Can I Appeal My Michigan Divorce to a Higher Court?
After a Michigan divorce or child custody matter reaches its final conclusion in a Michigan court, a Judgment or Order will be entered.
The Judgment or Order is the judge’s final decision. The parties, like it or not, are required by law to adhere to whatever the Judgment or Order dictates. Naturally, there are some cases where a party is in deep disagreement with the judge’s final decision and wishes to appeal to a higher court.
If a party to a Michigan divorce or child custody matter wants further redress, they can only “appeal” the matter. They may not have a new judge in a different court consider their facts. They can only have a panel of judges from the Michigan Court of Appeals consider their case.
Remember, if you wish to appeal your family law matter, you must do so within 21 days of a judge entering a Judgment or Order, or you may permanently lose your right to an appeal.
Will My Hearing at the Michigan Court of Appeals Be Like a New Hearing?
Cases which are heard at the Michigan Court of Appeals are very different from cases which are heard in Michigan’s circuit courts.
In our circuit courts, a litigant has the right to call witnesses, challenge witnesses, hire experts to testify, testify on their own behalf, present documents and exhibits, etc. That is the function of a “trial court.” You will be given your day(s) in court and will be granted the opportunity to present everything you and your attorney believe will be of assistance to your case. A circuit court judge will then make a finding based on the evidence that both you and the opposing party have presented.
At the Michigan Court of Appeals, you do not get a chance to re-litigate your case. In other words, you don’t get a chance to present witnesses that you forgot to call at the circuit court. You don’t get a chance to show documents that you didn’t present at the circuit court. In fact, you do not get a chance to present any new evidence at all at the Michigan Court of Appeals. In essence, you are stuck with the evidence, good and bad, that was presented at the circuit court. What is argued at the Michigan Court of Appeals is whether the circuit court judge, who listened to the evidence at trial, applied Michigan law incorrectly in rendering a decision. This fact is very frustrating for non-attorneys to accept. Litigants always think of additional facts and items of evidence that, had it been presented at trial, would have affected the outcome. But as stated above, unfortunately, you do not get a chance to present additional evidence at the Michigan Court of Appeals.
What Will the Michigan Court of Appeals Actually Consider?
The Michigan Court of Appeals will review the record of the trial court to determine if the circuit court judge made a “mistake of law.” For instance, if one party has custody of the minor children 315 days per year and the other party has custody 50 days per year, then a Michigan circuit court judge should order the parties to pay and receive child support in conformity with such a distribution. If the circuit court judge ordered child support to be paid based on a 60%/40% division of overnight visitations, then he has made a “mistake of law” that could be argued to the Michigan Court of Appeals.
However, other decisions that the circuit court judge makes may not be as clear cut as the above example. For instance, if the judge grants one party 300 overnights and the other party 65 overnights, and if the judge clearly articulates why she has chosen such a formula, it then becomes much harder to argue to the Michigan Court of Appeals that the circuit court judge made a “mistake of law.”
As stated above, what is most frustrating to litigants is that you don’t get the opportunity to re-argue the facts at the Michigan Court of Appeals.
How Do I Appeal My Case and How Long Does it Take?
Appealing your case to the Michigan Court of Appeals is a lengthy and complicated process. Additionally, it can be very expensive. An attorney representing somebody at the Michigan Court of Appeals will need to order a transcript of the circuit court trial. The Michigan Court of Appeals will not even review a case unless they have the transcript from the lower court. It is not unusual for such a transcript to be hundreds of pages long. Just waiting for the circuit court’s court reporter to produce the transcript can be a frustratingly long wait. Then, armed with the transcript, your attorney will have to write a “legal brief” on your behalf. This is a bit of a misnomer because oftentimes, there is nothing “brief” about a legal brief. Your attorney cannot just tell the Michigan Court of Appeals that the circuit court judge made a mistake of law. He will need to research the case and cite specific statutory and case law to the Michigan Court of Appeals in support of your argument. Then, after the Michigan Court of Appeals has reviewed your brief, as well as the opposing party’s brief, your attorney will argue your case before a three-judge panel, usually in either Detroit or Lansing. Finally, of additional frustration, the Michigan Court of Appeals does not issue their opinions quickly. Oftentimes it can be many months or even longer before an opinion is handed down. In some cases, the opinion that is handed down by the Michigan Court of Appeals directs the circuit court to reconsider certain facts in light of the Appeals Court’s opinion. This can add even more time and expense to your appeal.
Choosing to appeal your circuit court Judgment to the Michigan Court of Appeals is a very difficult decision. In order to make the right decision, you will want to consult with a family law attorney who can provide you with a realistic appraisal of your case.
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