Family Law Appeal
A final judgment can be challenged in one of two ways. A party can file a motion to set aside a judgment or file an appeal. A motion to set aside a judgment must be based on fraud or an allegation of improper procedure in obtaining the judgment. If the motion to set aside is granted, the case must be re-litigated and the parties must begin the entire process again. Unlike a motion to set aside a judgment, an appeal does not necessarily provide the parties with a new trial to re-litigate the issues. An appeal is an opportunity to argue that the law was improperly applied to the facts of the case. In San Diego family law courts, the judges have wide discretion to make decisions based on various interests. The party appealing the case, the appellant, may show that the trial court abused is discretion with respect to his or her particular case.
Many factors may prevent a once appealable issue from reaching the Family Court of Appeal. Some issues must be properly preserved for appeal during the initial trial on the matter. This means that if the correct objections are not made at the proper times, the issue may be non-appealable. Therefore it is imperative to retain a highly skilled and trained family law specialist for your case at the trial court level. Additionally, many strict deadlines are imposed on filing an appeal. For a family law case, the appellant must serve notice of appeal on or before the earliest of: (1) 60 days after the trial court clerk has served the appellant with notice that judgment has been entered, (2) 60 days after the other party serves the appellant with notice that the judgment has been entered, or (3) 180 days after the entry of the judgment. This restriction on filing an appeal is strictly enforced. If an appeal is filed after the deadline, it will be dismissed.
It is important to consider that a majority of appeals, especially in family law cases, are unsuccessful. This is because, as discussed above, family law judges have broad discretion at the trial court level. An appeal is also an expensive and time-consuming process. In fact, you may have a variety of other options available that can help you achieve the result you are looking for. If a judgment has been rendered in a family law case, either party may file a motion to modify that decision. Modifications are available in a limited number of circumstances and are typically granted where there has been a significant change in the lives of either party relevant to the family law court orders.
If you are interested in a divorce from your spouse or legal separation we can provide you with information and guide you through your options. Our team of experienced attorneys is prepared to litigate on your behalf.
If you wish to schedule a consultation with Nancy J. Bickford, call us at (858) 793-8884.