There are a number of unique challenges that are associated with family law appeals. This results in even experienced appellate attorneys often being reluctant to get involved in the arena of family. The following are a few common areas where Houston family lawyer fails in family law appeals they are involved in:
1. Failure to Object (and Object Once Again)
According to conventional wisdom, in family law cases evidence rules tend to be relaxed. Whether that is true or not in trial courts, it definitely isn’t true when it comes to appellate courts. Like other cases, in a family law case, counsel has to properly object in order for an evidentiary error to be preserved. And each time that evidence if offered counsel must object (or obtain the proper running objection). A very common error that occurs is the trial attorney objecting to a question on the first time that it is asked but then failing to object when that same question gets asked a second time later on in the trial. The later failure to object results in the appellate complaint being waived.
2. Failing to Preserve Error Following A Trial
Like other appeals, it is required by family law appeals for there to be the preservation of error after a trial. Keep in mind that error is not preserved by a motion for JNOV unless there is a written ruling. Also, keep in mind that a motion for having a new trial is the only way that a factual sufficiency challenge can be preserved for a jury finding. One of the other common errors that take place in family cases is when the jury only determines part of the case. Attorneys frequently forget that unless there is a motion for a new trial that they are waiving any factual sufficiency challenge to the findings of a jury. If you are in need of assistance, make sure to reach out to our Houston Family Lawyers.
3. Failure To Request Findings of A Extend Appellate Deadlines
There are special provisions as well as procedural rules in the Texas Family Code to request findings of fact for certain kinds of cases. Section 6.711, for example, requires that (upon request) that certain findings that relate to asset characterization and community estate asset valuation. Section 153.258 has provisions for specific findings that relate to certain access and possession rulings. Finally, it is required by Section 154.130 that upon request certain types of child support findings be providing or in certain other situations. Also, this section requires in certain cases that child support finding requests be made within ten days of – not the judgment – but the hearing.
4. Failure To Appeal A Memorandum Ruling
Failing to Appeal a Memorandum Ruling (or Extending Appellate Deadlines) Increasingly, trial judges are deciding family law cases such as divorce cases through short memorandum rulings. Usually, the rulings get faxed to the two parties containing a listing of the decisions made in the case by the judge. Also, the judge might order the parties to have a formal decree prepared and tendered. The danger is at times the memorandum rulings might dispose of all issues and parties in the case, and the judge signs and dates them. The appellate court in that situation will probably treat a memorandum ruling as being a final judgment – which triggers appellate deadlines. If no action is taken within 30 days, then parties might lose their right to appeal.
5. Failure to Request Temporary Orders With A Pending Appeal
Many attorneys – even appellate or family lawyers – don’t realize that there are special provisions contained in the Family Code that authorize temporary orders on appeal. Those might include temporary orders for exclusively using martial residence pending an appeal, appointing a receiver for the preservation of assets, paying appellate attorney fees or for spousal support. The key here is trial courts have the power for signing these orders for just 30 days after perfection of the appeal. The order, therefore, must be signed (not only heard) within 30 days of a notice of appeal being filed.