Appeals of Family Law Cases

A person who feels he or she has lost a divorce or child custody trial, needs to know:

• Appeals in family cases are very hard to win because the trial judges are given so much discretion. Only a serious error in applying the law or a ruling that is not based on any evidence will be overturned.
• An appeal in a custody case may not fix your problems. In the majority of cases, the ruling of the trial court stays in place while the divorce is pending and it may take a year or more to resolve the appeal. For child custody cases, it might make more sense to wait 12 ½ months and file a modification case to try to get the ruling about custody or visitation changed.
• Appeals are expensive. The person who wants to appeal has to pay the court reporter to type the transcript of the trial and pay the appellate attorney. The total cost of an appeal to the court of appeals usually ranges from $10,000 to $30,000 (and can be more).
• There are important deadlines that cannot be missed to file an appeal (see below). Clients should consult immediately after trial with an appellate lawyer to see if an appeal has a chance of success.
• Even if a parent or spouse appeals and wins before the court of appeals, in most situations, the case is sent back to the same trial judge to do the trial all over again. It often does not feel like a victory to be back in front of the same judge two years later after spending a lot of money.

Deadlines in appeals are very important but they are also somewhat flexible. Most important documents can be filed up to 15 days late if a motion is filed explaining why they are late. However, failure to comply with certain deadlines can mean the client cannot appeal at all.

The most important deadline in an appeal is to file a notice of appeal within 30 days of the date the judgment is signed by the trial judge. A motion for new trial that also must be filed within 30 days extends the deadline to file notice of appeal to 90 days. A person who did not know about a final judgment and who was not sent notice of the judgment by the clerk may also have extra time to appeal.

In most cases, the person who wants to appeal (the “appellant”) must request the trial judge to issue findings of fact and conclusions of law within 20 days of the date the judge signs the final order. These findings help explain why the judge ruled as she did. Requesting findings of fact and conclusions of law also extends the deadline to file notice of appeal to 90 days.

The appellant must also request the court reporter to create a record of the trial and ask the clerk to create the clerk’s record consisting of all the pleadings and orders filed in the case.

The subject of deadlines in appeals is complex and an experienced appellate lawyer really should be consulted as soon as the judge has ruled after trial.

For example, there is a unique short deadline to request findings from the trial judge about how child support was calculated. This deadline is 20 days from the date of the rendition of the ruling, and not 20 days from the date of judgment like other types of findings. Tex. Fam. Code Sec. 154.130.

Most appeals from a trial court’s ruling only go as far as the court of appeals, which have no choice but to hear a timely appeal. Only a small percentage of cases are heard by the Texas Supreme Court, which must vote to take a case for review. Most appellate decisions in family law are from the court of appeals. The Houston area has two courts of appeals, the First and Fourteenth, and appeals from counties in this area are randomly assigned to one of those two courts. Sometimes, cases are transferred to other courts of appeals as part of docket balancing.

Texas law gives the trial judge wide discretion to award custody to one parent or the other, to set visitation, to divide property, and award attorney’s fees. The judge has great latitude in controlling the flow of cases, granting continuances and ruling on evidence. The court of appeals for the most part does not get to second guess the trial judge. Even if the three justices from the court of appeals might have reached a different conclusion, they still cannot reverse what the trial court did unless the judge did not follow the law or there was no evidence to support what the trial judge did.

A mistake on applying the law may be more clear cut, such as ruling whether a Texas court has jurisdiction to modify a spousal support order from a court in Virginia. A judge does not have any discretion to not follow the law. But, most decisions in family courts are only partially based on the law and come down to what is in the best interest of the child, what is a fair and just property division, which testimony to believe and which witness to not believe. Any rulings of that sort are mostly left up to the trial judge and usually cannot be reversed on appeal.

Even if the judge ruled in error, the case still is not reversed unless the error probably affected the outcome of the case. So, for example, it may have been a legal mistake to allow the child’s counselor to give an opinion that the child was starting to act like her father, a likely sociopath. But, that one opinion in a week long case with 11 witnesses probably did not change the outcome and so that error would not result in a win on appeal for the father. In a divorce case, a ruling that a motorcycle was community property when the evidence did show it was separate property may still not be enough to reverse the entire case if the motorcycle’s value was only 1.7% of the total community property estate that was divided.

Usually, a timely and reasonably specific objection must be made at the time the judge makes her ruling during a hearing or trial. If the judge rules that certain evidence cannot be admitted, the attorney offering that evidence must make an “offer of proof” so that the court of appeals can know what was excluded and how important it was to the overall case. Appeals are often lost because the lawyer in the courtroom did not properly object or make an offer of proof. Appeals are based on the record from the trial and it is too late to add evidence or call more witnesses during the appeal process.

Once the complete record from the trial court is filed with the court of appeals, including the court reporter’s transcript of the trial (for most appeals), the appellant has 30 days to file her brief. The brief explains the story of the case and how the trial court made mistakes big enough to justify being reversed. Click here to read an example of a brief Greg Enos prepared for a client who had lost his modification custody case at trial. The attorney for the other side (the “appellee”) then has 30 days to file a brief. Sometimes shorter, reply and response briefs are also filed. The deadlines to file briefs are often extended by months.

Some appeals also involve oral arguments, where the lawyers appear before the justices to make legal arguments and answer questions about the law from the justices. Click here to see Greg Enos argue a case to the Texas Supreme Court (which he won!).

Several months (sometimes over a year) after briefs are submitted and oral argument is conducted, if requested, the court of appeals will then issue an opinion that is the court’s ruling. Click here to read a court of appeals’ opinion on a case that Greg Enos won for his client. The court of appeals can affirm the trial court, meaning that the ruling is not changed. The court of appeals can reverse the trial court and send the case back for further proceedings. The case can also be reversed and rendered, meaning the court of appeals takes out of the trial court’s ruling the parts of the order that were in error.

Most often, if the appellant wins, the case goes back to the trial court (and usually to the same judge as before) for a “do over.”

A ruling on a contempt motion cannot be appealed in the normal way but must be challenged by a similar procedure called a petition for writ of habeas corpus filed with the court of appeals.

Usually, the rulings of a trial court judge cannot be challenged until the case is over in an appeal. However, some legal rulings are so important that they can be challenged with a procedure called a petition for writ of mandamus. The legal standard is basically that the trial court made a legal mistake and it is so important, or of a nature, that an appeal would be too late or result in a huge waste of resources. Examples of cases where a mandamus action might be appropriate would be temporary orders that give custody to grandparents or temporary orders that change the area where the child must live or a ruling on discovery that requires a step-parent to produce private psychiatric records. Click here to see an example of a petition for writ of mandamus filed by Greg Enos for a client that resulted in a win before the court of appeals.

Clients who feel like they lost their trial and want to explore a potential appeal should consult with a lawyer experienced in appeals as early as possible. Usually, an appeal is handled by a lawyer different than the trial attorney. Attorney Greg Enos is ready to consult with you about your questions about appeals.