In most civil and criminal cases, there is the right to take an appeal once the all of the issues have been decided in civil cases or the sentencing has occurred in a criminal matter. However, in domestic cases there are numerous times an appeal may be taken. For instance, there is the right to appeal after the court issues its order in a divorce case. This appeal (as with most appeals) is a matter of right to the Indiana Court of Appeals. However, after a divorce is final, the parties could in theory have several additional appeals each time the court modifies child support or custody issues.
Perhaps the most common appeal is one challenging the property and/or custody division at the end of a trial when the court issues its final order. The stronger appeals are ones that involve mistakes of law, such as if the court were to divide property in the marriage that is not subject to division, such as certain railroad pensions.
The reason these make for stronger appeals is because the Court of Appeals does not give any deference to trial court if they make a mistake of law and review it de novo. However, the Court of Appeals will reverse cases it gives great latitude to if it abuses this discretion. The Court of Appeals gives significant discretion to factual disputes (he-said, she-said). This is because the trial court saw and heard the witness live and can best assess the credibility of the witness through verbal and non-verbal communication. The Court of Appeal cannot do so, as all it has is a cold record (the typed transcript of what was said in testimony, exhibits, and the various filings).
While the typical domestic appeal comes with a final order (paternity, divorce, on in post-divorce modification actions related to custody or child support), there are a provision In the Indiana Rules of Appellate Procedure to take an appeal before a case is complete. These may be discretionary, meaning the trial court would have to approve it and the Court of Appeals would have to accept this interlocutory appeal (these are rare). In addition, there is an absolute right to appeal certain orders of the trial court made during divorce or paternity proceedings, including the following types of order:
That said, any interlocutory appeal or appeal or a final order does not stay enforcement of the order. This means if you are compelled to pay certain preliminary legal fees during the course of a divorce case, you must pay it unless it is stayed. A stay first must be sought in a trial court. If the trial court does not rule on the stay in a timely fashion or denies the stay, the appellate rules allow the litigant to then seek a stay in the court of appeals.
With all final domestic orders, a notice of appeal must be filed within thirty (30) days of the order or the right to appeal is forfeited. This means the trial courts order stands (although there is a right to subsequently challenge an order obtained through fraud). The notice of appeal requires a $250 filing fee. Generally, once that is paid within forty-five (45) days the clerk will prepare the clerk’s record and the court reporter will prepare the transcript. When these are complete and filed (which is very technical under the rules), your appellate attorney has thirty (30) days to write and file you Appellant’s Brief with the Indiana Court of Appeals, located in Indianapolis, Indiana. The case on appeal is decided by three-judge panels of the several appellate judges on the Indiana Court of Appeals.
With this noted, if you receive an adverse order and you wish to appeal, it is important to have already had the conversation with your trial counsel, who may not do appeals. The appellate bar in Indiana (the number of attorneys who handle appeals) is small. You have to select an appellate attorney and file your appeal, again, within thirty (30) days of the final order or the right is forfeited. That said, you should be aware you can appeal some, or all, of the issues. The stronger appeal focuses on your strongest issue, but you have the right to challenge the entire order if you wish. To decide this, you need to have a detailed conference with your appellate counsel, who will likely what to discuss the case with your trial counsel. Ciyou & Dixon, P.C. handles domestic appeals of all types issued in all of Indiana’s ninety-two (92) counties.
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