An Overview of Basic Appellate Concepts Relating to Divorce and Family
Law Cases - Part 3
As discussed in
Part 2 of this appeal mini-series, there are two basic types of appeals from
divorce court and family law judgments and orders: Direct Appeals and
Writs of Appeal. Again, this blog is intended simply as a primer and to
paint the broad strokes. You are urged to consult with a California Certified
Appellate Specialist if you are really serious about filing one. This
is a highly complex area of the law and twists and turns and cul de sacs
operate under each different fact and procedural scenario, so one size
as discussed in this blog cannot be assumed to fit all. Please review
Part I to see whether there is anything you might attempt at the trial court
level first, like a
motion for reconsideration, or a motion for a new trial.
How Do I File a Direct Appeal?
A pleading document captioned as a "Notice of Appeal" must be
filed with the clerk of the court where the offending judgment or order
was rendered - the process does not begin by filing anything with the
appellate district having jurisdiction where your case was heard; and,
as the title implies, it must be served upon the other party to constitute
notice of your application. The Notice of Appeal need not identify what
the trial court did wrong; that comes later. Instead, it simply needs
to clearly identify the ruling or judgment that you are appealing from.
It is probably just one page. At the option of the appellant, one often
also includes with a Notice of Appeal a designation of the record, i.e.,
the pleadings, and reporter's transcripts, filed in the case that
you want to be part of what the appellate court reviews.
When Must I File a Notice of Appeal?
The timing of when a notice of appeal must be filed is governed by
California Rules of Court, Rule 8.104. Failure to file a timely notice of appeal is jurisdictional in the sense
that if you blow the deadline, your appeal is dead and cannot be revived
through any means. Once the time for filing a Notice of Appeal runs, the
trial court ruling is final, period. An untimely appeal must be dismissed.
Rule 8.104 identifies the following circumstances and related deadlines for filing
60 days after the party filing the appeal is served with, or serves, a
document that is entitled "Notice of Entry" of judgment or a
filed stamped document entitled "Judgment". In divorces, there
is a mandatory form called the Notice of Entry, which is
Judicial Council for FL-190, that must be filed and which is intended to clearly trigger the Notice
of Entry timing rules for appeal.
Experienced lawyers know that they can limit or possibly extend the time
for appeal adversely to the other party, or for their own benefit, in
order to control the other's timing options. Most often this is used as a shield for the winning party in the sense
that the sooner you get that Notice of Entry, or conformed a Judgment,
filed and served on the other party the less time the other side has to
act to perfect their Notice of Appeal.
Rule 8.104(a)(1)(B). A proof of service must be filed with the clerk's office.
- 60 days after the Court Clerk serves the same documents upon the parties,
or at least the party who intends to appeal. The clerk's proof of
service must be filed.
- 180 days after entry of the judgment, where no Notice of Entry of Judgment
or conformed Judgment is specially served upon the opposing party. This
is a common situation, and the one intimated in the first bullet point:
Serving the Notice of Entry radically shortens the time for filing a Notice
of Appeal, which also forces the other party to think seriously in short
order about whether they really want to appeal - which may include the
time it takes to get the money to hire an appellate lawyer, or meet with
them to review the record and possible grounds for appeal. If you won
at the trial court level, you always want to give Notice of Entry of Judgment.
- The 180 day rule begs the question of what the date of "entry"
consisted of. For instance, some counties have "Judgment Books"
where judgments and orders are registered. If so, registered enters the
Judgment. Otherwise the Judgment is entered when filed. What about Minute
Orders? A minute order that doesn't direct the (prevailing) party
to prepare a formal order, probably starts the 180 clock running from
the date of the Minute Order itself. If the Minute Order does direct a
party to prepare a formal order, then the time doesn't begin to run
until the party directed to do so, does so. This is another area where
party or lawyer decision-making can make a huge difference on the timing
and therefore the availability of appellate remedies.
How Do Reconsideration Motions or Motions For a New Trial or to Vacate
Judgment Affect Notice of Appeal Timing Rules?
So, what if you want to first try a
Motion for Reconsideration under
CCP section 1008; what impact does such a Motion have in the time for filing your Notice
of Appeal? The filing of a valid motion for reconsideration of an otherwise
appealable order extends the time to file the Notice of Appeal under the
earliest of the following:
- 30 days after the other party or the clerk serves an order denying the
reconsideration motion, or
- 90 days after filing the motion for reconsideration, or
- 180 days after entry of the appealable order.
See CA Rules of Court, Rule 8.108(e).
Again, if you file a Motion for Reconsideration you must look at these
rules carefully to not blow your time limits!
If you want to file a Motion for a New Trial, then you must look at Rule
8.108(b)(1). Likewise, for Motions to Vacate Judgmentl, review Rule 8.108(c).
What Does a Notice of Appeal Cost?
As a general matter, and in January, 2017, the filing fee cost to initiate
an appeal by Notice of Appeal is $775 and $100 to be applied to the preparation
of a clerk's transcript, or docket, of the case. A party responding
to an appeal must pay a first appearance fee of $390.
What Else Must I File to Get An Appeal Started?
You must file a designation of the record on appeal either as part of the
Notice of Appeal, or within 10 days after you file it. That designation
- the date the appeal was filed
- the form of the superior court documents the appellant has chosen including,
if a clerk's transcript has been requested, what documents you want
included in it
- whether or not, and how you want the record of the oral proceedings to
be in, i.e., by whether by reporter's transcript or by a settled or
agreed statement between the parties as to what the oral evidence was.
You will need to deposit payment for the estimated cost of the reporter's
transcript to be prepared
There are other documents that you may designate as to be included in the
appeal, like exhibits introduced into evidence or other documents lodged
with the Court.
As to the preparation and filing of appellate briefs, which include an
opening brief and the respondent's brief and possibility an appellant's
reply brief, the general rule is that the opening brief must be filed
and served 40 days after filing of the record on appeal - you will receive
notice from the appellate court when this is due.
What About When to File for an Extraordinary Writ?
If there is a particular statute governing writ review on your issues,
you must follow the time limits it sets forth. Otherwise, while there
is no hard and fast codified rule, the Writ must be filed within a reasonable
time that is generally considered to be 60 days after the entry of the
challenged decision - special circumstances can extend that time, depending
upon what they are.
My goal here is merely to introduce you to the concepts, because - truth
be told - we get so many visitors who are unhappy with the trial court
rulings and are researching what they can do about them and since this
is a subject we've not yet covered, I thought that a basic overview
would empower the readers of the The Enlightened Divorce Blog™,
which is the service that is our raison d'etre!
But, if you are happy with the what the trial court did, get your Notice
of Entry or you Judgment filed and served at once! It may become legal
malpractice not to have....
intimately speaking between just us, appeals are usually a bad thing. We
believe you should win at the trial court level, instead.
Maybe we can help you. But avoid an appeal, if you can.
Good luck out there!
Author: Thurman W. Arnold, III