When you are involved in litigation, it is sometimes difficult to tell when is the right time to appeal an order. First, what is an appeal? An appeal takes the litigation to a higher reviewing court, permitting the appellate court to review the order entered by the trial court for reversible error.
But don’t mistake a judicial review of your order with a wide-open second chance to convince the appeals court to rule in your favor. All trial court orders are presumed to be correct by the appeals court until you have shown the court that reversible error was committed. The categories of reversible error in family law cases are limited for the most part to errors like applying the wrong law to your case, or the trial court’s failure to make supportive findings required by Florida divorce law. The appeals court rarely, if ever, overturns the trial court’s findings about the credibility of a party or witness.
Once you are satisfied that your trial judge has committed reversible error in an order, then you have to determine whether the order is ready to be appealed as a final order or as a non-final order. The appellate court has the authority to review all final orders, generally defined as an order entered after all of the judicial work has been completed in your case. Authority to review non-final orders is very limited to certain categories of orders that may be addressed in another blog.
Sometimes it is difficult, even for your attorney, to tell whether an order is a final, appealable order. For example, the order may be called an “Order Granting Final Summary Judgment”, ” or a “Final Judgment of Dissolution of Marriage”, ” or a “Final Judgment Granting A Modification of Child Support” but there is still judicial work that remains to be done on the case. When uncertainty occurs, it is always the safer course to timely appeal the order to preserve your appellate rights.
If it is a final order, you only have thirty days from the date the court clerk’s office files the order to file your notice of appeal, a simple one page form notice with a copy of the appealed order attached. If you miss that deadline, your appeal is almost always dead in the water —- no excuses, no exceptions. To protect your appellate rights under these difficult circumstances, it is always the better choice to file your notice of appeal.
If the appeals court then decides that the order isn’t yet final and appealable, it will dismiss your appeal. However, very importantly, you will still be able to appeal the order when it does become fully final and appealable. You will have incurred very little in attorney fee expense at this early stage of the appeal and you will forfeit your appeal filing fees, but you can sleep soundly because the appeals court has made the call as to whether or not the order was ready for appeal —- and the appeals court’s opinion about the finality of the trial court’s order is the only opinion that counts.
It certainly beats the alternative of waiting to appeal past the 30 day appeal filing deadline and having your later-filed appeal dismissed because you waited too long. The certain preservation of appellate rights is far more valuable than your minimal attorney’s fees for filing the notice of appeal and your forfeited appeal filing fees.
If you are uncertain about whether or not it’s time to appeal an order, consult a highly experienced family lawyer with appeal experience. Your consultation should be well before the 30-day deadline for filing a notice of appeal of the order. This permits your attorney sufficient time, if needed, to determine whether or not it is both proper and best to immediately appeal the order. Remember, just because the order says “final” doesn’t mean it really is, but if it is, you must appeal within the 30-day appeal deadline.
