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Emergency Stays

“I want to appeal. However, before the appeal is decided, I will have lost my money or relationship with my child. Is there a way to stop the order from being enforced during the appeal? What do I do?”

Yes, this is called, in legal parlance, “a stay”. A stay of a trial court’s interlocutory order (which often causes the case itself to be stayed pending appeal) or final order is possible, but it is a complex and technical process that skilled counsel will need to navigate with you. Stays are available for all civil cases. That said, you have two chances of obtaining a stay, one in the trial court and one in the Court of Appeals of Indiana. However, you must first seek a stay in the trial court before seeking a stay in the Court of Appeals.  If the trial court does not rule on the stay in a timely fashion or denies same, then you may proceed to seek a stay in the Indiana Court of Appeals. Emergency Motion to Stay Judgment in Court of Appeals. Can I Stay (Stop) The Trial Court’s Order Pending Appeal?

The right to seek a stay applies to all civil litigation, ranging from being ordered to pay a sum for breach of contract to changing child custody. The process begins with your counsel filing a motion to stay the judgment. Under Indiana Rule of Trial Procedure 62, a trial court judge has the discretion to stay enforcement of the final order by setting conditions for security for the adverse party as is proper. With a money judgment, the court ordinarily expects the amount of the judgment to be paid into the clerk. This ensures if you lose on appeal, there are funds to pay the judgment that could have been spent or secreted during the pendency of the appeal. Renewed Motion to Stay Enforcement of Order.

In domestic cases, a stay is less likely to stop a change of custody. However, the trial court has the discretion to do so, which is why your motion to stay must be well written and explain the significant risk of harm that could or would occur if the case were reversed on appeal. A classic case is where a trial court has permitted a relocation and the child will move to a distant state. It is obvious there is a significant risk of emotional harm in moving the child to a distant state, having him or her create new friends and navigate a new community, only to be return home if the decision is reversed on appeal. Unfortunately, there is no good “security” you can post to satisfy the requirement of the rule for adequate security. This is why these stays are hard to obtain, but not impossible.

Simply put, no amount of money protects the interests of the mother or father in this case. Nevertheless, skilled lawyers may be able to make unique and compelling arguments that may form the basis for the trial court to stay its order, even in the absence of adequate security because there is a great deal of discretion vested in trial courts and the Court of Appeals in granting stays. If the stay in the trial court is not ruled upon in a timely fashion or at all, a litigant may then seek a stay from the Indiana Court of Appeals.

In the absence of a stay begin granted in the trial court, the filing of an appeal itself does not stay the enforcement of the order. Instead, it takes filing again for a stay in the Court of Appeals of Indiana. These stays are fairly technical, and again, require the movant (the Appellant) to have first sought a stay in the trial court. Under Indiana Rule of Appellate Procedure 39, a stay must make the argument why is should be granted, and the following materials must be included as attachments or exhibits:

  • The order to be stayed.
  • The order denying stay or verified showing the matter has not been ruled upon.
  • Relevant parts of the record to demonstrate the basis for the stay.
  • An attorney’s certificate demonstrating the specifics of how everyone was served with the request.
  • An attorney’s certificate stating in detail why all other parties should not be heard before a stay is entered.

In emergency cases, a party may seek a stay in the trial court or Court of Appeals. These can be granted without advanced notice to the other parties. These are rare and incongruous with the general due process requirements that each party should be heard before an order is entered. Stated differently, ex parte relief is strongly disfavored. Nevertheless, the trial and appellate rules for an emergency stay exist for those cases where there is real risk of harm. Where carefully and thoughtfully used, they may provide a remedy to an otherwise factually and legally untenable situation.

In the Court of Appeals of Indiana, if an emergency stay without notice is requested, the moving party must submit the following documents:

  • An affidavit setting forth the specific facts clearly establishing that immediate and irreparable injury, loss, or damage will result to the moving party before all other parties can be heard in opposition.
  • A certificate from the attorney for the moving party setting forth in detail the efforts, if any, which have been made to give notice to the other parties and the reasons supporting his claim that notice should not be required.
  • A proposed order setting forth the remedy being requested.

Generally, when granted, a stay remains in effect until the appeal is disposed of in the Court on appeal. However, any party may move for relief from the stay at any time. Ultimately, stays are difficult to draft and are not readily granted. Having a skilled trial and/or appellate attorney to properly draft and handle a stay is key to maximizing the chances of the stay being granted. The firm has had significant success in obtaining stays over the years in its appellate practice. If this is your situation, Ciyou & Dixon, P.C. may be the right counsel to help you evaluate your position.

Indiana Rules of Trial Procedure.

Indiana Rules of Appellate Procedure.

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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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