Family Law Appeals: The 5 Common Failures

By Chad Baruch

Family law appeals bring a host of unique challenges. As a result, even experienced appellate lawyers often are reluctant to venture into the family law arena. Here are a few common areas where Texas lawyers fail in family law appeals:

  1. Failing to Object (and Object Again)

The conventional wisdom is that evidence rules are relaxed in family law cases. Whether or not that is true in the trial courts, it certainly is not true in the appellate courts. Just as in other cases, counsel must object properly to preserve evidentiary error in a family law case. And counsel must object each time the evidence is offered (or obtain a proper running objection).

One of the most common errors I see is that the trial attorney objects to the question the first time it is asked, but then fails to object when the question is asked a second time later in the trial. This later failure to object waives appellate complaint.

  1. Failing to Preserve Error After Trial

Family law appeals require preservation of error in the aftermath of trial just like other appeals. Remember, a motion for JNOV does not preserve error absent a written ruling. Also remember that a motion for new trial is the sole means of preserving a factual sufficiency challenge to a jury finding.

Another common error occurs in family cases where only part of the case is determined by the jury. Lawyers often forget that they waive any factual sufficiency challenge to the jury’s findings without a motion for new trial.

  1. Failing to Timely Request Findings of Fact

The Texas Family Code contains special provisions—and procedural rules—for requesting findings of fact in certain types of cases. For example, Section 6.711 requires certain findings (upon request) relating to the characterization of assets and valuation of the community estate’s assets. Section 153.258 provides for specific findings related to certain possession and access rulings. Finally, Section 154.130 requires certain child support findings upon request or in other circumstances. This section also requires that, in certain cases, a request for child support findings be made within ten days of the hearing—not the judgment.

  1. Failing to Appeal from a “Memorandum Ruling” (or Extend Appellate Deadlines)

More and more often, trial judges are deciding divorce and other family law cases by short “memorandum rulings.”  The rulings usually are faxed to the parties, and contain a listing of the judge’s decisions in the case. The judge may also order the parties to prepare and tender a formal decree.

The danger is that these memorandum rulings sometimes dispose of all parties and issues in the case, and are signed and dated by the judge. In this situation, the appellate court probably will treat the memorandum ruling as a final judgment—triggering appellate deadlines. If no one takes any action within 30 days, the right to appeal may be lost.

  1. Failing to Request Temporary Orders Pending Appeal

Many lawyers—even family or appellate lawyers—do not realize that the Family Code contains special provisions authorizing temporary orders on appeal. These may include temporary orders for spousal support, payment of appellate attorney’s fees, appointment of a receiver for preservation of assets, or exclusive use of a marital residence pending appeal.

The key is that the trial court has the power to sign such an order for only 30 days following perfection of the appeal. That is, the order must be signed (not just heard) within 30 days of the filing of a notice of appeal.