When a party disagrees with the trial judge’s final decision, then he or she may appeal that decision by right. Generally, success on appeal is limited to cases in which the judge clearly reached a decision that was unsupported by the evidence adduced at trial, or when there is newly discovered evidence. A judge’s trial decision will not be overturned unless it can be shown, clearly, that an abuse of judicial discretion occurred. As a result, most trial decisions are final.
The appeal process involves seeking the higher court’s review of the lower court’s decision. This is an appeal as of right — so long as the time limits and procedures for seeking an appeal are satisfied, then any party can obtain appellate review of an adverse trial court decision. For example, if a party wants to challenge the trial court’s decision awarding primary physical custody to the other spouse instead of joint custody, then that decision is reviewable by the appellate court as of right.
In most civil cases in Arizona, appeals from the Superior Court (the trial court) are to the Arizona Court of Appeals, which is our intermediate court. We have two divisions within our Court of Appeals: Phoenix is home to Division One with sixteen judges; Tucson is home to Division Two with six judges. Cases before the Court of Appeals are heard by three-judge panels, unlike the trial courts.
You may be wondering whether a Court of Appeals decision can be appealed if the result is unsatisfactory to a party. The Arizona Supreme Court is also an appellate court, but its review of lower court decisions in family law cases is purely discretionary. A petition for review of the Court of Appeals decision may be filed with the Arizona Supreme Court, but such review is not likely to be granted. So, from a practical standpoint, an appeal to the Court of Appeals is likely to be the end of the appeal road for a family law case.
When an appeal is sought, the dissatisfied party asks the Court of Appeals to review what the Superior Court judge did and make a determination as to whether that judge was wrong or committed an error in the trial. In the language of appeal, the appealing party becomes the “Appellant” and the responding party becomes the “Appellee.”
In deciding whether the trial judge committed legal errors, the appeals court examines what the trial court did in the trial process. The appellate court doesn’t re-try the case — it is not a fact-finding body that will re-examine all the evidence. In that sense, the appeal is not a do-over. Only the legal issues are examined on appeal. To further complicate the appeals process, there are specific court rules which control every aspect of how the civil case proceeds on review. This is an instance in which the party really does need the services of a family lawyer experienced with the Arizona Rules of Civil Appellate Procedure.
Procedurally, there is a “Notice of Appeal,” the “Record on Appeal,” and the “Appellate Brief.” Of these, the brief goes to the heart of the matter on review. The Appellate Brief, which both parties will submit to the appeals court, is the written discussion and legal argument for the party’s position. The brief is the court’s resource for understanding each party’s viewpoint on what went rightly or wrongly at trial. This may be a surprise, but the case may or may not be orally argued before the three-judge appellate panel. More often than not, there is no oral argument, meaning the appellate court makes its decision solely on the basis of the briefs.
A Motion for Reconsideration may be filed with the Court of Appeals, setting forth the specific matters that the party believes the appellate court was in error as to its determination of law or fact. Beyond reconsideration, the only remaining possibility is a petition to the Arizona Supreme Court for discretionary review. Although the Supreme Court does grant review of domestic relations cases from time to time, those occurrences are infrequent.
Here are some important rules from the Arizona Rules of Civil Appellate Procedure (ARCAP):