Taylor C. Young 2013-07-16 23:52:28
Five Questions to Ask Before Pursuing an Appeal in a Family Law Case Taylor C. Young is an AV Preeminent Peer Review Rated appellate lawyer and cofounder of Mandel Young, a Phoenix-based appellate boutique. His firm’s mission is to level the litigation playing field by providing small-to-mid size law firms, in house legal departments, and others ready access to top-notch appellate counsel when they need it most. Taylor handles appeals in a wide range of substantive areas, including complex commercial disputes, torts, and family law. He regularly teaches, speaks, and writes on appellate topics.His musings can be found on Mandel Young’s appellate blog – www.myappellate.com and at www.mandelyoung.com. Family law trials are oft en contentious and emotionally charged proceedings. For the participants, the stakes are high and are highly personal. When the trial is over, it’s a fair bet that one or both of the parties will be disappointed. That’s when my phone rings. Deciding whether to pursue an appeal is rarely easy. An appeal can be an expensive and time consuming endeavor. And, even if you have the means to fund an appeal, not every case is appropriate for appellate review. Here are five questions you should ask yourself and your lawyer when deciding whether or not to pursue an appeal. 1. What mistake(s) did the trial court make? Disappointment with the outcome of the trial is not—in itself—a legal basis for appellate relief. An appeal must identify specific mistakes made by the family court in the course of the litigation that affected the result. In other words, did the family court incorrectly interpret the law? Consider evidence it legally should not have? Refuse to consider evidence it legally should have? Misapply the facts of the case to the law? Make findings of fact that are not justified by the evidence? Or allow other irregularity in the litigation that deprived you of a fair trial? Unless you can point to a specific mistake by the family court that affected the outcome, your appeal is going nowhere. 2. Is there an adequate record of the mistake(s)? Just as important as identifying specific mistakes is making sure there is an adequate “record” of those mistakes. The appellate court will not consider issues or evidence unless first presented in the family court. An appellant must point to the record of proceedings before the family court and show how, based on the law and specifically identified evidence that was before the family judge at the time, a mistake was made. For example, in a divorce case, it is unfair for one party to hide assets from the other party. If, however, the issue isn’t raised in the family court or evidence isn’t presented that assets are being hidden, there is little that the appellate court can do about it. The result may be unfair. But, if the family judge’s decision wasn’t unreasonable based on the evidence in the court record, the appellate court is unlikely to reverse. 3. How will the appellate court evaluate the mistake(s)? Generally speaking, the appellate court is not a “do over” court. Even when mistakes are appropriately identified and preserved, whether the appellate court will reverse the trial court is highly dependent upon the “standard of review.” Most decisions that a family court makes—like child support and distribution of property—are discretionary. The appellate court applies an “abuse of discretion” standard and will uphold the decision if there is any reasonable evidence in the record to sustain it. Accordingly, between 2007 and 2010, the Arizona Court of Appeals reversed discretionary decisions in only 15 percent of family law cases.2 Some decisions that a family court makes—like interpreting Child Support Guidelines and classifying property as community or separate—are not discretionary. Those decisions are reviewed “de novo” with the appellate court giving no deference to the family judge’s determination. You have a much better chance of reversal under a de novo standard of review. In the same three-year period noted above, the Arizona Court of Appeals reversed about two-thirds of the family court decisions it reviewed de novo.3 Thus, an intelligent decision about whether to pursue an appeal must include an evaluation of the standard of review the appellate court will use to decide the issues. 4. What can the appellate court do about the mistake(s)? Although the appellate court will sometimes reverse with a specific direction to the family court to enter judgment in the appealing party’s favor, in many cases—particularly those involving discretionary decisions—the best you can hope for is a remand for a new trial. This means going back to the family court a year or more after the first trial and doing it all over again. Given the financial and emotional toll of family court trials, you need to consider not only whether you can fund an appeal, but whether you can afford to continue litigating this dispute after the appeal. 5. Is there another way to fix the mistake(s)? In most cases, when the family court issues its decision after trial, you have to live with it and abide by it even while you pursue your appeal. Since it will likely take the appellate court at least a year to decide your appeal, this can be a hard pill to swallow. For issues involving children—e.g., parenting time and legal decision-making—it may make sense to pursue a post-decree modification strategy in the family court either in conjunction with or instead of pursuing an appeal. Appellate mediation and appellate special actions are also avenues for resolving your case more quickly. You should discuss all of these options with an experienced appellate lawyer. Seldom is the decision whether or not to appeal in a family law case easy or obvious. While there are significant hurdles to successfully appealing a family court decision, there can be real consequences for you and those you love, if an erroneous decision by the family court is not timely challenged. Going over these five questions with your family law attorney and an experienced appellate lawyer should be a good start toward making an informed decision about pursuing an appeal.
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