This article originally appeared in The Recorder on April 10, 2019.
For whatever reason, many family lawyers don’t think much about appeals until they get caught in one. That can lead to mistakes with the record that negatively affect cases on appeal.
As one of only three California attorneys with dual certification as a specialist in both family law and appellate law, it’s often left to me to try to clean up a problematic family law record. But there are limits to what I or anyone can do once a trial is over.
So here are the top seven mistakes I see family law litigators — and indeed, many types of litigators — make that cause problems for their clients on later appeal. Catch them early on and they’ll never be an issue at all.
- Failing to make offers of proof.
If the trial court sustains an objection or disallows the introduction of oral testimony or a written document, it’s critical to make an offer of proof on the record concerning the omitted evidence and its importance, purpose, and relevance. An “offer of proof” is a succinct statement identifying the specific evidence being offered (e.g., “Father will testify that Mother agreed to forego a monitor.”). Unless the offer would be fruitless (where the court has already indicated it will not hear the evidence), under the Evidence Code, a party’s failure to make an offer of proof waives the right to appealbased on the erroneous exclusion of evidence. An offer of proof is also the only way to establish prejudice on appeal from the evidence’s exclusion, because it’s the only way to get into the record what that evidence would have constituted.
- Not requesting a statement of decision.
A statement of decision is the formal document that explains the factual and legal bases for the court’s decision as to each of the principal controverted issues at trial. While you can request a statement of decision orally for a hearing that lasts less than one calendar day or less than eight hours over more than one day, it is often best to file a request in writing for all trials — you must for longer ones — even if you have to pen a note in the courtroom. You must also tell the court the grounds of contention that you want included in the statement of decision; once you do so, the Family Code and Code of Civil Procedure mandate the court issue one.
Failure to obtain a statement of decision puts you at a significant disadvantage on appeal. Appellate courts will apply the doctrine of “implied findings,” and presume on appeal that the trial court made all factual findings necessary to support the judgment for which there is substantial evidence. On the other hand, if you have a statement of decision and the trial court did not make all the findings needed to support its conclusion, the appellate court will indulge no such presumptions.
A statement of decision is especially important to modification of support or custody orders. It serves to provide a record of the then-existing circumstances — income and expenses, current income potential, a finding that a spousal support order meets or does not meet the marital standard of living — against which courts may later evaluate whether the “circumstances” have sufficiently changed to warrant a modification.
- Forgetting to ensure rulings (and reasonings) are reported in the transcript.
If the court makes a ruling in chambers — which can happen a lot in sometimes-informal family law proceedings — put it on the record when you’re back out in open court. (Though you should do your best not to have substantive chambers conferences to begin with.) If you’re dialing in to a hearing by telephone, make certain that the telephone discussion is being taken down by the court reporter, who sometimes will stop reporting during calls.
- Waiting until the appeal to order transcripts.
There are a number of advantages to ordering transcripts immediately after hearings. First and foremost, it allows you to reference oral proceedings during trial, in post-trial motions, and in interlocutory writ petitions. But it also ensures you can get your transcripts quickly — or at all, given that your court reporter might retire or pass away between your hearing and appeal, and take your ability to get a transcript with them.
- Ignoring the need for appellate fee advances.
If you represent a substantially less-wealthy party in family law litigation, you can often obtain a court order requiring your legal fees to be paid by the other spouse. When seeking those fees, it can be important to leave the door open for appellate fees from retention of appellate counsel to advise during trial, prosecute extraordinary writ petitions, and/or potentially represent your client on appeal. Especially if a writ petition is required, having rapid access to funds for appellate specialty counsel can mean the difference between bringing a timely writ petition on a rush basis or not.
- Not knowing how to post a bond.
Family law litigators who find themselves on the losing end of a big, appealable judgment often realize their clients’ second or third question — after “how could this happen” and “how do we appeal” — is how to pause enforcement of the judgement while the appeal is pending. The answer can be tricky and benefits greatly from involvement of an appellate specialist, but briefly, it depends on the different types and components of the judgment against your client.
Staying enforcement of a money judgment requires a bond or cash deposit with the court, usually 150% of the judgment amount to cover interest that accrues on the judgment, if affirmed, while the appeal is pending. Your client may need to put up notes or real estate to provide the needed security, or might have to rely on family or friends to serve as guarantor, though in some cases that can bump the bond amount to 200%. Staying appointment of a receiver also requires a bond.
If the judgment requires that your client take an affirmative action, however, it may be automatically stayed without a bond as a mandatory injunction. However, that rule doesn’t include selling or turning over property (which requires a bond to stay enforcement) or executing documents such as a deed transfer (which must be executed and deposited with the court clerk to stay enforcement).
Custody rulings cannot be stayed on appeal unless the superior court or Court of Appeal specifically so orders, though a ruling permitting removal of a child from California is automatically stayed for 30 days to give the opposing party time to appeal and seek a longer stay.
- Waiting too long to involve an appellate specialist in high-stakes family law litigation.
Whether you call me or another appellate specialist, we are most effective if involved during litigation, when we can help you dodge traps and shape the record, as opposed to after, when we’re left trying to sweep up mistakes. If there’s enough at stake and sufficient assets are available (from your client or an opposing party), consider bringing an appellate specialist in early on. It’s always good for your client and will save everyone from cardiac stress down the road.
On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. Claudia Ribet is one of only three attorneys in California certified by the State Bar as a specialist in both family law and appellate law. Find out more about Claudia and the California Appellate Law Group LLP at www.calapplaw.com.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
This article is copyright © in the year of publication above.