Family Law Appeals
Family Law Appeals
If you have recently been through a family court proceeding and did not secure the outcome you were looking for, you are not alone. Too often, the courts consider a matter settled when one of the parties did not get a fair share. If you are dissatisfied with the outcome of a recent family law matter, our Phoenix family law lawyers can help you explore have options. The state of Arizona has an appeals process that allows you a second chance at achieving the outcome you were looking for.
Appealing a Decision
If you are seeking to take a matter to an appellate court, it is important to retain the services of a competent legal team as soon as possible. The appeals process is time-sensitive, and one missed deadline could cause you to lose your appeal, no matter how strong your case is.
In general, you have two options when trying to appeal a case. The first is to file a “motion to reconsider.” In this avenue, the same court will take another look at the information and see if there is any new pertinent information to the case. Judges more often than not deny these types of motions straight away.
Another option is to seek a new trial altogether. In either case, you must file a “Notice of Appeal” to the Superior Court within 15 days of the initial judgment. Your attorney can help you figure out if you need any other information, like an appeal bond, to file this document. He or she will also help you decide if you have a legal ground to stand on when filing this type of motion. Usually, he or she will try to prove one of the following:
- The trial was not fair
- There was some sort of misconduct from the opposing party
- Newly discovered evidence may change the outcome of the case
- The judge refused to admit evidence demonstrated by you
- The judge’s ruling did not match the evidence or violated the law
- The judge allowed opposing evidence into consideration you did not think should be allowed
Third, you may try to file a “motion of relief” from the court’s initial judgment on the grounds that you committed an act of neglect in the case that was excusable. Lastly, you can file a motion directly to the Arizona Court of Appeals. These notices must be filed within 30 days of the initial judgment.
Once you file a Notice of Appeal, the next step is to gather all transcripts or applicable evidence from the lower court proceedings. These should come directly from the courthouse and be certified by the appropriate officials. You also need to gather the information for what is known as the “Docketing Statement.” This document is essentially a rundown of theories that provide a basis for an appeal. It is only when all of this documentation has been received in a timely manner by the Court of Appeals that you can get a court date for your appeal hearing.
Choose the Right Attorney for Your Appeal
From this point on, the direction of your appeal will depend a lot on the kind of legal representation you procure. Since these matters quickly become complex, it is best to retain the services of a professional legal team rather than trying to secure an outcome on your own.
Mark Shields, one of our partners, repeatedly demonstrates his passion, expertise and overall powerful skillset for family law appeals. In fact, few attorneys have a deeper understanding of the current laws. As lead attorney on six state appeal cases, Mark’s influence on Arizona’s family law is well-known in the legal community.
- Buencamino v. Noftsinger, 223 Ariz. 162, 221 P.3d 41 (App. 2009). This is one of the keynote cases in Arizona on relocating with children. It clarifies an often overlooked application of the statute that many judges and practitioners to this day either overlook or misunderstand.
- In re Marriage of Waldren, 217 Ariz. 173, 171 P.3d 1214 (2007). This Arizona Supreme Court opinion is perhaps the most prominent case regarding non-modifiable spousal maintenance. We had done some excellent work in the trial court and Court of Appeals to help our client out of a terrible order, but the Arizona Supreme Court held otherwise. Note that this opinion still leaves open the possibility of setting aside a non-modifiable spousal maintenance order in the event of fraud upon the court. This is an argument that we successfully used in another case that was upheld by the Court of Appeals in an unreported decision.
- Cook v. Losnegard, 228 Ariz. 202, 265 P.3d 384 (App. 2011). This case deals with child support modifications and the issue of what is fair game under the notion of due process in related hearings.
- Barnett v. Jedynak, 219 Ariz. 550, 200 P.3d 1047 (App. 2009). This case presents the methodology and formula for determining community liens on separate property. Where community resources were used to increase the equity in separate property acquired prior to marriage, this case presents the governing law on calculating the value of the community portion of that increase.
- McNeil v. Hoskyns, 236 Ariz. 173, 337 P.3d 46 (App. 2014). In Waldren, the Arizona Supreme Court mentioned that fraud upon the court could still be a viable legal theory to relieve a client of a non-modifiable spousal maintenance order. In McNeil v. Hoskyns, we used that same theory to relieve an aggrieved ex-husband when his former wife had grossly lied to the trial court, and we were able to prove that lie. The Court of Appeals agreed and upheld the order relieving the client of tens of thousands of dollars of bad obligations to his former spouse. This case stands as perhaps the keynote case on fraud upon the court in Arizona.
- Schlaefer v. Financial Management Service, Inc., 196 Ariz. 336, 996 P.2d 745 (App. 2000). In my first reported case, the Arizona Court of Appeals held that debts may be properly covered by prenuptial agreements and that such agreements may overcome the community property / obligation presumption under Arizona law. This case prompted a new statute for which creditors lobbied. It remains one of the principal cases on prenuptial agreements in Arizona.
At Gillespie, Shields, Durrant & Goldfarb, we have experience in handling every aspect of your appeals case. From gathering and filing the required paperwork to fighting for your case in Appellate Court, we can help you fight for the outcome you are looking for. We have been practicing as Phoenix family lawyers since 1985, so we are familiar with cases that set a precedent and may help you win your appeal. If you have any questions or would like to schedule a free initial consultation, contact our office.