I’ve found that an appeals in divorce and custody cases is very frequently misunderstood.
This is short post to help you understand what actually happens during a Minnesota Family Law Appeal. (Note this is a new updated post, 5 years I discussed appeals, which you can read if you’d like).
What Can Be Appealed?
First and foremost, you need to understand what can and cannot be appealed. Only final orders can generally be appealed. A final order is just that, the final order in a case. You can think of it as the last order in your case. This means if there is a temporary relief order in place you can’t appeal that until the end of the case. The reason is pretty simple, the Court of Appeals doesn’t want to have to hear arguments over and over on the same case.
Timeline To Appeal
Except for child protection and termination cases which have very, very short timelines to appeal (usually 20 days) most other civil cases, of which custody and divorces cases are part, have 60 days to appeal. This 60 days is normally calculated from the filing of the notice of entry of the order. One important thing to keep in mind is that it is a hard 60 days, this means there is really nothing that can be done on day 61. The court loses jurisdiction and the Minnesota Court of Appeals will not hear the case.
NOTE: If you are thinking of appealing your case, you can’t wait to call a family law attorney on day 59, heck you wait until even day 30 you may have a hard time finding a lawyer. Most of us don’t like short deadlines and that makes us nervous, when we get nervous we charge more!
I am always a bit surprised when I talk to folks about appealing and I talk about the costs associated. The short version is that it is very expensive to appeal. Part of the reason is you need to order and pay for transcripts (often $500 per day of trail) the filing fee is $500 as well as a $500 cost bond. Those costs are just the beginning because the real costs are the legal work that goes into drafting the briefs.
An appellate brief is the most technical document family lawyers usually draft. The Minnesota Appellate Rules are very precise in the font, size, paging etc. Unlike trial briefs or proposed orders, Appellate briefs focus on very specific errors which the lower court made. The way it’s argued is by looking at other cases that came before the Minnesota Court of Appeals and Supreme Court. It’s slow, plodding and very meticulous work, which means it will be expensive.
A few years ago a new rule was implemented which required all family law cases to attempt appellate mediation. This was done as a last gasp to avoid litigation during the appellate process. I will admit that I was very against this when it first came out, my thought was that if you are going to appeal the client will have already thought long and hard about accepting a lesser result. I was wrong! The appellate mediation process is generally considered to be very successful and I’ve seen about ½ of my appellate cases settle because of this process (which is a good thing!).
If you can’t settle the appeal in mediation then you will probably go and argue the case. Arguments at the Court of Appeals are very different than district court. Each person gets 15 minutes to argue and no new evidence is presented, it is very dry and often times well over the head of a client who attends.
An order is will be submitted about 90 days later and that will either remand or send the case back to the district court or uphold the previous order.
There you go, a look at what happens if you decide to appeal your family court decision in Minnesota.