Archive for the ‘appeals’ Category

Stay Pending Appeal

Wednesday, September 3rd, 2014

An appellant who wants the trial court’s judgment suspended while the case is being appealed, must request a stay and post a bond to ensure that, if the trial court’s judgment is affirmed, there are funds to pay whatever is required.

For example, in the District of Columbia, Rule 8 of the Rules of the DC Court of Appeals governs.  To obtain a stay pending appeal the appellant must first file a motion in the Superior Court (the trial court) within thirty days of entry of judgment.  That court decides whether to grant a stay and on what terms.  The Superior Court’s decision on the stay is also appealable.

Prior to 2002, the law in DC had been that an appeal automatically stayed the final judgment of divorce.  Many interesting and potentially disastrous consequences flow from a stay of the judgment of divorce.  Except where noted below, these consequences are essentially the same in all three jurisdictions.  If the divorce judgment is stayed:

  1. You’re still married so you cannot remarry.
  2. If you die, your spouse is your widow or widower and has important rights with respect to your pension, 401(k) account, intestate estate (if you have no Will) and the right to elect against your Will if you have disinherited him or her.  In Virginia your spouse is entitled to a share of your augmented estate which includes non-probate assets and certain property transferred during your lifetime.
  3. If you and your spouse own the former marital residence (or other real property) as tenants by the entirety and the divorce judgment is stayed then you still own it in that peculiar old common law tenancy.  If you die, he or she takes the whole property, you cannot leave your interest in the home to the kids, you cannot borrow against or assign your interest, etc.
  4. In Maryland and DC you’re still earning marital property and increasing the marital portion of your pension and retirement accounts every day when you go to work.  If the case is remanded for a new hearing your further accumulation of money, property, pension credits, etc. may be on the table for equitable distribution at that future trial.

It’s definitely a case of “be careful what you wish for” when you seek to stay of a judgment of divorce.

Appeals

Wednesday, September 3rd, 2014

Sometimes a party to a lawsuit is not satisfied with the trial judge’s decision. When that happens that person might want to file an appeal. Generally, and in all divorce cases in all three local jurisdictions, you can appeal “as of right.” You may not win but you can appeal.

The party who appeals is called the appellant. The other party is called the appellee. Often the appellee will appeal the portions of the trial judge’s decision that he or she is not satisfied with and become the appellee/cross-appellant.
In due course, if the appellant and, if applicable, the cross-appellant, do all the required filing correctly and on time, the appellate court judges will review the contested portions of the trial judge’s decision. The appellate judges give deference to the trial judge’s findings of fact because he or she saw and heard the witnesses and the appellate judges did not. Findings of fact are not disturbed unless they are “clearly erroneous.”

The appellate court judges do not give deference to the trial judge’s rulings regarding the law. If they conclude the trial judge was wrong, they reverse. Usually though, that means they remand the case back to the trial judge to conduct a further hearing, if necessary, and generally preside over the remainder of case consistently with appellate court’s ruling.

 
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