Part II of the Divorce' Appeals Mini-Series! Which Orders and Judgments Are Directly Appealable?

Prologue

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.

Just sayin'.

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 a specialist.

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 appealable.
• Final judgments - the division of community property, for instance, or support and/or attorney fee orders rendered at the conclusion of your case. Appealable.
• 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 agreement.
• Judgments in interim "temporary" stage rulings, where you can convince the trial court to certify the matter for appeal. Good luck with that. Appealable.
• 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 that Mofo!
• 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