Family Law Appeals and Writs.
Few issues are more important and life-altering than those that arise in the context of a family law dispute. Custody, visitation, child and spousal support—trial-court decisions on these matters inevitably have an enormous impact on your life. It is therefore no surprise that these issues—as well as many other family law issues—often make their way to the Court of Appeal. There’s simply too much at stake to not challenge an unfavorable ruling.
Although the concept of appealing an unfavorable decision is relatively straightforward, the mechanisms and timing for raising such challenges are complex and often vary greatly from issue to issue, thus creating a trap for the unwary.
Most issues are appealable as part of a final judgment, meaning that the party challenging a ruling cannot do so until the case has ended. In other cases, however, a statute will authorize an appeal that precedes the entry of final judgment. For many of these appeals—often referred to as “interlocutory” appeals—the failure to immediately pursue the appeal will result in the permanent forfeiture of the right to appeal.
To further complicate matters, some issues are challengeable via a writ petition (most commonly a writ of mandamus). Although writs are functionally similar to appeals, the circumstances in which they can be brought—or granted—are quite distinct from appeals.
While all of this might seem complicated, it is actually a vast oversimplification of appellate law. Suffice it to say that prosecuting or defending a family law appeal (or a writ petition) requires a thorough understanding of myriad procedural and substantive laws. Whether you’ve won or lost in the trial court, Decker Law is here to guide you through this labyrinth and improve your chance of success on appeal.
Step-by-Step Overview of the Appellate Process
Step One: Notice of Appeal.
An appeal begins with the filing of a notice of appeal. The importance of filing this document before the applicable deadline cannot be overstated: An appellate court cannot consider an untimely appeal—even if the appeal is completely meritorious.
Step Two: Designation of Record.
Shortly after the filing of a notice of appeal, the appellant must designate the “record”—i.e., select the documents from the trial court that are relevant to the appeal. Although this may sound mundane, this is a crucial aspect of any appeal. Failing to designate the record within the appropriate time can result in automatic dismissal of the appeal.
Step Three: Briefing.
Perhaps the most important part of any appeal is the briefing (i.e., the parties’ written legal arguments). There are typically three briefs filed in an appeal:
Opening Brief: The appellant identifies the errors that occurred in the trial court and the legal reasons why reversal is warranted.
Respondent’s (or Appellee’s) Brief: The party opposing the appeal (respondent or appellee, depending on the court) responds to the arguments made in the Opening Brief.
Reply Brief: The appellant responds to the arguments raised in the Respondent’s Brief.
Step Four: Oral Argument.
After briefing has concluded, the appellate court will schedule oral arguments, which consists of attorneys for both sides taking turns presenting their arguments to a panel of judges (referred to as “justices” in the appellate context). Although oral argument is relatively short in duration—it lasts for a maximum of one hour—counsel must spend considerable time in preparation. The advocates must be ready to answer any question from the justices—whether it be about the record (which can be thousands of pages) or the parties’ legal contentions.
Step Five: Decision.
The appellate court issues its decision (i.e., the “opinion” of the court), which typically takes one of the following forms:
Affirmance: The court declares that there was no prejudicial error. The ruling from the lower court stands.
Modification: An appellate court has the power, in certain circumstances, to correct defects and errors with the challenged order or judgment. The appellate court can also remand the case back to the lower court with instructions to correct the defect.
Reversal: Upon a finding of prejudicial error, the appellate court can partially or entirely reverse the trial court order or judgment at issue on appeal.
Step Six: Petition for Rehearing.
Under certain circumstances (e.g., if the decision omits key facts or law), the losing party may consider filing a petition for rehearing, which is a request that the appellate court reconsider its decision. Filing such a petition is an important (and sometimes mandatory) step for a party considering further appellate review (i.e., Supreme Court review).
Step Seven: Remittitur.
After the decision becomes final, the case is sent back to the lower court via a document known as a “remittitur.” This concludes the appeal and, if necessary, resumes proceedings in the lower court.