equitable distribution; or apply the Armstrong factors for alimony. Result is a do-over.
If you wind up with an adjudication in which you feel that the chancellor did not address the applicable factors, or where you feel that they were not adequately addressed, here are several suggestions to remedy the situation:
- File a timely R59 motion asking the court to make specific findings on the applicable factors. In Pelton, the parties did file post-trial motions, but the COA decision does not spell out what the parties were asking the court to do.
- If you are concerned that you did not make a good enough record for the judge to make findings on the proper factors, ask the court to reopen the proof to allow you to make a record. That would be a R59 motion, which must be filed within 10 days of the judgment.
- You can also in a R59 motion offer to do proposed findings of fact and conclusions of law.