Appeals

Divorce and Family Law Appeals

An appeal is a party’s application to a higher court for a reversal of the decision of the lower court. Divorce and family law appeals are no different. In Massachusetts, the Appeals Court hears appeals from all trial-level courts below. The Appeals Court bases its decisions on the records from the trial court proceedings. It also considers the briefs submitted by the appellants (the parties who filed the appeals) and the appellees (the parties responding to the appeals).

You can appeal criminal and civil orders and judgments, including those from the Probate and Family Court. If you’re considering an appeal of your divorce or family law case, consider this. Believing the trial judge misjudged the evidence is not a basis of appeal, with the rare exception that the judge abused his or her discretion. As a divorce and family law lawyer, I hear this argument often. Remember that the probate and family judges ruling over your divorce have very wide discretion. So, it’s unlikely that the trial judge would then be reversed on appeal based improperly weighing the evidence unless there was nearly no basis for the decision. The best strategy in a divorce or other family law matter is to get the right argument and evidence before the judge the first time.

Beginning an Appeal in Massachusetts

To appeal a case, you must file a Notice of Appeal within 30 days of the judgment with the trial court. The trial clerk prepares the record on appeal; if the appellant wishes to have transcripts, then we as the appellant would need to order them within 10 days after the notice of appeal.  Once the trial clerk sends a notice to the appellate court that the record is assembled (which may take a while) and the docketing fee is paid, the appeal is docketed, and the appellant has 14 days to file a docketing statement and 40 days to file his or her main brief. The appellee has 30 days to respond, and then the appellant can file a reply brief within 14 days. Some documents are required by the Appeals Court to be filed electronically.

Rules Governing Family Law Appeals

The Massachusetts Rules of Appellate Procedure govern appeals, and they set out rules for formatting briefs and other documents, time limits, oral arguments, and the process of hearing appeals, among other things. These Rules can be found at http://www.mass.gov/courts/case-legal-res/rules-of-court/appellate-procedure/

Appellate Briefs

An appellate brief sets forth the arguments of each party regarding the issues on appeal. The briefs address specifically the alleged errors that occurred at the lower court, citing to legal authority on point,

Because oral arguments for appeals are short, much of the decision of the Appeals Court will rely and depend on the content of the parties’ briefs. As such, it is imperative that the briefs submitted be formatted correctly, be substantively sound, and include analysis of relevant legal authority. The Massachusetts Appeals Court provides resources about appellate briefs at http://www.mass.gov/courts/court-info/appealscourt/appeals-court-help-center/guide-to-appellate-briefs.html

Costs of a Family Law Appeal in Massachusetts

Family law appeals can be expensive. Do a cost-benefit analysis before pushing forward. Aside from attorney fees, expect to pay a filing fee of $300. Next, you’ll need to cover the cost of transcription (which can be high, depending on the length of the trial. You’ll also need to pay the cost of photocopying the record. In general, appeals on purely legal issues and procedural points are less expensive to bring than sufficiency of the evidence appeals. Sufficiency of evidence appeals require spending a lot of time reviewing and understanding the trial record, which tends to be costly.

Oral Arguments

Filing an appeal is one thing. Arguing it is another. Plainly said, “oral arguments” are when the parties or their attorneys go before the appeals court and argue their case.  First, the appellant argues for 15 minutes, presenting his or her arguments. Next, the appellee will argue his or her opposition. The Court does not allow attorneys or parties to read from briefs, records, or prepared statements, so you or your lawyer must know the case perfectly. That’s particularly true because the justices of the Appeals Court frequently ask questions of the parties regarding their arguments.

The Court issues its decision once oral arguments complete and the clerk will enter the Court’s order. A Court may affirm the lower court’s decision, which would mean it stands, or it may reverse it. The Court may also modify the decision or remand it.  Remanding a decision means the appeals court sends the decision back to the lower court for further work.

The Parties’ Options After the Appellate Decision

A panel or group of judges hear most family law appeals. Once the appellate order issues, parties may file a motion for a rehearing. You must file for rehearing within 14 days of rescript. And, it must contain the points of law or fact that the party believes the Court has overlooked.

You can also appeal an appellate decision to the Supreme Judicial Court in Massachusetts within 20 days. It is important to note, however, that the Supreme Judicial Court does not have to hear every appeal it receives; it may decline to hear the case for further review.

Additional Resources

The Appeals Court of Massachusetts maintains a Help Center Page at http://www.mass.gov/courts/court-info/appealscourt/appeals-court-help-center/

If you have any questions about appeals, you may also schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.