Questions About Appeals

• How does the appellate process differ from what I went through in my trial?
• When is my notice of appeal due?
• How long will my appeal take?
• What are my chances of winning an appeal?
• What is the appellate attorney’s usual process for an appeal?

• How does the appellate process differ from what I went through in my trial?
• An appeal is an entirely different animal than a trial. The role of the Court of Appeals in a family law matter is to examine a trial court’s judgment to determine if a reversible error was made. This review is confined to what occurred at trial. On an appeal, no new evidence is presented. If there were facts or evidence that existed, but were not put into evidence at trial through an exhibit or testimony, those facts are items of evidence are irrelevant to an appeal. No court appearances occur in an appeal except for perhaps an oral argument. Your appeal will be decided by a panel of three appellate judges.

• When is my notice of appeal due?
• It is due to be filed in the Circuit Clerk’s office ten (10) days after your judgment is final. Calculating when your judgment is final can be tricky. At a minimum, it is final thirty days after it is entered by the court. Please consult an attorney to determine when your judgment is final so as not to miss the deadline for filing your appeal. Missing that deadline will almost certainly prevent you from being allowed to proceed with your appeal. 

• How long will my appeal take?
• Specific time requirements for filing the record on appeal and briefs exist. A typical family law appeal usually takes about one year. It may take longer than that because the Court has no deadline for issuing its final opinion.

• What are my chances of winning an appeal?
• Winning an appeal means convincing the Court of Appeals to reverse all or part of the trial court’s judgment. Family law trial court judgments are generally reversed on appeal only if there is an error of law, or if the trial court’s judgment is so contrary to all the evidence presented, that the judgment entered has no support in the evidence. Proving either is difficult as judges usually follow the law and usually are within a range of possible decisions that can be said to be supported by the evidence. Just because someone else might have determined an issue a different way is not grounds for reversal so long as there is evidence to support the judge’s view. Therefore, the majority of family law appeals do not result in reversal. However, judges are only human, and occasionally do make mistakes. Please consult an attorney to determine what your chances are of reversing your case on appeal. (back to top)

• What is the appellate attorney’s usual process for an appeal?
• What needs to be done in an appeal is governed by rules of procedure set out by the Supreme Court.  The following are the major steps in an appeal after the notice of appeal is properly filed:
• Record on Appeal - The appellant’s attorney has the responsibility of making sure the record on appeal is filed.  This involves preparing and filing the following:
  • Transcript of trial
    The appellant’s attorney must order the transcript of the trial from the court reporter.
  • Legal file
    This is made up of a complete docket sheet, the judgment, and any other pleadings necessary for the Court of Appeals to have to determine the case.
  • Exhibits
    Exhibits put into evidence by both parties should be examined.  Exhibits relevant to the appeal must be filed with the Court of Appeals
• Briefs
  The Appellant will file a Brief setting out each point of error and argument as to why it is error.  The Respondent then files a Brief in response.  If necessary, the Appellant may file a Reply Brief.
• Oral Argument
  Oral argument may be requested by the Appellant attorney, or may be waived.  If requested, it is scheduled at the next oral argument docket after the briefs are all filed.

Once the briefing is complete and oral argument is finished (if requested), the case is considered under submission to the Court of Appeals.  The parties then simply must wait for the appellate court’s decision. (back to top)