Appealing a Family Law Order: Process and Pitfalls-part Ii
| Publication year | 1993 |
| Pages | 1249 |
1993, June, Pg. 1249. Appealing a Family Law Order: Process and Pitfalls-Part II
The breadth of appellate process can be daunting. Even the index to the topic "Appeal and Error" in West Publishing Company's Colorado Digest spans three volumes. In the May issue of The Colorado Lawyer, Part I of this article discussed the fertile area of domestic relations case law related to taking an appeal and brief writing. This Part II takes up the issues of motions in the appellate court, certiorari, original proceedings in the Colorado Supreme Court, attorney fees and costs on appeal and oral argument.
Motions may be filed in the appellate court to accomplish a number of objectives. Most often, such motions are procedural. However, a motion may be remarkably substantive as well.
A procedural motion may request changes in the rules related to timing. A motion to enlarge or extend time addresses the time frame for filing the notice of appeal,(fn1) for transmittal of the record,(fn2) for enlargement of time for filing a brief(fn3) or for filing a petition for writ of certiorari.'(fn4)
Other procedural motions address expansion or correction of the parameters of argument. A motion can be filed to exceed the normal page limitations on briefs,(fn5) to suspend the requirements of a rule,(fn6) to correct or modify the record(fn7) or to request or expand time for oral argument.(fn8)
A procedural motion can radically affect the course of an appeal. In cases where issues of custody and visitation are appealed, the appellate court has favorably entertained motions to advance the matter on the court's docket.(fn9) To receive priority treatment, the parties must file the motion at or near the outset of the appeal, making the court aware of the involvement of custodial or visitation rights.
Motions also may be filed to alter the appellate cost bond requirements(fn10) or to seek a stay or injunction pending appeal.(fn11) If a stay of financial orders (for instance, a part of the property division) is sought, adequate bond must be posted.
As mentioned above, motions also can be remarkably substantive. A client defending an appeal would be delighted to gain outright dismissal, as this would avoid the risk of a decision on the merits and reduce both the attorney fees and time required if the appeal were allowed to run its course. Dismissal can be granted for lack of jurisdiction(fn12) and for lack of timely filing of the notice of appeal.(fn13) Dismissal also may be granted for failure to transmit the record, failure to file a brief in a timely manner, maintenance of a frivolous appeal or failure to follow orders or rules.(fn14)
The foregoing recitation of motions that can be filed is not exhaustive. To be an effective appellate advocate, the family law practitioner who files an occasional appeal might do well...
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