The first task in divorce appeals is to determine whether or not an appeal should actually be filed. Not all cases are appropriate for appeal, and it is sometimes difficult to determine whether there are viable appellate issues to be argued. An Alabama appellate lawyer must examine all available information regarding the case, and weigh numerous factors unique to the appellate setting in order to determine whether an appeal is advisable.
Divorce Appeals Are Unique
For a number of reasons, divorce appeals are different from other civil appeals. First, divorce cases in Alabama are decided by a judge and not a jury. Alabama law holds that decisions of the judge trying the divorce case should be given great deference. The judgment of a trial judge hearing oral testimony of witnesses is essentially presumed to be correct. Because of this, divorce appeals are particularly challenging.
Second, many aspects of a divorce decree can be modified at a later date as circumstances change. Because of this, it is sometimes advisable not to appeal a divorce decree if it seems likely that the client would have more success in obtaining a modification after the passage of some time and after certain circumstances have changed in their lives.
Third, divorce cases contain many interrelated issues. For example, the issues of alimony in gross, periodic alimony, and the division of marital property are all interrelated because each depends on the respective assets that each party is awarded and the ability or lack of ability of the particular party to tend to their own financial needs after the divorce. A party who is actively earning a living and is awarded a substantial amount of the marital assets may not need as much alimony as a party that receives very little of the marital property and has little ability to earn. If any one or more of the issues are changed as the result of a successful appeal, it will require a reexamination of the other issues. Likewise, an appellate decision that reversed an award of custody will necessitate a re-examined of the child support awarded. Because of the interrelatedness of the issues in a divorce appeal, an appellate lawyer must look at the entire case and all aspects of the divorce decree, not just those which are singled out for appeal. By doing so an experienced appellate lawyer can determine whether success in an appeal on one particular issue may have adverse effects on other aspects of your divorce decree.
What Court Decides Divorce Appeals?
Divorce appeals are decided by the Alabama Court of Civil Appeals in Montgomery, Alabama. There are five members of the Alabama Court of Civil Appeals, who are elected every six years in statewide elections. The present members of the Court of Civil Appeals is a diverse group of judges. Of the five judges, to or from the Mobile area, one from Cullman, one from Birmingham, and one from Tuscaloosa. The five judges also have a variety of past legal experience, including among them service as a district court judge, service as a circuit court judge, being a legal adviser to the governor, service with the Alabama Attorney General’s office, and many years of private practice as lawyers.
What Are The Steps In The Divorce Appeals Process
Most appeals start with post judgment motions being filed with the trial court. These motions must be filed on a strict deadline. Typically these motions request the trial court to reconsider some or all of the rulings in the case, or even the entire decision made in the divorce case. In addition a party in a divorce proceeding can file a motion asking for an entirely new trial. The Alabama Rules of Court provide that these type motions can only stay pending before the trial court for a limited period of time, after which they are deemed to be denied.
Notice Of Appeal And Docketing Fee
Once post judgment motions are disposed of, and assuming no relief is given by the trial court, the next step in the appellate process is to file the notice of appeal. Again, Alabama rules regarding divorce appeals provide that the notice of appeal must be filed within a strict deadline. Failure to file the notice of appeal within the deadline results in the party losing the right to an appeal. Along with the notice of appeal certain other documents must be filed with the appellate court, including a docketing statement, and a request for the transcript. There is a docketing fee of $200.00 that must be paid at the time the appeal is filed.
The Record On Appeal
The filing of the notice of appeal triggers a number of events and deadlines, primarily the production of the Record on Appeal. It is the record on appeal, along with the briefs of the parties, which form the basis of the consideration and eventual decision by the Court of Appeals. The record on appeal consists of two parts, the clerk’s record and the reporter’s transcript.
The Clerk’s Record
The clerk’s record consists of copies of the original documents, papers, pleadings, an other written material contained in the court file. The clerk’s record also contains copies of any exhibits introduced into evidence during the trial. If exhibits are of a nature that they cannot be copied, they are transferred or transmitted to the Court of Appeals for the court’s examination. The clerk’s record must be assembled, numbered, and completed within 28 days of the filing of a notice of appeal, unless the time is shortened or extended by an order from the Court of Appeals. Depending on workload, the clerk of the trial court may request additional time to complete the clerk’s record. Typically the Court of Appeals will grant the trial court clerk additional time to complete the record on appeal if it is requested.
The reporter’s transcript consists of the typewritten original of the transcript of the proceedings along with an index. Typically a court reporter transcribes testimony of each witness as well as any conversation or argument between the attorneys in the case and the trial judge. The reporter’s transcript can also contain transcribed arguments made by counsel during motion hearings or other pretrial or post trial proceedings before the trial court. The court reporter must prepare and file the designated reporters transcript with the clerk of the trial court within 56 days from the date the notice of appeal is filed. Much like the clerk’s record, this time limit can be shortened or extended by an order from the Court of Appeals. It is not uncommon for court reporters to request additional time from the Court of Appeals. The appealing party must pay the court reporter for transcribing the transcript of the case.
These two parts, the clerk’s record and the reporter’s transcript, are combined into one document called the Record on Appeal. The record on appeal is then transmitted to the Court of Appeals. Both parties are also given access to the record on appeal in order for them to use the record in preparing their respective briefs. The briefs submitted by the parties must make reference to the specific page numbers in the record on appeal referred to in the briefs. If there are errors in the record on appeal, or if the record on appeal is deemed incomplete by one of the parties, there is a procedure for supplement the record with additional material. However, only those things which were before the trial court and which are included in the record of the trial proceedings can be put in the Record on Appeal or considered by the Court of Appeals.
Briefing In Divorce Appeals
After the record on appeal was completed, the appealing party (Appellant) has 28 days within which to file the appellant’s brief. After the appellant’s brief is filed, the non-appealing party (Appellee) has 21 days to file a response brief to the appellant’s brief. Because the appellant bears the burden of persuasion in the appeal, the appellant is allowed to file a reply brief, which must be filed within 14 days of the date the appellee’s brief is filed.
Submission Of The Case
Once briefing is concluded, the case is typically submitted on briefs for a decision. The Court of Appeals will entertain oral arguments from the attorneys for the parties, but only in a limited number of cases, and only in those cases where the Court of Appeal believes that oral argument would aid the court in deciding the issues on appeal. In general, it has been my experience at oral argument is granted only in those cases which involve a novel issue or a unique question of law, or in particularly complex cases.
Once the case is submitted on briefs, the judges on the Court of Appeals review the record on appeal and the briefs of the parties and make a decision in the appeal. One of the five judges is selected to write an opinion, if an opinion is written. Not all divorce appeals end up being decided with a written opinion. The Alabama Court of Appeals may dispose of an appeal with a “no opinion” opinion if the Court of Appeals determines that an opinion in the case would serve no significant precedential purpose and one of the following circumstances exists:
The judgment or order appealed from is based on findings of fact that essentially correct.
The evidence as a whole supports the judges order.
The court, after a review of the record and the contentions of the parties, concludes that the judgment or order was entered without an error of law.
Applications For Rehearing and Writs of Certiorari
If the appeal is not decided in the appellant’s favor, there is a procedure for the appellant to request reconsideration or rehearing by the Court of Appeals of one or all of the issues in the case. A pleading called an application for rehearing is filed with the Court of Appeals under this procedure. If the Court of Appeals declines to rehear the appeal, the party may apply to the Alabama Supreme Court for review. Review by the Alabama Supreme Court is discretionary. The party seeking review must file a writ of certiorari with the Alabama Supreme Court requesting that the court hear the appeal. The topic of writs of certiorari is a topic in and of itself and is addressed elsewhere on our website.