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PERSISTENCE IN UNUSUAL DIVORCE APPEAL PAYS OFF |
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Jim McNally recently won an appeal with an unusual set of facts. Attorney Larry Warren of Sommers Schwartz, P.C., represented a wife in a divorce. After a four-day trial – but before the judge could issue a decision – the trial judge passed away. Another judge volunteered to review the transcripts and evidence, and render a decision. When the decision was rendered, it was grossly lopsided in favor of the husband and did not seem to take into consideration much of the testimony in the wife’s favor. James N. McNally filed an appeal at the Michigan Court of Appeals. When gathering the necessary documents for an appeal, he noticed that the transcript containing the bulk of the wife’s testimony was not in the court’s file. He contacted all the court reporters in the case, and walked through the court clerk’s office reviewing all associated files, in an effort to locate the missing transcripts. From all appearances, those transcripts had never been prepared, the court reporter’s notes were lost, and there was no way the judge could have relied on them when deciding the case. McNally argued that the second judge could not have based her decision on the testimony, and that the decision was therefore flawed. The Court of Appeals decided that the case had been improperly transferred to the second judge without the parties’ consent, and that the wife had been legally harmed by the transfer of the case. The Court of Appeals reversed the judgment against the wife, and sent the case back to the circuit court for a new trial. [Martin v Martin, unpublished opinion of Michigan Court of Appeals, docket #257893, decided Jan. 24, 2006] |
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JAMES N. McNALLY Attorney at Law Specializing in Appeals Civil –
Criminal – State – Federal – Workers Comp P.O. Box 13 St. Clair Shores, Michigan 48080-0013 (313) 378-6060 |
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