By: Curtis Wiberg
In my previous blog post on the subject of Colorado family law appeals, I blogged about appellate strategies and standards of review for appealing domestic relations case rulings. In Part 2 of this article, I discuss appellate procedures. As a Denver area family law attorney who also practices appeals, I cannot stress enough how important it is at the appellate level to make sure procedures and deadlines are adhered to.
In any appeal, it is imperative to pay attention to deadlines, because any missed deadline along the way can be fatal to your appeal. The first deadline is the appellant must make is to file a Notice of Appeal with the Court of Appeals (with a courtesy copy to the District Court), within 49 days of the filing of the issuance and submission of the final orders of the District Court. This deadline is a jurisdictional prerequisite, so if this deadline is missed, the ability to appeal is lost (absent a very hard to prove standard requiring a showing of “excusable neglect”). If you file a Motion for Post-Trial Relief under C.R.C.P. 59, that 49 day deadline begins to run from the Court’s order addressing this motion. Note that if a Court does not issue an order and remains silent on a Rule 59 motion, the motion is considered denied after the passing of 63 days from the filing of a Rule 59 motion. This is a subtle deadline even some misinformed Colorado attorneys might miss.
The substantive, initial Notice of Appeal also has technical rules, requiring a description of the nature of the case, a statement of the nature of the controversy, a listing of the issues to be raised in the appeal, whether there was a transcript of the proceedings, a list of the parties and attorneys with contact information, an attachment of the order being appealed, and a certificate of service upon all the other parties in the case.
Within 14 days of the filing of a Notice of Appeal, the appealing party then has to designate which portions of the record and transcript are to be transmitted to the appellate courts. If the appellant does not designate the entire record, the party defending the appeal has 14 days to designate additional portions of the record. Upon the filing of the designation of the record, the court reporter charged with the duty to prepare a written transcript has 14 days to estimate the costs of transcription, and then the appealing party has 21 days to deposit the full amount of the estimated costs.
The party appealing also has the duty to ensure the transmission of the record and transcript from the trial court to the appellate court clerk within 91 days of the filing of the Notice of Appeal. Once the Court of Appeals confirms delivery of the record, the appealing party has 42 days to file an Opening Brief, the party defending the appeal then has 35 days to file an Answer Brief, and the party appealing then has 21 days to file a Reply Brief. Upon the filing of the Reply Brief, either party may request an Oral Argument within 7 days. In some cases, oral argument may be sought, perhaps when more persuasion is warranted than may be contained in the pleadings and briefs.
The Rules outlining the required contents and formatting of the briefs are numerous too. The briefs have to use 14 point Times New Roman font, specific language in the certificates of compliance and service, a table of contents, a table of authorities, issue outlines, procedural history, citation to the portion of the record where the issue being appealed was raised in the District Court, a statement about the appropriate standard of appellate review for the issue being appealed (see part 1), and the argument itself.
This is just a broad overview of the procedures and rules that govern appeals in Colorado. As is clear from above, the deadlines and requirements are numerous, intricate, and complicated. Having the guidance of an attorney well versed in appellate procedure to navigate the rules and deadline is highly recommended. Keep in mind that aside from rules and procedures, the substantive legal issues are best left to a skilled Denver divorce or custody attorney who handles appeals.