By Jennifer M. Paine
You may be unsatisfied with your trial judge’s ruling. You may have a right to appeal your divorce case. But should you?
It is easy to say “yes” when you are in the immediate afterglow of litigation and facing an unfavorable ruling. Many jurisdictions make it even easier by giving you an “automatic right” to appeal certain rulings, meaning you do not have to obtain permission for the appeal.
And, many of those jurisdictions require only a one-paragraph form and a filing fee – filed online no less. Within minutes, with a few clicks of the mouse and a single charge to your credit card, you could be appealing your case.
But wait! Having a right to appeal your divorce case does not necessarily mean you should, and acting on initial reactions to a trial judge’s ruling could leave you worse off and heavily indebted to attorneys. Sometimes, it is better to accept a ruling and move forward.
Before you decide, consider these 10 questions:
1. How long do I have to decide if I should appeal?
This is the most important immediate question. Depending on the type of ruling, you could have as little as seven days, or less, to file your appeal or as much as 30 days, or more.
In many jurisdictions, if you miss your filing deadline, you are precluded from filing your appeal late. Some jurisdictions allow you to request permission to file your appeal late, but only after paying a fee and showing a really, really, really good reason for not filing in time.
Just needing more time to think about it is not enough. Not knowing the deadline is not enough, either. Be on time, or you could lose your right to appeal altogether.
2. How much does a divorce appeal cost?
Divorce appeals can be expensive. The initial filing fee is usually a few hundred dollars.
However, although you are not paying for depositions, witnesses, and expert valuations, as the appealing party you will be responsible for the record on appeal. This includes copies of all pleadings, motions, briefs, written opinions and exhibits.
This also includes transcripts of the pertinent hearings (perhaps all!). If your trial court video-records, then you could also be responsible for copies of videos for the pertinent hearings.
Add to this attorney fees and the potential for the appellate court to award the non-appealing party attorney fees and costs if you lose, and the cost for an appeal can far exceed the cost of a trial.
Prepare a draft budget with your attorney (and if your attorney does not know how much things cost on appeal, consider retaining an attorney who does appeal work!) so that you can determine whether you can afford the appeal process.
3. What do we need to file? And at what stages?
The family law appeal process in many jurisdictions starts with filing a form called a “notice of appeal.” In others, you will be required to file the notice and a summary of your argument.
At some point, your attorney will also file, or ensure the trial court has filed, the record on appeal. Your divorce attorney will probably also have to notify the appellate court of any changes in the laws that affect your case.
Your ex will probably respond to your appeal, and you may have an opportunity to reply. All of these cost money, and so they should be in your budget.
4. What are my legal arguments for appeal?
Sit down with your divorce lawyer and review your trial judge’s ruling in detail. Identify all legal errors (applying standards, reciting old law, relying on a case opinion that was overturned, etc.), factual errors (the judge said your wife did the driving to school, but the testimony shows you did), and evidentiary errors (a document was excluded because it contained hearsay, when it really contained an admission).
Ask your attorney to explain why each error is an error and what “standard of review” applies to it. If your attorney does not know – run! – consider retaining an attorney who is experienced with family law appeals.
It is important to know the standard of review, that is, the amount of deference the appellate court will give the trial judge on certain rulings. Factual rulings are most favored, and it is difficult to win an appeal just on factual errors, whereas legal errors and evidentiary errors the appellate court gets to decide anew.
5. Do I have a right to oral argument?
Many jurisdictions permit oral argument, during which your attorney explains the reasons for your appeal, the law that applies and why the appellate court should rule in your favor.
Litigants do not testify, and neither do witnesses. Instead, the attorney argues your case and answers questions from the appellate court.
Some attorneys prefer to “argue on the briefs,” which means the appellate court reviews the various writings but does not listen to oral argument, whereas other attorneys find that oral argument helps put the entire case into perspective.
An attorney skilled at appellate argument, which is far different from cross-examination, is essential here. Ask your divorce lawyer what your jurisdiction does, what your attorney prefers and, most of all, why.
6. How long will my case be pending on appeal?
Except for emergencies and those are rare, most family law appeals take several months, up to a year or more. During this time, many things can change for your family.
The passage of time may make an appeal moot. For example, if you are appealing a ruling on your children’s school district, but the children go to school there while your case is pending for a year, you may find it better to leave them there than to change them again if the appellate court does rule in your favor.
You may even find that you have adjusted to the situation and accept it.
7. What is the status of my order in the meantime?
You may be surprised to find out that many orders are enforceable even while you are appealing them. The orders must be “stayed pending appeal,” meaning that they are not enforceable until the appellate court decides.
For orders that change the status quo – e.g., a move across the county – a stay may be helpful. But, for new cases in which the alternative is no order at all, you may find the appellate court unwilling to stay the order.
Ask your divorce attorney whether you can stay the order, when that process occurs, and what happens in the meantime.
8. Can I file other motions in trial court in the meantime?
Similarly, if an emergency occurs while your appeal is pending, you will want to have the ability to address the emergency with the trial court.
Ask your attorney if the appeal stays the entire case, or just your order, and what options you have to address emergencies that occur after you file your appeal.
9. If I win the divorce appeal, what happens?
If you win your appeal, what are the likely outcomes? Because most family law decisions are fact-specific, most appeal wins result in a remand to the trial judge for a new hearing, a clarification of the record or some combination of the two.
It is unlikely that the appellate court will issue a brand new order in your favor, except for patent mistakes that are easy to correct (such as a child support credit). Instead, you are likely to find yourself in front of the trial judge that you appealed. Again.
10. If I lose the appeal, what happens?
Some guys want to “take it to the Supreme Court!” Except for serious issues of constitutional or state law, it is unlikely you can appeal your case again.
You will have to accept the ruling and move on. In many jurisdictions, the ruling could include attorney fees and costs for the non-appealing side. Be sure to discuss this range of outcomes with your attorney, too.
An appeal is your avenue to redress wrongs committed in the trial court. You should not shy away from the divorce appeal process simply because (usually) it takes several months and could be expensive.
Instead, you should have this cost/benefit analysis with your divorce attorney early and often and decide together how best to proceed for your family.
Cordell & Cordell:
Jennifer M. Paine is a Michigan Divorce Lawyer with Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.