The final judgment of your family court case was rendered; you are very dissatisfied and feel that somehow this decision was wrong. What recourse do you have to right this wrong? Filing an appeal is a tactic that can be used to change the decision. How do you decide whether to appeal your case?
First, you must have a legal issue to appeal. It is not enough that you dislike the judge’s decision. The primary reason for an appeal is to show that the family court made a legal error in its judgment or decision. Examples of this could include misapplying the law, ignoring relevant evidence, or making factual findings that are clearly unsupported by the evidence. If there were procedural mistakes, such as improper notice or failure to follow the correct legal procedures, these could also be grounds for appeal.
If you think the court made a finding that was unsupported by the evidence or the court ignored relevant evidence, it may be difficult to prove on appeal. The Court of Appeals reviews decisions of the family court de novo, pursuant to article V, § 5 of the South Carolina Constitution. De novo review means that the court shall review findings of fact as well as the law. However, South Carolina case law recognizes that “(1) a trial judge is in a superior position to assess witness credibility, and (2) an appellant has the burden of showing the appellate court that the preponderance of the evidence is against the finding of the trial judge.” Stoney v. Stoney, 422 S.C. 593, 595, 813 S.E.2d 486, 487 (2018).
In my experience, the Court of Appeals gives great deference to the trial court.
Second, is it worth appealing if you think you have an appealable issue? Let’s look at the timeline for an appeal.
The decision handed down by the family court can be appealed to the South Carolina Court of Appeals. Once you receive the written order, you must serve the Notice of Appeal within 30 days of receipt of the order.
But what happens after that?
The party appealing the case is called the appellant. The usual practice is to request a transcript of the proceedings. The court reporter has 60 days to get you a copy of the transcript. Once you receive the transcript, you have 30 days to file an initial brief. The opposing party, the respondent in the appeal, has 30 days to file their initial brief. The appellant may file a reply brief, which should be served within 10 days after receiving the respondent’s brief. Within 30 days of service of the last brief, the appellant must serve a copy of the Record on Appeal on each party. The Record on Appeal includes all matters designated by any party to be included, which is a compilation of the documents and evidence presented to the family court. The Record on Appeal often consists of the trial transcripts, pleadings, motions, orders and exhibits. The parties must serve and file their final briefs within 20 days after the service of the Record on Appeal.
Based on the court timelines as guidance, it can be 210 days (seven months) before the final briefs are submitted to the Court once you receive the final order from the trial court.
Then, the Court of Appeals will decide whether to decide the case without oral argument. Even if the Court does this, my experience is that it takes four to six months to get a decision. If the case is set for oral argument, it can take longer.
In a best-case scenario, the Court of Appeals will submit a decision in ten to twelve months from the trial court’s order. However, parties often request time extensions to complete briefs, which can extend the timeframes by 30 days or more.
Are there other remedies besides appealing the case?
I counsel clients to “live under the order” for a bit. It is not unusual for parties who have been in protracted, contested litigation for several years to settle down once an order is final. Once the parties are no longer living in the midst of litigation with attorneys and a guardian ad litem in their lives, the parties’ relationship may become less contentious. Parties can mutually agree to alter the terms of custody and visitation. Because the final order is the default if there is no longer an agreement, parties should feel free to alter visitation on a trial basis. Sometimes, parties find that it makes sense to alter visitation in the best interest of their child.
And, if all else fails, you can seek a modification if there is a substantial change in circumstances that warrants a change in custody. The change must be in the best interest of the child.
