We’ve seen it on TV shows like Law & Order and the Good Wife, or maybe in real life: when a litigant loses their case in court one of the first things out of their mouth is “I’m going to appeal!” Let’s face it, nobody likes to lose and when you get an unfavorable verdict or lose on an important issue it is only natural to want another chance to prove you’re right. Luckily, in almost all cases, you have the right to appeal to a higher court. But whether you can appeal your case and whether you should appeal your case are two entirely different questions, particularly when it comes to family law decisions.
The majority of initial decisions made in family law cases will be decided by a judge in either the Juvenile and Domestic Relations District Courts (JDRDC) or Circuit Courts. Though the JDRDC courts have no jurisdiction to enter a divorce decree or decide divorce cases, they can decide matters pertaining to child support and child custody as well as spousal support. If you want to appeal an order from the JDRDC, you have an absolute right to do so. You must file an application for review with the circuit court within ten (10) days from the unfavorable JDRDC ruling. Once you do so, your case will be heard de novo. This means that the circuit court will conduct an entirely new hearing or trial with all of the evidence and witness testimony that was presented in the JDRDC. The circuit court will not review the the JDRDC judge’s order for errors or attempt to correct it, if necessary. Rather, the circuit court will issue its own ruling on your case, which will replace the JDRDC Order (whether the outcome is different or not).
However, if your case or issue was initially decided by the circuit court or you appealed your JDRDC decision to the circuit court and want to appeal this ruling, then you must apply to the Virginia Court of Appeals for a review of your case. This application must be made within thirty (30) day from the adverse ruling issued by the lower court. But, unlike appeals from the JDRDC, appeals from circuit court decisions are not de novo. You will not have a new trial, nor can you submit any new or different evidence to the court or present issues that were not decided by the circuit court. Rather, the appellate court will review the circuit court record for either a mistake of law and/or abuse of discretion made by the circuit court.
This means that you must prove the circuit court committed a reversible error that entitles you to a favorable judgment or new trial, which can happen in one (1) of two (2) ways. You can either show that the judge in the circuit court applied the wrong law or misinterpreted the law (for instance, by failing to apply or correctly apply Virginia’s child support guidelines in awarding child support); or you can show that the court abused its discretion (for example, by imputing income to you for being voluntarily unemployed when the evidence only showed that you are disabled and involuntarily employed).
The trouble, here, is proving your case. First, family law judges deal with family law and family law issues every single day. They know the Virginia family law rules and procedures. For this reason, it is not common for family law judges to make reversible errors of law. While it does happen, and only a knowledgeable family law attorney can advise you if this occurred in your case, errors of law do not happen frequently.
Proving an abuse of discretion is even harder. As the trier of fact, the judge or jury’s factual conclusions reached in your case are presumed correct. This is because the circuit court judge/jury was present at the trial, heard and reviewed all the evidence and made their conclusions accordingly. The appellate court, which does not re-hear any evidence or testimony, assumes that the judge/jury’s conclusions are true as long as there is evidence in the record to support them (even if you also submitted contrary evidence). Therefore, the appeals court will not reweigh the evidence in the record for you and reach a different result, which is why proving an abuse of discretion is incredibly difficult.
So, while you definitively can appeal a family court decision, you should consult with a family law attorney before doing so. Appeals can be extremely costly and time consuming, especially if you lose the appeal and have to pay your spouse or former spouse’s court costs and attorney’s fees in addition to your own.
If you are considering appealing any type of family court decision or have not yet begun the litigation process, you should hire a family law attorney who knows the law in your jurisdiction and who will fight for your rights. The knowledgeable family lawyers at the DiPietro Family Law Group have decades of experience representing clients in all types of family law matters, and we are here to help you.
Call us today for a consultation at (888) 530-4374.