Also known as: requests for leave to modify a motion · request to modify a motion · leave to modify motion · motion to modify · leave to amend motion
Written by attorneys — see sources below.
A request by which a party seeks court permission to file a motion to modify an existing decree when a statutory waiting period would otherwise bar the filing. Under the Uniform Marriage and Divorce Act, a motion to modify a custody decree ordinarily may not be made earlier than two years after its date unless the court permits it upon affidavits showing serious endangerment to the child.
Renee Rogers moved in family court to alter a proposed custody schedule. After the two-year bar applied, Rogers realized the language failed to address holiday rotations. She therefore made a request for leave to modify a motion to insert the missing dates. The court granted permission on affidavits and the revised schedule was considered.
Ravi Reddy offered a motion seeking to narrow an injunction against algorithmic demotion. After the two-year bar applied, Reddy noticed the wording omitted a key metric. He requested leave to modify a motion to add the missing definition. The court allowed the change on supporting affidavits and the clarified version was adopted.
In 1965, Congress enacted Title I of the Elementary and Secondary Education Act to provide remedial education services to disadvantaged children. The Board of Education of the City of New York first applied for Title I funds in 1966 and initially arranged to transport eligible private school students to public schools for after-school instruction. When that approach proved unsuccessful due to poor attendance and safety concerns, the Board implemented an on-site program in 1978 that sent public school teachers into parochial schools during regular school hours. In 1978, respondents, who are parents of parochial school children and federal taxpayers, sued the Board in the District Court for the Eastern District of New York challenging the on-site program as violating the Establishment Clause. The District Court enjoined the on-site services in 1981, and the Court of Appeals for the Second Circuit affirmed the following year. While the appeal was pending, the Board developed an off-premises program that required transporting students to neutral sites at an estimated additional cost of $6 million per year. In 1983, the parties entered into a consent decree requiring the Board to provide Title I services off the premises of sectarian schools and to establish a monitoring system. Following the Supreme Court's 1985 decision in Aguilar v. Felton, which invalidated a similar program, the parties entered a second consent decree that required the Board to pay for the additional costs of the off-premises program. The Board complied with both decrees, spending over $100 million on computer-aided instruction, leased sites, and transportation between the 1986-1987 and 1993-1994 school years. In 1995, the Board and a group of parents of parochial school students moved in the District Court for relief from the consent decrees under Federal Rule of Civil Procedure 60(b)(5), citing subsequent decisions including Zobrest v. Catalina Foothills School District and Witters v. Washington Department of Services for the Blind. The District Court denied the motion, concluding that Aguilar remained good law and that no significant change in factual conditions had been shown. The Court of Appeals affirmed, and the Supreme Court granted certiorari in 1997.
View caseRajesh Rao proposed a motion to extend an expert deadline in a contract dispute. After the two-year bar applied, Rao discovered an overlooked viral revenue spike. He made a request for leave to modify a motion to include the new damages calculation. The court granted permission and the updated timeline was approved.
Joseph A. Richardson and Ida Richardson divorced in December 1997. They executed a separation agreement providing that Joseph would pay Ida maintenance of $2,425.00 per month, terminating upon Ida’s remarriage or the death of either party. The agreement stated that its terms would not be subject to modification or change, regardless of the relative circumstances of the parties. The trial court incorporated the agreement into the Judgment and Decree of Dissolution and stated that maintenance was non-modifiable. In 2004 Joseph filed a motion to modify the judgment. In Count II he alleged that Ida sought out persons to burglarize his home, sought out persons to murder him, and attempted to hire a person to murder him. He further alleged that these acts breached the separation agreement, violated public policy, committed criminal acts, and waived any claim to maintenance. The trial court dismissed Count II with prejudice for failure to state a claim upon which relief can be granted. The dismissal order was certified as a final judgment and order under Rule 74.01(b). Joseph appealed the dismissal. The Eastern District Court of Appeals transferred the matter to the Supreme Court of Missouri.
View caseRiley Rivera moved to add testing days to a products liability schedule. After the two-year bar applied, Rivera saw that the logs required further review. Rivera requested leave to modify a motion to specify the exact testing window. The court permitted the revision and the adjusted order was passed.
Sharon Brown and Sheldon Brown married in 1984 and had one child, who is still a minor. They were divorced in 1987, and Sheldon was required to pay 17% of his gross income for child support pursuant to the general percentage standards in § HSS 80. Sheldon remarried and has three minor children from his second marriage. His second marriage is still intact. Sheldon brought a motion under sec. 767.32, Stats., to modify his child support due to the fact that he has minor children in his second family. He requested that the court utilize § HSS 80.04(1), the "serial family payer" provisions of the percentage standards in resetting his child support obligation for his first child. The family court commissioner determined that the "serial family payer" provisions did not apply and refused to modify the existing support order. Sheldon appealed to the circuit court, which ruled that the "serial family payer" provisions applied to Sheldon. It therefore reduced his child support obligation from 17% to 12.1%. Sharon appeals that order.
View caseRebecca Ross offered a motion to limit document categories in a subpoena. After the two-year bar applied, Ross realized the language still swept in privileged files. She requested leave to modify a motion to carve out attorney-client materials. The court granted permission and the narrowed command was adopted.
Petitioners Alderman and Alderisio, along with Ruby Kolod (now deceased), were convicted in federal court of conspiring to transmit murderous threats in interstate commerce under 18 U.S.C. §§ 371 and 875(c). Their convictions were affirmed by the Tenth Circuit in 1967, and the Supreme Court initially denied certiorari. After denial, the petitioners alleged in a rehearing petition that Alderisio's Chicago business premises had been subjected to government electronic surveillance. The government responded by acknowledging that Alderisio's conversations had been overheard through unlawful eavesdropping. Petitioners Ivanov and Butenko were convicted in separate proceedings of conspiring to transmit national defense information to the Soviet Union under 18 U.S.C. §§ 794(a) and (c) and related charges under 18 U.S.C. § 951. The Third Circuit affirmed most convictions. Following the Alderman rehearing developments, certiorari was granted in Ivanov and Butenko on parallel questions concerning surveillance. After the convictions were affirmed and while the cases were pending, it was revealed that the United States had engaged in electronic surveillance that might have violated Fourth Amendment rights and tainted the convictions. The Supreme Court vacated the judgments and remanded each case to the District Court for adjudication of whether any government evidence supporting the convictions was the product of illegal surveillance. The government moved for modification of the remand order, proposing that surveillance records first undergo in camera inspection by the trial judge, who would disclose to petitioners and counsel only those materials found arguably relevant to the prosecution. Petitioners opposed the in camera procedure and sought full disclosure of all surveillance records to which they claimed standing. The government maintained that none of the overheard conversations were arguably relevant to the prosecutions and that disclosure of irrelevant conversations would endanger third parties or national security. The Supreme Court restored the cases for reargument specifically on the disclosure issue and the question of standing to object to the fruits of illegal surveillance.
View caseRoberto Reyes moved to restrict guest privileges at a private club. After the two-year bar applied, Reyes noticed the text failed to address reciprocal visits. He made a request for leave to modify a motion to insert the reciprocity clause. The court allowed the change and the revised policy was approved.
Appellee Irvis, a Negro, was refused service by appellant Moose Lodge No. 107. The lodge is a local branch of the national fraternal organization located in Harrisburg, Pennsylvania. A Caucasian member in good standing brought plaintiff Irvis to the Lodge's dining room and bar as his guest. The member requested service of food and beverages. The Lodge through its employees refused service to plaintiff solely because he is a Negro. Irvis then brought this action under 42 U.S.C. § 1983 for injunctive relief. He filed the suit in the United States District Court for the Middle District of Pennsylvania. Irvis named both Moose Lodge and the Pennsylvania Liquor Authority as defendants. He sought an order that would require the liquor board to revoke the license so long as discriminatory practices continued. Irvis sought no damages. The District Court found that each local Moose Lodge is bound by the constitution and general bylaws of the Supreme Lodge. Those bylaws contain a provision limiting membership to white male Caucasians. The lodges maintain a policy and practice of restricting membership to the Caucasian race. They permit members to bring only Caucasian guests on lodge premises, particularly to the dining room and bar. A three-judge district court upheld his contention on the merits. It entered a decree declaring invalid the liquor license issued to Moose Lodge as long as it follows a policy of racial discrimination in its membership or operating policies or practices. Following its loss on the merits, Moose Lodge moved to modify the final decree by limiting its effect to discriminatory policies with respect to the service of guests. Appellee opposed the proposed modification, and the court denied the motion. Moose Lodge alone appealed from the decree. The Supreme Court postponed decision as to jurisdiction until the hearing on the merits. The Pennsylvania Liquor Control Board regulations require every club licensee to adhere to all of the provisions of its Constitution and By-Laws. Since the lower court decision, the bylaws of the Supreme Lodge have been altered to make applicable to guests the same sort of racial restrictions as are presently applicable to members. In Harrisburg, where Moose Lodge No. 107 is located, the quota for club licenses has been full for many years, and no more club licenses may be issued.
View caseA party may seek court permission to modify a custody decree motion only upon a showing by affidavit that the child's present environment may seriously endanger physical, mental, moral, or emotional health. The request for leave must be granted before the motion can proceed within the two-year period.
A request for leave addresses statutory time bars on custody modification motions and requires court approval based on endangerment affidavits. No friendly-amendment procedure exists under the cited statute.
If leave is denied, the motion to modify the custody decree may not be filed until the two-year period expires. The party may still submit affidavits in a later attempt or pursue other available remedies.
…practice, the sole question legitimately presented on appeal of the District Court's decision denying petitioners' Rule 60(b)(5) motion to modify the Aguilar injunction would be: Did the District Court abuse its discretion when it concluded that neither the facts nor the law had so changed as to warrant alteration of the…