1) An appeal must be timely filed. It is critical to know when to appeal because the failure to file a notice of appeal—the document initiating the appeal—within the time allowed almost always leads to dismissal of the appeal.
2) In an appeal, you are strictly limited to the record as it existed at the time of the lower court’s ruling. This means parties are usually prohibited from advancing new facts or legal theories not relied on in the lower court with the exception of a claim the lower court lacked subject matter jurisdiction. Additionally, an appellate court will not review questions that are moot or collateral.
3) The success of an appeal is greatly affected by the standard of review to be applied by the reviewing court in addressing the issues raised on appeal. The standards of review on appeal dictate the degree of deference a reviewing court will give to the lower court’s decision and is determined by the type of issue(s) raised on appeal.
The three standards of review generally applicable in a domestic relations case are as follows:
(a) De novo. The de novo standard is applied when questions of pure law are at issue. Under this standard, the issue is reviewed anew giving no deference to the lower court.
(b) Manifest Weight of the Evidence. Typically, a lower court’s factual findings are reviewed under this standard. Here, the reviewing court will give deference to the lower court who was in the best position to observe the conduct and demeanor of the parties and witnesses as well as the evidence. A lower court’s finding is against the manifest weight of the evidence where the opposite conclusion is apparent, the outcome is palpably erroneous, is clearly the result of passion or prejudice, or appears to be unreasonable, arbitrary, or not based on the evidence.
(c) Abuse of discretion. This is the most commonly applied standard of review and provides the greatest deference to the lower court’s decision. An abuse of discretion occurs where the ruling is arbitrary, fanciful, or no reasonable person would take the view adopted by the lower court. A lower court also abuses its direction where it has misapplied the law.
4) The lower court can be affirmed on any basis appearing in the record regardless of whether the court actually relied on that ground.
5) If you believe the lower court has made a mistake in your case, discuss the matter with an experienced appellate attorney. It is important that you speak with an experienced domestic relations attorney to weigh the pros and cons of any potential appeal and to ensure appellate deadlines are met and the appellate rules are followed. Working with an attorney who understands appellate rules and procedures can be extremely helpful to a successful appeal.
For more information on Ms. Fisher, please visit: www.beermannlaw.com/team/jamie-r-fisher.
BEERMANN is the Family Law Firm that Cares.