In Indiana, there are two higher courts a party may seek an appeal from any final trial court order. There is an appeal as a matter of legal right to the Indiana Court of Appeals. A party dissatisfied with a decision of the Indiana Court of Appeals may seek discretionary transfer to the Indiana Supreme Court. This blog covers the five most common types of appeals taken to the Indiana Court of Appeals from final orders in domestic cases (i.e., paternity, divorce, and modification).
The first two types of cases may stem from property division or custody determination (which includes child support, parenting time, and joint custody, which is decision making about major health, education and welfare issues of the child). In both of these determinations, the court may have a math or other error called a scrivener’s error. If not corrected, this is generally a strong appellate issue because it is a matter of law.
The second error that may occur in custody or property division relates to exclusion of evidence. This is where the court receives evidence, such as an exhibit, or testimonial evidence that is preserved in the record through an offer of proof that is not allowed nor considered by the trial court. These may be errors or law or discretionary calls. Errors of law are the strongest for appeal because the Court of Appeals judges give no deference to the trial court.
The third type of error relates to custody and contention that the trial court did not determine physical or legal custody in the children’s best interests or applied an incorrect standard; there is a difference between original determinations and the burden on modification. If the trial court applied the wrong legal standard, these are de novo review and no discretion is given to this incorrect application of law. Where the mistake is mis-balancing the facts, there is deference given to a trial court and reversal only occurs where the Court of Appeals reviews the record on appeal of the judgment and it leaves it with a firm conviction a mistake has been made.
The fourth and somewhat common appellate issue comes from the case where a trial court fails to divide all identified marital assets or liabilities. These are errors that generally result in reversal and remand to the trial court to divide this asset. This remand may generate an appeal based on the presumption of how property should be divided set out in the Indiana Divorce Act in statutes.
The fifth and very broad category of legal issues for appeals come from final orders where a trial court deviates from presumptions set forth by statute or Indiana Supreme Court rule. For property (net assets after deducting liabilities), there is a statutory presumption of an equal division. In cases where the trial court makes a very wide and unequal division of assets, the potential it is stronger for appeal, such as 70/30. Another presumption is the parent who is not given physical custody will have parenting time as set forth in the Indiana Supreme Court’s Parenting Time Guidelines. Equally, there are child support rules and guidelines. Where there is a deviation from these Supreme Court Rules, it creates a viable appellate issue.
Failure to timely appeal a final order means the trial court’s potentially erroneous decision will stand. For this reason, it is imperative that any final order with viable issues be considered for appeal.
This blog post is written by attorneys at Dixon & Moseley, P.C. who handled appeals of all final orders from all Indiana trial courts. This blog post is for general educational purposes. It is not a solicitation for legal representation or legal advice for a specific issue. It is a form of advertising.