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    • Sep 20, 2019
    • 3 min read

Part 1 on Appeals: Can I Appeal My Order?

Part 1 of our 4 part series on appeals in family law cases will discuss what type of family law order/ruling you can and cannot appeal. You have probably only heard the word appeal used in TV shows, movies, or for criminal cases. As emotions run high in divorce, paternity, adoption, modification, and guardianship cases, you may find yourself unhappy with the Court's ruling. Your first instinct may be to ask an attorney to file an appeal. But what all does this mean?


Understanding if you can appeal your order will save you from a headache. When you receive an order and are unhappy with what the court ordered, you will want to know - Is your order appealable? Let's dig in and find out!


Can My Order Be Appealed?


Temporary/Provisional Orders: As discussed in a previous blog, you will more than likely have a provisional hearing set on issues of temporary custody, parenting time, child support, and division of debts and property. After the hearing, the court will issue a temporary order, which typically CANNOT be appealed as it is just temporary in nature. A temporary order can be changed by the court when it issues the final order in your case or even before it issues a final order. Examples of how a temporary order can change after the final hearing are below:

  • The court allowed your spouse to remain in the marital residence until the final hearing. At the final hearing, the court, after hearing all the facts and arguments of the case, awards you the marital residence. This is now a permanent decision by the court.

  • The court granted custody of the children to you. However, after the final hearing, the court finds it is in the best interest of the children for custody to be awarded to your spouse.

  • The court ordered you to pay all the marital bills. After the final hearing, the court divides the bills between you and your spouse.

Temporary Orders are normally used to keep things status quo until a final hearing can take place. Therefore, temporary orders are typically not appealable as they are only temporary in nature.

 

Final Orders: At the final hearing, the parties present the testimony of witnesses, arguments, and exhibits. At the conclusion of the hearing, the judge may rule from the bench or they may take up to 90 days to make a final decision. A final order must dispose of all issues the parties' raised from the time the first initiating pleading was filed up to the final hearing. What does "dispose of all issues" mean? It means the court must hear and issue a ruling on ALL matters which were pending at the time of the final hearing. A final order CAN be appealed as it is ends the proceedings pending before it. Examples of whether or not your order is a final order are:

  • The court set a hearing for October 4th, on your pleading regarding marital property and debt, but scheduled a hearing for January 14th on the matter of child custody. The October 4th hearing takes place and on November 15th, the judge issues an order on division of marital property and debt. You are not happy with the order as your spouse will receive the marital home and you do not think it is fair they will also receive half of your retirement. You tell your attorney you want to immediately appeal. Normally, you cannot appeal at this time, as the issue of custody has yet to be heard by the Court and your case in its entirety has not resolved.

  • A final order on matters of paternity, custody, child support, and parenting time is issued by the Court. After reviewing the final order, you discover the Court did not calculate the other parent's 2nd income into the child support worksheet. Your attorney requests the Court to correct the error, which the Court denies. Leaving the final order incorrect. This is an appealable order.

While every final order is an appealable order in nature, not all final orders should be appealed. If you want to appeal the final order issued by your court, you should seek the advice of an attorney to assist you in determining your chances of succeeding on appeal.


During this Series on Appeals, we will address:

  1. what issues should be appealed

  2. the timeline of an appeal and

  3. what happens after the Court of Appeals issues their opinion

Our higher courts have been busy this year and a few new opinions could have real change to future cases. We will share some of those cases at the end of the series, discuss the higher court's ruling and how that ruling could effect family law cases to come.



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