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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2511
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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My ex is appealing the issues from our divorce and has extended

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My ex is appealing the issues from our divorce and has extended the appeal 5 times and is asking a 6th time. His reasons have been because a judge rescued herself, and one of the issues was not ruled upon yet and kept getting delayed. They say they need to know the ruling so they can either add or delete that as one of the issues that they will appeal.
I now want to file a motion to dismiss appeal but need the rules to back up my dismissal.
This is in Arizona Division One: 1CA-CV 09-0465
Chat Conversation Started
Steven Kincaid :

If you are asking that the appeal be dismissed simply because it has been delayed, you will probably not be successful. Appeals are notoriously lengthy and this is not a basis for dismissing the appeal (unless of course some deadlines are missed.)

Steven Kincaid :

The civil procedure rules on appeal are listed in this link. They are near the bottom, on the 5th line after Title 49. They are lengthy but those are all the rules for following the proper procedures for filing documents and setting hearings in appellate court in Arizona...

Steven Kincaid :

When you say "they need to know the ruling" are you saying that the appellate court has not received a copy of the court order that is being appealed?

Steven Kincaid :

Do you know on what legal basis you want to argue for dismissal of the appeal?

Steven Kincaid :

Let me know if that link works...

Steven Kincaid :

when I clicked on it, it did not so if there's a problem, I'll find another way to send you the link.

Steven Kincaid :

If the link doesn't work, cut and paste - that worked for me.

Customer :

No the court is not waiting for the ruling, the attorney (my ex) is waiting for the ruling in order to know if they will put it in their briefing. That is there reason to ask for the extensions.

Customer :

Do I have a legal basis to argue for a dismissal?

Steven Kincaid :

So did the lower court actually make the ruling? I can't understand why your ex does not have it? An appeal cannot be filed before a ruling is made and once it is made, he should have no problem getting it.

Steven Kincaid :

Well, if he is basing an appeal on a ruling that has not yet been made, that would be a basis for dismissal.

Steven Kincaid :

Is that what is happening?

Customer :

We just received the ruling last week but he is appealing several issues.

Steven Kincaid :

I see, so he may want to amend his appeal it seems. Was the ruling you received last week somehow connected to the other issues on appeal?

Steven Kincaid :

Or were they separate, distinct issues tried separately?

Customer :

No it is regarding rental property. The other issues are support, custody

Steven Kincaid :

Were the trials on the two issues done at the same time?

Customer :

yes

Steven Kincaid :

Do you know why the rulings were done separately?

Steven Kincaid :

That is odd (not impossible, but very rare.)

Customer :

and the judge did make a ruling on the property but he has been trying to fight it and has been denied.

Customer :

He put in a motion for reconsideration and a motion for ARFLP 85 relief from mistake and/or fraud but has now just been denied.

Steven Kincaid :

Well, based on what you've told me so far, I do not see any legal basis to dismiss the appeal. If the part of the ruling just came out last week, and it is the same ruling, he would have a right to amend his appeal to address the new ruling....

Customer :

The appellate judge did say the last extension that this will be the last extension

Customer :

I don't have the money for an appeals attorney. Can I do this on my own?

Steven Kincaid :

Sorry for the delay - give me one moment...

Customer :

of course

Steven Kincaid :

It is possible to do it on your own, but obviously more difficult than if you had a lawyer. At least on appeal, you know that the burden is on the appealing party to submit the moving documents to the court in a timely manner - you only need to respond (and sometimes may not even need to do that.) I do urge you to read the rules I sent you, even though they are voluminous.

Steven Kincaid :

I do not know your financial situation but have you tried the legal aid agency that serves your area?

Steven Kincaid :

I know some agencies will not take appeals unless the other party initiated it, and then they might be willing.

Customer :

I think you have to be dirt poor to qualify and I guess I'm not dirt poor just poor.

Steven Kincaid :

There may be bases to dismiss his appeal that could only be determined by reading his pleadings requesting the appeal.

Customer :

thank you so much!!!

Steven Kincaid :

I do not know Arizona's guidelines, but the federal funding permits them to go up to 200% of the poverty level. If you haven't already tried, it's worth calling them!

Customer :

I will do that. thank you

Steven Kincaid :

Good luck. If you don't plan on requesting a refund, I would appreciate if you could click the green ACCEPT button as I do not get credit for my work unless you do so. Thank you! Hope this information was helpful.

Customer :

yes I defiantly accept

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