An Appellate Primer for Family Law Practitioners

• Jurisdiction: Colorado,United States
• Citation: Vol. 30 No. 3 Pg. 61
• Pages: 61
• Publication year: 2001

30 Colo.Law. 61 Colorado Lawyer 2001.

2001, March, Pg. 61. An Appellate Primer for Family Law Practitioners

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61

Vol. 30, No. 3, Pg. 61

The Colorado Lawyer
March 2001
Vol. 30, No. 3 [Page 61]

Specialty Law Columns
Family Law Newsletter
An Appellate Primer for Family Law Practitioners
by Marie Avery Moses

Because of the highly charged nature of domestic relations cases, dissatisfied clients often demand an appeal after receipt of an unfavorable order. This article discusses issues that must be considered to adequately advise clients regarding their appellate remedies prior to filing the Notice of Appeal

Jurisdiction

For the appellate court to have jurisdiction, the trial court must enter a final appealable order. Colorado Rules of Civil Procedure ("C.R.C.P.") 58(a) requires that the trial court prepare, date, and sign a written judgment on a decision by the court. Such an order is appealable only if it resolves all issues pending before the trial court, subject to the exceptions described below. The effective date of a "final appealable order" for the purposes of appeal is the actual date the order was signed by the trial judge.1

However, a trial court may enter judgment on fewer than all issues pending and certify those issues as "final judgments" pursuant to C.R.C.P. 54(b). If a judgment disposes of an entire claim for relief and is final in the sense of an ultimate disposition of an individual claim, it qualifies as a final judgment under C.R.C.P. 54(b). In addition, the trial court must determine that there is no "just reason for delay" in entry of a final judgment on the claim.2 As a practical matter, in the area of domestic relations, only a few orders appear capable of receiving a 54(b) certification. These include orders establishing the amount of attorney fees that a court-appointed attorney may recover,3 declining jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"),4 and entering a decree of dissolution prior to entry of permanent orders.5

Generally, when a timely Notice of Appeal is filed, the trial court loses jurisdiction to modify the appealed order pursuant to Colorado Appellate Rules ("C.A.R.") 3(a).6 However, for the family law practitioner, the exceptions tend to swallow the rule because the trial court maintains jurisdiction to modify the order that is the subject of an appeal based on a change in circumstances. For example, the trial court could retain jurisdiction to modify parenting time or child support based on substantial and continuing changes in circumstances

A timely filed Notice of Appeal is a jurisdictional issue and there may not be any relief available if the deadline is missed.7 Additionally, failure to provide the docket fee could result in the Notice of Appeal being deemed not timely filed.8 The Notice of Appeal and the docket fee must be filed within forty-five days of the "final appealable order."

However, if a motion for post-trial relief is filed pursuant to C.R.C.P. 59, subsection (j) requires the trial court to rule on the motion within sixty days. After sixty days, the trial court is divested of jurisdiction to rule on the motion. If more than one motion for post-trial relief is filed, the time for ruling on the motions commences on the date of filing of the last motion for post-trial relief.

If the trial court does not rule on the post-trial motion for relief within sixty days, the motion is deemed denied. Because the trial court no longer has jurisdiction, if it rules on the motion after the passage of sixty days, that order is null and void.9 The forty-five-day clock for filing a Notice of Appeal is tolled pending ruling on a motion for post-trial relief. Under these circumstances, the forty-five-day clock begins running when the trial court rules on the motion for post-trial relief or at the end of the sixty-day period if the trial court does not rule on the motion. If a C.R.C.P. 59 motion for post-trial relief is denied, the underlying judgment becomes final, and an appeal may be taken from the underlying judgment.10

Interlocutory appeals are available in some instances to appeal orders that do not appear to be final orders. Under these circumstances, an appeal may be taken from an order that is not a final judgment and cannot be certified under C.R.C.P. 54(b) because the order does not dispose of an entire claim.11 A family law attorney may use an interlocutory appeal in several circumstances, although it typically arises in three main situations. First, an interlocutory appeal may be taken in cases involving temporary orders creating financial obligations pending entry of permanent orders, such as maintenance,12 child support,13 and attorney fees.14 However, temporary orders regarding children, such as allocation of parental responsibilities and parenting time, are not appealable.15

Second, interlocutory appeals may be used immediately to appeal contempt orders. For the purposes of appeal, an order deciding the issue of contempt and sanctions is final.16 Thus, any order regarding contempt is immediately reviewable, whether or not there was a finding of contempt. Third, an interlocutory appeal may be taken from an order denying an application to compel arbitration, granting a stay of arbitration, confirming or denying confirmation of an arbitration award, modifying or correcting an award, or vacating an arbitration award.17 These three specific areas of available interlocutory appeals have been established through case law. C.A.R. 1 establishes other general areas for possible interlocutory appeals.

In rare circumstances, the Colorado Supreme Court, in its...