Res Judicata

[Tiffany_Cassara]

Is there a legal equivalent to res judicata for a non-final order? And if so what is it? In my situation, a predecessor judge ruled definitively on his final day on the bench that my children were to remain in Florida. Two weeks after the new judge took his place my mother again filed the same motion to change placement to south carolina. There were no substantial changes, other than a new judge. The prior judge ruled twice that this placement was inappropriate.

 

[army judge]

Is there a legal equivalent to res judicata for a non-final order? And if so what is it? In my situation, a predecessor judge ruled definitively on his final day on the bench that my children were to remain in Florida. Two weeks after the new judge took his place my mother again filed the same motion to change placement to south carolina. There were no substantial changes, other than a new judge. The prior judge ruled twice that this placement was inappropriate.

Res judicata applies only to a previous action.

If a new action is brought, it can (and often does) overturn a previous ruling.

Your mother's new action before a different court, has nothing to do with the prior ruling.

Res jusicata as you appear to be using it, has no bearing on the instant matter at hand.

 

[Tiffany_Cassara]

My mother's action wasn't new....it was listed as a renewed motion for change of placement....she then withdrew the motion but the court heard the testimony for change anyway...the predecessor judge ruled 7/2, the new motion was filed 8/11

 

[army judge]

My mother's action wasn't new....it was listed as a renewed motion for change of placement....she then withdrew the motion but the court heard the testimony for change anyway...the predecessor judge ruled 7/2, the new motion was filed 8/11

Call it whatever you wish.
The other judge heard it.
If he ruled adversely to your interest, you'd have to assert it.
If you think res judicata applicable, you'd have to assert that defense.
The court won't do that for you.
The court will rule only what is before it.

 

[Tiffany_Cassara]

Call it whatever you wish.
The other judge heard it.
If he ruled adversely to your interest, you'd have to assert it.
If you think res judicata applicable, you'd have to assert that defense.
The court won't do that for you.
The court will rule only what is before it.

Okay here is the scenario...My mother motioned the court on May 15th to change placement of my children to south carolina. The motion was denied. She again motioned on July 2 and the court again denied. Both times he deemed the placement inappropriate. Then a new judge took the bench and she motioned a third time with no new allegations or substantial change. The new judge changed placement to south carolina. The matter is now up for appeal. I am just trying to find to correct legal term to put in my brief. Res Judicata is used primarily for final orders. This was the same cause, the same motion, the same parties...the three requirements for res judicata. I am trying to find out if res judicata or another term would be appropriate on a non-final order.

 

[jharris352]

There is likely a waiting period between filings for change of placement. I'm too tired to do it right now but see if custody placements are good for say 2-3 years and can not be challenged without a material change in circumstance. I think that is what you are referring to.

You did say it wasn't a final order though, so I'm probably wrong. If the order isn't final then it is subject to Motions of reconsideration, Motions to set aside, Motions for new trial, etc.

As for your Appeal, what is the standard of review? Did the new judge make different findings of fact or did he just make a different ruling.

 

[Proserpina]

The "why" may be important here....as in, what's the actual background here? Why does Mom have standing to have the children placed somewhere other than with the parent?

 

[army judge]

The "why" may be important here....as in, what's the actual background here? Why does Mom have standing to have the children placed somewhere other than with the parent?

The why may be important to the OP, but has no bearing when seeking appellate based on res judicata. That ship sailed, otherwise the grandmother's petition would never have been granted.

I'm sure there is more to the tale. There usually is.

In the instant matter at hand, however, the ruling might be subject to appellate relief. If it is, it won't be based on the principle of res judicata.

 

[Tiffany_Cassara]

There is likely a waiting period between filings for change of placement. I'm too tired to do it right now but see if custody placements are good for say 2-3 years and can not be challenged without a material change in circumstance. I think that is what you are referring to.

You did say it wasn't a final order though, so I'm probably wrong. If the order isn't final then it is subject to Motions of reconsideration, Motions to set aside, Motions for new trial, etc.

As for your Appeal, what is the standard of review? Did the new judge make different findings of fact or did he just make a different ruling.

The petition for appeal is a writ of certiorari....there were no different finding of facts, just a different ruling. The predecessor judge made specific findings of fact as to why the placement was inappropriate, the successor judge took judicial notice of the prior ruling and transcripts from the prior order. This was a non-final order after a final order.

 

[Tiffany_Cassara]

The "why" may be important here....as in, what's the actual background here? Why does Mom have standing to have the children placed somewhere other than with the parent?

That is another issue up for appeal...my mother was not a party in this case. Intervention was not applied for and therefore a determination for the neccessity thereof could not be ascertained. To my objection, the judge simply stated, I'm going to let her proceed.

All of this is in my brief.