In every one of Indiana’s trial courts, many orders are issued each day. Most of these orders are interlocutory (temporary) orders that cannot be appealed. However, with every final order the disposes of all pending trial court issues, there is the right to appeal the case to the Court of Appeals of Indiana. The key is the order must be final as to all issues before the trial court. That said, a seasoned appellate attorney will know if an order is final and appealable.
However, because all cases are appealable if they address all final orders does not mean they should be appealed. This is where seasoned appellate counsel can help you decide if you should appeal. They can discuss with you that appeals involving questions of law or mixed questions of fact and law are much stronger appeals than factual appeals. The reason for this is because the Court of Appeals is not able to judge the credibility of a witness like a judge seeing the witness live and in person.
This noted, with domestic cases—even ones that have little chance of success on appeal—can be appealed. However, for some parents they cannot live with themselves or feel as if they let their children down if they do not appeal. The Court of Appeals of Indiana will not begrudge any appeal—even one of doubtful merit if he or she appeals, unless the appeal is brought in bad faith or is frivolous.
The Notice of Appeal is the key document to the moving forward with the appeal of the adverse judgment and consideration of potential errors by the Court of Appeals of Indiana under Indiana Rule of Appellate Procedure 9(F). The Notice of Appeal is the “instruction sheet/guide” for the appeal. Once filed, it triggers the Clerk to file the Clerk’s record. The Clerk has thirty (30) days to file the Clerk’s record.
In addition, to the Notice of Appeal, it directs the trial court reporter as to which hearing dates to transcribe. The trial court reporter has forty-five (45) days to prepare the transcripts. The transcript and exhibits are the materials the Court of Appeals of Indiana primarily relies upon in considering the brief, along with the appendices the Appellant files.
Once the transcript is filed, the Appellant has thirty (30) days to research, write and file the Appellant’s Brief. Because custody decisions are so important to get right, extensions of time to file a brief are granted only in extraordinary circumstances. After the Appellant’s Brief is filed, the Appellee has thirty (30) days to file the Appellee’s Brief. Because the Appellate brought the appeal alleging error, the Appellate can file a Reply Brief within fifteen (15) days.
After the briefing is completed, the Clerk of the Court of Appeals of Indiana transmits the briefs to the judges who will be deciding the case. These are three (3) randomly assigned judges from the Court of Appeals of Indiana (there are 15 judges total). These judges are called the writing panel because they will be writing the decision to affirm, affirm and reverse in part, or reverse the trial court’s decision in the case before it (and the various materials submitted with the brief.)
The decisions of the Court of Appeals of Indiana may be memorandum decisions or published decisions. A published decision means that the case had some point of law important enough to “publish” it so it may be relied upon by other appellants (and trial attorneys and judges) as the current state of the law in the future.
If an Appellate/Appellee does not obtain relief they seek on appeal, he or she has thirty (30) days to ask the Court of Appeals of Indiana to reconsider its decision. If rehearing is not sought, then the Appellate or Appellee has forty-five (45) days to ask the Indiana Supreme Court to grant transfer and decide the case. This is totally discretionary, and after briefing, the Indiana Supreme Court decides if it will grant transfer of the case and decide the matter.
Ultimately, unless the Supreme Court grants transfer, the decision of the Court of Appeals of Indiana will stand and decide the case; it will be binding and enforceable once certified back to the trial court under. Thus, a party who does not prevail in the trial court in their child custody case has the right to appeal. The key is the appeal is timely perfected.
This blog was written by attorneys at Ciyou & Associates, P.C. who handle appeals of all final judgments. This blog is written for general educational purposes. The blog is not to be relied upon for any legal matter or issue. This blog is not legal advice. The blog is an advertisement.