What an appeal is, what it isn’t, and how to tell whether yours may be worth pursuing.
If you have just received a divorce decree, custody ruling, modification order, or other family law decision that feels wrong, you may be wondering whether you can appeal.
An appeal can change the outcome of a case, but winning an appeal is difficult. Appeals are not won simply by showing that a decision felt unfair. They generally depend on showing that the trial court made a specific kind of legal error.
Understanding that distinction is an important first step in deciding whether an appeal may be worth pursuing.
What Does It Mean to Appeal a Family Law Decision?
An appeal asks a higher court, in most Nebraska family law cases, the Nebraska Court of Appeals, to review what happened in the trial court and determine whether the judge made a legal error.
The appellate court works from the record that already exists. That includes the filings in the trial court and the transcribed record of hearings and trial.
There is no new testimony, no new evidence, and no opportunity to retry the case before a different judge.
Instead, the question becomes whether the trial judge got something wrong based on the law and the record that was before the court. That can be very different from asking whether the result felt fair.
What an Appeal Cannot Do
It can be tempting to think of an appeal as another opportunity to tell your side of the story. That is not how the appellate process works.
An appeal is not a second trial, and it is not a place to introduce evidence that was not presented in the original case.
It also generally cannot address circumstances that have changed since trial, such as a job loss, a move, or a child’s changing needs. Those issues may instead be grounds for a modification.
Similarly, an appeal generally cannot undo terms of a settlement you agreed to or address another person’s failure to comply with an existing order. Enforcement and contempt issues remain with the district court.
Why the Standard of Review Matters
In Nebraska divorce, custody, support, property division, alimony, and attorney fee decisions, the appellate court reviews the case de novo on the record to determine whether the trial judge abused their discretion.
In practical terms, the appellate judges review the record and reach their own conclusions, but they will not reverse a decision simply because they might have handled something differently. Reversal generally requires a determination that the trial court’s reasoning was untenable or unreasonable.
Family law judges are given broad discretion because these cases depend heavily on individual facts.
As a result, appeals are more likely to succeed when the trial court applied the wrong legal rule than when it applied the correct rule but reached a result one party strongly disagrees with.
“The Judge Believed Them Instead of Me”
This is one of the most common concerns following a difficult family law ruling. It can also be one of the hardest issues to successfully challenge on appeal.
When testimony conflicts, appellate courts give weight to the fact that the trial judge was present to see and hear the witnesses. The trial judge observed the testimony firsthand in a way that appellate judges reviewing a written record cannot.
That makes credibility findings particularly difficult to overturn.
What Kinds of Issues May Be Appealable?
Some issues are more likely than others to raise legitimate appellate questions.
These can include situations in which the court applied the wrong legal standard or failed to complete an analysis required by law. Examples may include misapplying the Nebraska Child Support Guidelines, using the wrong worksheet, or failing to make required findings.
An appeal may also involve questions about whether property was incorrectly classified as marital or nonmarital, whether evidence was improperly admitted or excluded in a way that affected the outcome, whether an order went beyond what was pleaded or beyond the court’s authority, or whether an order is internally inconsistent or unworkable as written.
By contrast, disagreements with a parenting time arrangement, dissatisfaction with an alimony amount that falls within the court’s discretion, or a belief that the judge should have believed one witness instead of another are generally much more difficult appellate arguments.
Complaints about what an attorney should have done are also different because there is no right to effective assistance of counsel in a civil case.
If the Issue Wasn’t Raised Before, It May Be Too Late
Appellate courts generally review issues that were raised while the case was still before the trial court.
That might mean making an objection, filing a motion, or otherwise putting the issue before the court and on the record.
If an issue was never raised in the trial court, it generally cannot be raised for the first time on appeal.
This is one reason reviewing the complete record is so important when evaluating a potential appeal.
The 30 Day Deadline Matters
If you are considering an appeal, timing is critical.
In Nebraska, a notice of appeal and the docket fee must generally be filed with the clerk of the district court within 30 days after the judgment or final order is entered. Missing that deadline can mean losing the ability to appeal.
The request to prepare the bill of exceptions, which is the transcribed record of testimony and exhibits, is also filed at the same time as the notice of appeal.
Some post trial motions can reset the appeal deadline, while others do not. If something has been filed since the judgment was entered, it is important not to assume that you know when the 30 days begins or ends.
Temporary orders entered while a divorce is pending are also generally not considered final orders, which means temporary custody or support rulings usually cannot be appealed immediately.
What Happens During an Appeal?
Filing an appeal does not ordinarily put the existing family law order on hold.
Custody, parenting time, and support continue under the order being appealed, and the parties are expected to comply with it.
Appeals also take time. Preparing the record, briefing the legal issues, argument, and waiting for a decision can mean that an appeal lasts the better part of a year or longer.
If the immediate goal is to quickly change a current living arrangement or respond to circumstances that have changed since trial, an appeal may not be the right legal tool.
What Does “Winning” an Appeal Look Like?
A successful appeal does not always mean that the appellate court replaces the trial court’s decision with the result you wanted.
Most appeals end with the original order being affirmed. In some cases, an order may be affirmed with a specific portion modified. In others, the appellate court may reverse the decision and send the case back to the trial court for additional proceedings.
A reversal and remand can be an important victory, but it usually means returning to the trial court rather than receiving an automatic ruling in your favor.
Considering an Appeal? Contact Us Early.
Determining whether a family law decision has a strong basis for appeal requires more than reading the final order. An attorney may need to carefully review the order, pleadings, motions, exhibits, and transcripts to understand what happened and whether there may be grounds for an appeal.
That review takes time, and the deadline to appeal in Nebraska is generally just 30 days.
If you have received a family law decision and are wondering whether an appeal may be an option, contact McGill Law as soon as possible. Our attorneys can review your case, help identify potential appellate issues, and talk with you about your options and next steps.
Email or call 402-548-5418 to schedule a consultation. To learn more about appellate practice, visit: Family Law Appeals
