Indiana trial court judges are generally well versed in domestic law and have a keen ability to judge witness credibility and assign weight to documentary evidence admitted at trial. However, no person, including any judge, is infallible. For that reason, every party to an original divorce or paternity case has the right to appeal their case. The same is true for custody and parenting time modification cases decided after the original divorce of paternity action. These cases are taken to the Indiana Court of Appeals,1 not the Indiana Supreme Court.
The first point to understand is if you seek to appeal a trial court’s final order in a divorce case, paternity case, or post-decree child custody litigation, you must appeal the final order within thirty (30) days or you forfeit your right to appeal. Additionally, if you seek to appeal, you need to retain appellate counsel. Many divorce attorneys do not handle appeals, so if your divorce attorney will not be handling your appeal, you need to immediately begin the search for appellate counsel and retain said counsel. This is sometimes challenging because family law appeals that involve custody or child support matters are expedited and it is difficult for appellate counsel to obtain a continuance—thus they will have to find time in their busy schedule to research, draft, and file an appellate brief in thirty (30) days.
From that point, appellate counsel must file your notice of appeal within thirty (30) days as noted or the appeal is lost. This is accomplished by filing a Notice of Appeal with the Indiana Court of Appeals. This filing, which must be accompanied by a $250 filing fee, is filed in the Indiana Court of Appeals. This document accomplishes several things. First, it alerts the Court of Appeals this appeal is coming and indicates what type of appeal it is. Second, it directs the clerk of the trial court to provide the clerk’s record (a list of what has been filed) and indicate if a transcript has been requested. The clerk must file this within thirty (30) days of the filing of the Notice of Appeal. The Notice of Appeal also instructs the court reporter of the court your case was tried in to prepare the transcript. The transcript is the word-for-word account of trial testimony. The clerk also provides the exhibits; together these are record on appeal. The court reporter has forty-five (45) days to prepare the transcript.
Once the transcript is filed, your attorney has thirty (30) days to research, draft and file your Appellant’s Brief. A troubling point for some appellants is they want arguments made on appeal by appellate counsel that are not contained within the record. If the evidence did not get put on at trial, it cannot be argued on appeal. In other words, your issues on appeal and challenges to the court’s decision that are not contained in the record cannot be appealed.
Appeals are a very complex process with complex rules that dictated how they are handled. This is because three (3) judges decide appeals and these rules allow them to receive an appellate brief that is very well developed to decide issues from the trial court. This makes the process more efficient and allows the Court of Appeals to decide appeals in a relatively short amount of time. Dixon & Moseley, P.C. advocates handle appeals from all Indiana trial court and have extensive appellate experience. This blog is written by Dixon & Moseley attorneys. It is intended for general educational purposes. It is not intended to be legal advice or a solicitation for services. It is an advertisement.
- There is a theoretical chance a decision of a divorce or paternity court may be able to be taken directly to the Indiana Supreme Court but this is statistically improbable. Why this may be the case is beyond the scope of this blog.
