Appeal Process Overview
The general definition of an appeal is the legal process whereby a losing party in a lawsuit asks a higher court to review and reverse the decision of a lower court. Under North Carolina law, an appeal may be taken from final judgments as well as interlocutory orders; however, appeals from interlocutory orders are often dismissed unless a party can show that they will suffer a substantial right if the appeal is not heard.
In most cases, an appeal must be filed within 30 days of the issuance of the order appealed from. However, if a timely motion for reconsideration has been filed and denied (as long as the motion is in good faith), then an aggrieved party’s time for filing an appeal is stayed as to all grounds asserted in the motion . Here, the 30-day window begins after the notice of appeal has been given or after the motion for reconsideration has been properly determined.
Indeed, an understanding of the grounds for such an appeal is crucial before the process is initiated. North Carolina family law appeals are improper when based upon an issue that resulted in an interlocutory order and a substantial right does not attach to such an order that would allow an appeal. Keep in mind, an appeal should only be filed when the party believes that it will result in a gain in the result of the matter.
Family Court Appeal Grounds
Common grounds for appeal in family court include legal error by the trial judge, abuse of discretion by the trial judge, and procedural errors in the family court proceeding. These are also sometimes referred to as errors of law, errors of discretion, and procedural errors. In practice, we see most of these categories lumped into an all-inclusive "Error of Law" as the issue that is on appeal. The most common type of error in family court is legal error – and it is important to distinguish a legal error from an abuse of discretion.
An abuse of discretion occurs when a judge exercises discretion in a way that is unreasonable or unjust. If a judge had a valid legal basis for making a decision but it was unwise or unfair, can this be appealed? Generally, the answer is no. An appeal is not merely a re-hearing of the family court case to review each decision already made. If a judge’s decision has a sound legal basis, it will be upheld, even if it was not the best decision for the specific circumstances of that case.
To illustrate this concept, for example, if a judge awards the mother 100% physical custody of the minor child for good reasons having to do with the child’s stability and welfare, but this only allows the father visitation one Saturday a month, while the court denies the father alternative visitation (i.e., visiting with the minor on one Saturday a month and Sunday the other weekends) this is likely to be an abuse of discretion because there is a reasonable dispute as to what is in the best interest of the child, it is nearly impossible for both parents to work on Saturdays and a father’s desire to be involved with his child is generally in the child’s best interest.
As an example, in a marriage of short duration where the parties are in their late 40’s and the income earned during the marriage will essentially be divided 50-50 pursuant to the law, if a judge makes an unequal division because of vague references to a spouse’s "high salary" or "poor work habits," this decision will likely be set aside on appeal, as it is an abuse of the judge’s discretion. If a judge decides to award a former spouse of a long-term marriage a share of all the marital assets based on the nature and duration of the marriage and the hardship on the spouse if the former spouse got nothing, this will not be appealed, as the judge has a lot of discretion in equitable distribution, and as long as there is some legal basis for the ruling, an appeal will not be successful.
As another example, the Florida courts have a legitimate interest in protecting the minor child by limiting access to records with "adult content." Conversely, it also has a legitimate interest in making a mother and father equally responsible for all decisions concerning the welfare of a child. So, if a court denies a father visitation rights and access to a school with no basis in fact, and he attempts to gain access to records of the minor child at school, it would fly in the face of the court’s ruling to deny him access to these records. It may be the case that the school is not honoring an order on record from the court. Here, the citation to the law would be that the school has a right to limit access to records with "adult content" but that the father would have to be allowed access to those records.
Essentially, if a judge deviated from the law in any way to make a ruling that is either unreasonable (abuse of discretion) or unsupported by legal principles (errors of law), this would certainly be a basis in which to direct an appeal to the state Supreme Court.
Notice of Appeal Filing
In the family law context in California, the first step in the appeal process is filing a notice of appeal. To preserve the right to appeal from an order after judgment in a family law case (including, but not limited to, post-judgment orders, post-reversal remand orders, and restraining orders), the notice of appeal must be filed within 180 days after service of the written notice of entry of judgment or a filed-stamped copy of the judgment on the appealing party. If the party was not served with notice of entry or a file-stamped copy of the judgment, the time to appeal is extended to up to one year after the judgment is filed to the extent that a motion for new trial or to vacate the judgment was previously filed and served by that party. The rules are slightly different for appeals from other post-judgment orders. With limited exceptions, such as orders after a summary judgment motion or an anti-SLAPP motion, the 180-day deadline applies. Assuming that an ordinary post-judgment order is at issue, the notice of appeal should be filed not later than 180 days after the superior court clerk serves on the party proposing to appeal a copy of the notice of entry of judgment or a file-stamped copy of the judgment. An order denying a new trial, filed after the entry of judgment, does not trigger a new time to appeal. Thus, a party seeking to appeal from both the judgment and its post-judgment denial of a new trial, must file a single appeal within 180 days of the post-judgment order. Remember, a notice of appeal must be filed with the appellate court; thus, it cannot be filed with the clerk of the trial court. The California Rule of Court requires that the notice of appeal be filed in the Court of Appeal’s "Appellate District" where the superior court is located. Also, be sure to follow the rules of the court. For example, the notice of appeal must usually be filed electronically on the appellate division website. The contents of a notice of appeal must: The notice of appeal must be signed unless filed electronically by a self-represented party or by an attorney, in which case it need not be signed. The rules also provide a choice of filing a single notice of appeal or a separate notice of appeal for each of the rulings or orders being appealed. If separate appeals cannot be avoided (for example, a party has a right to appeal some, but not all, of the rulings/orders), a separate notice of appeal must be filed for each appeal. It must reasonably identify each order being appealed. It is generally imprudent to restrict the appeal to a particular part of the judgment or decision, and it is also not necessary to expressly include a request for review of post-judgment orders. The filing of a notice of appeal suspends the trial court’s power to act on matters embraced by the appeal, but permits the court to perform various acts, such as approval of settlements, or to enforce the settlement agreement.
Appellate Brief Preparation
An appellate brief consists of a number of different components. The first component, and sometimes the most important, is what is called the "statement of the case." This section gives a general overview of the case to the appellate court, and also gives the appellate court an overview of the trial court judge. It is important that these sections are well written, as these sections may be all the appellate court reads. If the appellate brief does not have a statement of the case, or it is poorly written, then the appellate court will read the appeal based solely on the lower court record. Although the appellate court has the entire lower court record, and can review a decision independent of the parties’ appellate briefs, the brief is often key in helping the appellate court understand the case.
The next component of the appellate brief is what is called the "legal argument" section. This section is the heart of the brief. It is where the parties make legal arguments, and present cases, statutes, administrative regulations, and other sources of law that they believe support their position. In order for an appellate brief to be effective, it needs to be supported by case law, statutes, and other sources of law that support the argument. Sometimes, cases will be presented that do not directly talk about the issue being decided, however, they will give similar examples of how the law might apply. For example, if the appellate court is deciding an issue that involves complex business law, then cases that deal with similar issues, such as securities law might be outlined. Although these cases do not directly apply to the issue before the appellate court, it may provide some guidance.
The last part of the appellate brief is the exhibits. Some appellate courts will not require parties to include the lower court record in their briefs, however, this is something that should be checked with the relevant appellate court. In order to create an effective appellate brief, the appellate party should at least review the lower court record and make any helpful notes. It is important when writing an appellate brief to draft a full, clear, and cogent appellate brief. They are sometimes, however, complicated and lengthy. Although writing is important, legal research is sometimes equally as important. Legal research can be time consuming, and some appellate counsel even hire outside firms to conduct legal research for them. Conducting legal research properly is essential for writing an effective appellate brief.
Appellate Court Purpose
An essential feature of the appellate process is the limited role played by the appellate court. The Court of Appeals does not re-try the case. It only determines whether the trial court erred in its interpretation of the law or the procedural rules. If you believe the family court judge reached the wrong conclusion, you must demonstrate that the judge misapplied the law or neglected to follow the proper procedure in reaching his or her decision.
In what areas might the family court judge enter error? Did the judge rely on the wrong legal standard for making a determination? Did the judge fail to make the necessary findings of fact to support the relief granted? Or perhaps, the judge’s application of the facts to the law was flawed .
Family court is an evidentiary proceeding. Thus, the judge hears all the evidence and weighs its credibility. This fact affects the standard of review on appeal. The Court of Appeals is required to give the family court judge’s findings of fact careful consideration, and the judgment entered will stand unless the appellate court determines the trial judge’s findings are unsupported or patently not believable.
In a nutshell, the Court of Appeals does not substitute its judgment for the original family court judge. Instead, it merely evaluates whether the prior judge entered reversible error in applying the law or procedures already in place.
Appeal Hearing
If the appellant’s brief is the most important element of the appeal prior to the hearing, the oral argument is the most important element of the appeal hearing. There is no jury in the appellate court. Appeals in family law cases are heard by a small panel of justices or judges (called a Division or Panel) to review and judge the proceedings. The petitioner will argue his or her case first before the court, highlighting the issues outlined in their petition. The respondent will follow, then the petitioner will have an opportunity to rebut the respondent’s argument. Some appellate judges will ask questions during the oral argument to clarify statements or points made during the other party’s argument. Sometimes the appellate judges ask for further opinions and input from counsel. Trasande v. Trasande, 117 Ohio App.3d 198, 690 N.E.2d 947 (Ohio App. 11th Dist. 1997). The oral argument is intended to persuade the appellate court that the trial court did or did not do something wrong. The petitioner says: Here is what the court did. It was wrong. Here is why it was wrong. The respondent says: Here is what the court did and it was right. Here is why it was right. The appellant highlights all of the flaws and errors in the judgment against her. The appellee seeks to show where the appellant misconstrued the law, misapplied the law, or failed to apply the law at all. The role of the appellate justices in a family law case is unique. At times the justices have to address conflicts in the law or evidence that they know the lower courts are going to hear. Some of this cannot be avoided. And at times the justices will have to act as the fact finder. At these times, the justices become an extension of the role of the trial court, which could mean going so far into the facts of the case that the decision becomes factual rather than legal. See Yoganand v. Yoganand, 139 Ohio App.3d 654, 740 N.E.2d 284 (Ohio App. 10th Dist. 2000). An example of this scenario is found in the case of In re M.H., 163 Ohio App.3d 215, 2005-Ohio-1481, 837 N.E.2d 1241 (Ohio App. 1st Dist.). There are two possible outcomes from a family law appeal. One outcome is that the appellate court reverses the lower court’s decision. At the very least, this reversal means that the judgment of the lower court cannot stand. The appellate court can reverse in whole or in part, affirm in whole or in part, and/or remand the case back to the lower court. See Rink v. Rink, 168 Ohio App.3d 663, 2006-Ohio-1389, 860 N.E.2d 1046 (Ohio App. 12th Dist.). If a case is completely reversed, the only result is that the case will have to be tried again from the beginning or a prior case re-entered so that the current case can proceed. The final result may not be as favorable as it was prior to the appeal, but it will not be any better. When a case is partially reversed or affirmed, the court’s decision will often dictate what parts of the lower court’s judgment will stand and what parts will not. This may or may not be in the appealing party’s favor. With a partial reversal, there is often enough in the court’s judgment that the losing party will have to live with a less than complete victory. The parties will have to take the remainder of their case back to the lower court, after the appellate court has determined a few key points to be addressed. If the appellate court affirms the lower court’s decision, then the appellant has lost. At this point, the appellate court’s decision is usually final. In circumstances during which the case can be appealed again, the second appeal must have the Supreme Court’s permission demonstrated through a motion for leave to appeal. This is true for appeals on decisions involving a substantial constitutional question or question of public or great general interest. The court of appeal’s judgment will not take effect until the Supreme Court denies the party’s motion for leave to appeal. If the appeal is taken from a domestic relations or juvenile court to the court of appeals, and not from the court of appeals to the Supreme Court of Ohio, the appellate court’s judgment is final. Ohio R. App. P. 26A; State ex rel. Brown v. O’Donofrio, 97 Ohio St.3d 182, 2002-Ohio-1484, 777 N.E.2d 418, certiorari denied, 535 U.S. 1080, 122 S.Ct. 215, 151 L.Ed.2d 996 (2002).
After The Appeal Ruling
After the decision is received, you may have time to file a motion for reconsideration with either the Family Court or the Appellate Division if you have not filed Practice Book Rule § 63-8 or Appellate Rule § 70-8 Motion for Reconsideration before the Court of Appeals. If you received an affirmance from the Family Court, and you do not obtain a reconsideration of the decision, you have the option to file a Petition for Leave to Appeal to the Connecticut Supreme Court with the Appellate Court for review on the merits. At the time of this filing, you would be required to file an application for waiver to the Appellate Division for waiver of the filing fee and in forma pauperis status. If the Petition is accepted by the Supreme Court, you will be granted further time to file a formal application for Appeal from the Appellate Court to the Supreme Court and Application for Waiver of the filing fee with the Application for Leave to Appeal. The Appellate Court then has two months to accept, or deny the appeal, regardless of sua sponte, pursuant to Practice Book Rule § 77-1, "The chief justice shall appoint a panel consisting of five judges, at least four of whom are judges of the Appellate Court , to consider a petition for leave to appeal on the pleadings without argument." Additional briefing is required and you do not receive an Automatic Review which is the basis for a review of whether the judges made correct evidentiary rulings, improperly exercised their discretion, or improperly applied the law to the facts presented. Any decision to grant Leave to Appeal is discretionary with the Supreme Court and automatic Affirmances are the usual result. After Leave is granted, you may file with the Court as follows: "Except for those features for which costs are not taxable, Appellees shall have forty-five days from the filing of the clerk’s notice that the record is complete to file a preliminary brief. The Appellee is not otherwise required to file a separate preliminary brief. If no preliminary brief is filed, the appellee’s brief shall be due within the time set forth under Section 67-4." No Later than three (3) weeks after you have filed your Brief, the Appellee will file their Opposing Brief and four (4) weeks later, you’ll then be allowed to file a Reply Brief to the Appellee’s Brief, after which, you will receive the Automated Notice from the Supreme Court Clerk as to when the case is to be argued before the Court.