Husband Who Lost Lion’s Share of Assets in Divorce Misses Deadline for Appeal by One DayPosted: April 15, 2013
Talk about being a day late and a dollar short! In Michael Farren’s 2010 divorce, the trial court found that Mr. Farren had destroyed his substantial earning capacity by physically attacking his wife and ordered that 75% of the marital assets be awarded to her.
Unhappy with the outcome, Mr. Farren filed a post judgment motion with the trial court on the 20th day after judgment –just under the wire to preserve his right to appeal the decision. But there was a problem. After initially stamping the motion “FILED”, the clerk noticed that Mr. Farren had forgotten to pay the required filing fee for a post judgment motion and faxed the motion back to him. Mr Farren paid the fee and re-filed the motion the following day but the trial court refused to hear the motion because of the late filing.
After an appeals process that has taken almost three years, the Connecticut Appellate Court in a decision released this morning denied his appeal, agreeing with the trail court that one day late is still late.
That wasn’t the only fatal mistake Mr. Farren made regarding the rules of procedure. The rules required that he file a memorandum of law together with his motion. He hadn’t. Ms. Farren moved to dismiss the motion and won. Mr. Farren argued that because he had corrected the oversight by filing a memorandum after the fact, no harm had been done. The trial court was not persuaded. Again, the Appellate Court agreed with the trial court that rules are rules and strict enforcement of them can never be error.
It is not possible to tell from the decision whether Mr. Farren was representing himself at trial. He appeared pro se in Appellate court but was joined by counsel on the brief. In a way it doesn’t matter whether the deadlines were missed by a pro se individual or by his lawyer. The result was the same.
Mr. Farren may never have been able to alter the division of assets in his divorce case had be been allowed to bring his appeal on the merits, but he didn’t get the chance. This was an appeal restricted to issues of procedure.
The role of the Appellate Court in situations like this is not to substitute its judgment for that of the trial judge, but just to determine whether the trial judge committed clear error or an abuse of his or her considerable discretion. In this case, all the trial judge had done was enforce the rules of court.
Lawyers often speak among themselves about the difference between deadlines and “drop-deadlines.” In this case, at least for Mr. Farren, failing to file his post-judgment motion within the 20 day appeal period was a drop-deadline — a lesson that took three years to hit home. Appeals are long, arduous, and costly and in the case of family law, not often successful.
In this era of increasing pro se litigation, it is important to understand that courts are not necessarily willing to bend the rules depending on the experience or lack thereof of those who appear before them.