Wednesday, December 26, 2007

Indiana Family Law Appeals FAQ

I think The Georgia Family Law Blog deserves credit for giving me this idea. You can see Stephan Worrall's Georgia Appeals FAQ post here. Those reading Mr. Worrall's post and mine will see major differences between Indiana and Georgia appeals. Another reminder that there are fifty states, the District of Columbia, the territories, and the Commonwealth of Puerto Rico and they all have their own local peculiarities when the subject is family law.

Indiana's Court of Appeals has several FAQ pages on appeals. Frequently Asked Questions About the Appellate Process and General information

When can I file an appeal?

An appeal requires a final judgment in a case, If you have a Decree of Dissolution or a Paternity Decree, then you have a final judgment.

Unlike Georgia, Indiana recognizes only one sort of discretionary appeal called an interlocutory appeal and Indiana has an entire Appellate Rule devoted to the subject: Rule 14. Interlocutory Appeals..

For another article on this subject, see Types Of Appeals.

What is an appeal?

Appealing a case means taking a judgment to an appellate court for judging the trial judge on the law.

What is an appellate court?

Indiana has two appellate courts. The Indiana Court of Appeals will hear all family law appeals. The Indiana Supreme Court may hear family law cases but only after a decision is made by the Court of Appeals.

What does an appellate court do?

The appellate courts read the transcript from the trial court and the parties' briefs, and then they decide if the trial judge correctly applied the law to the case. The appellate courts do not do the following:
  1. Trials. An appellate court is not a place for a trial.

  2. Appellate courts do not hear any evidence. The facts are taken as being what is in the transcript from the trial court.
For a more formal description, follow this link.

What do I get if I win my appeal?

Generally, the Court of Appeals will send the case back to the trial court for another hearing. The Court of Appeals decision tells the trial judge to correct the errors from the original case. Appellate Rule 66 gives the full range of relief available on appeal.

What to remember most about appeals?

Timing is everything. Miss a deadline and the appeal ends.

If timing is everything, how much time do I have to decide about appealing my case?

You must file your Notice of Appeal within 30 days from the entry of a final order. That means you need to move quickly.

What does it cost to file an appeal?

Other than attorney fees, you will need to pay the filing fee with the Court of Appeals and pay the court reporter for preparing the transcript of the hearing. Transcripts cost money. Currently (December 24, 2007), the filing fee is $250.00.

What does the lawyer do in an appeal?

First, you do not need a lawyer to handle an appeal. The Indiana Supreme Court has the Pro Se Guide to Appellate Procedure. While the guide is quite good, I suggest anyone wanting to do an appeal on their own to read Indiana's Appellate Rules.

If you do hire an attorney, they will make sure that everything is filed on time, write the Brief containing the legal arguments, and appear at any oral arguments. The appeal centers around getting the Brief written and filed with the court. Time will be spent researching the case law and reading the trial transcript and then writing arguments supporting your opinion that the trial court incorrectly applied the law.

Do I need to get a local attorney to handle the appeal?

Not necessarily. All appeals go to the Court of Appeals in Indiana. I had someone once get the idea that they needed an Indianapolis attorney when appealing an Indianapolis case. Where the case comes from plays no part in the substance of an appeal. I take appellate cases from around the state.

How long does the appeal take?

The Notice of Appeal needs filed 30 days after the date of judgment, the court reporter has 90 days after that to get the record prepared, and after the reporter finished its job begins the briefing period. Appellant gets 30 days to file its brief, Appellee gets 30 days after that, and then Appellant gets 15 days for a reply brief. I count that as 195 days.

Here is what the Court of Appeals says about how long an appeal will take:

It usually takes at least six months for all briefs to be filed and the full review process to take place. There is no time limit for Court of Appeals judges to issue a decision in a case, but the Court strives to be timely.

Howard Bashman runs what is probably the top blog on the subject of appeals, How Appealing. This blog's scope goes well beyond the particulars of Indiana law and I suggest it only if you are interested in the general subject of appeals.

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