Today, we will discuss your options, when you are dissatisfied with the result of your divorce case.
Initially, it bears repeating that in most (perhaps, all) U.S. jurisdictions, fewer than 5 percent (5%)of the filed cases make it all of the way through trial. And, of those a very small percentage are appealed. So, the odds of your having an appeal are small. Nevertheless, appeals do happen.
We have done appellate work in Texas for more than thirty (30) years, so we have learned a few things about them. To begin with, it’s important to note that an appellate court is not going to reconsider the merits of the case, and (perhaps) reverse the judgment of the trial court, merely because one party is not satisfied with the case result. Instead, the appealing party (the “Appellant” in Texas state law practice) must show that the judgment of the trial court is based on reversible error. Let’s discuss this a bit.
In order for reversible error to exist, the appealing party must show (in Texas) that:
- the court made an error in its rulings; and, that error was of such magnitude that it probably caused the rendition of an improper judgment; or,
- the court abused in discretion on matters for which it has discretion. Those discretionary matters include issues such as child custody, and the award of Community Property[1]) are not going to be found to be error, unless the court’s judgment is found to be an abuse of that discretion. In Texas, that means that the court acted arbitrarily or unreasonably; or, without reference to guiding rules or principles. That is (obviously) a high standard to meet.
In regard to the first of those, one or more erroneous rulings, typically on a matter of law, must be shown. For example, incompetent evidence is admitted; or, improper Jury Argument is made (if your case, in fact, has a Jury). Then, it must be shown that the Appellant properly preserved that error, such as by making an objection; obtaining an adversary ruling (a ruling against the objection; and, (perhaps) offering proof of excluded evidence.[2] That establishes error. Next, the more difficult task of showing that the error is reversible must be shown.
The presumption in Texas is that any error committed by the trial court is “Harmless.” In order to overcome that presumption, the Appellant must show (again, in Texas) that “the error complained of:
(1) probably caused the rendition of an improper judgment; or
(2) probably prevented the appellant from properly presenting the case to the court of appeals. (TRAP 44.1).”
Item Number 2 rarely occurs, in our experience. So, the focus is on Item 1, above. To show that an improper judgment resulted on account of the error, that error must be of such magnitude that it likely overcomes the cumulative result of the other case elements. So, we are not talking about trivial matters. Errors of this kind are matters such as admitting expert testimony (and, likely opinions) that were not shown to be relevant and reliable. Or, excluding important evidence (documents, audio-visual materials, or testimony, e.g.) that would likely significantly alter the case result. That is not an easy task.
Appellate work is specialized and highly technical. If you believe that you may have an appealable issue, please contact a qualified appellate lawyer as soon as possible. There are time limits which, if missed, can end the option of appealing a trial court’s judgment.
That’s all for today: keep on loving those kiddos (Grown-ups, too)!
My best,
David
[1] Texas is one of just eight (8) Community Property States; so, this concept of “awarding Community Property” does not apply to the other states and territories on the United States)
[2] This is a general discussion The technicalities of error preservation are beyond the scope of this post.