By Teresa Griffin, Faegre Drinker Biddle & Reath LLP
Your standard of review is one of the most powerful tools in your toolkit to advocate for your client in a family law appeal. Rely on it to formulate your arguments and use it as a theme. Two common standards of review in a family law appeals are de novo and abuse of discretion.
Under a de novo standard of review, the Court of Appeals can take a fresh look at the issue. It’s not bound by and gives no deference to the trial court’s decision or how it reached that decision. In fact, it acts as if it were considering the question on appeal for the first time. You’ll use this standard for questions of law, or for example, an appeal on the interpretation of a contract (like a prenuptial agreement). Here, present the court with legal authority that supports your position and explain why it supports your client’s preferred outcome. Remind the Court of Appeals that it can come to its own conclusions here.
Under an abuse of discretion standard, the Court of Appeals reviews the trial court’s decision in order to determine if it is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. You’ll see this in a contempt case, relocation case, or a modification of custody case, for example. Check out Kirk v. Kirk, 770 N.E.2d 304 (Ind. 2002), or Best v. Best, 941 N.E.2d 499 (Ind. 2011), for robust discussions of this standard. It has a “preference for granting latitude and deference to our trial judges and the court will set aside judgments only when they are clearly erroneous, and will not substitute its own judgment if any evidence or legitimate inferences support the trial court's judgment.” Kirk, 770 N.E.2d at 307.
For just one discussion on how this standard is applied, check out D.C. v. J.A.C., 977 N.E.2d 951 (Ind. 2012) where the Supreme Court affirmed the trial court’s decision based on the highly deferential standard of review by identifying findings to sustain the trial court’s decision. This standard of review is particularly acute in a family law case because the Court of Appeals as a court of review is “in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence” or that he or she should have found its preponderance or the inferences therefrom to be different from what he did. See id. at 957-58 (citing Kirk, 770 N.E.2d at 307). Accordingly, on appeal, advocate for your client by showing that it is not enough that the evidence might support some other conclusion, but that it must positively require the conclusion contended for (or vice versa).
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