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self-study / Appellate Practice

Dec. 13, 2021

Understanding the difference between family law and civil appeals

Victoria E. Fuller

Partner, Niddrie Addams Fuller Singh LLP


Victoria is a certified specialist in appellate law.

Of the tens of thousands of family law cases processed by superior courts each year, only a handful of them make their way to trial, much less appeal. But when they do, family law attorneys may puzzle over unfamiliar procedures governing post-trial procedures. Appellate lawyers who do not routinely handle family law appeals may puzzle over unfamiliar statutes and rules applicable in marital dissolutions.

In many respects, family law appeals are just like any other civil appeal. But there are some key differences. Below are five settings in which understanding those differences can make or break the case.

Post-Trial Motions

Generally, the grounds for post-trial motions applicable to civil actions also apply in family law trials. Those include motions for new trial under Code of Civil Procedure Section 657, motions to vacate a judgment under Section 663, and motions for relief from judgment under Section 473.

But there is one critical difference. Inequities arising in marital dissolutions -- stemming from inaccurate financial disclosures and other circumstances leading to unfair divisions of property -- prompted the Legislature to authorize unique post-judgment relief. Under Family Code Section 2122, parties may move to set aside a judgment (or any part of it) based on a variety of grounds, including actual fraud, failure to comply with required financial disclosures or false statements in them, duress, or mental incapacity. And parties may move to set aside a stipulated or uncontested judgment entered after a settlement based on a mistake of law or fact.

The Legislature also authorized generous deadlines to pursue a motion under Family Code Section 2122. Unlike the rushed jurisdictional deadlines applicable to most other post-trial motions, the deadline to bring a motion under Section 2122 may not lapse until years after entry of judgment. Depending on the grounds for the motion, the deadline may be from one to two years after entry of judgment, or one year after discovering the grounds for the motion (for example, fraud).

Family courts also have wide discretion to reconsider orders they later come to believe are erroneous or inequitable. Most practitioners can recite in their sleep that a motion for reconsideration brought under Code of Civil Procedure Section 1008 requires a showing of "new or different facts, circumstances, or law." But family courts may properly change an erroneous ruling even when a motion for reconsideration fails to make the required showing. In re Marriage of Barthold, 158 Cal. App. 4th 1301, 1308-09 (2008). In the family law context, then, reconsideration may be a powerful mechanism to ensure the ultimate result is both correct and fair.

Analyzing the Chances of Success of an Appeal

In family law cases, I probably talk parties out of pursuing an appeal more often than I recommend moving forward, due in large part to the applicable standard of review. So many decisions made by family courts are reviewed for an abuse of discretion, such as child custody and visitation orders, rulings deciding the proper amount of child or spousal support, and innumerable other decisions.

In cases subject to abuse of discretion review, affirmance is almost certain unless one of these circumstances are present: The family court did not exercise its discretion; it misunderstood the scope of its discretion; or it misunderstood or misapplied the governing law. Otherwise, the appellant must show the decision was "outside the bounds of reason," meaning that no reasonable judge could have reached the same conclusion. Only the rarest of cases present a realistic chance of overcoming that standard.

As in any context, however, family law cases sometimes involve pure questions of law subject to the more favorable de novo standard of review. Appellate courts will apply that standard when, for example, an issue requires statutory interpretation, or interpretation of contract (like a premarital agreement) when the facts were undisputed. Those kinds of issues are more likely to be worth pursuing than a challenge to the family court's wide discretion.

Even when the prospects of an appeal are promising, it may be that different strategies have a better chance of achieving the client's ultimate goals. Consider an appeal from an order denying a request for a domestic violence restraining order. Given the time and resources necessary to see an appeal through its conclusion, a client may be better off pursuing a new request if the harassing behavior continues, with the opportunity to beef up the factual record based on lessons learned from the first proceeding. As in other settings, then, it is important to consider the relief that an appellate court is likely to grant -- with a realistic timeline in mind -- as compared to other potential strategies.

Filing the Notice of Appeal

Another procedure that is unique to family law cases is the certification of issues for interlocutory appeal. Except for orders terminating marital status, a court may, in an order resolving a bifurcated issue, certify that there is probable cause for immediate appellate review. Cal. Rules of Court, Rule 5.392, subd. (b)(1). If the court's order does not certify the issue for appeal, a party may file a motion requesting certification. Id., subd. (b)(2). If granted, the party may then file a motion in the Court of Appeal seeking authorization to appeal the order. Id., subd. (d).

Otherwise, filing a notice of appeal in a family law case mostly involves the same procedures applicable in civil cases. Still, some cases involve an added complication: the possibility that the order at issue may be modified by the family court notwithstanding the appeal. For example, child and spousal support orders are generally modifiable at any time based on changed circumstances, even when an appeal is pending. In re Marriage of Horowitz, 159 Cal. App. 3d 377, 379, 381-85 (1984). In those cases, counsel representing the parties in the appellate and family courts must work together to analyze developments and fashion appropriate and consistent strategies.

Building Client Confidence

Parties to family law cases are individuals with unique stories. Whether the judge believed their side of the story or not, they may have strong feelings about how the facts should be presented. However, it is not the function of the appellate court to reweigh evidence. Unless the appeal challenges the sufficiency of the evidence to support factual findings, the briefs should present the facts in a manner that is consistent with the family court's findings. That is, a compelling appeal exposes reversible error within the context of the facts as believed by the family court. Thoroughly explaining these concepts to clients is critical to achieving their trust and confidence.

On the other hand, it may be important to avoid conceding certain facts disputed by the client in the event of a remand for retrial. Using passive voice strategically, for example, may facilitate accurate representations of the facts that avoid harmful admissions.

Settlement Programs

Finally, parties to family law appeals should seriously consider participating in court-sponsored settlement programs. Achieving a settlement that both parties can live with may facilitate closure of a painful chapter in life, which may help the parties cooperate more productively in the future.

Most California appellate courts offer settlement programs aimed at assisting the parties with settling their cases, if possible, in a cost-effective manner. For example, in Division 1 of the 4th District Court of Appeal, a settlement justice will preside over a settlement conference at no cost to the parties. In fact, the parties may request a particular justice to serve in that role. If the case does not settle, the settlement justice is recused from hearing the appeal, and all settlement briefs and files are kept confidential.

Similarly, the 2nd District offers a mediation program. When the parties agree to participate, the court appoints mediators from a panel of experienced appellate specialists who volunteer a set number of hours. Most other districts throughout California have implemented a settlement program in some form. Parties to family law appeals should consider whether participating in such a program would help bring the case to a satisfactory conclusion.

In the end, there are more similarities than differences between family law appeals and civil appeals. But understanding these nuances can make all the difference to your clients.


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