If you have issues in your case that require an order sooner rather than later, filing a motion for temporary orders and having it heard by the judge may be the solution. While trial in a divorce case doesn’t ordinarily occur until the case has been going on for 12 to 15 months, you can get into court for temporary orders in the first few months. It typically makes the most sense to ask for temporary orders in cases with custody and support issues, when real estate must be sold, or when there’s a need for an order for one party to vacate the marital home. But, what to do if the judge rules incorrectly at the temporary order hearing?
Joe and Jane are divorcing. During the proceedings, the judge issued a couple of temporary orders with which the parties disagreed. Joe took exception to the probate judge’s temporary abuse prevention order against him. Likewise, Joe objected to the probate judge’s allowance of Jane’s motion that he vacate the marital home during their divorce proceedings.
Are temporary orders appealable before the final judgment of divorce?
Both the Appeals Court and Supreme Judicial Court may review orders by the Probate and Family Court. The appellate process is costly, complex and time-consuming, so alternatives such as asking the probate judge to reconsider an order or seeking a modification of an order should be initial considerations.
A spouse aggrieved by a probate court order may appeal the order to the Appeals Court or SJC within 30 days of its entry.[1] Interim or temporary decisions by a probate court judge are called “interlocutory orders” and do not constitute a final resolution of the parties’ divorce proceedings. Under Massachusetts law, a party aggrieved by an interlocutory order of a probate court judge may seek relief from the order within 30 days of its entry before a single justice of the appellate court.[2] Further appeal of a single justice’s ruling may be sought before the full Appeals Court or the Supreme Judicial Court.
Because interlocutory orders can be modified during the pendency of a divorce case, appellate courts are hesitant to hear reviews of such orders. Motions for temporary support, orders to vacate the marital home and discovery-related rulings, consequently, are usually viewed as unappealable until a final judgment of divorce issues. Limiting appeals of temporary orders is justified, the Supreme Judicial Court has held; it prevents a party from ongoing disruption of proceedings through appellate review of issues that prove unimportant in the long-run.[3] Interlocutory judgments not appealed from are open to revision on appeals from final judgments only if the Appeals Court of Supreme Judicial Court deem the final judgments were erroneously affected by the interim decrees.[4]
Interlocutory order appeals:
A party requesting an appellate court to review an interlocutory order must demonstrate that the consequences of applying the order would be harmful and could not be remedied when the proceedings are over or through a regular appeal.[5] This is referred to as the present execution doctrine.
Appellate courts hearing interlocutory order appeals do so without the benefit of the record of lower court proceedings. Thus, the appellant petitioning for review must provide:
- a request for review giving the date and nature of the order;
- a statement of issues;
- a statement of relief requested; and
- a copy of the order at issue.
Additionally, the petition to a single justice requires a maximum 15-page memorandum of law; this must include portions of the records pinpointing the issues the petitioner wants the justice to review.
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[1] M.G.L. c.215, §9.
[2] M.G.L. c. 231, §118.
[3] Borman v. Borman, 378 Mass. 775, 779 (1979).
[4] M.G.L. c.215, §14.
[5] Maddocks v. Ricker, 403 Mass. 592, 598 (1988); Metzler v. Lanoue, 62 Mas. App. Ct. 655 (2004).