The appellate process is much different than anything a litigant has experienced in trial court proceedings. While there are many orders1 made during the course of litigation, only final orders as to all issues can be appealed. With criminal cases, this is at the time of sentencing. In divorce cases, the order is final when the final degree is issued. In CHINS cases, the right to appeal begins with the disposition. Thus, you have to know what constitutes the final order to timely file an appeal. This blog explores how to file an appeal in Indiana.
Once a final order is issued, an aggrieved party has thirty (30) days to file a proper Notice of Appeal. This perfects the appeal.2 With the exception of belated criminal appeals, missing the deadline to file the appeal forfeits the right to appeal and the trial court’s order stands: The right to appeal is lost. While jurisdictional, the Court of Appeals has the inherent authority to accept a forfeited civil appeal.3 It is key to note that accepting a belated civil appeal is only given by the Court of Appeal of Indiana in extraordinary circumstances.
As noted, the key is to timely file the Notice of Appeal, along with the $250 filing fee. The Notice of Appeal does much more than just “perfect” the appeal. This first instructs the Clerk to prepare and file the Clerk’s record within thirty days.4 Most importantly, it notifies the official Court Reporter of the trial court which transcripts are requested—this ranges from the final hearing in s divorce case to pre-trial conferences and hearings that may have occurred during the litigation, if they are necessary for appeal. A common request made in a divorce appeal is a transcript of the preliminary hearing.
The official Court Reporter has forty-five days to complete and file the transcript, which starts the appellant’s time to review the transcripts and exhibits, research the matter, and draft and file an appellant’s brief. The Court Reporter has forty-five days to file the same, whether the transcript is an hour final hearing or a three-day trial. With long trials, it is not uncommon for the Court Reporter to seek an extension of time to complete the transcripts. Typically, these are granted if Court Reporter has other transcripts due, as the Court Reporter has no control over when final orders are issued and may have multiple transcripts to prepare.
If the Clerk does not timely file the Clerk’s Record or the Court Reporter the transcript, the trial counsel has to file a Motion to Compel this filing with the Court of Appeals of Indiana. When such is filed, it is typically mooted by the Clerk or Court Reporter filing for an extension of time. However, if appellate counsel does not timely move to compel, it subjects the appeal to dismissal.
Thus, filing an accurate Notice of Appeal is critical to preserve the appeal, as well as instruct the Court Reporter to prepare the requested transcripts. In particularly complicated and acrimonious domestic cases that have gone on for months or more than a year, appellate counsel may have to talk with trial counsel about the transcripts needed and the issues they believe are viable for appeal, if they know. Often the issues are not able to be fully determined until appellate counsel reviews the transcript and exhibits.
This blog was written by attorneys at Ciyou & Associates who have extensive experience in appellate cases. This blog is intended to provide general information for educational purposes. It is not intended to be relied upon in any way for any specific legal issue or matter. The blog is not legal advice. It is an advertisement.
- Orders made during litigation are “interlocutory” orders and can be appealed with the final order. However, it is possible to appeal certain interlocutory orders as a matter of right or, where there is no right to appeal an interlocutory order, if certified by the trial court and accepted by the Court of Appeals of Indiana. Indiana Rule of Appellate Procedure 14. This is beyond the scope of this article.
- Indiana Rule of Appellate Procedure 9(A).
- In the Matter of Adoption of O.R., 16 N.E. 3d 965, 969 (Ind.2014.)
- The Clerk’s record consists of the Chronological Case Summary and a form to indicate if the transcript has been requested and is complete if a transcript has been requested. In most all appellate cases, a transcript or transcripts are needed to prepare a proper appellant’s brief.