To Appeal or Not to Appeal?

In Separation & Divorce by Elizabeth Stephenson

If you have been in the process of a divorce or child custody dispute that went before a judge, there are probably times that you think the judge got it wrong. When this happens, you should speak with your attorney in order to better understand the process of an appeal.

An appeal is the process in which a party to a lawsuit challenges a judge or jury’s order to North Carolina’s Court of Appeals—which is comprise of 15 judges who hear cases as 3-judge panels. In appealing an order, the party appealing must present legal authority, records from the trial court, and argument to demonstrate why the order should be reversed, revised, or the case dismissed entirely.

Why Do People Appeal?

People appeal a court’s judgment because they have a legal right to do so. The intent underlying an appeal can range from a genuine belief that the court made some reversible error to a desire to test the law or a desire to buy time before the legal proceedings are final. Some common appellate challenges include:  

  1. Sufficiency of the Evidence —basically challenges whether the court heard enough evidence to support its findings.
  • Abuse of Discretion — A party alleges that the court committed an error in a misinterpretation of law, misapplication of law, a violation of the party’s rights, or committed some act that was outside of what the law allows the court to do. In addition to this abuse of discretion, the complaining party must also demonstrate that they were harmed or that the outcome would have been different had the court not abused its discretion.
  • Jurisdiction — A party may allege that a court lacks “personal jurisdiction” over a person because he or she was not properly served (or was not served at all) with the lawsuit. A party may also claim that a court lacks “subject matter jurisdiction” over a case based on legal requisites or another court already having jurisdiction over the issues. A court’s lack of personal or subject matter jurisdiction can render partial or entire orders void.

Is Appealing Worth It?

It is well worth consulting with your attorney about the possibility of an appeal. However, just because you have a legal right to appeal an adverse judgment does not mean you should do it. First, appeals are expensive because of filing costs, costs of obtaining clerk’s records and trial transcripts from the court reporters, and the amount of time that an attorney will spend researching, briefing, and arguing the legal issues involved.

Further, most appeals of judgments do not result in a reversal. This is because the Appellate Court judges tend to give a lot of deference to the decisions of trial judges and juries. For example, courts have a tremendous amount of discretion when it comes to making child custody and visitation decisions, since they can consider a broad range of evidence to determine what is in a child’s best interest. Also, Appellate Court judges are aware that they are only reading documents and transcripts of testimony, while trial judges actually observed witnesses testify in person. Therefore, trial judges were in the best position to determine whether a witness was credible and whether to believe their testimony.

Contact New Direction Family Law
New Direction Family Law provides comprehensive legal representation to men and women seeking to address child custody issues or to end their marriage. Our attorneys have years of experience and a reputation of excellence. We understand the weight of the decisions that you face and will provide you with smart, no-nonsense advice. Let us help you. We serve our clients throughout Wake, Johnston, Durham and surrounding counties. Contact us at (919) 719-3470 to schedule an appointment or visit us online through our website.