Part II of the Divorce' Appeals Mini-Series! Which Orders and Judgments
Are Directly Appealable?
So your family court judge screwed up and got it wrong, eh? This is a not
uncommon perspective. The two areas of the law that most people will tangle
with over the course of their lives are divorce and/or family law matters
arising from their relationship disputes, and minor criminal infractions.
General non-corporate civil litigation centers around contract disputes,
or personal injury claims. And while few people ever need to step into
a court in criminal cases beyond the odd traffic ticket, almost everybody
(or so it seems) winds up in a family court, sooner or later. Ok - that
may be an overstatement, but there is the fact that you are reading this;
don't feel badly though, the odds were stacked against you. : -(
As I blah, blah, blah about all the time, the Family Court system is broken.
But this is not so much caused by crazy, biased, or uninformed judges
- it really is a consequence of the intersection of human emotion and
reactivity and the rules that govern the adversarial court system. Though
trial court judges do err, and they can become biased against individuals,
classes of people, genders, or perceived whiners (even as most try to
transcend conscious and unconscious prejudices), that is not in reality
what is driving the bus of your dissatisfaction. It is more about bad
decisions by matrimonial partners, and their consequences, and the arrogance
or naiveté with which you approached the family court process before
it all blew up in your face.
This is why the ounce of prevention that avoids a pound of cure is
getting it right at the trial court level in the first place by
interacting in a sophisticated way with your bench officer, to avoid butting heads, to competently present your case (which usually
requires that you know the procedural rules), how generally to behave
under the divorce court microscope, and how not to ring the bells that
motions for reconsideration, or appeals, are designed to possibly unring.
Anyway, please understand that this series is intended to give you general
insights into your situation, and doesn't constitute legal advice.
My goal is just to give you an overview, to introduce you to these concepts.
Appellate practice is an entirely complex and arcane specialty.
What Is a "Direct" Appeal and What Is An Appeal by Writ?
There are essentially two general types of appeal: Direct appeals and appeals
by Writ for Extraordinary Relief, which has its own sub-categories.
Think of the difference between the two as a direct appeal being made as
a matter of right on a non-emergency basis, assuming the existence of
one set of foundational requirements and procedural rules. This process
takes many months, or years. In contrast, a discretionary Writ of Appeal
may be reviewed at once (i.e., not over the course of many months), if
certain foundational conditions are found to exist and a separate set
of procedural rules are obeyed, and assuming that the appellate court
determines that you have no other adequate remedy at law, and further
assuming the appellate court agrees to hear the matter and render some
form of decision. Writs are an extraordinary remedy from a trial court
ruling, and are disfavored if there is some other less extraordinary route
that you could take to have your matter determined in due time. Any appellate
lawyer will tell you that they are a long-shot. In my 34 years as a family
law attorney, I have filed and won one family court Writ. It involved
a local judge who refused my efforts to disqualify him from hearing the
case. 29 out of 30 Writ applications probably fail. We can get you to
The appellate court must hear a direct appeal that meets the appealability
requirements. The appellate court can summarily deny a Writ application,
for reasons ranging from jurisdictional and procedural reasons to 'we
just aren't interested,' or 'you have other options to pursue
your appellate review that are adequate to your situation.' It can
also accept the case, at least initially, and so require the respondent
(i.e., the Superior Court), or the other party on the court's behalf,
to file briefs in opposition to the requested relief. Commonly this involves
an application for a Writ of Mandate directed to the trial court requiring
it enter a different result than your judge did.
Writ relief seeks emergency appellate attention and an expedited appeal
process, and can only be issued if you can establish that you have no
other adequate remedy by law - i.e., you don't have a direct appeal
or some other unusual circumstance, which effectively means that you will
otherwise get no meaningful remedy at all. For instance, if you have the
express right to take a direct appeal, then unless you can establish special
circumstances why that process would defeat the interests of justice,
you have no right to a Writ and it will be denied.
Of course, everyone feels their situation is an emergency and presents
special circumstances, including that it will cost more money to undertake
a direct appeal or that it will take so much time for a regular appeal
to be heard that your rights, or other's, will be prejudiced or defeated - 'cause you are in a hurry and this is YOUR life we are talking about.
Your view won't likely prevail thougl, sadly. Be realistic.
Writs are generally broken up into three categories: Writs of Prohibition,
which attempt to stop the trial court from exercising its perceived jurisdiction;
Writs of Mandate, which seek an order compel the trial court to exercise
some duty; and Writs of Certiorari, which are intended to review some
lower court action or decision.
Some issues do presumptively give rise to the right to make a claim for
extraordinary relief, and may at least meet the threshold criteria for
filing for an extraordinary Writ. These include:
- Temporary child custody orders
- Contempt appeals
- Procedural motions involving which court has jurisdiction of a matter,
or whether a case should be transferred or stayed
- Challenging orders relating to a court's refusal to disqualify itself
from hearing a pending matter
- Where matters of "first impression" is involved, and the matter
to be decided is of general importance to the trial courts generally or
the legal profession
- Denials of the right to discovery in family court litigation
- Discovery sanctions orders
Orders for bifurcation for instance dealing with dates of valuation different
from the general time-of-trial rule of
Family Code section 2552
These are a just a few examples where you might have a colorable claim
to Writ relief. However, this blog is intended merely to give you a flavor
for what we are talking about. Explaining these concepts in a way that
could be reliably applied to your situation would require a much more
detailed interaction by you with your legal appellate advisor.
If something is directly appealable, odds increase exponentially that it
is not appealable by Writ.
Writ applications are expensive - in fact, appeals are expensive (i.e.,
$30,000 or more), but at least with a Writ if it denied you are done with
that go-around, albeit you may appeal again later. With an appeal there
are usually settlement conferences, more briefs, and oral argument. Part
of my hope is to turn your attention back to winning at the trial court
level and, if you don't succeed there, to not otherwise blow yourself
up upon a failing endeavor. One of the subjects I love to blog are foolish
people who were so butt-hurt or defensive that
Divorce Trance forced them to file an appeal - which, typically when they lost at the
trial court level, they next lost at the appellate level. I am trying
to make you circumspect, and cautious by offering some level of information
that may give you pause, or inform you if you must plow ahead. But, I
don't want to discourage you either.
Don't I Have a Constitutional Right to Appeal?
While filing divorce cases, or sometimes stupid or extortionate lawsuits,
seems to be our God-Given and Constitutional Right in America, the right
to appeal is more circumscribed. Yes, you have a "right" to
appeal trial court decisions at some point in the process, but that doesn't
mean your appeal won't be denied or dismissed. Appeals in most States
are wholly governed by an intricate web of statutes, and appellate court
interpretations of statutes. Our governmental system of justice, and those
highly paid "Justices," simply cannot efficiently allow people
to generate an appellate complaint about every perceived trial court mis-step;
they would be overwhelmed by unhappy citizen complaints, and people would
spin about every decision they disagreed with, over and over. As a matter
of resource pragmatism, there has to be limitations and you must therefore
follow the rules, all of which originated in legislative enactments and
then have been interpreted by appellate decisions.
Here are some of the rules, but I have to over-simplify this subject and
avoid discussing peculiar intricacies in this Part II, because I want
to offer merely a basic comprehension of the principles involved first:
Only certain types of trial court or judgments are appealable. The types
that are must be authorized by a California statute. The starting point is
Code of Civil Procedure (CCP) section 904.1 and Cal. Rules of Court, rule 5.2. Section 904.1 expressly but generally
applies to divorce proceedings, actions for legal separations, and annulment actions.
- Just because you have a divorce, however, does not end the inquiry on whether
the particular ruling that has you in a fit itself is directly appealable.
It is hugely incorrect to assume that every ruling in a family matter
is appealable. Further analytical refining is first required.
Some types of orders are indeed expressly appealable, without more, at
once. Others are only appealable if the appeal is being taken from a "final
judgment," according to the language of
CCP section 904.1(a)(1). Whether there is the requisite finality is measured by answering this
question: Is any further litigation required by the court in order to
essentially render a final determination of the rights and duties of the
parties on the given subject matter (i.e., the overall subject matter)? [Olson v. Cory (1983) 35 Cal.3d 390, 399]. If the answer is 'yes,' and if the
right to appeal is not specifically named in section 904.1 or elsewhere,
then the resulting order is not likely appealable - at least not yet.
I think a valuable conversation is to begin by telling you what IS and
IS NOT directly appealable. Otherwise, you may get lost in definitional
weeds and cul de sacs.
What Can I Directly Appeal, For Sure?
Let's start with the easier stuff to answer. Here are orders that are
or are not directly appealable until related underlying matters are themselves
finally resolved, but the list is not exhaustive:
There is no immediate appeal from temporary custody orders, whether in
dissolution, paternity, or some other related proceeding, unless the involve
UCCJEA competing (interstate) forum issues. For that reason, Writs can lie for those other temporary custody orders,
but that is not an invitation from me that you file one.
- Orders for money at the temporary hearing stage, as in temporary spousal
support, temporary child support, and interim attorney fee orders. Directly
- Final judgments - the division of community property, for instance, or
support and/or attorney fee orders rendered at the conclusion of your
- Judgments issued in certain bifurcated proceedings, for instance marital
status termination proceedings. Appealable. However, there is no direct
appeal from other bifurcated issues, like the enforceability of a premarital
- Judgments in interim "temporary" stage rulings, where you can
convince the trial court to certify the matter for appeal. Good luck with
- Post-Judgment rulings - i.e., post-judgment modifications, to the extent
they are sufficiently final relative to that round of litigation. Appealable.
- Orders relating to procedural matters, like motions to quash a summons
or stay or dismiss and action. Appealable.
- Orders granting a new trial following a trial. Directly appealable.
- An order for sanctions against a non-party, i.e., their attorney. Appeal
- Orders with defective Statements of Decisions. Appealable.
Okay, this is as much as I can stand for this round - and I am sure that
you feel the same. Be sure to come back, as I think I will get some of
my family law appellate buddies to do some guest blogs. I know this subject
is important to you, and have decided what I will write about in Part
III of this series. And this subject is so dang interesting that I don't
want to blow the drama of what I will write about next.
Happy New Year and, as always, be safe out there with you and yours!
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Author: Thurman Arnold