Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include:
👉 Know your appealable issues—appeal now, or lose it forever!
👉 Request a statement of decision. Don’t need to, you say? Judge already gave a tentative opinion, you say? You really need to hear this advice.
👉 Get the standard of review right, and use this tip when challenging discretionary rulings.
👉 Brief like an appellate attorney: Put cites on everything. Put headers on everything.
👉 Make a record!
And five more!
One thing we didn’t cover: Making Family Code § 2122 set-aside motions. Definitely consider that in your case.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Announcer 0:03
welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases in news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,
Jeff Lewis 0:17
welcome everyone. I am Jeff Lewis
Tim Kowal 0:19
and I'm Tim kowal. Both Jeff and I are certified appellate specialists, and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice as always. If you find this podcast useful, please recommend it to a colleague, right?
Jeff Lewis 0:34
I find it unhelpful. Go ahead and send it to your opposing counsel.
Tim Kowal 0:37
All right, Jeff, let's get right into it. We're going to spend this episode giving some our top 10 appellate tips to family law attorneys. So a lot of a lot of the the trial attorneys that we work with are family law attorneys, and they have special considerations. Some are some of the same considerations that apply to all appeals. Some are special. But we wanted to make this top 10 list specifically tailored to family law attorneys. What do you say? Jeff, Okay, I'm ready. Okay, all right, let's just get right into the top 10 list. We're gonna stop start at number 10 and Jeff, the ranking here is purely for dramatic purposes. This might be the most important tip that we start with, but for dramatic purposes, we're gonna ramp up to number one. So the number 10 tip is, learn to spot appealable orders. As we know, Jeff, we talked about this. If an order is appealable immediately it is it has to be appealed immediately. You can't put it in your back pocket and wait till later, so appeal it now or wave it forever. Though some common family law orders that are immediately appealable include support orders, either temporary or final. Support orders, attorney fee orders, orders denying support, property division orders pendent a light sale orders bifurcated orders like marital status, interim or temporary rulings, if they're certified for appeal post judgment rulings such as modifications and child dependency orders, yeah,
Jeff Lewis 2:06
a big type of modification post judgment are move away orders, orders either granting or denying one parent the right to move out of state with a child. Those are technically appealable, but given the time exigency and the issues of kids growing up while the courts wind their way through the system, I always suggest a writ in addition to an appeal.
Tim Kowal 2:27
Yeah, yeah, that's a great point of advice. Jeff, is that there are some orders that are immediately appealable, but you also want to consider by the time I get this resolved on appeal in 18 months or 20 months, you know, 24 months or longer, is there going to be anything left, any remedy left for me at the end of this road? So you may need to talk. I think about jumping the line with a repetition, if it's truly warranted, right, right? And then just a couple, just by way of juxtaposition, some non appealable family law orders would include temporary custody orders and other bifurcated issues, like enforceability of a premarital agreement. And then, of course, if the appealability is unclear, then you may want to do what you talked about Jeff with a move away order, file a direct appeal, but also file a repetition just in case the Court of Appeal disagrees with you on the point of appealability. Absolutely, absolutely. And then the same principle applies to, you know, on on, when you said, move away orders, Jeff, any other order that involves public importance or the need for prompt resolution, consider bringing that as on a rip basis, because, again, at the end of the process, on an appeal, who knows if there's going to be any useful remedy that the court can give you, right, right? Okay. Number nine, calculate the appeal deadline correctly. And Jeff, this can be harder than it looks. We've talked about multiple cases on this podcast where, where, where things have gone a little bit haywire or not as expected. The best rule is to assume that your deadline to appeal is 60 days from the order the right even though the default deadline is really 180 days. There are a couple of sneaky ways that that deadline can get shortened, and often is shortened, and sometimes in ways that we don't expect. It can and it can be shortened in multiple orders it could be that one party serves a Notice of Entry, but then also the clerk will serve a file stamped copy of the order. And which one one of those triggers, or both of them, triggered the 60 day deadline. Better just to be conservative with that deadline and assume it's 60 days from the order.
Jeff Lewis 4:39
Yeah, yeah. Best practice is ignore the Notice of Entry part and just calendar 60 days from the date of the order. And that way you don't have to get hung up on whether or not this was sufficient to even count as notice or service of Notice of Entry of order. Yep,
Tim Kowal 4:53
yep, that's right. So that way you don't have to worry about it if it's unclear, then you just deep. To 60 days from the date of entry. Same thing with there are the the extension rules, Jeff, under Rule 8.108, where you file a post trial motion, such as motion for reconsideration, or motion to set aside, you get 30 extra days from the date of the denial. But again, it gets complicated. You know, was that? Was that motion timely. If it's not timely, then it's void. You don't and you don't get the extension. If the if the judge waits too long to decide it, then it's deemed denied sooner than you may have expected, and that and then you may have blown way past even the 30 day extended deadline. So better just to assume 60 days from the original order. What do you do? Jeff, if have you ever had a situation where you suggest to trial counsel, just go ahead and file the Notice of Appeal now so you're well within the 60 days in trial counts the last but I'm filing a motion for new trial. Won't the judge say that deem that it no longer has jurisdiction. If you've already No, I
Jeff Lewis 6:03
know. I gotta say my in my position, Trial Lawyers really just say, okay, whatever you say, they don't usually question the appellate jurisdictional issues.
Tim Kowal 6:12
Yeah, there is a problem with that. If there's a on a motion for reconsideration, we've talked about that on the podcast, that an appeal does deprive trial, the trial court, of jurisdiction to reconsider orders once they're once they're on appeal, right? That's and
Jeff Lewis 6:28
on the subject of extensions. You know, Trial Lawyers love to live in the buffer of getting an extra five days for mail service of order, or two days of for email overnight service. In our appellate world, those five day and two day extensions based on the mode of transmission don't really exist for any of our deadlines.
Tim Kowal 6:47
No, that's Yeah, that's true. That's true. All those, all these appellate deadlines and the extension deadlines, they're all deemed jurisdictional. So you don't get those, those service by mail extensions or service by electronic means, extensions, so yeah, drop those from your calculus when you're calculating, uh, appeal deadlines and post trial motion deadlines. Right? All right. Number Eight tip on our top 10 lip top 10 lists of tips for for family law attorneys on appeal, preserve your challenges to evidentiary rulings. If there's key evidence that's been excluded, preserve that issue by making a proffer. Keep objecting to evidence if the court defers ruling on your motion, eliminate And also be aware of any kind of sidebar discussions with the judge or in chambers discussions with the judge that don't get reported, make sure that you you get those back on the record one way or the other. Maybe next time you're in front of the court reporter, ask the judge if, if you can be permitted to recapitulate, to summarize your discussions for the benefit of the record. Make sure that, yeah, Horton gets on the record.
Jeff Lewis 7:58
Yeah. Judges truly enjoy it when a trial lawyer on a losing end of an order says, Oh, Your Honor, you mind if I just make my record? Yeah, yeah.
Tim Kowal 8:07
Well, your your job as the trial attorney is, is not to be popular. Of course, on the other hand, you you are there to be popular. You want the judge to like you and like your client and like your clients arguments and evidence. But you know, if you start, especially when you start to see things going south, then then you've already lost the popularity contest, you might as well try to start improving your chances on appeal. Yeah, absolutely. Okay, number seven. Here's the number seven tip. This is, this is about the statement of decision and Jeff, this is probably the topic that I spend the most time on, consulting with trial attorneys and family law attorneys, is the importance of the statement of decision. And sometimes, and it's often enigmatic about why, you know, why do I need a statement of decision? I already have the judge. The judge already explained the ruling. It's in, it's in this temporary decision, or tentative decision. What does it matter? Well, without the formal statement of decision, then the Court of Appeal is still going to apply the doctrine of implied findings. It's basically, if you remember your constitutional law and the rational basis standard of review, where the court will imagine any valid reason that to support a law even if it was the furthest thing from the legislature's mind, it's still part of the rational basis review that's kind of like the implied findings review of factual findings. The Court of Appeal will imagine that the that the trial judge made any kind of factual finding that could arguably have been supported by anything in the record, even if it was the farthest thing from the trial judge's mind. So to defeat that doctrine of implied findings, you have to timely request a statement of decision, identify the the the principle controverted issues that were at your hearing or trial, and the findings that you propose the judge make on them. Do. Then the judge is obliged to issue a proposed statement of decision, and that gives you your additional opportunity and requirement to object to any missing findings from that proposed statement of decision. And then and only then Have you finally perfected the statement of decision and such that any omitted findings will not be implied or inferred on appeal under the doctrine of implied findings. Yeah,
Jeff Lewis 10:25
but I got to tell you, this is a super important point, especially in family law. Though, when I've come across records, I'm reviewing records for an appeal. Sometimes I see requests for statement of decisions or objections to statement of decision that resemble interrogatories directed to the court like contention interrogatories state all facts upon which you base your judicial finding that blah, blah, blah, there's no appellate value to sending contention interrogatories to the court. Need to just identify missing issues and try to pin the court down on the principal issues. But Don't, don't send contention drugs. That's
Tim Kowal 11:01
right, yeah, if you start, start to get in the mode, start get the same feeling and drafting your request for statement of decision that you do when you're drafting interrogatories, then, then you've, you've gone astray. Think of it like the statement of decision stands in the same role as a as special verdicts. So imagine that you're drafting special, special verdict form that should be in the same vein as drafting your request for statement of decision right. Right should be limited. I'd say, if you, if you go over, you know what a couple dozen separate undisputed controversy, disputed, controverted issues, Principal, controvert issues under, that's the standard under CCP 632, Principal, controvert issues that you should there should not be more than two dozen of those in a case. Yeah, unless
Jeff Lewis 11:46
you're prosecuting the apple antitrust case or something like that, you're too far into the weeds if you go beyond a dozen. Yeah,
Tim Kowal 11:53
and the deadline for that, for the requesting the statement of decision, follow the procedure outlined under rule of court, three point, 1590, the the trial judge has to first issue a tentative decision that's in a in in cases and trials that last longer than a day, the court will issue a tentative decision at which point you have 10 days to file your formal request for statement of decision. If the in short causes then you need to request your statement of decision before the matter is submitted, either orally or as Jeff and I have recommended, just file that request for statement of decision even before the trial begins. Right? Absolutely Okay. Let's get to number six tip, number six, file a motion for new trial to preserve challenges to the damages amount. Now, as I as I was writing this, or as I'm reading it, now, Jeff, I'm wondering, how often does this come up, actually, in family law appeals, does the damages amount is, typically the money amount is a, is an equalization, yes, or a sanction or a family or a family law fee order. But do you ever see family law cases that involve a damages award?
Jeff Lewis 13:09
No, I haven't. I can imagine a circumstance where a judge finds that one party has violated fiduciary duties and harm to the marital estate, but I've never seen that expressed in terms of anything like damages?
Tim Kowal 13:22
Yeah, I will now that, now that I'm curious about this, I'm going to go and take a look and see if there are Money, Money awards in family law matters that are deemed to fall under this rule. That in the rule that we're talking about here is that when there is a dispute over the the the the money award being excessive or inadequate, you have to raise that challenge in a motion for new trial before you bring it up on appeal. Because if you bring it up on an appeal for the first time, Court of Appeal is going to say, forget about it. You have to give this to the trial judge first. We don't want to be thinking about this in the first instance. And that even applies Jeff, when it's when it when it's after a bench trial, you would think that, well, maybe the jury was enumerate and and just went overboard on the amount of damages. We need to give the judge a chance to fix it first before we send it up to the to the Court of Appeal. But This even applies after a bench trial, when, presumably the the trial judge has already thoughtfully analyzed the numbers before issuing the damages amount. Yeah, yeah. But anyway, we'll maybe, before we release this, I'll go and double check this and put in the show notes whether this this rule applies in family law appeals such as to warrant a spot in our top 10 list for Family Law appeals, okay, but now let's move on to tip number five. Consider getting a stay of enforcement of the judgment pending the appeal. The the default rule, as we've talked about before, Jeff under CCP 916 once you file the appeal, everything is stayed, nothing, nothing can be enforced. But. Uh, the the broad network of exceptions to that rule effectively amounts to a complete opposite rule, where nothing is stayed. The things that are stayed are things with without a bond that is are mandatory injunctions, like move out order, something that requires the appellant to do something, or interim rulings and marital cases, where where the court certifies and grants the Court of Appeal grants a motion to appeal, but things that are definitely not stayed would be money judgments, fee orders, dissolution and legal separation orders, where the court retains jurisdiction to award community property or debts. For these things, you have to get a bond or you file a petition for Super cedious in the Court of Appeal, right? Okay. Number four, make sure when you are taking, when you've taken your appeal and you're writing your brief, get the standard of review right. There are three basic standards of review, de novo, which are great on for the appellant, because there's no deference to the trial judge, abuse of discretion, where there's lots of deference given to the trial judge and substantial evidence, where, again, it's pretty much forget about challenging any factual findings made by the trial judge. But if Yeah, in that
Jeff Lewis 16:15
latter regard, in that latter regard, if you have an appeal, where your only issue is going to be a substantial evidence review you might consider a counseling trial lawyer or client to see if this is a case where change circumstances in six months might warrant some sort of motion for modification or reconsideration, and you might have better odds attacking us again at the trial court level than trying to raise a substantial evidence challenge on appeal, yeah,
Tim Kowal 16:41
yeah, that's right. And then if you are going to challenge based on abuse of discretion, keep in mind the rule that a trial court's failure to exercise discretion is itself an abuse of discretion, and the kind of circumstances where that comes up is where there is a required factor, or set of factors that the trial court is supposed to consider and the court doesn't consider them, then that is a good issue to raise up under the abuse of discretion standard, because that effectively is treated like a misapplication of law or failure to follow the law, right? Okay? Tip number three, avoid common briefing mistakes, Jeff, we've covered this before, things like you. If you're the appellant, you have to, and especially if you're raising, if you're challenging the ruling for lack of substantial evidence, you have to, have to cite all of the evidence and facts, certainly factual findings that support the judgment, including citations to the record. So it's a it's, it's very difficult when you are challenging for substantial evidence and you're really trying to focus on all the ways that the trial judge ignored all your your great mountain of evidence, you have to, you know, put all that aside and go the counterintuitive route of first establishing all of the evidence that supports the judgment. If you don't do that, then your substantial evidence challenge would be waived. You have to put all your arguments under their own heading. That sounds really idiosyncratic, but you know, we've seen issues be deemed waived or forfeited for that reason, because they were not captured under their own heading, so the Court of Appeal could easily find them citing appropriate case or legal authority to support all your points that will lead to to waiver or forfeiture for failing to do that. Yeah,
Jeff Lewis 18:33
and you should cite real cases. You know, recently, in the Ninth Circuit, a case got tossed by due to a lawyer's perhaps use of chat, GBP to generate imaginary cases. And there's oral argument on that making the rounds on the internet. You can see the video of the oral argument, where the judges from the Ninth Circuit asked this lawyer, what are these cases? And the attorney doesn't really answer the question, yeah,
Tim Kowal 18:58
yeah. And that's, that's a big deal. I think a lot of attorneys were, were very interested in that case, and I think it reflects badly on us as attorneys, when we when we cite law that doesn't exist. It reflects poorly on on the Court of Appeal system, when, when, when the when the attorneys there are potentially losing what might be winnable issues because they're not citing appropriate
Jeff Lewis 19:22
authority, yeah, based on lawyering, bad lawyering,
Tim Kowal 19:25
yeah, yeah. So don't, don't do that. Make sure you are checking your authorities before you send them up, before you rely on them. And we talked about and then make sure you're getting the right standard of review. And again, Jeff, we talked about this in the case Mandir versus Tiwari, where appellant had a near $50,000 sanctions awarded against them for site, for using the improper standard of review, for not including all of the relevant trial exhibits and other documents in the appendix of. In the appeal and not including citations to the record. So missing, missing one or more of these, these core appellate procedures in your briefs, can have serious side effects, not least of which is losing your client's case. Yeah. Number two, advise your client about important post judgment issues, such as, make sure your client is aware, if your appeal is unsuccessful, are they going to be exposed to more attorneys fees, the other side's appellate. Appellate fees, consider a bond to posting a bond to get a stay pending the appeal, and consider that there's going to be post judgment interest accruing if there's a judgment against your client and they don't intend to pay it, and instead, wait to see how the appeal shakes out, they're going to be exposed to 10% additional interest per year. Yeah, yeah. And
Jeff Lewis 20:53
let me add one more to this point. Number two, in the family law context, especially, it's important that the party who's appealing the appellant obey any orders, and if they fail to obey any of the trial court's orders, I've seen respondents successfully raise the disentitlement doctrine, and the appeals get tossed out of court. So it's important for appellate counsel to understand what post judgment orders or what orders might be out there that need to be complied with, and is the client complying with them, and is there a potential disentitlement motion out there lurking?
Tim Kowal 21:24
Yeah, yeah, that's right. We're always looking out for disentitlement issues where appeals are dismissed under the disentitlement doctrine, typically, there has to be multiple violations or multiple failures to comply with court orders, but you don't want to go down that road. You don't want to have to get in the position, even if you defeat a motion to dismiss for disentitlement, you're not looking too good in the court of appeal if you are having to explain why you're not complying with trial court orders. Yeah, okay, Jeff, and our number one tip for family law attorneys is make a record. It's kind of, kind of an old trope for us appellate attorneys, but if we don't have a good record of what happened in the trial court, there's not a whole heck of a lot we can do on appeal. So some examples of mistakes in this regard and failing to make a record will be when, when the the court, trial court, may want to speed things along, or had have sidebars or chambers discussions, as we mentioned earlier, you still want to find a way to get those communications onto the record, or at least the upshot of those sidebar or chambers conferences, get those onto the record somehow, motion and lemonade rulings, again, sometimes, sometimes they may happen in pre trial. They might, might not be reported, for some reason that that would be a big mistake. You want to get those reported, and then if, depending on what the ruling is, you have to keep objecting, get all your evidentiary objections on the record and and ask for pre trial conferences. Sometimes those can lead to shaping the issues that get addressed, or whether you get to present a whether you get to bring a certain witnesses, or bring your experts. If those are not reported for some reason, consider filing a status brief that summarizes the record. One of the one of the first things I like to look at Jeff when I'm looking at an appeal to see what happened at trial is I look at the trial briefs that were submitted before and trial briefs that were submitted after, closing briefs that gives you a real sense of how things started and how they're going. Yeah, indeed.
Jeff Lewis 23:23
And on the subject of making a record, let me also add, oftentimes, especially in family law cases, people want to introduce evidence of voicemail messages or videos, you need a transcript. But sometimes trial judges or clerks don't always know to ask you to prepare a transcript. And if you don't have a transcript and try to make that as part of the record on appeal. It is very difficult to argue that the contents of that voicemail message or video somehow is evidence that can be considered on appeal. So get a transcript made before that your trial. Yeah,
Tim Kowal 23:53
yeah. Good tip, yeah. And as for getting getting the court reporter there, they're harder, getting harder and harder to get. Don't take them for granted. Over the past five years at Los Angeles County Superior Court, the court reporter workforce has dropped by a quarter. So in court reporter retirements continue to far outpace their replacement rate. So and and again, probate and family law departments for a long time, still had guaranteed court reporters. But as of late, 2022 they don't, at least in Los Angeles, so check your check the status of court reporters in your departments in your county, because you should not take it for granted that there's going to be a court reporter there, right. Okay, Jeff, let's that wraps up our top 10 tips for family law attorney appeals.
Jeff Lewis 24:39
Yeah. Well, thanks for walking us through that. And if you have suggestions for our future episodes or a possible guest, please email us at [email protected] and our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 24:54
See you next time
Announcer 24:55
you have just listened to the California appellate podcast a discussion of timely trial. Tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes visit the California appellate law podcast website at Cal podcast.com that's c, a, l, podcast.com thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again. You
