A Family Law Appeal is Not Just a “Do-Over” of a Family Law Trial

Some family law litigants (and even some attorneys) may think an appeal is just a “do-over” of what happened at the trial level. However, trials and appeals are two very different proceedings.  In this post, we will address one of the most fundamental differences between proceedings at the trial level and proceedings at the appellate level – How does each court deal with findings of fact?

Trial courts ask: “What are the Facts?”

It is not unheard of for a family law trial to last several days, or even several weeks. However, the oral argument on an appeal of a week-long trial will almost never exceed 30 minutes and usually doesn’t impact a case. So, why is that?

The reason why a trial can last so long is because the parties are offering their different versions of the facts. The parties are usually examined by both sides, other witnesses (sometimes expert witnesses with a lot to say) are also examined, and exhibits are introduced into evidence. In most cases, the witness’ credibility is a critical issue for the Court.  Accordingly, a lot of time and effort is devoted to either bolstering or attacking the credibility of witnesses. At the end of a case, the trial judge has to determine what laws to apply and how to apply them, but he or she must also determine what happened and who was telling the truth.

Appeals court: How does the law apply to the facts determined by the Trial Court?

On appeal, the factual findings made by the trial judge are given extraordinary deference and are extremely difficult to challenge. For instance, the determination of credibility is the exclusive province of the trial court. If a trial court believed a raging murderer’s testimony that he saw the Pope steal candy from a candy store, and 100 religious clerics from every denomination testified they were watching him the whole time and that there was no theft, believe it or not, the factual finding that the Pope stole the candy cannot be disturbed on appeal.

Basically, as long as any evidence in the record would support the Court’s finding, the factual findings won’t be disturbed on appeal. Unlike at trial, the Court of Appeal does not take witness testimony, and (except for extremely limited exceptions) it doesn’t review or admit new exhibits. As such, most of the litigation during an appeal occurs in the written appellate briefs. In fact, by the time the lawyers walk into the Court of Appeal to argue their cases, the judge’s already have a tentative opinion drafted.

Appellate litigation is a very complex area of the law and most litigants are well-served by seeking competent appellate counsel.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding a possible appeal. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.


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