In South Carolina when a party is unhappy with the results at trial there is the right to appeal. A common misconception is that an family court appeal can correct any error made in the lower court (including errors of commission and omission made by the trial attorney). The family law court appeal process can only correct errors made by the trial judge. Further any issue upon which one claims error must have been raised and ruled upon by the trial judge. Issues that one wishes had been raised at trial and evidence that one wishes had been submitted at trial cannot raised on family court appeal or via a post-trial motion.
To raise an issue on a family court appeal, it must first be both raised and ruled upon by the trial judge. If the issue was not raised at trial, it cannot be considered. Many potentially winning arguments never make it to appeal because they were not raised at trial. This highlights the importance of having experienced and diligent family law appeal attorney.
When an issue was raised at trial, but not ruled upon by the trial judge, one must file a motion to reconsider before one can continue with the family law court appeal process. If one raises that issue in a motion to reconsider and the judge still refuses to rule upon it, one can raise the issue on appeal despite the lower court never having ruled upon it.
A motion to reconsider must be served in a timely manner. A timely motion to reconsider stays the time to file a timely notice of appeal. An untimely motion to reconsider does not stay the time to file a notice of appeal. Every year the Court of Appeals dismisses a small number of appeals because a party filed an untimely motion to reconsider.
A motion to reconsider cannot ask the court to consider matters that could have been raised at trial but were not. However if some aspect of a judge’s ruling was outside the matters addressed at trial, or if material facts came to light between trial and the filed order that could not have been discovered prior to trial, one can introduce this information in a motion to reconsider. Otherwise, one is limited to raising legal and factual issues that were presented at trial.
Every family law court appeal process begins with the filing and service of a notice of appeal. Failing to file a timely notice of appeal prevents the appeal from going forward at all. Most family court appeals begin in the Court of Appeals. In rare circumstances they can be filed directly with the South Carolina Supreme Court. There are numerous steps in the family law court appeal process after serving the notice of appeal: perfecting the appeal with the appellate court; drafting initial briefs and designations of the matters to be included in the record on appeal; collating, binding and serving a record on appeal if one is the appellant (the party who appealed); creating, binding and serving final briefs; and (sometimes) oral argument. Each of these steps has rules and deadlines that need to be complied with. Familiarity with the rules and deadlines for appellate procedure is a benefit from having an experienced family law appeals attorney.
The briefs contain the factual and legal argument each party presents to convince the appellate court that the lower court either committed error or made the correct decision. The appellate courts give some weight to the trial court’s factual findings but are entitled to find facts as they believe reflected in the record on appeal. The appellate court will not consider facts outside the record on appeal. The appellate court gives no weight to the lower court’s determination of the legal issues. Thus, family court appeals are more likely to succeed when one can show legal error, rather than factual error, by the lower court. However many family court appeals succeed by convincing the appellate court that the lower court’s factual findings were inaccurate.
After the Court of Appeals considers the briefs and, if requested by the Court of Appeals, hears oral argument, it issues a written decision, called an opinion. That opinion addresses the issues raised by the appellant. It can affirm the lower court on some issues, reverse the lower court on some issues, or remand the issue back to the lower court for reconsideration on some issues. If a matter is remanded the opinion will provide the lower court guidance on how to address the remanded issues.
A party that is unhappy with this opinion has the right to seek a rehearing. That motion for rehearing must be served on the Court of Appeals by a set deadline and failure to meet that deadline prevents the Court of Appeals from considering the motion. Once the Court of Appeals resolves that motion for rehearing, either party may ask the South Carolina Supreme Court for a writ of certiorari (cert), which is basically a request for that court to review and overturn the Court of Appeals opinion. One can only ask the Supreme Court to address issues that were raised in the motion for rehearing in the Court of Appeals. The Supreme Court does not have to grant cert and rarely does. An experienced family law court appeals attorney is more likely to convince the Supreme Court to grant cert.
If the Supreme Court grants cert, there is a briefing, oral argument, and opinion issuing procedure very similar to the initial appeal. In rare cases involving federal law or federal constitutional issues, one can ask the United States Supreme Court to accept cert from a South Carolina Supreme Court decision.
At a certain point when no party filed a motion for rehearing or petition for certiorari from the Court of Appeals opinion, when the Supreme Court denies cert, when the Supreme Court grants cert, issues an opinion and neither party files a motion for rehearing, or when the Supreme Court denies that motion for rehearing a remittitur will issue to the lower court. That means the appeal is over and that the final opinion issued is now binding on the lower court and the parties to the family court appeal. The process from filing a notice of appeal to remittitur issuing can easily take five years or more if certiorari is granted.
Few family law trial attorneys handle appeals and few appellate attorneys try cases in family court. Yet the skills developed from trials and appeals are complementary. A trial attorney who does appeals knows how to structure a trial to best sustain successful results if the other side appeals and best overcome unsuccessful results if one loses. A family law appeals attorney who does family court trials has insight into what issues might be best to appeal and how to best frame matters the factual arguments that determine the outcome of many family court appeals. If you would like to retain Gregory Forman as your family law appeal attorney, please contact him here.
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