There are times when one’s case or trial is over, but they may be unhappy with the outcome in terms of family law in Greenville, South Carolina. If you want to appeal the court’s decision, it is important to understand exactly what an appeal may and may not fix and how to go about the appeals process.
An appeal is not a chance to do things right the second time around. Instead, appeals exist to correct material errors of fact or law. One may not introduce new evidence or even raise a new legal argument at the appeal level. While the appellate court may choose to modify or reverse an order made by a family court based on errors of fact, it is usually a difficult task.
Court Appeals and Family Law in Greenville, South Carolina
If your case is over and you are not satisfied with the results, you do have options. However, take note that the court has stringent rules that one must follow should you decide to challenge a decision, and it is important that you understand the rules. Your Greenville family law attorney will explain the rules in detail.
Let us look at a few things you need to consider if you wish to appeal the court’s decision.
- The Motion to Reconsider
A motion to reconsider is a post-trial motion. In the motion, you ask the judge who heard the case to amend the ruling. This is done for two main reasons: firstly, that one believes that the judge misunderstood the case and therefore arrived at an incorrect decision. Or, two, the judge failed to rule on a particular issue in the case.
Many lawyers are hesitant to file motions to reconsider suggesting that a judge ruled in error unless one can quantify the motion. For instance, if the judge overlooked a statutory factor like work-related day care costs when determining child support, then it may well be justified to file a motion to reconsider.
Filing the motion to reconsider because a judge missed an issue tends to be straightforward. For instance, if one requested child support yet the judge failed to address the issue whatsoever in the order, then it may well be appropriate to ask for the court to reconsider the ruling.
It should be noted that it is crucial to file such a motion to reconsider if the judge overlooked or missed an issue in the case. If you fail to file a motion to reconsider, you then forfeit the right to file an appeal regarding the issue. Further, the appeals court will not look at an issue that was not first considered at the trial level.
- How much time does one have to file a motion to reconsider?
Under South Carolina’s Rules of Civil Procedure, one has ten days to file the motion once you have received the written order from the court.
- What exactly is an appeal regarding family law in Greenville, South Carolina?
The purpose of the appeal is to challenge a court order if one believes that the court made an error in applying the law to the issues as laid forth in your case. For instance, a decision on child custody is usually determined by a statutory set of factors. One may decide to file an appeal if the judge failed to consider those factors, or if the judge made use of a different set of standards to reach a determination in the case.
- How much time does one have to file an appeal?
To initiate an appeal, your Greenville family law attorney must file a Notice of Appeal within thirty days of receiving the original written order from the judge.
- Can both a motion to reconsider and an appeal be filed simultaneously?
Yes, you can file both a motion to reconsider and an appeal, but you must first file the motion to reconsider. In fact, filing a motion to reconsider puts off the time one has to file an appeal until the motion to reconsider is decided. Once the motion is decided, one then has 30 days to file the Notice of Appeal.
- Can new evidence be presented during the motion to reconsider or the appeal?
No, no new evidence may be introduced at this point. Should one fail to address an issue or present evidence during the trial, one may not do so with the appeal.
What Happens in the Appellate Court?
When one appeals a family court’s decision, the appellate court will review legal and factual issues de novo. A de novo review allows the appellate court to find facts, notwithstanding the presence of evidence that supports the findings of the family court.
But, this is a far-reaching standard of review and does not usually necessitate that the appellate court ignores the factual findings discovered by the family court or even ignore that fact that it is the family court that is better positioned to assess the credibility of a witness.
Typically, the appellate court will affirm the family court’s decision unless the decision is controlled by an error of law or if the appellant satisfied the burden of demonstrating that the preponderance of the evidence does support contrary factual findings by the court.
Make Sure You Have a Greenville Family Law Attorney on Your Side
If you are unhappy with a ruling made by the court of family law in Greenville, South Carolina, you have the right to appeal. This can be a daunting and complex endeavor which is why you need an attorney on your side.
The family law attorneys at The Elliott Frazier Law Firm can help with your appeal and filing all the relevant notices. Contact us to book a consultation and discuss the way forward with your legal case.
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.