Appeals from divorce cases, or post-decree custody matters, constitute a large number of cases taken to the Indiana Court of Appeals. By the time a divorce trial is over (or subsequent child custody modification case), many people are drained emotionally and have spent a lot of money to litigate a divorce or modification action. However, the losing party (or both parties) can appeal. For most people, the mere thought of having to retain new appellate counsel to address an appeal is an unpleasant thought at best. Since there is no requirement to file an appellee’s brief, the question we often hear is “So should I”? “Yes”! This blog covers the two key reasons you need to retain counsel to research, draft and submit your appellee’s brief.
As a threshold matter, if a litigant does not file an appellee’s brief, it lowers the standard of review. What this means in practical terms is it is easier for the appellant to get a reversal of the adverse decision. Litigation is based on the concept that a party should exercise all of his or her rights to be fully availed to all legal remedies. Not filing an appellee’s brief is one legal right that you can chose to give up. However, when a party does not file an appellee’s brief, the Court of Appeals does not undertake the burden of developing arguments on the behalf of the absent appellee. For this, the abuse of discretion or clearly erroneous standard of review, which are higher, do not apply. Instead, the Court of Appeals will reverse if the appellate shows prima facie error. Prima facie error means at first sight, on first appearance, or on the face of it. It much easier for an Appellate to obtain a reversal with this lower standard of review. That said, the Court of Appeals will correctly apply the law to the facts in the record in order to determine whether reversal is required.1 The take-away is you should always retain counsel to research, write and file your appellee’s brief to avoid perhaps losing just because there is a lower standard of review.
Secondly, if party does not file an appellee’s brief, he or she has no standing to move to strike unsupported parts of the Appellant’s Brief should that be the case. Moreover, in most every contested domestic case, there is evidence (testimony or exhibits) that can support either side in record. Without filing an appellee’s brief, there is no ability to present the countering facts further bolstering the trial court judge’s decision, notwithstanding trial court judges are afforded great latitude in deciding case in these emotionally charged matters because they observed the verbal and non-verbal language of the litigants. Namely, the trial court judge alone assesses how much weight to assign to their testimony. The Court of Appeals only has a cold record before it which is why the Court of Appeals gives so much deference to trial court judges.2 If your appeal bolsters the trial court judges decision through cites to the record showing counter facts and arguments, you go a long way toward showing the Court of Appeals why it should honor the trial court’s discretionary decision and affirm.
Dixon & Moseley, P.C. advocates handle appeals of interlocutory order and final orders from all of Indiana’s 92 counties. We hope you find this blog on why you might want to engage in appellate process even you were satisfied with the trial court’s order and prevailed. This blog is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.