Can I Seek a Stay of a Trial Court’s Order Pending Appeal?

Can I Seek a Stay of a Trial Court’s Order Pending Appeal?

In many domestic cases, a losing party wants to stay (stop) the trial court’s order from executing while they appeal, particularly in custody cases.  For example, if the court modifies physical custody (where the other parent would get the child) it is common for a party to want a stay pending appeal.  As an additional example, if a court grants a relocation to another state and the child will move a significant distance, the losing parent often wants a stay pending appeal. A stay “stops” the order from being enforced (its enforcement is suspended) pending appeal. This blog analyzes stays and the process of obtaining a stay. 

The place to start with any legal issue is the controlling law. There are specific rules governing stays. An aggrieved party must first seek a stay in the trial court who ruled against them. The is governed by Indiana Rule of Trial Procedure 62(D)(1), which provides, in pertinent part, as follows: “No appeal bond or other security shall be necessary to perfect an appeal from any judgment or appealable interlocutory order. Enforcement of a judgment or appealable interlocutory order will be suspended during an appeal upon the giving of an adequate appeal bond with approved sureties, an irrevocable letter of credit from a financial institution approved in all respects by the court, or other form of security approved by the court.” 

Most judgments in trial courts outside divorce result in a money judgment being ordered, so this is what this legalese refers to in this rule. There is no bond or amount of money to post to protect the prevailing party in a custody appeal. In other words, there is no specific rule applicable to stays in domestic cases so this trial rule is followed as the controlling authority, despite its general lack of relevance to stays of custody cases. While not said in the rule, to obtain a stay in the trial court, the request for a stay must show that without a stay irrevocable harm will occur—there is no undoing a change of custody or relocation so this is the theory most domestic attorneys use in seeking a stay in the trial court. It must be a compelling argument for a stay to be granted and, these are totally discretionary.  

This noted, many litigants wonder what happens if the trial court does not rule on the stay before the change in custody or relocation using the examples provided. These are just examples, as a stay may be sought with any final order in a domestic case. In this case, or if the trial court denies the stay, a party may seek a stay in the Court of Appeals of Indiana so long as they have first sought a stay in the trial court. Indiana Rule of Appellate Procedure 39(B): “ . . .a motion for a stay pending appeal may not be filed in the Court on Appeal unless a motion for stays was filed and denied by the trial court . . . .” 

If the trial court does not rule on the request for a stay, and it has had ample time to do so relevant to the change in custody, the Court of Appeals may treat this as a de facto denial of custody and entertain a stay request. There are technical requirements for a stay in the Court of Appeals that must be followed to file a stay.1  Again, to have a chance at success to obtain a stay, the motion must show irreparable harm if the stay is not granted. This is not specifically stated in the rule, but what is known to attorneys in appellate practice. Finally, there are provisions for an emergency stay without notice, but this rarely apply in domestic cases.2 

Ultimately, a losing party has two chances at obtaining a stay. The first is to seek a stay in the trial court. The second is to seek a stay in the Indiana Court of Appeals. While not common, if a party can show irreparable harm, there is a greater likelihood the trial court or Court of Appeals will grant a stay. Without a stay, the order executes, even if later reversed on appeal. Again, for a stay to have a chance of success in a domestic case, the rules must be followed and irreparable harm must be shown. It is unlikely that the trial court or Court of Appeals will order any type of money bond as this does not protect the prevailing party in an appeal. 

This blog on stays was written by attorneys at Ciyou & Associates, P.C. It is written for general educational purposes; stays are technical and can be sought in two courts. This blog is not written as legal advice and is not to be relied upon in any given case or issue. The blog is not specific advice. It is an advertisement.  


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