Avoiding appellate landmines in the post-judgment world can help lawyers preclude harm to a client’s rights — both on appeal and in the trial court.
By Andrea Seliski and David Sarif, Family Lawyers
Family law appeals can sometimes appear confusing. For example, a Motion for New Trial, which is a good avenue for post-judgment relief, can also serve to extend the time to file an appeal. However, what happens when a Motion for New Trial and an Appeal are pending at the same time? Does it matter which one was filed first? (Yes). Do all post-trial motions have the same effects and interactions with appeals? (No). Does it matter which party is filing a post-trial motion and which party is filing an appeal? (Yes). Can a party unwittingly eliminate his or her chance to appeal by actions relating to a post-trial Motion? (Yes). Are there safeguards an attorney can take to protect his or her client in the areas of law that are unclear? (Yes). All of these questions matter, and the answers can significantly impact a party’s rights in both the trial and appellate courts.
Appellate Landmines in the Post-judgment World: Understanding the Trial Court’s Jurisdiction
A practitioner searching for law on this topic can quickly come across an authority stating that the filing of a Notice of Appeal divests the trial court of jurisdiction. Generally, this rule is in place so that a trial court cannot modify an order while it is being examined by an appellate court. However, this simple tenant may be incomplete if the transfer of jurisdiction is not warranted in light of certain post-trial motions. In other words, it is not always true that the filing of an appeal will supersede the jurisdiction of the trial court with regard to a pending motion. It is important to understand this landscape before stepping out into the often unknown territory of post-trial motions and appeals.
While a Notice of Appeal generally divests the trial court of jurisdiction, certain timely-filed post-trial motions (such as a Motion for New Trial) can “delay” the divestiture of jurisdiction “until the motion for new trial is ruled upon and a notice of appeal to the ruling has been filed or the period for appealing the ruling has expired.” See for example, Cooper v. Spotts , 309 Ga. App. 361, 362. In other words, if a Motion for New Trial is timely filed, even while a timely Notice of Appeal is pending, the trial court retains jurisdiction to decide the Motion for New Trial. Furthermore, a trial court, by its own motion, may be able to correct its own errors within a certain window following judgment, even if a Notice of Appeal has been filed.
Phrases such as “delays of divestiture” should be treated with caution and investigated thoroughly. The idea that the transfer of jurisdiction from the trial court to the appellate court is merely “delayed” by the filing of a post-judgment motion implies that no further action is required by a party to ensure the transfer of that jurisdiction occurs. However, depending on the interests of the party involved, such transfer may not be automatic and there may be additional actions required to preserve the right to appeal. It is possible that case law and statute contradict on this point, and if this is the case, the prudent practitioner would follow the more stringent requirements. It is better to be overly cautious and make a timely filing that may turn out to be unnecessary than to refrain from filing and destroy an appellate opportunity for your client. Quite simply, it pays to be paranoid.
A “Ruling” on the Motion
It may take more than merely filing a post-trial motion for a party to obtain certain rights on appeal. A “ruling” on the motion may be key to extending the time to file an appeal and/or the jurisdiction of the appeal itself. Accordingly, a practitioner should thoroughly research whether the withdrawal of a post-trial motion might have unintended effects on a client’s right to appeal. For example, in the case of Cooper v. Spotts , Cooper timely filed both a Motion for New Trial and Notice of Appeal. Since jurisdiction to decide the Motion for New Trial still rested with the trial court, the appellate court dismissed the appeal. Cooper then withdrew her Motion for New Trial, on the erroneous belief that the withdrawal would give the appellate court jurisdiction. The motion was Cooper’s only avenue to file an appeal beyond the 30 days normally allowed, but the court would have to rule on the motion in order to extend the time to file an appeal. Because her voluntary withdrawal was not considered a “ruling” on the motion, re-filing her appeal 61 days after the original judgment was untimely, and Cooper had eliminated both her opportunity for a new trial and for an appeal.
Appellate courts may give trial courts an opportunity to rule on certain post-trial motions by delaying divestiture of jurisdiction, but obviously, this mechanism cannot be utilized solely for the purpose of delay by the same party filing an appeal. A party who files a post-trial motion and a Notice of Appeal should not attempt to argue that the motion delays the appellate court’s jurisdiction, which appellate jurisdiction was invoked by the same party. Do not be surprised if a party is deemed to have waived whatever right he or she may have had to delay the resolution of the appeal.
Post-judgment Motion or the Notice of Appeal?
Which document is filed first — the post-judgment motion or the Notice of Appeal — can make a difference. Depending on the type of post-trial motion, if a Notice of Appeal is filed while certain motions are already pending, the appeal may be subject to dismissal, or the trial court could be immediately divested of jurisdiction to decide the motion. Some post-judgment motions can effectively turn the final judgment into an interlocutory order when viewed in terms of a subsequently filed appeal. The effect of such a motion could change the procedure required to file an appeal. Finally, a non-moving party should not depend on the filing of the movant’s motion as a guarantee of an extension of time to file an appeal.
Appellate law can be extremely technical and complex. The guidelines in this article are of a general nature, and it is only prudent that you check your applicable jurisdiction’s rules as different rules may apply. When in doubt, consult with or bring on an attorney well-versed in appellate law to assist. Regardless — and above all — read and then re-read the appellate court rules where your case resides.
Andrea Seliski specializes in pursuing and defending appeals of all domestic and family law cases in the State of Georgia: www.domesticappeals.com. David Sarif is a partner at Naggiar & Sarif in Atlanta, GA. He has been honored as a Georgia Super Lawyers Rising Star, recognized in Georgia Trend Legal Elite, and represents many high-profile clients. He devotes his practice to divorce and family law: nsfamilylawfirm.com.
For the family law practitioner, these cases illustrate the importance of creating and “protecting” the record in the course of a trial or other evidentiary hearing. And on a close issue, more evidence is generally better than less.