Why Are Legal Appeals So Difficult to Win?

Why Are Legal Appeals So Difficult to Win in Indiana?

With domestic cases, the appellate courts give great discretion and deference to the trial court judge to determine how much weight to assign to a particular witness or piece of evidence. This is because the parent or other witnesses, such as a guardian ad litem, are live in the courtroom and the judge can see all verbal and non-verbal actions/communications, such as a scowl from one parent to the other parent. With all of this information, the judge is in the best place to make a decision about the children’s best interests (or property division). For this reason, some domestic appeals are difficult to win, but not impossible. This blog explores legal appeals and what you can do through skilled appellate counsel to increase your odds of obtaining a reversal on appeal.

Appellate issues based on pure questions of fact are the hardest to win because the trial court judge sees the witnesses and decides who to believe in a “he-said, she-said” scenario.1 The Court of Appeals is not in this position, and only has a “cold record” (the typed transcript and exhibits) to read what occurred in the courtroom. For this reason, the Court of Appeals, gives great deference to the trial court’s factual determinations. However, it is rare that a good appellate advocate cannot reframe the issue to one of law and fact and significantly increasing your probability of prevailing on appeal.

Questions of law, such as how to apply a statute to the facts, are reviewed de novo and no deference is given to the trial court’s determinations.2 For instance, if the trial court gave a parent both a summer visitation abatement on child support and parenting time credit, the trial court has misapplied the law because a non-custodial parent is not entitled to both. The summer-time fifty percent (50%) abatement is no longer good law.3 Thus, this is a pure question of law and with de novo review; the Court of Appeals of Indiana would reverse. This is one of the Firm’s cases. If the appellate issue had just been framed in terms of whether a parent gets a reduction in child support because of summer, it may have been lost. Thus, good appellate lawyers will work to frame your issues as mixed questions of fact and law or questions of law, so you have a greater chance at reversal.

With pure questions of law, the Court of Appeals of Indiana gives no deference to the trial court’s application of the law. For instance, if a non-custodial parent has cleaned up his or her life, such that he or she is no longer addicted to drugs, this has no or little impact on the children. If that parent petitions to modify, claiming this change in his or her life was a substantial change in circumstances, and he or she should have custody of the children modified to him or her, it is very likely the Court of Appeals of Indiana would reverse. This is because the substantial change is with the parent, not the children.4 The substantial change in circumstances has to be related to the children, not just one parent. In this case, a skilled appellate lawyer would likely frame this as a pure question of law, arguing the court misapplied the law and did not consider the change in the parent’s life and how it has any connection with the children and what is in their best interests. This is the one type of case that gets reversed.

More and more constitutional issues are arising in family law cases, such as where a third party seeks custody of the children. Parents have a fundamental constitutional right to raise their children, and this trumps the fact a third party could provide a better life for the children.5 While third parties can obtain custody in certain factual circumstances at certain times, this is difficult because of this constitutional right, which is one of the oldest fundamental rights in the Constitution. Thus, if a third party obtained custody of your children, a skilled appellate attorney would likely challenge the trial court’s decision on appeal in constitutional terms. The Court of Appeals does not give deference to the trial court with constitutional issues and, if your issues are framed this way on appeal, it is more likely to obtain a reversal. Also, after hearing the evidence the trial court then issues its orders; if some of the orders are unconstitutional, the Court of Appeal will likely reverse. For instance, if a trial court orders a parent not to discuss his or her case with anyone, this is a prior restraint on free speech and this would most likely cause a reversal on appeal. The Firm has won these cases.6

All said, issues based on pure questions of fact, and factual evidence certainly is a large part of every domestic case, but issues raised on the same are harder to win. Thus, your appellate attorney will likely steer clear of framing your issues in terms of pure questions of fact and try to frame factual issues as mixed questions of fact and law to increase your chances of prevailing. In other cases, your appellate counsel will frame your appellate issues as pure questions of law and the Court of Appeals does not give any deference to trial courts on application of the law to the facts. In some cases, with orders that are issued after hearings, your appellate counsel may argue that the court’s order is unconstitutional; and if that is the case, the Court of Appeals will likely reverse. Ultimately, it is true that legal appeals are difficult to win. Skilled appellate counsel knows this and will try to present your issues on appeals as mixed questions of fact and law or pure questions of law. Occasionally, appellate counsel will argue the trial court’s order is unconstitutional in some aspect and this will likely result in reversal.

Ciyou & Associates advocates have handled hundreds of appellate motions and briefs and obtained many reversals in domestic cases. A great deal of the success rate of any given case is determined by how the issues are framed. Would we be the right counsel for your appellate case? This blog is written by attorneys at Ciyou & Associates, P.C. The blog is intended for general educational purposes about how to win legal appeals. It is not legal advice and cannot be relied upon for any given issues or matter. This blog is also not legal advice. It is an advertisement.

  1. In re J.E., 45 N.E.3d 1243, 1248 (Ind.Ct.App.2015).
  2. Armes v. State, 191 N.E.3d 942, 946 (Ind.Ct.App.2022).
  3. In re Paternity of S.G.H., 913 N.E.2d 1265, 1269 (Ind.Ct.App. 2009).
  4. Indiana Code section 31-17-2-21.
  5. Troxel v. Granville, 530 U.S. 57 (2000).
  6. Israel v. Israel, 189 N.E.2d 170, 179 (Ind.Ct.App. 2022). and In re Paternity of K.D., 929 N.E.2d 863, 868 (Ind.Ct.App. 2010).

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