Understanding Your Rights On Appeal

appealTo understand your rights on appeal, it is first necessary to realize that an appeal is not a completely new trial.  Rather, an appeal is a review of the trial court’s decision to determine whether that decision was made in accordance with the law and applicable facts.  The party who was unhappy with the trial court’s decision (the appellant) is the one who brings the case to the appellate court to ask for this review.  The party who was satisfied with the trial court’s decision (the appellee) will argue for the trial court’s decision to stay in place.

In Illinois, if you appeal a case, three appellate court judges will review the case and consider arguments from the parties.  After looking at the trial court’s ruling and the case and listening to the arguments from both sides, the appellate court will issue a ruling as to whether it is maintaining or reversing the decision of the trial court.

One of the complicated issues in appeals is understanding what decisions can be appealed. This can sometimes be a murky area. Generally, a final judgment in the trial court may be appealed. [1] A final judgment is considered one which resolves all issues and rights in a case. [2]

Family law cases can sometimes be difficult to navigate when it comes to the appeals process, as more times than not, multiple issues are involved and may not be resolved at the same time.  For instance, one family case may involve issues of divorce, child custody, child support, distribution of property, maintenance and other issues. Under the final of judgment rule, generally, all issues would need to be resolved before an appellate court would have authority to review the decision of the trial court.  This means that orders on temporary matters, such as temporary child support or interim fees, will generally not be appealable until there is a final order on the issue. [3] These types of orders are not final judgments as the issue is still pending and will need to be completely resolved by the trial court by the end of the trial court proceedings.

However, Illinois provides an exception to this rule in some cases.  If the trial court judge decides some, but not all, issues, it can also issue a written order stating that there is no reason for delaying an appeal on the decided issue(s). [4] If this happens, a party who wants to immediately appeal the issues that have been decided may do so, rather than waiting for the trial court to resolve all issues.

Some issues that are likely to be given this immediate appellate approval are child custody and the division of parental responsibility.  In fact, in Illinois, appeals on these issues are expedited so that the appellate court generally hears them more quickly than it would an appeal in another case. [5] Additionally, if a party is appealing multiple issues that include child custody or parental responsibilities, the issues will all be heard together.

For more information and help regarding your rights in an appeal or other matters, please contact Sherer Law Offices at (618) 692-6656.

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[1]Ill. Sup. Ct., R 301 Method of Review.

[2]Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 259 Ill. Dec. 729, 759 N.E.2d 509 (2001).

[3]2 Gitlin on Divorce § 16-8 Appeals (2018)

[4]Ill. Sup. Ct., R 304 Appeals from Final Judgments that do not Dispose of an Entire Proceeding

[5]1 Gitlin on Divorce § 11-18 Mandatory Accelerated Disposition of Child Custody or Allocation of Parental Responsibility Appeals (2018)

 

What Is Involved If I Want To Appeal My Divorce Case?

Divorce-ModificationsYou should know if you want to appeal your divorce decision that divorce appeals are the least common form of litigation. In addition to uncommon, appealing your divorce is also not an easy process. Essentially, when you make an appeal, it states to the court that you are not happy with the previous court decision, that the decision was not equal, and/or that the law did not support the judgment.

Anyone thinking about an appeal should make the decision carefully. Appeals are expensive and often cost more than the initial trial since issues can be more complicated. Also, since not all attorneys who practice family law will agree to take on an appeal case, the appellant (you) and/or the appellee (your former spouse) will likely need new representation. If new counsel is hired for the appeal, the new representation must be informed of pending issues, and each attorney will spend several hours studying transcripts from the original trial.

An appellant usually has 30 days from the date of entry of the divorce granted to make notice of appeal, but the deadlines can also be sooner depending on what type of appeal you wish to bring. So, it is always highly advisable to speak with an attorney about an appeal immediately after receiving the Trial Court’s Judgment in the case, as time is always of the essence with appeal deadlines, and they must be strictly adhered to in order for the appeal to proceed.

Filing an Appeal

A Notice of Appeal informs the trial court and the adverse party that an appeal will be filed. An appeal typically includes a file brief, which outlines reasons for the appeal. The appellant must pay for the transcript of the trial and all paperwork, such as documents and evidence that must accompany the appeal.

Also, very specific protocols regarding the format of the appeal must be followed. These protocols entail which formal documents must be submitted, as well as the inclusion of specific sections to accompany the brief, such as an appendix, numbered pages and an index. In addition, the appellate documents are required to be filed with the Appellate Court District where the Trial Court is located. The following parties/entities are required to get copies:

  • Appellate court (plus the original documentation)
  • Adversaries
  • Trial court
  • Representing attorneys

Appellate court

When the appellate court reviews all party briefs, hears all oral arguments, and reviews the Trial Court record, the judges can reverse the court ruling of the trial and/or remand (send the case back) to trial court for a new trial or with instructions on which part of the decision the Trial Court needs to readdress. You should note that the appellant court does not review new evidence, nor do the judges hear testimony from any party or witness.

Modifications to Divorce Judgment

As an alternative to an appeal, you could also discuss the possibility of a modification proceeding with an attorney if you are not happy with the Trial Court Judgment. A request may be made to modify a divorce decision by filing a Motion to Modify, but these can usually only be filed after there has been a significant change of circumstances. Such requests can include modifications to child custody arrangements, visitation schedules, child and/or spousal support. This request is filed with the divorce court where the divorce judgment was issued, but there are some exceptions.

Filing an appeal and accompanying appeal procedures are very complicated and a time-consuming processes, so it is not advisable to try and handle an appeal yourself. Contact the divorce lawyers at the Law Offices of Barbara Sherer who can serve as your legal counsel, making sure you are presented with a clear understanding of the appeal process, ensuring that you are thoroughly informed about your legal rights and assist you toward making the best decision possible for your case.

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