You might not think to compare the chances of losing an appeal of a Virginia divorce or custody case to the odds of losing money in Las Vegas. But there is a peculiar commonality: Virginia domestic relations law appeals and gambling are both by and large money-losing propositions.
You know why the odds favor the house when you gamble. But you may not know to what a significant extent the odds are stacked against you in a domestic relations appeal. Here are five explanations why:
I. Harmless Errors Don’t Count.
Even though you identify a trial court mistake, you still lose on appeal if the mistake was too small to make a difference. Many people have trouble accepting this.
There is an exception. It involves a court’s decision to deviate from the child support guidelines. If the amount of child support awarded is different from the guideline amount, then the court must state in writing that it considered all the statutory factors that could possibly justify the deviation. Child support orders lacking this statement get reversed.
II. Provide the Trial Court an Opportunity to Make Things Right.
When a final decree does not specify in writing the error being appealed, or there is no motion to reconsider; the trial judge has no way to correct the mistake, and the appeal will be denied. Fix things with the trial judge first, before asking for help from the Court of Appeals.
III. Follow the Rules.
Appeals are more complicated that writing a brief. You have to appeal within a certain number of days and you can only appeal from orders that are “final”. You are required to provide a transcript or narrative record of lower court proceedings, respect page limits and font sizes, and do many other things. Some lawyers only handle appeals. Any oversight can result in an appeal being denied. This pitfall is known as Rule 5A: 18.
IV. Make an Argument.
The most embarrassing procedural failure is not arguing your case. Think of it as a syllogism: Your facts and case citations should lead to a different result than was reached at trial. It seems so simple that you might not expect appellate lawyers would forget to do it. It is so important that I made it into a separate category.
An appeal brief is like a road map to victory. The map explains where the court should end up and how it gets there. If you do not connect the starting and ending points in writing, judges end up in a field somewhere short of your destination and your appeal will be dismissed. Appeals judges do not usually make their own way to a destination, even if they know how. They don’t do your homework.
The narrow exception to the rule is called the “ends of justice”. Virginia judges will complete your litigation “road map” if there is a compelling reason. However, this is rare.
V. The Ruling You Appeal is Presumed Correct.
The trial court decision is automatically reaffirmed unless it is clearly erroneous or there was an abuse of discretion. This is the “house” being favored at the casino.
The presumption in favor of upholding lower court rulings does make sense: Appellate judges have no ability to weigh the credibility of witnesses. The practical result is sufficient evidence to support a decision is also sufficient to validate the decision, assuming evidence is properly admitted, the judge is not prejudiced, both sides have a fair opportunity to put on their case, etc. This principal applies regardless of how strong the evidence is for ruling the other way. Appeals are often undertaken on the basis that the loser at trial had stronger (more persuasive) evidence. But you cannot win an appeal on that theory.
In other words, if there is enough evidence presented so a party can win – and they do win – the appeals court will not second-guess the decision. In the language of appellate courts, the evidence below is considered in the light most favorable to the prevailing party.
This is probably the biggest hurdle. The odds are against the party appealing before they even start.
Based on the five pitfalls I describe, it is no surprise so many appeals of equitable distribution, child custody, child support and spousal support cases in Virginia result in decisions being affirmed.
Imagine that the Court of Appeals of Virginia has five virtual boxes for technically flawed family law appeals, one for each factor. Decisions concerning flawed appeals are “unreported”, meaning they cannot be cited as precedent, maybe for the reason that they resolve nothing beyond the folly of the individual who chose to appeal. These cases all have a fatal glitch somewhere in the trial-and-appeal process. In the overwhelming majority of these cases, lower court judges did nothing wrong.
Misguided appeals trigger predictable citations and phraseology. Why not? From my perspective, a sizeable number of Virginia domestic relations litigants make the same fundamental mistakes on appeal, and they make them on a recurring basis.