An appeal occurs when a party loses his or her divorce case, or part of their divorce case, in the trial court and requests that the appellate court examine the trial record and decide if they made a legal error. There is no new evidence on appeal. There are no witnesses or testimony on appeal. Instead, all of the arguments are about the law, not the facts of a case.
What is the purpose of a divorce appeal?
The purpose of a divorce appeal is to determine whether the trial court judge made a legal error. If the appellate court determines that the trial court made a legal error that is "material," or substantial, then it may send the case back to the same trial court with instructions to correct the mistake, which would be called a "remand" of the divorce case.
Why would someone appeal their case?
A party believes that the trial court misinterpreted the law, or allowed evidence or testimony that should not have been admitted during their divorce case.
How can Walzer & Melcher help with my divorce appeal?
First, we can help determine if your divorce case is proper for appeal and if it will be worth the time and money to appeal. Second, the process of a divorce appeal is complicated. There are very specific rules regarding the formatting and layout of documents, deadlines and court procedures. If it is not done correctly, the appeal may be denied. We are familiar with the rules and procedures and will be able to guide your divorce case through the appeal process.
How is an appellate case different than my case in the trial court?
During your divorce trial there may have been witness testimony, exhibits and argument by counsel. An appellate court does not rehear the divorce case or hold a new trial. In the appellate case, there are no witnesses, no new exhibits or testimony. Instead, each party files a brief with only legal argument and the appellate court reviews what happened in the trial court to see if there was a legal mistake.
There is a heavy "burden of proof" for the appellate court to reverse the trial court's decision. This means that the threshold for what the appellate court has to find to change the trial court's decision is very high. The appellate court can only reverse the trial court if it finds a legal mistake in the trial court proceedings that was significant enough to change the outcome of the case. Statistics compiled by the Administrative Office of the Courts indicate that approximately 74% of divorce appeals are lost, so it is unlikely, typically, that the appellate court reverses the trial court.
Can the judgment or order in my case be appealed?
The judgment may be appealed as long as it is a final judgment. A judgment is considered final unless it is an interlocutory judgment. There is an exception to this rule for interim rulings in family law proceedings, which is governed by Code of Civil Procedure section 904.1(a)(10) and Family Code section 2025. In order for a party to appeal an interim ruling, it must be certified for immediate appeal by the trial court that tried the issue and then the appellate court must grant a "motion to appeal" and order that the "certified" issue be transferred to it. This procedure is the only method for immediate appeal of interim rulings.
What is the time frame to appeal?
You must file your notice of appeal either 60 days after the clerk serves you with the Notice of Entry or a file-stamped copy of the judgment, or 60 days after a party serves you with the Notice of Entry or a file-stamped copy of the judgment; 80 days after the entry of judgment, whichever is earliest.
Do I have to give a reason for my appeal?
You must give a reason for your appeal. You cannot appeal a decision just because you do not agree. You must describe the legal mistake that you think the trial court made. The mistake must either be a prejudicial error, which means there was a mistake about the law or court procedures that caused you substantial harm, OR a lack of substantial evidence to support the decision.
What are the standards of review for the appellate court's review of the trial court's decision?
Once you argue that there was a legal error in the trial court divorce proceedings, the appellate court must look at what the "standard of review" is for that type of decision. That means, how will the appellate court examine the trial court's decision.
The three most common standards of review are:
- Abuse of discretion: This standard is used when the trial judge made an arbitrary ruling where he or she had exercised their discretion. For example, the admissibility of a particular piece of evidence.
- Substantial evidence: This standard is used when you appeal factual findings that the trial judge made and you believe there is not enough evidence to support these findings.
- de novo review: This standard is used when there is a question of law involved. It means that the appellate court looks at the issues as if they were never ruled upon by the trial court and starts from scratch.
- File notice of appeal.
When you file the notice of appeal, you must describe the issues you would like to appeal and explain why you think the trial court was incorrect during your divorce proceedings. - Pay the filing fees.
Currently, the cost to file a notice of appeal is $200, plus $300 for the costs of the appeal, which must be paid at the time of filing the notice of appeal. - File a civil appeal case information statement.
You will need to provide information about the trial, biographical information about the lawyers, and the issues to be raised on appeal. - Order the transcripts.
The transcripts from the divorce trial will become the record on appeal that the court will use to review the case. One can either request that the court reporter compile and prepare the record, or if your trial lawyer still has all the certified transcripts, your attorney can do it. If you decide to have the court reporter prepare the transcript, they normally require half the money up front to start working on transcribing the record. The cost to produce the transcripts typically ranges from $1,500 to $3,000 for an average divorce case. Therefore, it can be more cost effective for your lawyer to prepare the record if possible. Just like many other parts of the appeal, it is a detailed and complicated process that should not be attempted without some guidance from an attorney. - Preparation of the briefs.
Appellate legal briefs are normally due within 45 days after the court reporter receives the trial transcripts. If you need more time, the court will often grant a 30-day extension if requested. The appellate brief includes all of your legal arguments, supporting authority for the arguments and a summary of the facts of the case. It must follow a particular format prescribed by the court, so this is another reason it is advisable to have an attorney for your appeal. - Oral argument of the appeal.
Where can I read about the law on civil appeals?
Read the California Code of Civil Procedure sections § 901-914. Read the California Rules of Court, especially Title 8 on Appellate Rules.
How long does an appellate case last?
The appellate process takes approximately one to two years.
How much does an appeal cost?
There are many factors that determine how much an appeal can cost including how many issues are being appealed, whether you are the appellant or appellee, the length of trial and the complexity of the issues. An appeal can cost thousands of dollars in legal fees and court costs, which include paying for the transcripts, appellate filing fees, postage, and copying costs. Moreover, the filing fees cost $500.
What should I consider before filing a divorce appeal?
Appeal issues are more complicated than trial issues. You should consider consulting with an attorney who is familiar with the appeal process. Keep in mind that the process might last a year or two and sometimes even longer. Also remember that in addition to your own legal fees you may be required to pay any fees and legal expenses of your former spouse if the court thinks your appeal was frivolous.
Can I present new evidence on appeal?
There is no new evidence on appeal. The appellate court will examine the record and pleadings from below.
How many issues can I appeal?
There is no limit to how many issues that can be raised on appeal, but it makes sense to limit your appeal to the top four or five issues. This is important because there are page limitations for your appellate brief. Also, both your attorney and the appellate court will be able to focus on the most important issues.
Do I have to use the same lawyer on appeal?
You do not have to use the same lawyer on appeal. The fact that your trial lawyer is so familiar with the case may save you time and fees since a new lawyer would have to become familiar with the record below. The advantage of hiring a new lawyer is that it brings a new perspective to the case. It will also depend upon whether your trial attorney feels comfortable handling your appeal and is familiar with the appellate process. Our firm is competent in handling both trial and appellate cases.
If my divorce case never went to trial, can I appeal my divorce settlement agreement?
Generally, one cannot appeal from a property settlement agreement. However, it is an option to file a motion to reopen a divorce judgment, but this is only available on very specific grounds for a limited time.
What are some examples of "appealable" issues?
- The family court did not make sufficient findings of fact or conclusions of law.
- The family court made only legal conclusions, and the decision was not based on the evidence.
- The amount of spousal support is inconsistent with the range of awards that are normally given.
