What To Know About Appeals in Divorce and Family Law Cases! Part I: Get It Mostly Right in the Trial Court!

What Are the Basic Rules Governing Appeals in Family Law Cases - An Overview

The EnlightenedDivorce Blog™ has been in existence since 2008. Over the course of that time, one of the things I've noted is how often people get here by googling appeals within the family law and divorce court experience. Similarly, we get thousands of visits about reconsideration motions, or how to deal with difficult family court judges, or about the 80-20 principle as it pertains to persuasive family law presentations. You as legal consumers are sending a message - so many are disappointed by the rulings they get in court, and about the whole adversarial court sponsered land of intimate relationship-endia.

Which is why I've written so much about mediation and avoiding reactivity and divorce trance. Legal consumers have the right to expect the system to provide them a menu of better choices, and yet there is something about the angst of relationship breakup that makes us all crazy. And, there is no way to control the other person even if you've got a proactive side, besides not poking at them. So, sadly, many people end up being forced to let a government employee make their life decisions - and those for their children. (Those government employees surely would rather be doing something else). But that is not what today's Family Law Blog is about; instead, I want to educate you about your appellate remedies involved in family law matters, in a series of articles. This is the start - the overview. Divorce court appeals are a complex and highly technical topic.

Which effort is a good reason, is it not, to Like our Blog pages?

Basic Concepts for Appealing Family Court Judge Decisions

The first thing to know is that you never, ever, want to need to file an Appeal. You want to win at the trial court level. If you read our pages regularly, you may have avoided mis-steps because we've given so many tips (in fact, you can Google "Thurman Arnold" and "Tips" plus the other keywords for your situation (custody, set-asides, fiduciary duties, etc.), and you might find our articles quickly (also, try our on-board search engine at the top right of every page, visit our FAQs page, our Resources Page, and our Family Statutes Page as there are commentaries and links back and forth on many of them - thousands of them that will land you just where the Universe wants you to be). Chances are though, you only found us after something shifted terribly in your life and a bell has been rung, and now you are ready to address it or level the playing field and so now need to figure out what to do next to get out of this mess!

To the extent you have the energy and ability to change course or correct what hasn't worked well for you in your property division, spousal support, fiduciary duties, attorney fees, or child custody cases and more, this begins an explanation of what you might do about it. The rules for filing an appeal vary very much depending on where you are in the proceedings and the type of order or judgment that offends you. Which is why I will attempt this in tranches, and not trenchers (but you could grab a coffee and settle in with a meal if you choose).

Who Are the Trial Court Judges I May Be Faced With?

All family law matters are initially determined at the trial court level. Your matter will either have been decided by a) a Superior Court judge who was appointed by the governor and then maybe voted back in (or who might be retired but who is called in to assist a county Court); b) a Family Court Commissioner who was hired by the judges of the local county courts; or c) a private attorney such as myself who serves as a temporary judge, or Judge Pro Tem, when the regular bench officers need a hand because - God forbid, they deserve a vacation, or better yet are off at Judicial College.

(While I owe you an article about the advisability of stipulating to let a Judge Pro Tem decide your case, my opinion is that sometimes they may be a better choice then a very newly minted judge who possibly doesn't yet know much about family law; i.e., former DA's and PD's. You are way more likely to bump into a temporary judge on the local court's law and motion calendar, as opposed to a trial calender because Judge Pro Tems are working for free, and generally need to return to their offices if they have a steady practice).

A trial court judge will make a ruling based upon the menu of issues that a moving party raises at the time they file a Request for Order (RFO) application. Because actual trials where all the issues need to be adjudicated are comparatively rare, most experience people have with family court judges is at the pendente lite stage, where temporary pre-judgment orders are issued. That is, in most counties, the cattle call calender where judges have 30 cases and all of 10 minutes to read everything you and your opponent has filed, and then 15 minutes to listen to your ravings before turning to the next couple's.

Liken it to this: As you bounce around the Internet, you find a site that interests you - hah, maybe like this one. But you stroll and scroll down the screen rapidly, because generally there is so much crap to read (not to mention pop-out ads) and you only want to know that which you find important (relevant) to your inquiry. You don't have the time to be led in circles or into cul de sacs, neh?

So too, the bench officer hearing matters involving requests for temporary orders only has so much time to discern what they need to know in order to make a reasoned decision and, well, to do justice for (or to) you.

And so, they make their calls about who to believe, and who to blame, and they move onto the next case and the other eager litigants that are entitled, equally with you, to someone imposing order upon their lives. These calls are often based reason, upon intuition, upon unrecognized biases, and whether they need to get off the bench to pee before their Depends are wettenend. Who knows? They are just like you, though it may be the "you" that will surface in 30 years. Read my article about Dealing With Family Court Judges. It will give you more pointers about family court in your short read than you are likely to find anywhere else (and its better to listening to grandma's suggestions - though I could be a grandpa by now).

Okay, if you haven't already changed the channel here's some information about appeals.

To Have a Successful Appeal, Do It Right in the Trial Court

What you really to understand first is that you have no chance of a successful appeal if you don't cross the T's and dot the I's at the trial court level. This requires a number of important points, many of which are procedural: 1) You need to understand the Art of the Objection so that evidence comes in that you fail to exclude and so essentially consent to the Court relying upon it; 2) You need to ensure that you have an adequate record of the proceedings, as in a court reporter and a transcript that you can obtain since how can an appellate court review the record, short of the parties to appeal reaching some sort of agreed statement of what the issues or evidence was down below, without a transcript?; 3) Request a Statement of Decision before your Judge rules on your matter. We have sample forms to use as a starting point; 4) You need to try in every way, before you appeal, the see if you can get the judge to change his or her mind, as with motions for reconsideration or 473 requests to undo your mistake, motions for a new trial, and the like; and 5) Try in a realistic way to settle the dispute and examine your motives about your argument with that Judge - are you just being spoiled or trancey, and you will lose anyway? Just sayin' - not saying this is you. I regularly share recent appellate court decisions that make you wonder, what was the appealing party thinking? Here's a recent appellate decision hoot that shows the perils of filing an appeal where you, or your client, has lost all reason!

Because you will click outta here if this Blog gets much longer, that is it for tonight's homework for you - read the links I've provided in this Blog, try our upper right-hand search engine on the key words that you care about, read other legal sites as well, and then come back for Part II of what is going to have to be a mini-series! The education that you seek is technical, and if you are committed to achieving your family law related interests and concerns, don't cry if you won't do the heavy lifting as best you can.

BTW, please don't call us about your appeal but you can comment to these Blogs: We don't do appeals. We would only refer you to an expert Appellate Lawyer who is a Certified Appellate Specialist, and I know a few appellate experts whose names I am going to publish soon. 'Cause, I don't want to get sued for malpractice, plus I prefer to duke it out at the trial court level if I must when the other side is so dense or butt-hurt that we cannot be reasonable together.

To Learn About Family Court Orders That Are Directly Appealable, Read Part 2!

To Learn the Basic Timing Rules for Filing Appeals and Extraordinary Writs, Read Part III!

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Author: Thurman W. Arnold III, CFLS, AAML