Appellate Motions and Standards of Review In Domestic Relations Cases

If there is an error of fact or law in a trial court decision, an appeal is an option. It is necessary to obtain a transcript of the proceedings to start as errors have to be documented in the record and references made to the record in appellate briefs. On average, it can take a year for an appeal to be decided so it is not a quick remedy. 

Although more limited than in trial courts, there is some motions practice in appellate courts. C.A.R. 27. The motion response timeline is shorter and is seven days. There is no procedural provision for a reply, so permission must be requested to reply. A party may request a stay of proceedings and must first apply to the district court or explain to the court of appeals why no request to the district court was made. C.A.R. 8. Dispositive motions and motions for stay are generally decided in the court of appeals by a three-judge panel. Requests for extension of deadlines must be supported by good cause. For each brief, there may be one extension consistent with the amount of time for filing the brief. 

It is important to carefully craft the issues on appeal based on evidentiary support in the record. It is also important to consider any impact on the case of raising appellate issues. Appellate courts review the trial court record to determine whether errors in the proceedings merit modification or reversal of the judgment. Appellate courts do not hold new trials or consider new evidence. The standard of review guides the appellate court’s review.

Standards of review range from de novo review, which governs questions of law, to the “clearly erroneous” standard for review of findings of fact. In between is “abuse of discretion”. “Abuse of discretion” is a highly deferential standard of review. Many issues in family law are reviewed for an abuse of discretion. For example, discovery and attorney's fees are revised under the abuse of discretion standard.

The appellate courts have the most authority for reviews of legal error. However, substantial deference to trial courts is given for factual matters as the trial court heard the evidence. Sometimes, an issue involves a mixed questions of fact and law. Mixed questions of fact and law require consideration of the legal issue within the specific set of facts.

Once the record on appeal has been filed, the court determines the briefing schedule. The court of appeals issues a notice of the record filing and the briefing schedule. The opening brief is due in 42 days; the answer brief is due 35 days after the opening brief; and any reply brief is due 21 days after the answer brief. C.A.R. 31. A statement of the standard of review for each issue is required in the opening brief. The court of appeals requires a certificate of compliance in each brief stating compliance with length limitation and other procedural requirements.

A brief is comprised of a caption, certificate of compliance, table of contents, table of authorities, issues presented, statement of the case, summary of the argument, argument, and conclusion. C.A.R. 28. The summary of the argument must contain a succinct, clear, and accurate statement of the arguments made, and state the major points of reasoning for each issue presented. C.A.R. 28(a)(6). Court of Appeals staff attorneys perform the preliminary review on most family law cases. They ensure that the facts asserted in the brief accurately reflect the record, which is why accurate record references are so important. 

If a party does not prevail in the Colorado Court of Appeals, Colorado Supreme Court review is a possibility, however not an appeal a matter of right. The Supreme Court generally only considers cases that have unusual issues or issues related to inconsistent results in the Court of Appeals and chooses the cases which it will consider. A request for Supreme Court review is made through a Petition For Certiorari. Most petitions are not granted. Generally, the Supreme Court accepts fewer than 100 petitions per year and only a few family law cases. A petition for certiorari is due 42 days after issuance of the court of appeals’ decision. C.A.R. 52.

If an appellate court determines that there was reversible error, the court typically remands the matter to the district court to correct the error. The remand order might require the district court to take additional evidence. If the issue involves parenting time, generally a new hearing is held to determine the current best interests of the child. Also, requests for attorney fees are typically remanded to determine the reasonableness of the fee request. The district court does not regain jurisdiction over the case until the Court of Appeals issues a mandate if the district court had lost jurisdiction due to the appeal. The district court does not necessarily lose jurisdiction over all issues once an appeal is filed.

A knowledgeable and experienced divorce and family law attorney can guide you through Colorado Springs divorce and family law matters by negotiating, mediating and litigating. Give yourself the benefit of hiring one. This allows you to focus on moving on to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law is a knowledgeable and experienced attorney who protects your best interests and ensures that you are aware of your legal rights and obligations. Contact us at 719-344-5523 for a free 30-minute informational consultation or complete our online form.