All final orders of Indiana trial courts are appealable by right, meaning that the Court of Appeals must review the merits of your appeal and issue a Decision.1 The Supreme Court (of Indiana or the United States) has discretionary review of most types of cases (there are some that the Supreme Court must review, mostly related to criminal matters), and thus the review by the Supreme Court of a Court of Appeals opinion is by permission of the Supreme Court.2
So you have decided to appeal an unfavorable trial court order, what happens while you wait for a decision from the Court of Appeals? You have to follow the court order. The reason you have to follow the trial court order, no matter how much you believe, or have sound legal argument, that it does not comply with the law is that the order is controlling until another higher court issues a decision or opinion otherwise.
The trial court order goes into effect immediately when issued by the trial court.3 This ‘unfairness’ of an order unfavorable to your position going into effect even during the appeal process is generally an issue in criminal cases and child custody modifications. This could be especially concerning if the court order requires custody to be modified and a child move from one home to another or from one state to another. This could cause a total upheaval in a child’s life in the interim, even if the order is later reversed.
If you have chosen to file an appeal of the final trial court order, and if the trial court order going into effect immediately would cause irreparable harm, you may want to consider requesting a stay. A “stay” is a fancy word for stop. A “stay” effectively stops the order from taking effect until after the Court of Appeals issues an opinion (or all appeals are exhausted).
The first step is to request a stay pending appeal with the trial court; the same court that issued the final order you are appealing.4 The trial court may grant or deny your request from the motion itself, have a hearing, or do nothing. If the trial court denies your requested for a stay pending appeal (which is often the case), or fails to make any ruling, you may then request a stay pending appeal with the Court of Appeals.5
The Court of Appeals will grant or deny your request usually based only on the pleadings (Motion), and will not generally order a hearing on the matter. It is important to keep in mind that the denial or granting of a Motion to Stay pending appeal is not indication of the final outcome of the appeal itself. A stay merely allows a trial court order to not go into effect until the Court of Appeals fully reviews the case and issues a decision thereon.
We hope that you have found this information to be helpful in understanding what Stays are, and how they affect your appeal and final order. This is not intended to be legal advice. If you have questions or concerns about your specific case, Dixon & Moseley, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.
