The trial court’s final order, such as in a divorce case, dividing the property and making a custody award can be enforced immediately. And it usually is. That said, a litigant who does not want an order enforced pending an appeal has two ways to stop its enforcement pending an appeal. In this blog, we cover stays that stop a trial court’s final order from being enforced.
As a first step, which seems like a foreign concept to many litigants, they have to ask the court to issue the order to issue a stay. The reason this seems strange is because it is asking the court who just issued the adverse order to consider it may be wrong and stay (stop its enforcement) in case it is reversed on appeal. However, many trial courts make tough calls and know that sometimes they might be reversed. Thus, some trial courts will entertain and grant stays. Where the order in question involves the payment of money, the court may order the monies to be paid into the court. These are much easier to prevail on because the remedy is clear—the amount of the judgment. Where something is not so easy to quantify, such as allowing the children to relocate, the trial courts consider the children’s best interests and disruption to the children’s lives if they were to relocate and upon reversal have to relocate back. Thus, on the right showing, a trial court’s final order, on properly made motion, may be stayed pending appeal.
In the event the trial court does not grant the stay or timely rule upon it, a party may then take the request to the Indiana Court of Appeals. The Indiana Court of Appeals too has rules governing stay and in essence, a party must show the potential for irreparable harm if the stay is not granted and that party prevails on appeal. While there is no guarantee a stay will be granted, a losing litigant is afforded significant due process under Indiana law and can seek a stay (again stopping enforcement of the trial court order) under two bodies of law and in two courts—the Indiana trial court and the Indiana Court of Appeals.
The most important part about a stay is to make the decision to seek a stay immediately as these take some time to prepare and in the ideal world, the stay motion is filed before the final order is enforced. This blog is written by attorneys at Dixon & Moseley, P.C. who handle stays from all Indiana trial court final orders in these courts and on appeal. This blog is written for general educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.
