What Happens if No Appellee’s Brief is Filed in the Court of Appeals of Indiana in Response to the Brief of the Appellant?

Appeals involve very technical rules.  This is not surprising as the Court of Appeals of Indiana receives appeals from all trial courts in Indiana’s ninety-two (92) counties. Thus, if the rules were not precise and varied from court to court or county to county, the appellate process would become bogged down as the judges on the Court of Appeals of Indiana try to decipher the various filings made with it.   

Furthermore, because the stakes are so high in domestic cases, and the harm greater if the Court of Appeals does not efficiently review and decide cases, reversing those that do not comport with the law so as to protect children, extensions of time are granted only in extraordinary circumstances; this powerful rule is set forth, in full, as follows: 

“Motions for extension of time in appeals involving . . .issues of child custody, support, visitation, paternity, adoption and determinations that a child is in need of services shall be granted only in extraordinary circumstances.” 

While it is natural to assume every litigant involved in the trial court would participate in any appeal, there is no rule requiring a potential appellee to file an appellee’s brief. This blog covers what happens when no appellee’s brief is filed and why an appellee should file an appellee’s brief. 

It has long been established appellate precedent that when no appellee’s brief is filed, the Court of Appeals of Indiana does not undertake the burden of developing arguments for the appellee because that is the appellee’s duty.  When an appellee does not file a brief, the Court generally applies a less stringent standard of review.  This standard or review is “prima facie” error.  What is “prima facie” error?  It is an error in the decision of the trial court that is defined as being seen “at first sight, on first appearance, or on the face of it.” 

What this means is that the prevailing party in a domestic case may well lose on appeal simply because they take for granted the Court of Appeals of Indiana will affirm the trial court’s decision.  In fact, that is not the case; the Court of Appeals takes its cases very seriously and this is disrespectful to the Court and neglectful of the litigation.  It may well be the case is reversed for such neglect, and, if physical custody is at issue, the prevailing party below in the trial court may lose physical custody simply because he or she did not care enough to file an appellee’s brief.   

In the final analysis, failure to research, draft and file an appellee’s brief may well result in the entire best interest’s standard being undermined because the Court of Appeals did not get a response to the appellant’s brief.   The unthinkable might happen due to this neglect and reversal occur.  Ultimately, this hurts the child(ren) the most. 

Ciyou & Associates, P.C. advocates frequently are in the role of aggressively representing appellees in the Indiana Court of Appeals.  It is through participation of both parents in the litigation process that the trial court and Court of Appeals can fully do their jobs and ensure that its orders protect children. 

This blog was written by attorneys at Ciyou & Associates, P.C. who have handled domestic appellate and other civil and criminal appeals from throughout the state.  This blog is written for general educational background.  It is not intended or written to be relied upon in any particular situation. Additionally, the blog is not legal advice.  This blog is an advertisement.  


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