Thursday, March 30, 2017

An Introduction to Family Law Appeals in Virginia

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Yes, I know this is my first substantive post in a long time.  See my blog status update from October for an explanation.


I've always said that one of the best and worst features of the practice of law is that our cases are decided by judges who are, ultimately, human.  This is usually a good thing, because the reality is a great deal of law, especially family law, simply doesn't work as a rote, robotic formula, and needs a human touch to figure out how best to handle the relationships involved.  Nonetheless, the downside of human judges deciding cases is that they can get it wrong, and that's where appeals come in.

In 2014, I wrote a blog post discussing the basics of how appeals work in Virginia.  You can view that post here.  Today, I'd like to touch on a specific type of appeal - appeals in family law cases.  Now, as I noted in my previous post, there are several directions an appeal can go, and in family law cases this can include both an appeal from the J&DR Court to the Circuit Court, and an appeal from the Circuit Court to the Court of Appeals.  Because appeals to the Circuit Court result in a new trial, and don't particularly deviate from the "normal" rules, I don't feel a post is really necessary on that topic, so instead today's post will discuss appeals of family law cases from the Circuit Court to Virginia's Court of Appeals.

Rules for an Appeal

Most all of the rules for an appeal to the Court of Appeals can be found in Part 5A of the Rules of the Supreme Court of Virginia.  If you are involved in appeal to the Court of Appeals, even if you have an attorney (but especially if you don't), you would do well to familiarize yourself with all of the rules in Part 5A (as of March 30, 2017, Part 5A starts on page 455 of the referenced link to the Rules of the Supreme Court of Virginia).

Getting the Appeal Started

So, you've had your trial in the Circuit Court, you lost, and you want to appeal.  The hardest part of any appeal can often be getting it started.  As noted in my 2014 post, appeals in family law cases are heard by the Virginia Court of Appeals, and they are appeals "of right," meaning the merits of your appeal will be considered by the Court of Appeals, and you do not have to petition for permission to appeal.

So, the first things to remember is "thirty days."  You have thirty days from the entry of the final judgment or order in your case in which to file what's called a Notice of Appeal.  If you file after the judge rules but before the order is actually entered, your notice is considered to be filed on the date the judgment was entered, but if you file your Notice of Appeal on the 31st day after entry of the final judgment or order, then you're late.  This is bad because the thirty day deadline is what the court calls "jurisdictional" or "mandatory."  In other words, if you file your Notice of Appeal even one day late, your appeal is dismissed.

So, what is the Notice of Appeal and where is it filed?  Two good questions.  The Notice of Appeal is a document that lays out all the details of the background of the case - what the Court of Appeals will need to know to open your file.  So, it has the names of the parties, the trial court case number, the names and addresses of the attorneys, etc..  It also has other information that will be important for the courts and the other parties to know, such as if you're ordering transcripts or planning to prepare a written statement (more on this in the next section).  The rules for a Notice of Appeal are laid out in Rule 5A:6 and a sample Notice of Appeal is found immediately following Rule 5A:6 in the Rules of the Supreme Court of Virginia.

Now, once you've completed your Notice of Appeal, you actually file it with the trial court, that's what triggers the beginning of the appeal process.  Nonetheless, you also send a copy (so, not the original) of the Notice of Appeal, along with your filing fee, to the Court of Appeals.  Which gets to my next point: fees.  When you file an appeal, you should be prepared to write three checks.  The first will be the filing fee for the Court of Appeals (currently $50), made out to the clerk of the Court of Appeals.  The next two should be your appeal filing fee with the Circuit Court (you should call the Circuit Court to find out how much their appeal filing fee is) and a check for your "cost bond" (currently $500), which is required in order to "perfect" your appeal, and must be paid at the same time as the Notice of Appeal is filed in all appeals of right.  The first check is sent to the Court of Appeals with its copy of your Notice of Appeal and the latter two checks should be made out to the clerk of the circuit court your case is in and filed with the circuit court at the same time that you file your Notice of Appeal.

So, once you've filed your Notice, mailed a copy to the Court of Appeals, and paid your filing fees and appeal bond, your appeal begins.

Completing the Record

Your next task is to "complete the record" in the trial court.  This means that for every hearing in which something important occurred that you want the Court of Appeals to consider, you must submit a transcript or written statement.  Generally speaking, if you had a court reporter at the hearing, you need to submit a transcript from that court reporter for the hearing, and if you didn't, you need to prepare a written statement.  I've seen some cases where there was no court reporter but there was an audio recording and a transcription of the audio recording was allowed as a transcript, but that's not usually ideal.

Rule 5A:8 governs transcripts and written statements.  For each hearing in which you will have a transcript, you must file with the trial court that transcript within 60 days after entry of the final judgment or order, and within 10 days after filing that transcript you must send a notice to the other party that you've filed the transcript.  For each hearing in which you won't have a transcript, you must prepare a written statement that summarizes what happened at the hearing, including the arguments that were made, testimony given, and rulings made by the court.  It is particularly important that all things that happened that you want the Court of Appeals to know about or that might be relevant to your appeal be included in the written statement.  You must file with the trial court each written statement within 55 days after entry of the final judgment or order, and send copies of your written statement(s) to the other side (note there is no requirement to send the other side a copy of the transcript(s) you file, just the notice that the transcript(s) had been filed, so this is a difference between the written statement(s) and transcript(s)).

Once this is done, the other side will have 15 days from the date of the written statement or the date of the notice of the filing of the transcript to object to the transcript(s) or written statement(s) on the basis of being erroneous or incomplete.  Within 10 days after that, the circuit court judge will rule on the objections (the judge may order oral arguments to be held, but is not required to) by overruling the objections, making corrections, and/or certifying the manner in which the record is incomplete.  Once the judge does this, he or she will certify all transcript(s) and written statement(s), and they become part of the trial court record.

Remember that if you fail to file any transcripts or written statements, or have a hearing for which you fail to do so, the Court of Appeals will not consider anything that occurred during those hearings, and if the Court of Appeals finds that the record is not sufficient on which to make a decision, then it may well dismiss your appeal outright, so it is critical that you include the transcripts and/or written statements.

Once this part is done, the trial court record is complete, and shortly thereafter the Circuit Court clerk will (or should, anyways) transmit the record to the Court of Appeals.

Assignments of Error and Contents of the Appendix

Once the record is transmitted to the Court of Appeals, unless and until there is an order otherwise, everything else occurs in the Court of Appeals and you are done with the Circuit Court.  In fact, in family law this is important, because while your case is pending on appeal, the Circuit Court lacks jurisdiction to modify its order, it can only enforce it.  So, if you're appealing a child support order, for example, and then the other side has a big promotion while your appeal is pending, you actually cannot bring a motion to modify child support until the appeal is over - this is something to keep in mind when considering whether or not to file appeals (and we have on several occasions advised clients not to appeal where we had good reason to believe a change in circumstances warranting modification would occur before any appeal could be completed anyways).

Now, once the record is received by the Court of Appeals, the clerk of that Court notifies both sides, and two clocks start ticking, one at 15 days, and one at 40 days.  I will get to the 40 day deadline in the next section.

Within 15 days of the Court of Appeals receiving the record, you must file (again, in the Court of Appeals now) and send to the other side your designations of the contents of the appendix and your assignments of error.  Both of these are critical to your appeal.  Your assignments of error are a numbered list of things you think the trial court did or got wrong, and these are the basic underpinnings of your appeal.  Failure to include an error in your initial list of assignments of error means the Court of Appeals will not consider that error when deciding your appeal.  So, you must in your assignments of error mention all mistakes you believe the trial court made in order to preserve your ability to appeal those mistakes.

Your designation of the contents of the appendix is almost as important.  The "appendix" is a set of documents you will file with the court (discussed in the next section) that consists of elements of the trial court record that the Court of Appeals will need to consider to consider your appeal.  This is a concept developed from the idea that it is unlikely that the entire trial court record is relevant to your appeal, so the appendix narrows down the parts of the record that are actually relevant.  Your designation is simply a list of the items from the record you intend to include in your appendix.

Your designation and assignments of error, which are filed as a single document, as noted are due 15 days after the record is received by the Court of Appeals - as always, of course, you must also send a copy to the other side.  The other side will then have 10 days to file and send you an additional designation of contents for the appendix.  This is important, because while you may put things in the appendix that neither party designated, you must put in the appendix everything either party designated.

An additional point to consider is this - your brief and appendix due date is 40 days after the Court of Appeals receives the trial court record, but the other side's designation due date is 10 days after they receive your designation.  If you wait the full 15 days to file your designation, you won't have the other side's due until 25 days after the record was received, leaving you just 15 days to actually complete the appendix.  If you file and serve your designation on day 2, however, then you'll have their designation by day 12, and have 28 days.  As a result, I always try to file my designation and assignments of error as soon as possible, usually even preparing it before the Court of Appeals has actually gotten the record so that it is ready to file and send as soon as the record arrives at the Court of Appeals.

Brief and Appendix

As noted above, your opening brief and the appendix are both due 40 days after the record is received by the Court of Appeals.  There are many rules for a brief and summarizing them here would be an exercise in futility.  Just note that you're required to have a white cover page, a table of contents, table of authorities, summary of facts, summary of the case, restate your assignments of error, your arguments, and a certification.  You are limited to 12,300 words.  Rules 5A:4, 5A:19, and 5A:20 are the ones to make yourself very familiar with.

While there are many key rules a few to remember are the 12,300 word limit, that you must cite to the record (preferably to the appendix) in your statement of facts, your assignments of error must now cite to where in the record (preferably in the appendix) that error was "preserved" for appeal, and your arguments must cite legal principles and cases, statutes or other authorities to be considered.  You must also follow the rules in Rule 5A:4(b) about binding and the cover page, 5A:19(f) about electronic filing and serving of copies, 5A:20(h) about the certificate and 5A:24(a) about color of the cover page.

Your brief is the crux of your appeal.  This is not the place to hold back - if you don't make an argument in your brief, you lose your right to make that argument on appeal at all.  You should lay it all out on the table and make your case in full in your written brief.

As noted, the Appendix is also due 40 days after the receipt of the record by the Court of Appeals, however it has an additional deadline - it cannot be filed later than your brief.  So, if you file your brief on day 35 after the record is received, then the Appendix also must be filed on or before day 35.  That being said, this should be easy because you want to complete your Appendix first so you can cite to it in your brief.

The rules governing the Appendix are found at Rule 5A:25.  As noted, all documents designated by each party must be included.  Also included should be the pleadings initiating the portion of the case you're appealing, the order(s) you're appealing, the relevant portions of the transcript(s) or written statement(s), and any additional documents from the trial court record you believe the Court of Appeals should consider.  Note that the Court of Appeals generally won't look at anything in the record that's not in the appendix, so if you think it might be relevant, put it in.  You'll need a table of contents, the contents are to be in chronological order of the date they were filed with the court, and you'll need to follow Rule 5A:4(b) and 5A:24(a) regarding the cover pages (which are red) and binding, and 5A:25(b) regarding electronic and physical filing and serving.

Once you've filed your brief and appendix, you can largely sit back and relax - the hardest part is over.

Reply Brief

Once you've filed your brief, the other side has 25 days to file and serve you their brief.  As with their designation, this deadline is based on when you filed, not when the record was received, so if you want the appeal to move faster, you can file your brief earlier than day 40, and their deadline will move up accordingly.

Once you receive their brief, it's up to you what to do next.  Rule 5A:22 allows you, but does not require you, to file a reply brief.  Your reply brief is governed by Rule 5A:4(b) regarding cover and binding, Rule 5A:24(a) regarding cover color (green), Rule 5A:19(f) regarding electronic filing and service (note that Rule 5A:19(a) also limits your reply brief to 3,500 words and 5A:19(b) requires it to be filed within 14 days of the filing of the other side's brief), and Rule 5A:22.  As noted, you are not required to file a reply brief, and if you do, you do not need to reply to everything in the other side's brief.  A reply brief is largely just for if you believe there are important points you want the Court of Appeals to consider in response to the other side's arguments which are not presented in your original brief.

Oral Argument

Once the briefs are all done, the case is given to a panel of three judges on the Court of Appeals.  If, after reviewing both sides' briefs and the appendix, all three judges agree that there is no merit to your appeal, then your appeal will be summarily disposed of.  If, however, any of them think there is at least the potential for merit, the case will be scheduled for oral argument (unless both sides waived the right to have oral argument).

At oral argument, each side gets 15 minutes - appellant goes first, then appellee, then appellant can do a rebuttal with however much of his or her 15 minutes were not used - to present their case.  The judges will routinely interrupt with questions, and having a command of both the facts of the case and the legal principles you are arguing is a must.  You will not have witnesses nor be presenting evidence, the Court of Appeals is only considering the arguments in the briefs, and the record of what happened in the trial court.  I find oral arguments fun, but a lot of people find them to be daunting and intimidating.  Virginia has a great tradition, though, that when oral arguments are over, the three judges get off the bench and go greet and shake hands with both arguers - it's a nice touch of collegiality after what can be a testy 30 minutes.

Ruling and Mandate

Some time after oral argument, the Court of Appeals will generally issue its opinion, which lays out its ruling.  The opinion may be published (in which case it gets printed in the official court opinions and sets binding precedent on future trial courts and Court of Appeals panels) or unpublished (in which case it just binds the trial court and Court of Appeals as to your case specifically).  Then, not long after the ruling is issued, the "mandate" of the court issues, which is what actually lays out the court's order and then returns jurisdiction over the case to the trial court.  In the meantime, motions for rehearing can be filed, or petitions for appeal to the Supreme Court can be filed as well.

As noted above, the circuit court loses jurisdiction while the appeal is pending.  It is not the opinion/ruling, but rather the mandate coming from the Court of Appeals that finally returns jurisdiction to the circuit court.


As you can see, family law appeals are complicated, and the litany of rules to follow can be daunting.  A typical family law appeal to the Court of Appeals takes upwards of a year or longer, and I cannot recommend strongly enough having an attorney familiar with appellate rules and procedures to represent you through the appellate process as otherwise the minefield of rules could easily trip you up and cost you an otherwise meritorious appeal.  If you have a family law case you'd like to appeal to the Court of Appeals (or are defending against an appeal brought by an opposing party), please feel free to contact me by phone at (703)281-0134 or by e-mail at to set up a consultation.  Our initial consultations are free for up to thirty minutes, and perhaps most relevantly, I am not geographically restricted within Virginia in terms of cases I can do for a family law appeal to the Court of Appeals (since such appeals rarely require appearances in the trial court).  So, if you're considering whether or not to have a consultation with me on such an appeal, you can disregard the geographical portion of my initial consultation policy (so long as your case is in Virginia and appealing a decision of a Virginia circuit court).

No comments:

Post a Comment