When the trial is over and the Judge has entered the Order, your case is finished, right? The answer is not necessarily. In some cases if you disagree with the Judge’s ruling, you may have another avenue available to you. In Episode 9, host Jaime Davis discusses the appellate process in family law cases with her colleague and fellow family law attorney Jonathan Melton.
Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.
Jaime Davis: Welcome to Episode 9 of ‘A Year and a Day’. I’m your host, Jaime Davis. In Episode 8 I discussed the topic of grandparent visitation with my law partner, Stephanie Gibbs. In this episode I will be speaking with my colleague Jonathan Melton about the appellate process and what recourse you may have if you do not agree with the judge’s decision in your case. Jonathan joined Gailor Hunt in 2013 and has practiced exclusively in the area of family law since that time. Prior to joining the firm, Jonathan served as a judicial law clerk for the Honorable Richard A. Elmore of the North Carolina Court of Appeals. In addition to representing clients in connection with separation and divorce, Jonathan focuses a portion of his practice specifically on family law appeals. Welcome, Jonathan.
Jonathan Melton: Thanks for having me.
Jaime Davis: So while we like to think our judges get it right every time in family law cases, sometimes a situation might arise where one party or the other disagrees with the judge’s ruling. In those cases is there anything that person can do?
Jonathan Melton: Yes. So those are the situations where the party that does not like the ruling or thinks something went wrong can choose to file an appeal.
Jaime Davis: And what is an appeal?
Jonathan Melton: So an appeal is a party asking a higher court to review the decision of the lower court. So for family law purposes, we’re typically talking about the district court hearing the case first and if a decision is made there that either side thinks is not correct or they don’t like then they can choose to appeal it to a higher court, which is usually the court of appeals. But it can sometimes be a superior court.
Jaime Davis: OK. What are the grounds for an appeal?
Jonathan Melton: Really anything. You have to be an aggrieved party, meaning you actually have to be a party to the case and you have to be a party that is somehow injured by the ruling. So for family law cases, it’s typically either side, but obviously the person that feels they prevailed isn’t going to file the appeal. But really, the only grounds for it is you have to be a party to the case and you have to be the aggrieved party, the one that has something entered against them. Somehow your rights are being affected.
Jaime Davis: So a random third party who is not either the plaintiff or the defendant, they have no right to appeal in these cases?
Jonathan Melton: Right. If there was just a witness or some other party that may have been at the hearing that just doesn’t like the results, they don’t have any standing to appeal. It has to be a party to the case, and the law says an aggrieved party, but for family law purposes, it being, you know, civil court, just one person against the other person. You know, I think aggrieved is a little discretionary, but certainly if it’s a contempt hearing, for example, and contempt is not entered against a party, the other side can’t appeal that because they’re not aggrieved.
Jaime Davis: OK. So let’s say that you are one of the parties to the lawsuit and you decide that you want to appeal the decision. What do you do?
Jonathan Melton: Well, after the written order is entered. So at all of the hearings, the judge will enter a ruling from the bench and then the order has to be reduced to writing. Sometimes that happens that day and sometimes one of the lawyers or the judge has to draft the order and it has to be entered. Once it’s entered then you can file a notice of appeal.
Jaime Davis: And so entered means signed by the judge and filed with the court, correct?
Jonathan Melton: Right. Signed by the judge and then clocked in file stamped by the clerk’s office.
Jaime Davis: OK. So once that happens, then what?
Jonathan Melton: Well, you file a notice of appeal and you have to do that within 30 days. So if your order is entered on day one, you have to file your written notice of appeal with the same court from what you’re appealing on day 31. It’s a 30 day window or you lose the right to appeal. And once you file a notice of appeal, it takes jurisdiction of that issue from the lower court and it gives it to the higher court and it starts the process of that review.
Jaime Davis: And so what that means is that the lower court or the district court that we’ve been talking about can no longer hear that matter. Correct, while it’s up in the court of appeals, is that right?
Jonathan Melton: Right. It takes jurisdiction of that matter from, for family law purposes, it takes jurisdiction of that specific matter from the lower court. So, for example, if you have a custody case and you may also have an alimony case going on, if you go to court for custody and you get an order, a final order that you’re able to appeal and you file a notice of appeal, it’s going to take jurisdiction of custody away from the court and give it to the higher court for review. Your alimony case can continue on just fine. And, in most circumstances, the lower court still has the ability to enforce the order while it’s been pending on appeal. They just can’t change it or enter any other new orders about custody while it’s on appeal.
Jaime Davis: OK. So if you have a custody order and the other side is not doing what they’re supposed to pursuant to the order, even while your case is on appeal, with the court of appeals, your district court judge can still hold the other party in contempt, is that what you’re saying?
Jonathan Melton: Right. Unless you get some sort of stay of enforcement, you can ask the court to enter an order that stays enforcement of the order or issue you’re appealing.
Jaime Davis: So you mentioned a stay of enforcement of the order. What does that mean and how do you get one?
Jonathan Melton: So you have to ask the court to hold off on enforcing that order while the issue is pending on appeal. So while the higher court is taking their time to review the hearing, review the order. See if anything went wrong. You’re asking the lower court to not enforce it. Basically act as though it does not exist right now. And if the lower court is not inclined to do that, you can also ask the court of appeals to do that. But typically, in order to ask the court of appeals to issue a stay, you have to first request the relief from the lower court and they have to tell you no, basically, in most circumstances.
Jaime Davis: OK. In your experience, how likely is a person to be successful having that order stayed while they’re trying to appeal the decision?
Jonathan Melton: I think typically financial issues are more likely to be stayed than custodial issues, like maybe an equitable distribution judgment, payment of maybe a lump sum payment, maybe an attorney fee payment, something that neither side is really going to be prejudiced from the lower court deciding not to enforce the issue while the higher court is looking at it on appeal. I think custody issues are more likely to be stayed if it was some drastic ruling. Like, for example, if a judge is trying to take a child from a parent, I think you could get that stayed. I have had a case with similar facts that was stayed for that reason. But I think the judges are mindful to not stay enforcement of orders that may cause more problems than help if they’re being stayed in the interim.
Jaime Davis: Right. That makes sense to me, especially if it’s, you know, the first time that somebody has had a custody case and this is their first custody order, if that order is stayed these folks are left with no schedule and so how are those children go back and forth?
Jonathan Melton: Right. Yeah. So I think in those sorts of instances, it’s less likely to get stayed. I think the likelihood of getting it stayed on appeal increases the more cut and dry it is. Maybe it’s a financial issue. More black and white.
Jaime Davis: Yeah, that makes sense to me. So you’ve now filed your notice. You’re up at the court of appeals. What’s the next step in the process?
Jonathan Melton: So the court of appeals in most instances, certainly for family law, requires that you get a verbatim transcript from the hearing. So in district court, our hearings are not automatically transcribed. They are recorded. But you have to hire a court reporter to transcribe the hearing. So what you have to do is make arrangements with a court reporter and then file a notice with the district court that you’ve made those arrangements. And the timeline for the appeal really doesn’t get started until the court reporter has filed a similar notice that the transcript is ready.
Jaime Davis: OK. So once your transcript is ready, then what happens?
Jonathan Melton: After the transcript is ready you have 35 days to propose to put together a proposed record on appeal. So the record on appeal is essentially all the important papers that you think the higher court needs to look at. So it would certainly be the order you’re appealing from. Maybe any motions that were filed prior to the order being entered that you have to put in your record on appeal. The way the lower court got jurisdictions, that’s usually your complaint and your summons. But it’s basically any important file stamped piece of paper, it has to be a file stamped piece of paper that you think the higher court needs to review. It’s your paper trail essentially to show them this is how the lawsuit got started and this is how we ended up where we are with this order being appealed. And the other side gets the opportunity to review the proposed record and agree or disagree with what’s in it.
Jaime Davis: So what happens with the exhibits that your lawyer entered at trial? Do those also go up to the court of appeals?
Jonathan Melton: Those go up to the court of appeals as part of the record. The record will include not only all the important papers that the court needs to look. But a proposed issue statement or issues statement. It’ll include the evidentiary exhibits that you think were entered at trial that are necessary for the appeal, you don’t have to give them every exhibit that was entered. But certainly the ones you think are necessary. It also includes some sort of, some other information that’s more like just for the court’s purposes, like the contact information of the appellate counsel. Things like that.
Jaime Davis: OK. So once that happens and you have a record on appeal, what is the next step in the process?
Jonathan Melton: Once the record on appeal has been filed, that’s when the court of appeals will give you a file number, it’s a docket number up there, but file numbers are what we call the lower court. And now you have a docket number at the court of appeals. And the next step is to the moving parties, the person who’s appealing. They have 30 days after the record is mailed out to draft and file their brief. Serve their brief.
Jaime Davis: And so for folks that don’t know what is a brief?
Jonathan Melton: The brief is your written argument. So the brief is your chance to tell the court what you think went wrong and it’s a written document that is served and then filed with the court. Not, I think perhaps most people aren’t aware, but very few cases are actually orally argued at the court of appeals. And even if it’s going to be orally argued, you have to file a brief first anyway. A lot of the cases are heard without oral arguments. The judges are really just deciding the merits of your appeal based on what you put in your brief.
Jaime Davis: So it seems pretty clear that as you stated earlier, if you’re an aggrieved party, you can file a notice of appeal if you don’t like the judge’s decision. But in your experience and family law cases, what is the likelihood that a party is going to be successful appealing the district court’s order?
Jonathan Melton: So for family law, especially most of the issues that are heard in family law cases, when those go up on appeal, the court of appeals is looking at an abuse of discretion. So they’re not going to hear in most instances the evidence brand new.
Jaime Davis: So what does abusive discretion mean?
Jonathan Melton: So an abuse of discretion means it’s entirely in the lower judge’s discretion to make the ruling. And what the court of appeals is going to look for is in the order. Was there evidence presented at trial that supports the judge’s findings of fact and do those findings of fact support the judge’s ultimate conclusions of law? And it’s any evidence. So if, for example, you had a custody hearing and you had 10 witnesses and one witness said, A, and nine witnesses said B, and the lower court found A and concluded A, that’s likely going to stand because there is some evidence to support a even if more evidence supported B. It’s an abuse of discretion.
Jaime Davis: Right. So really, that could mean since the judge is hearing the evidence in the case, you know, bear in mind that most of these family law cases do not have juries, they are heard by the judge, and the judge is assessing how credible these witnesses are, right? And so if 9 of the witnesses don’t seem very believable to the judge, then, you know, it makes sense that the judge is going to with Witness A?
Jonathan Melton: Right. And the Court of Appeals, when reviewing family law cases for abuse of discretion, they absolutely will not re-weigh the evidence. They won’t rehear it. They won’t re-weigh it. Their job is to make sure that the law was interpreted and applied correctly and that that there’s evidence to support the judge’s ruling. And when I say findings of fact and conclusions of law, when a judge enters an order, they have to make findings so they have to list out “I find these things from the evidence that was presented” and then based on the findings, they have to make conclusions. So if we’re going to use the custody example, if the judge finds that mom is the fit and proper parent to have custody and then they conclude I’m giving custody to mom, that would be the findings and the conclusions. And there would have to be some evidence in the record to support that finding and to support that conclusion.
And if dad appealed that order, Dad being the aggrieved party, the court of appeals isn’t going to re-weigh or reassess any of the evidence. They’re just going to make sure that the evidence was properly entered and that the court did not abuse their discretion, did not find something that there’s no evidence to support.
Jaime Davis: So in our custody case example that we keep referring to, at the custody hearing mom could testify that she has taken care of the children since they were born, that she is responsible for taking them to the doctor, that she participates in their school conferences, that she takes them to extra curricular activities. Are those the types of things that could end up as findings in the court’s order?
Jonathan Melton: Right. Yes. So the court can base their findings on the testimony of either party, both parties, any other witnesses the parties bring down there. Mom or dad might want to bring grandparents or neighbors or school teachers.
Jaime Davis: Is there ever a time that the court will reassess all of the evidence that was heard at the trial court?
Yes. The court of appeals from the family law sense there are certain instances where they will re-weigh the evidence on appeal, and those instances are typically jurisdictional issues. So if we use the custody example again, let’s say mom filed her custody lawsuit and then dad filed a motion to dismiss, a motion to just remove the lawsuit and for some reason argued that the court doesn’t have jurisdiction over custody or maybe argued that another state should hear it. And let’s say the lower court said, we agree, we’re dismissing the lawsuit. If mom were to appeal that decision, the court of appeals would review that what’s called de novo, which means new. So they would look at everything and they would re-weigh the evidence. That’s not an abuse of discretion standard. That’s basically a clean slate at the court of appeals.
And the only other small instances in family court where it’s de novo would be something like an injunction, which is when the court enters an order prohibiting either party from doing something. Those are reviewed brand new at the court of appeals, too. But for most of our big family law claims, it’s an abuse of discretion standard.
Jaime Davis: In your experience, and what types of family law cases would you say that you most often see appeals?
Jonathan Melton: Equitable distribution cases, financial issues, usually are often appealed or more likely to be appealed because when the judge enters an equitable distribution judgment, those are typically final. You can’t do anything. You can’t come back to court later and ask for it to be adjusted. So your only chance to get another bite out of that apple sort of speech is if you think something went wrong at the trial level. File your notice of appeal and have the court of appeals look at it. People certainly appeal custody cases frequently, but I think with child custody issues and child support issues, those issues being modifiable by either party after a period of time, the parties really have to think, is it worth my time to file a notice of appeal and to appeal this? Or do I wait it out and just file a motion to modify later? A motion to modify being a request for the lower court to change their order, because for a child custody and child support, the court never loses jurisdiction over those issues until the child ages out. They have the right at any time to change the circumstances, the living arrangements, the amount of child support, but for certain financial issues, once it’s done, it’s done. So if you want that to be looked at, you really don’t have a choice, really, except to file an appeal. There are some other smaller things you could maybe do. But the appeal is really the way that you would get it sent back down for another hearing.
Jaime Davis: Well, we haven’t really talked about this aspect of the appeals process yet, but I would think that the length of time that an appeal takes is going to weigh into this decision of whether or not to appeal a custody or a child support decision, because you could just wait that length of time and file your motion to modify with the trial court, righ?.
Jonathan Melton: Right. So with family law cases being appealed to the court of appeals, the court of appeals is the only error checking court in North Carolina. The Supreme Court serves a completely different function. Family law cases have no direct appeal to the Supreme Court. Every family law case, every court general order from North Carolina gets appealed to the court of appeals, so they have a lot of work. So not only are there deadlines and timelines for the parties that are appealing, once everybody’s turned their briefs in, once everything’s turned over the court of appeals, you’re looking at months before you ever get a decision from them either. So it is certainly it’s a very long process. And certainly with issues like custody or child support, those being modifiable by the district court after a period of time, you have to weigh whether you want to tie it up at the court of appeals or you want to wait it out and file a motion to modify.
Jaime Davis: Other than filing an appeal, is there any other relief that might be available to a party who disagrees with the court’s order?
Jonathan Melton: Yes. So there are two primary emotions that you could file with the lower court. There’s a rule 59 motion for a new trial and there’s a rule 60 motion to set aside a judgment or an order. A rule 60 motion is only going to apply to a final judgment and for a rule 59 motion for a new trial. You have to make that request within 10 days of the order being entered. So you get a written order. It’s signed by the judge. It’s clocked in. Within 10 days you have to file a rule 59 motion for a new trial. The grounds for it are very limited. It’s just basically like some irregularity happened at the trial. There was some fraud. There’s some new evidence that no one could have known with reasonable inquiry at the time. And that’s asking the judge, let’s just do this all over again. A rule 60 motion to set aside an order has to be filed within, the law says, a reasonable amount of time after the order is entered. That’s discretionary. The only upper limit is it can’t be more than a year after.
And that’s asking the judge to basically just put the entire order away, usually for jurisdictional issues. But for either of those motions or rule 59 or rule 60, they are not intended to be to check an error of law. So if you think the judge made a mistake applying the law, it is not appropriate to file a roof 59 or rule 60 motion. You have to just file your notice of appeal.
Jaime Davis: So if a person thinks that they might want to appeal the judge’s ruling, what should he or she do?
Jonathan Melton: I believe appeals are one of the circumstances where you really need to talk to a lawyer. I think consulting with an attorney is your best first step because it’s not a situation where you’re going into court talking to a judge and arguing facts. You have to argue the law. So you’re going to have to research it. You’re going to have to find the right law and explain how it was applied incorrectly at the lower court. And it’s very procedural heavy too, like knowing what to file, when to file it, what your deadlines are. So I think consulting with an attorney would be the best first step. If anybody’s trying to do it on their own, the Court of Appeals publishes their rules of appellate procedure online. So those are online for everyone to look at. The standard on appeal, the legal standard, they also publish that as a material, too. So you could find that online and it’ll tell you what you have to show what the burden is going to be. But outside of those two resources, consulting with an attorney who handles appeals is probably the necessary first step.
Jaime Davis: If someone wants to check out the appellate rules or the North Carolina statutes, what websites can they go to?
NCCourts.org. On the NC courts website you’ll find a lot of resources. But certainly if you select the link for the appellate courts, the court of appeals, the legal standard of review database that some of the case law is there, the rules of appellate procedure are there. They also publish all of their opinions there. Both the quote, published opinions, the one that the ones that end up in our law books, and the, quote, unpublished opinions, the ones that don’t end up in the law books, but are still released to the public. All of that’s online for you to look at. And they’re labeled by subject matter. So if you have a potential custody appeal, you could go on to NCCourts.org and look at the court of appeals and scroll through and try to find some custody opinions and see what issues are being appealed. How are the judges deciding these issues? Maybe you’ll find a case that’s similar to your facts and that could offer some guidance on how to proceed.
Jaime Davis: Is there ever a time that you would appeal and it would not go to the court of appeals?
Jonathan Melton: Yes. For family law, the only real instance where if you are going to appeal a ruling that it would not go to the court of appeals is if you were held in criminal contempt. So if you have a hearing and the judge finds you in criminal contempt, then the appeal will go to superior court. It’s just like if you were charged with a misdemeanor crime and you’re in district court, district criminal court, and if you get convicted, then you get appeal to superior court. Same thing. Criminal can tempt proceeding is a criminal proceeding. And you would appeal that order to superior court. Then you’d have a whole new trial in superior court. And then if you are convicted or held in criminal contempt again, then you can appeal to the court of appeals. And if you try to go directly from the district court to the court of appeals for criminal contempt, they are gonna take it out.
Jaime Davis: Well, Jonathan, thank you so much for joining me today and for sharing this information about the appellate process with our listeners. If anyone has any questions or would like more information about appeals, what is the best way for them to reach you?
Jonathan Melton: Go to our website, divorceistough.com, and my contact information is there.
Jaime Davis: Well, great. Thank you again, I appreciate you speaking with us today. I hope you all enjoyed this episode of ‘A Year and a Day’. If you have any suggestions for future episodes, I would love to hear from you. You can e-mail me at firstname.lastname@example.org. If you like what you heard today, please leave us a review on i-Tunes. As a reminder, while in my role as a lawyer, my job is to give folks legal advice. The purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice and is specific to the law in North Carolina. If you have questions before you take any action, you should consult with a lawyer who is licensed in your state.