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 issues a Decision thereon.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, but generally those do not involve domestic cases), and thus the review by the Supreme Court of a Court of Appeals opinion is by permission of the Supreme Court.2
Once you have decided you want to appeal an unfavorable trial court order, however, the order is controlling until another higher court issues a decision or opinion otherwise. Specifically, by filing a proper Notice of Appeal within thirty (30) days after the final trial court order is issued, does not keep the trial court order from going into effect immediately.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.
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. For example, irreparable harm would arise in a situation where there was a procedural or legal defect in the trial court proceedings, for which you are appealing, and in a criminal case incarceration was ordered, where, if you prevail on appeal, the sentence would be overturned entirely.
The first step in requesting the trial court order be stayed pending appeal is to request this relief in the trial court.4 The trial court may grant or deny your request from the motion itself, have a hearing and decide thereafter to grant or deny your request, or may do nothing. If the trial court denies your requested relief 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.6
We hope that this blog post has been helpful in understanding when and how one may request that a final trial court order not go into effect pending appeal. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.
