A litigant’s right to appeal a questionable judgment is well-ingrained in Anglo-American jurisprudence. In fact, appellate opinions, (not trial court’s rulings or even the statutes) constitute the bulk of family law. These opinions offer precise interpretations vaguely-worded laws, and govern how trial courts must rule. Yet, only a tiny percentage of all family law cases ever reach even the first level of appellate review. Why is that? For starters, many family law clients simply can’t afford the appellate process. More fundamentally, overturning an unfavorable final judgment requires many conditions to be “just right.” As a result, while the right to appeal is available to all litigants, most family law attorneys will only handle a small number of appeals during their careers, if any.
First, let’s examine the basic procedure for an appeal. A family law litigant has 30 days from the final judgment to file a notice of appeal (A few non-final orders can also be appealed, but for the sake of brevity, we will only consider final judgments). For example, if you are not happy about how the trial judge ruled in your divorce trial, you must file the aforementioned notice no later than 30 days after the signed final judgment is issued. If you fail to timely file this notice, you waive the right to appeal forever. Needless to say, a competent family law lawyer will advise his/her client of this deadline either right before or immediately after the trial. Furthermore, the appealing party must pay the initial filing fee along with the notice of appeal. The clerk of court will not accept the notice of appeal without an accompanying payment of this fee, which ranges between $250 and $300.
Keep in mind that the notice of appeal merely announces to the court and to the opposing party/attorney that an appeal is being sought. Within 70 days after filing the NOA, the appellant must submit an initial brief. This brief is the “meat” of the appeal, and contains all of the legal arguments for overturning the trial court’s final judgment. The Florida Rules of Appellate Procedure contain dozens of detailed format requirements that the brief must adhere to (e.g. length, font, and margins). In short, drafting the initial brief requires a minimum of 4 to 6 hours of work for a family law attorney. This is why the appellant is given 70 days to complete this brief.
Within 20 days of being served the initial brief, the appellee (the party seeking to uphold the final judgment) must file the answer brief, briefs is typically shorter. Also, the appellee possesses the right to file a cross-appeal of the final judgment. However, these are rare.
Finally, the appellant may chose to file a reply brief within 20 days of receiving the answer brief. It simply responds to the arguments made in the answer brief. Thus, it is usually the shortest of the three. Overall, an appeal presents a lot of expense and risk.
The five District Courts of Appeals in Florida hear almost all appeals from trial court judgments. The DCA panel of judges will only overturn factual conclusions if the trial judge committed what is referred to as “an abuse of discretion.” Essentially, a trial judge’s factual finding must be devoid of any supporting basis for it to be overturned. A close decision on the facts will be upheld, even if the DCA would have reached a different conclusion.
On the other hand, when a trial court applies the wrong legal standard to a set of facts, the appellate court will almost certainly overturn that part of the decision. This factual/legal distinction is often quite subtle, and is not always immediately apparent. However, when deciding whether to appeal, a family law attorney should discuss with the client how many of the judge’s errors were legal, as opposed to factual.
Despite these challenges, I have represented five clients in appeals. Four of these clients obtained favorable rulings from the DCA. If you are considering filing an appeal of your final judgment, please call me, Eduardo J. Mejias, of AAA Family Law at 407-260-6001 before the 30-day deadline and schedule a free consultation with me.