Can I Appeal?

By Jill A. Duffy

Attorney, Cordell & Cordell

Domestic cases, such as divorce, child custody and child support cases, are appealable in the same way that other civil cases can be appealed. You do not have the right to appeal just because the judge did not rule in your favor.

The purpose of the appellate system is to hold the trial court in-check and correct any mistakes that are made at the trial court level.

Each state will have its own rules and deadlines for filing an appeal. Those seeking to file an appeal should consult with an attorney in their state.

You can appeal a decision by a trial court judge on the grounds that the judge misapplied the law, applied the wrong law, abused his/her discretion, made an error in a finding of fact, or made another error that had a detrimental effect on the outcome of the case.

The appellate court does not have broad discretion to overturn a trial courts decision. Trial courts are given deference, and their decisions can only be revisited if, after applying the correct standard of review, the appellate court finds that an error was made, and that the error had a harmful effect on the case. There are three standards of review used in appellate courts.

  • Arbitrary and capricious standard (often called an abuse of discretion): This standard allows the trial court decision to stand unless the appellate court believes the previous ruling is invalid because it was made on unreasonable grounds or without any proper consideration of circumstances. For example, if the judge is feeling wacky and awards custody to the mother because she is wearing a purple shirt in court.
  • Clearly erroneous standard (often called a plain error): This standard is used where a trial court makes a finding of fact. The finding of fact will not be reversed unless the lower court has made a decision that has its basis in a plainly erroneous understanding of the facts.  For example, if the judge determines that the father abused the children and should not have custody, even though there was not testimony to support this finding.
  • De novo standard (often called legal error): This standard is used when the trial court made a decision about the law, which law to apply, or how the law applied to the case. The trial court’s decision on the law will be reviewed “de novo,” or “from the beginning.” The appellate court will look at the question of law all over again to determine if the trial court was in error. For example, if the judge made a ruling based on a case that had recently been overturned and was no longer the law of the state.

The decision to appeal needs to be made immediately and pursued aggressively. Most states give parties a small window of opportunity to appeal a trial court’s decision (usually 30 days or less). In Michigan where I practice, a claim of appeal must be filed within 21 days of the judge’s order.

Not all decisions can be appealed. Because each state varies with regard to which decisions can be appealed, those seeking to appeal should consult an attorney in their state immediately. The right to appeal a final order or decision on an issue in a case is nearly universal throughout the states.

The information in the article is general in nature. If you believe an error was made in your case you should consult an attorney in your state for more specific information. Cordell & Cordell has attorneys located nationwide and would be happy to be of assistance to you.


Jill A. Duffy is an Associate Attorney in the Troy, Mich., office of Cordell & Cordell. She is licensed to practice in the state of Michigan. Ms. Duffy received her BA in Psychology and Spanish and graduated Magna Cum Laude from Oakland University. She received her Juris Doctor from Michigan State University College of Law and graduated Magna Cum Laude. 

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