In Family Law, We Have Done It All


On Behalf of | Aug 7, 2018 | Appeals

Written by H. Michael Finesilver (f/k/a Fields)-Now Retired 

Attorney at Law

Anderson, Fields, Dermody & McIlwain


This blog provides explanations of things anyone who wants to appeal or defend against an appeal should know in any marital dissolution or parenting dispute. It is the result of over forty years of professional experience pursuing and defending against appeals in those kinds of cases. Appeal means filing a case in the State Court of Appeals or State Supreme Court.

Temporary Orders Cannot Be Appealed

There is no right to appeal any temporary order. Review of temporary orders decided by Court Commissioners can only be by a motion for revision to be heard by a superior court judge, and only if the motion is filed and served within 10 days of the entry of the Commissioner’s order. A judge’s order on a motion for revision of a temporary order cannot be appealed.

Appeals to the state Court of Appeals must be filed and served on the other party within thirty days of either the date of entry of the superior court judge’s final orders, findings of fact and conclusions of law, or the date an order on a motion for reconsideration of any aspect of the judge’s final orders, whichever date is later. Any appeal filed later than that thirty day window will not be heard.

Why Appeals Are Difficult To Win

Appeals are decided by a panel of three judges. Appeals are difficult to win because of what they do not involve.

The Court of Appeals will not review credibility disputes. This is a great source of frustration for a lot of people. The panel might will not review whether the trial judge got it wrong when it believed the other party or witness or found that the appealing party was a liar. Deciding who was lying and who was telling the truth is known as a “credibility determination”. Courts of appeals do not make credibility determinations. Credibility determinations are not legal errors. They are NOT appealable. A lot of lawyers who handle an

occasional appeal, do not know this. So a lot of people pay lawyers to raise these issues, only to find they are beating their heads against a wall.

The Court of Appeals will not hear new testimony from witnesses. It will not accept new evidence unless something happens after the appeal began that will affect an issue being raised on the appeal.

The Court of appeals will not reverse a trial judge’s decision based upon the fact that if they were the trial judge they would have ruled differently. They do not look at all the evidence and say to themselves, if I were the trial judge I would have ruled differently. This is known as “substituting its judgment for that of the trial court”. Courts of Appeal do not do that either.

The appealing party has to prove to the satisfaction of at least two of those three judges that the trial judge made a legal error. Legal error means that the trial judge did not consider what the state legislature in its statutes requires judges to consider.

The statutes give trial judges a lot of discretion when deciding how to characterize, value and divide property and apportion debt or determine what is in the best interests of children. But it also lists numerous factors that judges are required to consider in exercising that discretion. Consideration of those factors are known as “conclusions of law”. If the court of appeals can be persuaded that the trial judge failed to consider any of those required factors, its conclusions of law are not sufficient and an appeal might succeed.

The trial court’s conclusions of law must be supported by certain findings of fact. Any finding of fact not challenged on appeal is accepted as the truth. Any finding supported by evidence, also stands, even if there is contrary evidence. But a finding that is not supported by any evidence, is legally insufficient.

Any finding that does not support any of the conclusions of law is also legally insufficient.

Any evidence that supports a finding of fact that was inadmissible, under certain rules of evidence, but was not objected to at trial cannot be raised on appeal. But if there was an objection at trial and the court of appeals rules that it was not admissible, that is also legal error.

Finally, legal error might mean that the trial judge required or prohibited something that is contrary to what the federal or state Constitutions allow.

Why Appeals Are Very Expensive

The party who appeals must pay for the superior court clerk to copy all trial exhibits that were admitted. That party must also direct the clerk, on a form called “designation of clerk’s papers” to copy any other pleadings such as trial briefs, temporary orders, pretrial motion materials, pleadings pertaining to any post-trial motions for reconsideration, the findings of fact and conclusions of law, and all final orders. To be sent over to the court of appeals. The clerk of the court of appeals then assigns numbers to every page of those pleadings. Those numbers are known as clerk’s papers numbers.

The party who appeals must also pay a court reporter to transcribe everything that occurred at trial, all argument, all testimony, and any oral decision that the trial judge might have rendered. Depending upon how many days of trial the trial transcript might run from several hundred to several thousand pages. A three or four day trial could cost $5,000 or more to transcribe.

Once all that is completed, the party appealing must file a brief. The brief usually isn’t so brief. It can run 50 pages depending upon the number of errors of the trial judge that it must identify. To file a brief of more than 50 pages special permission must be obtained from the court of appeals.

The brief must identify all legal errors, a summary of the main facts, and a section that argues the facts and the law (statutes; cases; constitutional provisions if constitutional arguments are involved) and the facts. The facts are limited to the evidence that was submitted. Every reference to a “fact” must also contain a reference to the page of a pleading, the pages of the trial transcript, the trial exhibit that contains the particular fact. If one of the errors is an argument that a ruling on whether particular testimony, or a trial exhibit should have been admitted, or should have not been admitted or allowed, the page of the trial transcript that corroborates that the objection was made at trial must be referenced. All page references are by clerk’s paper number.

To know what errors to raise in the brief, especially if any findings of fact are challenged for no evidence to support them, your lawyer must read all of that information. Every bit of it, and more than once to fully understand what was submitted as evidence, to index what issue is covered where, etc. Your lawyer must then cite the provisions of the statutes and if case law, the language and analysis of case law to justify any errors alleged in the brief.

Once an initial draft of the brief is completed, it must be carefully read and revised, to achieve page limits, perhaps reorganize even the order of the errors, by the strongest and weakest. Effective brief writing is to the point, well organized and easy to understand, even the most complex of issues.

Then, once the court sets up a hearing for oral argument, the brief must be reread, and the pages and pages of evidence. Since the time for argument is limited to 10 minutes a side, each side must think through what issues will be addressed in oral argument, and what questions any one of the panel of judges might raise and how to answer those questions.

Thus, it is an extremely time consuming process which means it is extremely expensive. Usually more expensive for the party appealing than the party defending the trial judge’s decisions. This is because the appealing party files two briefs. The opening brief, and then the time to read the other party’s brief that can be up to 50 pages, check to see if its representations of the evidence are supported in the record, and the time to develop a brief not to exceed 25 pages that replies to the other party’s brief. The party defending the trial court’s decision on gets to file one brief.

When to Expect a Final Decision

Appeals can take as long as two years before the Court of Appeals issues its ruling. So if it is necessary to obtain a ruling within a few months, going through the expense, even of a valid appeal may not be worth it.

If the party appealing can demonstrate obvious error, or probable error that will affect the status quo, a motion for discretionary review can be filed from the beginning. If the motion is granted, time deadlines for briefing and eventually oral argument will be accelerated. If the motion is denied the motion will be treated as a notice of appeal in the normal course.

Written by H. Michael Finesilver (f/k/a Fields)

Attorney at Law

Anderson, Fields, Dermody & McIlwain