Life is messy. Divorce really is messy and emotional; this plays out in the courtroom. Trial court judges often face the presentation of evidence in final hearings that is disorganized and ranges from notes and texts to emails and photos. With highly contested divorces, there may be multiple days of hearings over many months or even years. Mostly, for this reason, there are three common mistakes that occur in final decrees that make for strong appeals. This blog covers these three issues for appeal.1
The issue that arises in such a context is divorce litigation where there numerous real and personal property to divided, some associated with certain liabilities. There also may be liabilities, such as debt, and assets like retirement accounts. Because the parties may even disagree as to the existence of an asset or liability comprising the marital estate, and present the range of evidence to demonstrate their position, sometimes assets and liabilities may be omitted from the divorce decree. The trial court must divide all assets and liabilities. If it fails to do so, it may impact the presumptive equal division of the marital estate. Thus, presupposing the asset and/or liability is significant enough to justify the cost of an appeal, this is a strong issue for reversal on appeal. If the appeal is not taken, the asset may simply inure to the party who happens to have possession of it, whose name it is in or leave it tied up and subject to other litigation after the divorce decree is final and unable to be appealed.
Secondly, assuming a party presents an issue, a trial court must decide the matter. So, for instance, if the trial court fails to award legal custody, this may be an issue on appeal. In some cases, custody matters may be modified or addressed after the time for appeal passes through modification proceedings. However, if assets and liabilities are not decided and were tried and not addressed on appeal, they cannot be addressed later. This means if the parties own a rental home that is paid off, and not apportioned in the decree, it will likely become the de facto property of the spouse who holds the title. Thus, this is a strong appellate issue and one that is a high probability of being reversed. The caveat is the trial court does not act as an investigator; and if the issue (asset or liability) is not presented to the trial court for division, it is invited error and not typically a strong appellate issue or other remedy.
Lastly, the law is always changing through new statutes and cases. And there are thousands of statutes and cases that apply in divorce cases. For this reason, a court may sometimes apply the wrong legal standard or principle to the issue presented to it to be decided. Unlike the deference given to trial court judges as to who to believe and what evidence to find credible, which makes an appellate case sometimes an uphill battle, misapplication of law is reviewed de novo. This means the Indiana Court of Appeals or Supreme Court will not provide any deference to the trial court. The Appellate courts thus apply the correct law and decide accordingly.
We hope this blog helps you understand common errors that occur in divorce decrees that make for strong issues to raise on appeal. Dixon & Moseley, P.C. attorneys handle appeals of all types from Indiana trial courts’ final order in the Indiana Court of Appeals and/or Indiana Supreme Court. This blog post is provided for general informational purposes. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- These may be corrected, in some cases, by a Motion to Correct Errors.
