Your right to appeal
When there’s an error
Appeals are different from family court proceedings. To appeal a case, you do not present your case again. It’s not a retrial. Instead, an appeal must be made if a judge has made a legal error. That means a decision was made in your case that is legally wrong, not supported by the evidence or contrary to the law. Many times, there will be legal errors within a family law decree that could be appealed, but the party didn’t know about their appeal rights.
The first, and most important thing for you to know about appeals, is that timing is everything. You MUST file a notice of appeal within 30 days after receiving the final judgement. Even the timing of what constitutes a final judgement can be difficult to determine. For instance, if you receive your decree but someone is ordered to submit an application for attorneys fees, the judgement isn’t final until the award
Sometimes, you can appeal a decision in a “special action” before you have a final judgment. You can appeal a very specific issue regarding a temporary order ruling for issues related to a sale of the house, the proceeds or operation of a business, or any specific issue that is related to your divorce or custody case. This, too, has specific rules and deadlines, so it is important that you contact an attorney who is experienced in appeals as soon as you get the ruling you are unhappy with.
Not all family law attorneys can or should practice appellate law, or the handling of appeals. At Modern Law, our attorneys have more than 100 combined years of experience in practice and we have handled, and won, complicated appeals cases. We have handled appeals related to division of property, separate vs. community property, deviation of child support cases, orders of protection, waste claims and more.
From our vantage point, your appeal should be handled in a two-part process. First, we analyze your legal issues, the existing case law, and your objectives to determine your likelihood of success on appeal. Then we have a meeting to discuss our findings and propose a solution moving forward.
The Arizona courts have a more than 100 page guide for handling an appeal on your own. We do not recommend that you represent yourself in an appeal. We recommend you work with an experienced attorney because appellate law is research, rule, and procedurally very specific. It takes a high degree of training and experience to handle appeals. Nevertheless, here is a link to the guide and below you will find a flow chart that describes the appellate process.
Key Terms for Family Law Appeals:
The appellant is akin to the Petitioner. This is the person who wants to file for the appeal. It does not matter if you were previously the Petitioner or Respondent, whomever files the notice of appeal first will be the appellant.
The transcripts refer to the recording of what took place in court. The court of appeals makes their decision based on what happened in court and what was filed in the official court record. When your attorney “objects” or states “for the record” they are doing so not just to convince the judge, but to preserve your rights to appeal issues at the court of appeals.
After the appellant has filed their notice of appeal, the other party has the chance not only to respond to the appeal, but to appeal any decisions that they believe constitute a legal error.
A bond is money posted that is held in trust, just in case. In the case of an appeal, if you are trying to avoid paying a judgement against you based on your theory that there has been a legal error, you may need to post bond. A Supersedeas Bond (also known as an Appeal Bond) is a type of bond that is required in a court of law you want to appeal a ruling to a higher court while delaying the payment of a judgment.
The purpose of a Supersedeas Bond is to hold the appellant liable for court costs should their appeal be unsuccessful. The bond guarantees payment of the judgement if you lose your appeal.
The court of appeals will issue a ruling telling you when your pleadings, like your statement of the case or opening brief is due. The opening brief is probably your m0st important document in your appeal. Great care should be taken to make sure your brief is crystal clear, correct, and well supported by the record.
The appellee is the responding party or the opposing party to whomever filed the first notice of appeal.
In most appeals cases, no one ever goes to court. This can be a huge plus for someone who has just gone through a divorce. The appeals process is not nearly as time consuming or invasive as the family court proceedings on the lower level. You are not questioned. You do not present evidence. An oral argument is not always required for appeals. Many times, the judges make their decisions based on the briefs only. If there is oral argument, the attorneys for the parties would go to the court of appeals to make legal arguments and answer clarifying questions.
This is the ruling or the outcome of the appeals decision. The case may be denied or reversed and remanded. At that point, the issue goes back to the lower level or can be appealed further to the supreme court.
Appeals cases are some of the most important cases for family law. You have the ability to “make law” and right wrongs. We would love to be a part of your appeals team. Please contact us for a consultation on your family law appeals case. 480-649-2905.