What Is a Family Law Appeal?
An appeal is:
- Not a new trial
- Based on review of the existing record
- No new evidence is presented
Family law matters that may be appealed:
- Time-sharing (Custody)
- Child Support
- Alimony
- Property division
When Should You Consider an Appeal?
Valid Grounds For Appeal
In order to appeal the decision of the trial court, you must have valid grounds, of which there are only so many:
- Legal errors made by the trial court, such as applying the incorrect statute or finding jurisdiction where there is none
- Procedural mistakes by the trial court, which can be failing to provide an opportunity to testify or present evidence, or overruling or sustaining an evidentiary objection incorrectly during an evidentiary hearing
- Failing to include adequate written findings in the final judgment or order
- Issuing rulings that are not supported by the evidence presented
What Is Not A Valid Appeal
Dissatisfaction with the results of your trial or the ruling by the trial court is not a valid ground for appeal. Generalized complaints about “fairness” are not valid grounds for an appeal.
The trial court’s rulings enjoy a strong presumption of correctness. And even if there is an error that can be proved on appeal, it must be demonstrated that the error itself led to a harmful outcome or an outcome that negatively impacted you. Nitpicking over the trial court’s rulings or process, even if correct, is not sufficient grounds for an appeal.
Additionally, there is a strong body of case law establishing that any error being brought to the appellate court’s attention must have been preserved for review by proper objections or motions filed with the trial court initially.
The Appellate Process
Filing the Notice of Appeal
An appeal is initiated by filing a Notice of Appeal, with the trial court–not the appellate court. This must be filed within 30 days of the rendition of the order being appealed. Failure to file a timely Notice of Appeal is considered a jurisdictional error that cannot be remedied–therefore, if you are considering an appeal, it is vital that you preserve your right to appeal by filing a timely Notice of Appeal, even if you have not decided entirely whether to pursue it. You can always withdraw an appeal later if you decide against it. But you cannot decide to appeal after the deadline to file a Notice of Appeal has passed.
Additionally, with many grounds for appeal, it is a requirement that the party seeking an appeal first file a Motion for Rehearing with the trial court, which—so long as it is timely filed–tolls (or suspends) the deadline to file a Notice of Appeal until the court rules on the Motion for Rehearing. But failing to file a timely Motion for Rehearing can mean you have waived many various grounds for appeal, which is why it is important to work with someone who understands these deadlines and how they all interact with each other.
Preparing the Record
TRANSCRIPT
If your appeal is at all based on testimony presented to the court or evidence offered or most things done during a trial or hearing, it is vital to have transcripts to provide to the appellate court. This means you will have to have hired the services of a court reporter for the hearing or hearings, as well as ordered the transcripts to be prepared. The transcripts will then need to be made a part of the “record on appeal,” or everything the appellate court can review in an appeal from the matter below.
TRIAL EXHIBITS
Similar to transcripts, it is the burden of the party seeking to appeal to ensure that trial exhibits end up in the record on appeal, or the appellate court will not be able to review them.
BRIEF WRITING
The crux of an appeal is the briefing process, which is when both sides submit lengthy written briefs to the appellate court explaining in detail why there are reversible errors from the matter below.
OPENING BRIEF
The first brief filed is called the Initial Brief. It is the burden of the appellant, or the person bringing the appeal, to include in the Initial Brief all grounds for appeal, legal argument, statement of facts, and anything else that is necessary for the court to understand the error(s).
RESPONSE BRIEF
After the Initial Brief is submitted, the appellee, or the person defending the result below, may file an Answer Brief, responding to all of the arguments raised in the Initial Brief. The Answer Brief is confined to addressing the issues raised in the Initial Brief.
REPLY BRIEF
Finally, after the Answer Brief is filed, the appellant may submit a Reply Brief, which is a short document that clears up issues from the Answer Brief. A Reply Brief is not an opportunity to raise new issues that should have been brought up in the Initial Brief. A Reply Brief is not always necessary.
ORAL ARGUMENT (IF APPLICABLE)
Oral argument is an opportunity for the appellate lawyers to discuss with the appellate court the appeal and explain things. It is a brief hearing, usually no more than 10-15 minutes per side. It is strictly limited to attorney argument; there is no evidence presented. Oral argument is optional and typically not necessary. Except for the most convoluted facts or groundbreaking legal issue, the court usually has everything needed to decide the case with just the briefs provided.
Possible Outcomes
AFFIRMED
Affirmed is the term used when the appellate court leaves the appealed judgment or order intact. There may be a finding of error but for procedural reasons the court still affirms the final judgment.
REVERSED
Reversed is when the appellate court undoes some or part of the final judgment or order on appeal.
REMANDED
Remanded is the term used when the appellate court sends the matter back to the trial court to make new findings or hold a new hearing or perform some other judicial labor. The appellate court is not a court that hears testimony or evidence, so if there is the need to do so, that will be handled by the trial court.
Why Appeals Require a Different Skill Set
Appellate work differs entirely from litigation work. This is why most litigation attorneys do not also handle appeals. Convincing a panel of appellate judges to overturn–or preserve–a final judgment, with just a written brief, is a very different skillset from negotiating a settlement, managing vast discovery, and convincing a single judge to make the sought for ruling.
A key component of appellate practice is strong legal research and writing skills. A specific style of writing is required for appellate briefs; the ability to conduct legal research, verify the validity of case law (which can be overturned, modified, or clarified years later) is fundamental to an appeal.
There is an entirely different set of procedural rules for appeals than for family law litigation. These rules contain many important and interrelated deadlines and categories. Failure to understand and apply these rules adequately can lead to procedural problems, including jeopardizing an appeal entirely. This is why most attorneys will not “dabble” in appeals.
Our Approach to Family Law Appeals
The first thing we analyze is whether there appears to be adequate grounds for appeal. Again, this does not simply mean a party is unhappy with an outcome. We will look for procedural, evidentiary, legal, or other grounds for challenging–or defending–a final judgment.
A very important aspect of pursuing an appeal is determining whether it is worthwhile to do so. Appeals are time-consuming matters that are not cheap. They also prolong family law disagreements for months–often years–longer. One must balance the chances for success, the cost for pursuing the appeal, and what the best case outcome could look like. This is a difficult analysis that will be explained to clients thoroughly.
In preparing appellate briefs, it is important to work with trial counsel and the client to ensure nothing is missed. Appellate counsel is usually not there for the trial and relies on the record on appeal, along with trial attorney and client, to understand everything.
Client involvement is important–clients can clear up areas of transcript that are vague, can explain the thinking behind certain decisions, and otherwise know the case better than appellate counsel as they lived it for much longer.
What You Can Expect When Working With Us
WHAT HAPPENS DURING THE INITIAL CONSULTATION
During an initial consultation, we will go over the final judgment, the trial, what potential appellate issues there are, or if an appeal needs defending, what those grounds could be.
WHAT MATERIALS CLIENTS SHOULD PROVIDE
A client should bring to an initial consultation the order that is or might be appealed, any motion for rehearing filed, and anything else that bears directly on the appeal.
HOW OFTEN THEY WILL RECEIVE UPDATES
We keep our clients in the loop throughout the entire process. However, it must be noted that appeals are lengthy processes, often taking over a year to conclude, much of which is down time waiting for the appellate court to issue a decision. Even during that time you will receive occasional updates to let you know nothing new has happened since the last update.
HOW YOU MANAGE TIMELINES AND EXPECTATIONS
While no guarantees can be made, we make sure clients understand how strong or weak their appellate chances are generally. Additionally, we will explain all deadlines and anticipated timelines throughout the process.
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Frequently Asked Questions
Should I Appeal The Final Judgment?
This is the core question behind every potential appeal. First, it is important that you understand that being unhappy with the results of a trial or the Final Judgment do not provide valid grounds for appealing. In order to bring a successful appeal, there must be an appealable error or errors. This can be a legal error (applying the wrong statute, applying the right statute incorrectly, etc.) or a factual error (using incorrect numbers in financial calculations, misstating testimony, etc.) or both. Further, just because there is a valid error with the trial court’s process or decision does not end the analysis.
The trial court’s decisions are reviewed by the appellate court with a presumption of correctness. The appellate court will apply what is called a “standard of review” to determine how much deference to provide to the trial court’s decisions. Many family law decisions are within the trial court’s broad discretion.
Additionally, if there is a valid error that may warrant reversal, there is an additional question to ask: Was the error preserved for appellate review? You can rarely complain to the appellate court for the first time about a mistake or issue that you did not first bring to the trial court’s attention, through proper objections, motions, and/or argument. Failure to preserve an error for appellate review will typically result in a failed appeal, regardless of the validity of the underlying issues on appeal. This is why it is very important to ensure that your trial attorney is preserving any errors for appellate review when they occur. Failure to preserve an issue for appeal can rarely, if ever, be remedied on appeal.
Can I Appeal My Final Judgment?
Did you file a timely Notice of Appeal (see below)? Is there an appealable issue? Was this issue preserved for appellate review before the trial court? These are all important prerequisites to bringing a successful appeal.
What Does An Appeal Cost?
Appeals tend to be rather costly. First, if you are the appellant (the person initiating the appeal, challenging some aspect of the Final Judgment), you are responsible for ensuring that the Record on Appeal is prepared and provided to the appellate court. The Record on Appeal is the written record of all pleadings, motions, responses, affidavits, evidence, transcripts, orders, briefs, etc. that were part of the matter with the trial court. If you are appealing a Final Judgment after a trial, you are responsible for ordering the transcripts from the court reporter. These can be very pricey to obtain, and failure to do so can result in your appeal failing because you did not provide an adequate record to the appellate court.
Can I Just Use My Trial Attorney For The Appeal?
Yes, but appeals require knowledge of the intricate appellate rules and procedures, as well as a strong grasp of the relevant case law in your district as well as statewide. Appeals also require strong writing skills as much of an appeal comes down to the initial brief from the appellant and the answer brief from the appellee. Frankly, not all trial attorneys possess these special skills. It is not uncommon for a trial attorney to refer a client’s appeal to an appellate attorney because of the specialization required to prosecute or defend an appeal. Your trial attorney may be perfectly competent at appeals but proceed with caution.
When Do I Have To Decide Whether To Appeal?
Rule 9.110(b) of the Florida Rules of Appellate Procedure provides that you have thirty days from the date the Final Judgment is issued to file a Notice of Appeal. The Notice of Appeal simply lets the trial court know of your intention to appeal the Final Judgment and is not a brief on the merits. Failure to file a timely Notice of Appeal will result in permanently foreclosing your ability to appeal the Final Judgment. A Notice of Appeal can later be withdrawn, so if you are mulling over whether to appeal a Final Judgment and are close to the thirty-day deadline, it is prudent to file the Notice of Appeal to preserve your right to appeal. Finally, a common mistake people unfamiliar with the appellate process make is trying to file the Notice of Appeal with the appellate court. It must be filed with the trial court first.
