The district court or magistrate often has the last word in family law disputes. Often — but not always. If you’ve been shocked by an unexpected adverse ruling, it could mean your expectations were way off. However, it also could mean the court got it wrong. If you and your attorney believe that’s the case, you may be able to appeal.
Read this article to learn the answers to some frequently asked questions about family law appeals. For an in-depth video and article on this topic, go to our article Appeal a Family Court Order.
To be blunt: Not often.
Here is why:
Trial court judges are given wide discretion to determine what’s in the “best interest of the child.” This authority is vested in the court by Colorado Revised Statutes 14-10-124, which says:
“The court, upon the motion of either party or its own motion, shall allocate the decision-making responsibilities between the parties based upon the best interests of the child.” — Colo. Rev. Stat. 14-10-124 (b)
Appellate judges respect trial court judges’ authority and their decisions. So, they generally won’t interfere unless there’s a misapplication of the law that significantly prejudiced the case’s outcome.
An appellate court won’t even consider your case unless it believes:
- The judge made an error of law: This occurs when the judge incorrectly applies a legal rule or standard to the facts in your case. For example, in a custody hearing, an appeal could be justified if the judge disregards evidence of domestic violence or neglect as irrelevant to custody matters. In fact, this is the strongest possible standard for an appeal.
- The judge based a ruling on factual errors: Rulings should be based on proven facts. Since there isn’t a jury at the final orders hearing, the judge must serve as an impartial fact finder. He or she should assess the evidence to determine whether facts have been proven. Appeals courts are cautious about challenging trial judges’ factual rulings. However, if a trial court’s finding is clearly and indisputably incorrect, the higher court won’t hesitate to reverse it.
- There was an abuse of judicial discretion: Trial court judges have wide-ranging authority to allow evidence to be admitted, grant motions or requests, and to approve settlements or protection orders. This all falls under the umbrella of “judicial discretion.” An appeal on these grounds must clearly prove that the judge abused his/her discretion on key motions. Otherwise, appellate judges will defer to the trial court’s authority. This is the hardest standard to prevail on in an appeal, and unfortunately is the area most ripe with problems for clients.
Family law appeals — including matters allocating parental responsibilities — take, on average, one to two years.
Of course, the following factors can speed up or slow down the process:
- One or both sides turn in briefs well in advance of statutory deadlines
- The complexity of your case
- Whether oral arguments are scheduled
- How many other cases have to be heard before yours
Appeals are Driven by Deadlines
Once you and your attorney decide to file an appeal, your focus will turn to these two deadlines:
- You have 49 days to file a Notice of Appeal once you receive a written and signed copy of the trial court’s final orders. If a magistrate heard your case, then you have 14 to 21 days after receiving written orders to appeal to a district court judge prior to initiating a formal appeal matter with the Court of Appeals.
- Next, you have seven days after filing the Notice of Appeal to designate transcripts. Essentially, you’re asking the district court that heard your case to send your case file to the appeals court. The District Court then has 63 days to get your case file transferred (known as Designation of the Record). This will include typed transcripts of the court proceedings if so requested. It will cost you $150 for every hour it takes to transcribe the hearing, and you must pay that fee in full before the court will send the file to the appeals court.
After clearing these hurdles, your attorney will write and send to the court:
- the Opening Brief (filed by your lawyer),
- the Answer Brief (filed by the opposing party’s lawyer), and
- the Reply Brief, an optional rebuttal to the Answer Brief.
This process takes about 13 weeks. It can be a shorter process if briefs are filed significantly ahead of deadlines, but that’s unlikely.
On the Docket
By now, you will be about seven months into the appeals process. Now your case, with its transcripts and briefs, waits to be assigned to an appeals court. This can take an additional nine to 10 months, depending on how crowded the docket is.
Appeals Court Review
At last, your case is taken up by a three-judge appeals panel. They will review the original trial hearings, read and discuss the briefs, and issue their decision.
If either side schedules oral arguments, considerable time could be added to this part of the process. Oral arguments allow the appeals judges to get clarity on certain issues in the case.
The appeals court’s ruling will be written and mailed out three to four months later. However, it’s likely you’ll know the court’s decision much sooner.
You can expect to spend at least $10,000 on your appeal. This is all the more reason to talk with an experienced family law appeals attorney before insisting on an appeal.
You may be wondering why the appeal costs so much. Let’s take a look:
- Filing a Notice of Appeal = $233.
- Designating transcripts = $150 per hour of court proceedings transcribed. Example: If your hearing lasted 5 hours in court, that’s $750.
- Attorney fees = Significant. Preparing an appeal, then researching, writing and filing briefs on tight deadlines is intense work. The billing will reflect that.
- If you lose = nearly doubling your own costs. You forced the other parent to defend against your appeal, and you lost. Therefore, you could be ordered to pay the other side’s costs and attorney fees as well as your own.
Pursuing an appeal has its risks. But let’s consider the rewards.
It can be miserable living with incorrect, tone deaf court orders pertaining to your children. If you believe the trial court made a reversible error of law or discretion, and your attorney concurs, fight it.
In the end, the costs of filing an appeal are finite. The time you spend raising your children is also finite, but priceless. You can’t buy that time back when it’s gone.
A default judgment, which happens at the trial court level, can be awarded when a party fails to respond to papers served within a certain period.
A default judgment gives the moving party everything they’ve asked for in the petition or complaint. Often, it is the result of the respondent failing to respond or show up in court.
For example: Let’s say you file a motion requesting possession and full decision-making authority (custody) over your child. You ensure the other parent is properly served regarding the motion. He or she has a certain amount of time to respond to the court. If time runs out before that parent responds, you can ask for a default judgment.
An Appeal is Different
The appeals process has strict deadlines for filing notices and briefs. However, the onus is on each party’s legal counsel to meet them.
In Colorado, family law appellants are required to retain an attorney before they proceed. Attorneys have a professional responsibility to give their clients the best representation they can. This especially applies to appeals lawyers. This is why you should not count on winning an appeal on a default judgment.
What if the Appellee Never Files an Answer Brief?
This is an interesting scenario. Let’s say you’ve appealed a child custody ruling and filed an Opening Brief. Having already prevailed in the lower court, the respondent (called an appellee) opts not to file an Answer Brief. They are not required to file an Answer.
An answer wasn’t filed either because the appellee cannot afford to fight your appeal or they believe your argument is so weak it doesn’t require an Answer. In essence, they are counting on the higher court to smack down your appeal. This can happen, but it’s a risky move, and it’s one that most lawyers would not recommend.
As the appellant, if your side files the Opening Brief too late, the appellee can file to dismiss. The court would most likely grant it. (Colorado Rules of Appeals, P. 31)
You are asking about Family Law appeals in general. Most of them involve final orders after a divorce decision or judgment.
The family law appeals process can be daunting, but they’re often crucial to determine important decisions about divorce settlements, custody arrangements, and child support. Here is a short overview of the process:
- Understanding Appeals: An appeal is a legal process that allows a higher court to review a lower court’s decision. In family law, appeals are used to identify legal errors or judicial misconduct.
- Types of Matters: Various family law matters can be appealed, including parenting time, child support, spousal maintenance, decision-making authority, and property division. However, the appeal must be based on legal errors, abuse of discretion, or misapplication of the law.
- Appeal Process: Appeals differ from trials as they focus on reviewing whether the trial court accurately and fairly applied the law based on the presented facts. No new evidence or arguments can be offered during an appeal.
- Appellate Courts: In Colorado, appeals for family law matters decided by a magistrate go to a district court judge for review prior to the formal appeal with the Court of Appeals, while orders issued by a judge proceed to the Colorado Court of Appeals.
- Timelines: The time to file an appeal depends on who issued the final orders. For district court orders, the appeal must be filed within 49 days of receiving the written and signed orders. For magistrate orders, a petition for review should be filed within 14 to 21 days of receiving the order. Note that this timeline can be affected by some post-trial relief motions.
- Role of Appeals: Family law appeals establish case law, clarify legal principles, address ambiguities or gaps in the law, and influence future decisions. They also hold lower courts accountable for their decisions.
- Preservation of Claims: To bring up an error on appeal, it must have been addressed during the trial. Failure to preserve an issue at trial means it cannot be raised on appeal.
- Consult an Attorney: It can be challenging to determine whether to pursue an appeal. Consulting an experienced family law attorney is crucial to evaluate the prospects of a successful appeal and provide guidance.
- Filing an Appeal: Filing an appeal requires completing paperwork, including a Notice of Appeal, and adhering to strict deadlines. Serving the notice to the district court, appellate court, and opposing party is necessary.
- Designating and Ordering Transcripts: The appellate court reviews the Record on Appeal from the trial court, which includes all relevant documents, exhibits, and transcripts. Ordering and paying for transcripts is the appellant’s responsibility.
- Record on Appeal Deadlines: Deadlines must be followed for designating transcripts and ensuring timely delivery of the Record on Appeal to the appellate court.
Navigating the family law appeals process is complex. The assistance of an experienced family law attorney is crucial to making informed decisions and increasing the chances of a successful appeal.
Read our full legal guide about Family Law appeals to get more information about the process.
You don’t appeal permanent divorce orders due to fraud. New facts — such as the discovery of fraud — are not reviewable on appeal. However, you may have other post-trial relief options available to you.
What you can do is potentially reopen your divorce case.
After a divorce agreement is signed, either spouse can request the court to set aside the orders if there’s evidence of fraud, misrepresentation, or misconduct of the other party — Colorado Rules of Civic Procedure Rule 60(b)(2).
What’s the catch? You have only 182 days from the date of your divorce decree to file a motion alleging fraud. That’s roughly six months.
If the fraud you’ve uncovered involves hidden or misstated assets, then you have 5 years from the date of your divorce decree to reopen the matter and request a reallocation of the assets and debts. (C.R.C.P 16.2)
Reopening your divorce case is a far better way to address divorce fraud in Colorado.
Not only is it usually faster, it can be less expensive. And … if the uncovered fraud is determined to be particularly heinous, the court could even award you attorney fees — more money.
Many people use the terms “divorce decision” and “divorce settlement” interchangeably. However, these are two different things in the realm of Family Law.
A divorce settlement is an out-of-court agreement reached between the two spouses. Since settlement agreements are negotiated out of court, they cannot be appealed.
However, a particularly unfair settlement agreement can be reopened under certain conditions. These are:
- Fraud: A spouse was deceived about an important aspect of the settlement.
- Duress: A spouse only agreed to the settlement agreement under pressure or coercion.
- Mistake: One or both spouses had the wrong information when reaching the agreement.
- Unfairness: The terms of the agreement are obviously and grossly unjust.
Note that each condition is fairly extraordinary. Merely disliking the results of the settlement is not sufficient grounds for complaint. You should not sign a settlement agreement until your lawyer has carefully read it.
Court ordered alimony in Colorado is legally called spousal maintenance. And these orders can be appealed. However, the appeal will fail unless the order resulted from judicial error that fundamentally affected the case. Your ex must be able to show the error.
Colorado law sets out advisory guidelines for courts to use when determining the eligibility, amount, and duration of maintenance. The appellate panel will decide whether the lower court correctly applied the facts of your case to statutory guidelines.
The appeals process can take at least a year — probably longer. During that time, the maintenance order remains in effect unless your ex was granted a stay pending the appeal.
A stay halts court enforcement of certain orders — like maintenance — while an appeal is pending. The court does not issue a stay lightly. Your ex must show either:
- That the order being stayed is likely to be reversed on appeal, or
- Not staying the order would result in irreparable damages. For example, if the maintenance order is substantially more than your ex can pay, the damages would be financial.
Without a stay, your ex must make the court-ordered payments while the appeal process plays out.
Defending Against an Appeal
Often when one side files an appeal, the other must decide whether to defend. You can choose not to — and let the trial court’s judgment stand on its own. That is not advisable, though.
If your ex’s appeal has even a slight chance of succeeding, it’s best to retain a lawyer. You’ll want someone representing your interests before the appellate panel. Of course, this foists additional costs onto you.
Fortunately, the appellate court recognizes this. If your ex loses on appeal, he or she could be ordered to reimburse your court costs and attorney fees.
A stay halts enforcement of a court order while an appeal is pending.
You can appeal if the court erroneously orders you to pay more than you can afford in child support. A stay will stop, or significantly decrease, the amount you must pay during the appeal process.
However, it’s not easy to get a stay granted. Your attorney must file a motion for a stay with the district court. Your stay will be granted only if:
- The ordered child support is likely to be reversed on appeal, or
- Not staying the order would result in irreparable damage.
Your attorney can advise you on whether a stay is feasible in your situation.