By W. Curtis Wiberg
Having handled divorce and custody cases for over two decades, including 14 years as a Colorado family law attorney, I have litigated more cases than I can remember. Cases that don’t settle ultimately go to a hearing or “trial” in front of a judge or magistrate. After a Colorado divorce or custody case goes to trial, it’s likely that one party will leave the courtroom feeling like they “lost” or weren’t heard or treated fairly. Frankly, trial court judges sometimes do make mistakes. Recognizing that basic truth, the judicial process sets up a system where a judge’s mistake can be corrected. That process entails appealing a judge’s ruling to a higher court.
Proceeding with a Colorado appeal is a specialized process with its own sets of rules, procedures and standards. As such, if you are thinking about appealing a judge’s ruling or defending against an appeal, it’s important to find an attorney who has experience practicing in the appellate courts.
Generally, Colorado family law appeals are unsuccessful due to the standards of review employed by appellate courts. The standards of review grant a trial court judge a lot of leeway or discretion on certain matters. For instance, appellate courts have to find “clear error” on matters concerning the credibility of witnesses. So if the appeal revolves around “why did the judge not believe me?”, the appellate court is unlikely to set that credibility determination aside unless the weight of other evidence is contrary to the judge’s finding. Similarly, if a statute or court rule gives the trial court discretion (as it does when fashioning an equitable distribution of property and debt, for example), the appellate court cannot overturn that award unless it finds the trial court committed an “abuse of discretion.” The same holds true in cases dealing with custody or visitation (parental responsibilities). Keep in mind that with discretion comes a range of outcomes which are not uniform. A judge in a Douglas County divorce case may rule completely differently on a topic from a judge in an Adams County case. Differing rulings or results do not necessarily equate to judicial error.
Oftentimes, the most successful appeals revolve around arguing that the trial court misinterpreted a statute or rule, or failed to properly follow a law or rule. Interpretation of a statute or court rule is reviewed “de novo,” meaning an appellate court is not bound by the trial court’s interpretation of a statute or rule and is required to make its own interpretation of the law, and then apply it to the facts of the case. Therefore, if an argument can be fashioned that a trial court judge failed to apply the law correctly to your case, your chances of successfully appealing have increased.
There are many nuances to the standards described above, and interpretations of law are framed not only by analyzing the statutes and court rules applicable to your case, but also by appellate court rulings that have previously reviewed those same statutes and court rules.
If you are considering an appeal (or are defending an appeal), it is important to consult with a Colorado family law attorney, or firm, who can understand and appreciate the applicable law and the best strategies to fashioning a winning appellate argument. Appeals are a completely different legal realm from the original divorce or custody process and require research, extensive writing, and a good grasp of appellate rules and procedures.
Lastly, one should not delay in meeting with an appellate attorney if an appeal is contemplated by you, or filed against you. The rules of appellate procedure have very rigid deadlines, which if not met, can prejudice or even end your case in the opposing party’s favor. In the next posting on this subject I will discuss the appellate process in more detail as relates to deadlines, procedures, briefs, and potential outcomes. Though appeals in Denver area family law cases are not common for a wide array of reasons, they do occur.