Family Law Appeal
In family law appeals, it is important that your appellate attorney knows more than appellate law: they must also know family law. Attorney Andrew J. Botros of Bickford Blado & Botros is an experienced appellate attorney and a Certified Family Law Specialist, certified by the State Bar of California's Board of Legal Specialization. He has ably and successfully represented clients in family law appeals. His published appellate cases include Lief v. Superior Court (2018) 30 Cal.App.5th 868, In re Marriage of Kent (2019) 35 Cal.App.5th 487, and Menezes v. McDaniel (2019) 44 Cal.App.5th 340.
Some family law litigants (and even some attorneys) may think an appeal is just a “do-over” of what happened at the trial level. However, trials and appeals are two very different proceedings
Trial courts ask: “What are the Facts?”
It is not unheard of for a family law trial to last several days, or even several weeks. However, the oral argument on an appeal of a week-long trial will almost never exceed 30 minutes and usually doesn’t impact a case. So, why is that?
The reason why a trial can last so long is because the parties are offering their different versions of the facts. The parties are usually examined by both sides, other witnesses (sometimes expert witnesses with a lot to say) are also examined, and exhibits are introduced into evidence. In most cases, the witness’ credibility is a critical issue for the Court. Accordingly, a lot of time and effort is devoted to either bolstering or attacking the credibility of witnesses. At the end of a case, the trial judge has to determine what laws to apply and how to apply them, but he or she must also determine what happened and who was telling the truth.
Appeals court: How does the law apply to the facts determined by the Trial Court?
On appeal, the factual findings made by the trial judge are given extraordinary deference and are extremely difficult to challenge. For instance, the determination of credibility is the exclusive province of the trial court. For example, consider the following: a trial court believed a raging murderer’s testimony that he saw the Pope steal candy from a candy store. 100 religious clerics from every denomination testified they were watching him the whole time and that there was no theft. Believe it or not, if the trial judge finds the murderer’s testimony more credible, that factual finding that the Pope stole the candy cannot be disturbed on appeal.
Basically, as long as any evidence in the record would support the Court’s finding, the factual findings won’t be disturbed on appeal. Unlike at trial, the Court of Appeal does not take witness testimony, and (except for extremely limited exceptions) it doesn’t review or admit new exhibits. As such, most of the litigation during an appeal occurs in the written appellate briefs. In fact, by the time the lawyers walk into the Court of Appeal to argue their cases, the judge’s already have a tentative opinion drafted.
What’s exactly is a Writ?
So when do you file a writ and when do you file an appeal?
First, let us address the practical differences between an appeal and a writ. Think of appeals as non-emergency cases and writs as emergency cases. Appeals can take a long time because the appellate courts are so busy. In California a party can reasonably expect the appellate court to rule on the appeal in about one year from the date the notice of appeal is filed. Also, in California, the judges are required to issue a written opinion in every case explaining their reasoning for either affirming or reversing the judgment. This is one reason why appeals take so long.
Writs allow a party, for lack of a better term, to “cut in line.” You can get a decision from the appeals court in as little as a few hours if the situation requires it. Writ relief is one hundred percent discretionary and, unlike in appeals, the Court of Appeals won’t explain its reasoning for denying relief it doesn’t want to.
The most prominent question (but not the only question) in determining whether an appeal or a writ request should be filed is determining if the order made by the trial judge is considered “final.” Final orders are described in Code of Civil Procedure section 904 through 904.5 Here are example of family law orders that are final:
- Any judgment where issues are not bifurcated (bifurcated judgments have their own complicated appellate procedures to determine if they are final).
- Any child support order, regardless if it is made before or after trial.
- Any spousal support order, regardless if it is made before or after trial.
- An order on a post-judgment RFO that requires no further action by the trial court.
- Domestic Violence Restraining Orders.
- A need and ability based attorney fee award made before or after a trial.
Final orders need to proceed by appeal absent extraordinary circumstances that make appellate relief impractical. A good example of a situation requiring writ relief in a final order was in Alan S. v. Superior Court. In that case, an attorney fee award was being challenged and if it wasn’t resolved immediately, the losing party could not retain their attorney and it would thus gravely affect the rest of the case. The losing party could not wait for an appeal, thus emergency writ relief was appropriate.
What family law orders must proceed by writ relief?
Here is a list of the most common orders that must proceed by writ:
- A prejudgment order on child custody or visitation made either ex parte, or at a Request for Order hearing.
- An order for exclusive use and possession made before judgment.
- Hearings on discovery motions.
- A hearing denying a continuance.
- An order denying a motion to quash a case for lack of personal jurisdiction.
Appellate litigation can be difficult and complex and it is vitally important that you understand your rights. That is why it is essential that you contact a qualified family law attorney who handles writs and appeals to discuss your case.
Please contact us if you are considering a divorce from your spouse, a legal separation, have questions regarding a possible appeal or writ. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.