The divorce decision was handed down and it is now final. The property has been divided. The costs have been allocated, and attorney’s fees may have been awarded. If you have children, then custody, parenting time, and child support also have finally been decided. What are your rights if you disagree with the decision? You are not happy with the result. Maybe you feel the property division was unfair, or maybe you did not get joint custody. Whether you disagree with one provision or several, you have a right to appeal your divorce decree to the Indiana Court of Appeals. When you consult with appellate counsel, you will need to make sure they are well-advised on what happened from the time the divorce petition was filed until the decree was entered. This blog covers the seven key documents you will need for an appellate consultation– why they are vital–and that will be needed by the appellate attorney you select.
The first is the Verified Petition for Dissolution of Marriage and any counter-petition or response.1 Whether you filed the petition for divorce, or your former spouse filed, or maybe you both effectively filed a petition, these documents are important since they invoke the court’s ability to decide your divorce. Your appellate counsel will want copies of these filings. Most of the time these are standard documents with standard language, but not always. Anyway, this Petition marks the beginning point of your story on appeal—and why and how you believe the trial court judge erred. An appeal, on many levels, is story-telling.
A place that sometimes generates issues that relate to the final order appealed, and the second set of documents needed for an appeal, are preliminary orders. Once the divorce is initiated, one or both spouses may seek a preliminary hearing to determine child-related issues and/or issues related to property (who will reside in the marital residence). These preliminary orders are only binding on the parties until the court holds a final hearing on all issues and decides the case. However, many appellate issues begin germinating with preliminary orders. They too tell the story and help identify legally viable appellate issues.
Third, not all parties have children, but where children are involved, the court may order a custody evaluation or appoint a GAL to make a recommendation on custody and parenting time. Your appellate counsel will need access to these reports.2 Key appellate issues may lie in whether the trial court followed the recommendations of the evaluator verbatim or significantly deviated from this professional’s recommendations based on the other evidence adduced at trial (testimony and exhibits). And different types of “custody”3 decisions involve different matters for appeal, namely questions of fact or law, or mixed questions of fact and law. This changes the appellate standard of review and perhaps the strength of your issues/case. Knowing this may help you make a better decision as to which issues to appeal.
The fourth type of document that probably is not a part of the record that but can be an invaluable roadmap for identifying appellate issues are proposed orders, decrees, or special findings. Typically, trial attorneys will submit proposed orders to the trial judge after the final hearing is concluded, and prior to the issuance of the Final Decree. These proposed orders are helpful in determining how each party’s counsel framed the issues, and, more importantly, how the trial judge interpreted these proposed orders when making the court’s final decision relative to the evidence. If the proposed order does not track the court’s order, then a comparison with the record may provide significant insights in how to structure the appeal—a topic you will likely discuss with appellate counsel.
The fifth document(s) is the most important and is the final order of the court following a hearing where both you and your former spouse presented your case. It may be called a Decree of Dissolution of Marriage, Final Order, or Special Findings. This is what is being appealed and triggers the time for filing an appeal. It should resolve all issues raised by the parties and dissolve the marriage; and if not, that may be an appellate issue as well. This document is the foundation for your appeal. Depending on how it is written, it may determine the standard of appellate review.4
The sixth document may or may not exist. If you are unhappy with the Final Decree, your trial counsel may have filed a Motion to Reconsider or a Motion to Correct Error. It is critical that your appellate counsel have these documents as they impact the appellate deadlines. If you miss deadlines you may forfeit your right to appeal. These documents may change the timing of your appeal. Motions to Reconsider are particularly problematic for appeal. Thus, a takeaway from this set of documents and the blog is once a final divorce decree is ordered, if you want to appeal, you must act at once as you only have thirty days.
The last document may be in a variety of formats, ranging from a filing in the trial court, letter or email. This is your trial counsel’s representation or warning that he/she is not representing you on appeal. Without this document, an appellate attorney is ethically prohibited from consulting with you about the facts of your case, at least without your trial counsel’s consent.
While this may seem to be a daunting list, obtaining these documents, if possible, for an appellate consultation or representation is key. The divorce decree and any decision on a Motion to Reconsider or Motion to Correct Error is essential. Ultimately, if you dissatisfied with the divorce order and are considering appealing your final Divorce Decree, you should retain appellate counsel immediately to ensure that you do not lose any right to appeal by missing the deadline. Also, many domestic appeals are expedited, limiting the amount of time your appellate counsel may have to identify and act on the issues–so deciding and acting to appeal sooner is better than later. Dixon & Moseley, P.C. attorneys practice throughout the State of Indiana, understand the importance of your right to appeal, and handle appeals of all types. This blog post is written by Dixon & Moseley, P.C. advocates to provide educational information about what you need for any appeal to the Indiana Court of Appeals and why. This blog is not intended as specific legal advice or a solicitation for services. It is an advertisement.