Note: Scott Bassett is licensed to practice law only in Michigan and handles only Michigan legal matters. He is not licensed to practice law in other state and does not handle legal matters from any state other than Michigan.
These FAQ’s are not intended as legal advice and should not be taken as such. Every case is unique. Before making any decisions about an appeal, consult with an experienced appellate attorney.
How much time do I have to appeal?
In most Michigan family law cases, you have only a limited time to file an appeal. The starting point is measured from the date the judge signs the order or judgment you want to appeal. That is often days or weeks after your court date. However, it is not unusual for orders or judgments to be signed on the court date. If that happens, your appeal period begins to run immediately. If your trial court attorney files a motion for reconsideration or for a new trial within the initial appeal period, the time for an appeal may be extended.
If you are considering an appeal, make sure your trial court attorney promptly notifies you when the order or judgment has been signed. On rare occasions, all or a large part of the appeal period is lost if the signed order arrives at the attorney’s office over a holiday period or when the attorney is on vacation. It may sit on the attorney’s desk for a week or longer before a copy is mailed to you. Ask your attorney and his/her staff to be on the lookout for the signed order or judgment sent from the court or opposing counsel. Request that it be faxed or email a copy to you immediately upon receipt.
Many counties now have an online docket system you can access in a web browser. It may tell you when the order or judgment you wish to appeal was signed by the judge and filed with the court clerk's office. The State Court Administrative Office keeps a directory of local courts offering online services. If there is an online docket system in your county, it makes sense to monitor it daily if you are waiting for entry of an order or judgment you wish to appeal.
If I miss the initial appeal period, can I still appeal?
Perhaps, but missing the initial appeal period could affect your rights depending on the issues involved. Most divorce judgments and post-divorce custody and attorney fee orders are appealable by right. That means that the Court of Appeals is required to address the substantive and procedural issues properly raised in your appeal brief, but only if your appeal is timely.
If you miss the time to appeal by right, your appeal becomes an appeal by leave only. You must then file a late application for leave to appeal. The Court of Appeals is not obligated to hear an appeal by leave. The majority of applications for leave to appeal, whether timely or delayed, are denied. The denial usually comes in the form of a single sentence order that does not explain the Court’s reasons for declining to hear the appeal.
A late application for leave to appeal contains everything that would otherwise be in an appeal brief if the appeal was filed timely, but must also include an explanation for the delay. The time for filing a late application for leave to appeal is just six months. After six months from the date of the order or judgment, no appeal is possible. For this reason, it is important to avoid delay in making the decision to appeal.
Is any appeal filed within the initial appel period an appeal by right?
No. Only “final orders” are appealable by right. That includes most divorce judgments and post-divorce orders affecting child custody or granting or denying attorney fees. Some divorce judgments are not final orders because there are issues left unresolved. One example is where the trial court signs the divorce judgment, but does not include a final child support or parenting time order because that issue has been referred to the Friend of the Court for an updated recommendation. In such cases, the divorce judgment is not a final order appealable by right until an order is entered resolving the deferred issue.
Post-judgment orders on issues not affecting child custody or granting or denying attorney fees are not appealable by right. They must be appealed by leave. Examples include orders granting or denying modification of child support, spousal support, or parenting time, or orders addressing property issues such as real estate or pensions. Some parenting time and change of domicile orders also affect custody and may be appealable by right. That is determined on a case-by-case basis by the Court of Appeals. It is often difficult to accurately predict whether such an order is appealable by leave or by right.
An appeal by leave can involve more work and potentially higher fees than an appeal by right. In an appeal by leave, an application/brief containing a detailed factual statement and complete legal arguments must be filed within the 21 day appeal period. The need for the appellate lawyer to clear time on his/her calendar to meet that short deadline can result in increased fees. The transcript of the trial or hearing must be filed with the application for leave to appeal. In many cases the transcript is not available within the appeal period and must be filed as soon as possible once it is available. If the transcript needs to be ordered on an expedited basis, the costs paid to the court reported will be higher. If leave to appeal is granted, another round of briefing is required. This can also add to the fees and costs.
Can I get a stay pending appeal?
In most cases, no. In my 35 years of doing Michigan family law appeals, I’ve seen stays granted in only a handful of cases. The initial obligation rests with your trial court attorney to file and argue a stay motion in the trial court. If that motion is denied, your appellate attorney may seek a stay in the Court of Appeals. That motion must include the trial court’s order denying stay and a transcript of the argument on the stay motion.
Absent a clear emergency, such as a change of child custody without a proper hearing in the trial court, the Court of Appeals is unlikely t gratn a stay motion. In more than 36 years of appellate practice, I've seen less than ten stays granted in my cases. However, in the last few years, I’ve had at least four stay motions granted by the Court of Appeals or Supreme Court. That suggests that if the facts and law make out a compelling argument for a stay, it has a chance of being granted.
How long does an appeal take?
Appeals by right on property, spousal support, and other financial issues take 18 months to 2 years from initial filing to issuance of an opinion by the Court of Appeals. This time can be longer or shorter by several months depending on the length of the trial transcript, the number of trial exhibits, and the issues involved.
Appeals by right of child custody or adoption orders move much more quickly than other types of family law appeals. Briefing deadlines are substantially shortened. For that reason, appellate attorney fees may be higher in child custody or adoption cases because of the time constraints. Fortunately, most custody and adoption appeals are completed within a year. If there are no delays in producing the trial court transcript or extensions of briefing deadlines, it is not unheard of for a child custody or adoption appeal to be completed in approximately six to eight months. As with other types of appeals, this can vary with the length of the trial court record and the issues involved.
Most appeals by leave are concluded within six months simply because most are denied by the Court of Appeals without formal briefing or oral argument. However, if leave to appeal is granted and new briefs are required, these can also approach, or occasionally exceed, the 18 month to 2 year time frame.
In an appeal by right, the typical process is to file a Claim of Appeal and several related documents within initial appeal period, which is usually 21 days of the order appealed (or order denying reconsideration or new trial). The trial court transcript must also be ordered within the initial appeal period. When the transcript is complete, which can take up to three months, the appellant usually has 56 days to file a brief on appeal. The appellee may then file a responsive brief, typically within 35 days. In child custody appeals, the appellant has only 28 days from completion of the transcripts to file a brief. The appellee has only 21 days to respond to that brief
Briefs are limited to 50 pages, double spaced, unless the Court of Appeals for good reason extends that page limit. Requesting to exceed the page limit is usually not a good idea and is disfavored by the Court. After the appellee files his/her responsive brief, the appellant has the option to file a reply brief of up to ten pages within 21 days after being served with appellee’s brief.
Once the appellant’s and appellee’s briefs are filed, the Court of Appeals requests the case file from the trial court. At that point, the Court’s legal staff in its Research Division works on the case, preparing a summary and proposed opinion for the three-judge panel to whom the case will eventually be assigned for argument and decision. This process can take many months before oral argument is scheduled.
Parties receive up to a month's prior notice of an oral argument date. It is not until the case is scheduled for oral argument that the attorneys and parties know which three judges have been assigned to the case. Those judges will hear the argument and decide the appeal. Oral argument can take place in Detroit, Lansing, or Grand Rapids. Oral argument is also held in places such as Marquette and Petoskey during April and October of each year. If the case is from one of the counties in the Upper Peninsula or the Northern Lower Peninsula, it could be assigned for oral argument at one of these locations.
If briefs were timely filed, each side has up to 30 minutes for oral argument. Usually argument is shorter than the full 30 minutes. After argument, an opinion could be released anywhere from a few days to a few months later. The Court of Appeals now emails opinions to the attorneys, speeding the notification process.
In an appeal by leave, the appellant files an application for leave to appeal (which is a complete brief), transcripts, relevant exhibits, and related documents within the initial appeal period, usually 21 days, after entry of the order appealed. Often the transcripts are not available within the 21 day period to file a timely application for leave to appeal. For that reason, I usually wait for completion of the transcripts and file a delayed application for leave to appeal. It is much easier to write a coherent application/brief if you have the transcripts to work from. The appellee then has 21 days to file an answer/brief. As with briefs on appeal, there is a 50 page limit. As in an appeal by right, appellant may file a reply brief.
What is e-filing?
The Michigan Supreme Court and Michigan Court of Appeals allow appeals to be initiated and briefs, motions, and other documents to be filed electronically over the internet. This is a significant cost-saver for the client and time saver for the appellate attorney. Paper filing, with the requirement of multiple copies of each document, is cumbersome and time-consuming. Electronic filing will eventually become mandatory in Michigan's trial and appellate courts.
If opposing counsel is registered with the Court's efiling system, called TrueFiling (by ImageSoft), service of appeal documents, including briefs, can also be done electronically. This greatly reduces the time it takes for opposing counsel to access what was filed. An attorney registered with TrueFiling has access to documents within seconds after filing. A non-registered attorney may wait days for a paper copy to arrive in the mail. If an attorney is not registered with the TrueFile service, a paper copy of the filed documents must be served by mail on that attorney.
My preference is for clients and trial counsel to send documents to me in digital format, preferably as PDF files, instead of paper. PDF is the required e-filing format. Sometimes PDFs are emailed to me as attachments. But if the PDF files are too large or there are too many of them, it is simpler just to upload the files to my Dropbox using a link on my web site. Receiving PDF documents saves the client money. Otherwise, I have to set aside time to scan and convert voluminous paper documents to PDF format. That additional time will be billed to the client.
Do all appeals have oral argument?
No. Only parties who timely file their brief and affirmatively request oral argument on the cover sheet of the brief are entitled to oral argument. Parties who file late briefs or fail to affirmatively request oral argument lose that right. However, they may appear and respond to questions from the panel, if any. A party without oral argument may file a motion seeking oral argument. This is usually done once the appeal is placed on the case call and assigned to a three-judge panel for decision. Not all motions for oral argument are granted. When they are granted, it is usually for a reduced time such as 10 or 15 minutes instead of the normal 30 minutes. If the Court of Appeals determines that it does not need oral argument to decide the case, the case will be submitted on briefs. No argument will take place. This is most likely to happen when the facts and legal issues are fairly simple and straightforward.
How does oral argument work?
Parties usually receive approximately three weeks’ prior notice of their oral argument date. Oral argument may take place in Detroit, Lansing, or Grand Rapids. In the spring and fall, oral argument in cases from Upper Peninsula trial courts may be heard in Marquette and cases from the Northern Lower Peninsula may be heard in Petoskey or other locations in that part of the State.
If both sides are “endorsed” for oral argument, each side will have 30 minutes. If only one side has oral argument, that party gets just 15 minutes. It is not required that the entire allocated time be used. Some of the best oral arguments are completed in less than the allocated time. The appellant, or appealing party, goes first. Because the appellant has the burden of persuading the Court of Appeals that the trial court made a mistake, he or she is given the option to have the last word through rebuttal. For that reason, most appellants reserve time, usually five minutes, for rebuttal. That five minutes counts against the 30 minute total.
Appeal oral argument is different from trial court argument. In the Court of Appeals, it is exceedingly rare for one attorney to object to or interrupt the other attorney’s presentation, and such interruptions are not well tolerated by the appellate judges. The three judges on the panel know the facts of the case and the legal arguments. Effective appellate advocates focus on one or two the key issues in the case and explain why the Court should rule in his or her client’s favor. Simply repeating the facts and law from the brief is usually a mistake. Attacking the other side or the trial court is rarely an effective appellate advocacy technique.
Unlike in the trial court, the client does not sit with his or her appellate attorney at counsel table in the Court of Appeals. The client’s presence at oral argument is not required. I encourage my clients to attend if they are available. Hearing the judges’ questions can give the client insight into the Court’s perspective on the facts and issues in the case. However, it is not always possible to predict the outcome of the appeal based on what happens during oral argument.
Case call usually falls on Tuesdays, Wednesdays, or Thursdays, during the first half of any month, although Friday arguments are also possible. There are usually two oral argument sessions each morning of case call. The first session starts promptly at 10 a.m. The second starts at 11:30 a.m. Many panels will take only short breaks (or no break at all) between case calls. They will often work through the noon hour if necessary to complete all of the cases. If your argument is scheduled for 10 a.m., plan to be there at least 30 minutes early to account for traffic conditions, parking, and getting through security at the court house. If your case is on the 11:30 call, be there by 11 a.m. It is not unusual for the panel to complete the 10 a.m. call early and start the second call early if attorneys on both sides of a case are present. When you arrive outside the court room entrance, you will go through a metal detector. All cell phones must be shut off. No cameras or recording devices are allowed.
How long after oral argument will a decision be made?
In many cases, the panel knows how it intends to decide the case even before argument takes place. On rare occasions, they will make their decision very clear. In most cases, however, you leave the court room not knowing for certain what the result will be. If it is a case not involving legally significant issues, the written decision can be issued in as little as a week after oral argument. In other cases, especially if the panel intends to issue a “published” decision, it can take many weeks to several months for a decision to be issues. I’ve waited over six months for a decision to be issued in a divorce appeal. Usually the Court decides custody cases more quickly.
What is a published decision?
The vast majority of family law decisions from the Court of Appeals are unpublished. That means they don’t appear in the official “reporter” and are not binding precedent trial courts or other panels of the Court of Appeals. The reporter is the hard bound multi-volume book that is the official record of decisions from the Court of Appeals. There is a separate reporter for decisions from the Michigan Supreme Court. Although unpublished cases do not appear in the bound reporter, they are publicly available on the Internet at the Court of Appeals web site.
Perhaps as few as a dozen to two dozen published family law cases are issued by the Court of Appeals each year. Published decisions are binding legal precedent and the legal principles stated in them must be followed by all Michigan trial courts and all subsequent panels of the Court of Appeals. Although there are exceptions, published decisions often involve issues of “first impression” or questions of great legal importance to the development of Michigan family law. A “first impression” issue is one where there is no prior binding law to aid the trial and appellate courts in reaching a decision.
What are the odds that I will win my appeal?
This is a very difficult question to answer with any certainty. Few appeals have a greater than 50% chance of success. In fact, almost all appeals have less than a 50% chance of prevailing, sometimes substantially less.
In family law cases, the trial court is given considerable discretion. It is very difficult to convince the Court of Appeals to reverse the trial court on a discretionary issue, such as factual findings or determinations of witness or party credibility. If your appeal is primarily a disagreement with the trial court in how it viewed the facts, your chances of winning an appeal are not particularly good. However, if the record shows that the trial court made a legal error, or erroneously applied the law to the facts of your case, the odds of winning are better.
One of the keys to a successful appeal is a strong trial court record. If your trial attorney presented all of the evidence that supports your position, that will help the appellate attorney made a strong factual argument to the Court of Appeals. If your trial court attorney made all of the proper legal arguments to the trial court, those issues will be preserved for the appellate attorney to use on appeal.
An appeal is based on the proverbial “snapshot in time.” It is crucial to understand that the facts and legal arguments presented at the trial or evidentiary hearing are the only facts and legal arguments that can be presented to the Court of Appeals. No facts can be added by the appellate attorney.
New evidence discovered after the conclusion of trial cannot be used on appeal. Every fact stated in the brief on appeal must include a supporting citation to evidence in the trial court record. If you are not happy with the way the evidence was presented to the trial court, you will probably not be happy with the result in the Court of Appeals. Appealing on a weak trial court record is often a waste of time and money.
What will an appeal cost?
This question is difficult to answer. Every case is different. Most appellate attorneys will charge an initial retainer, often non-refundable, to become involved in the case and do the initial work. The size of that retainer will vary with the issues involved, the time constraints, the length of the trial court record, the number of exhibits, and whether it is an appeal by right or an appeal by leave.
The length of the record is important in determining the initial retainer and the total fees and costs. The appellate attorney must thoroughly review the trial court record. A long record takes more hours to review, hence a higher fee. Also, costs are higher in cases with extensive trial court records. The transcript must be ordered from the trial court’s court reporter. The cost of the transcript in a long trial can be several thousand dollars. In addition, the current filing fee in the Court of Appeals and Supreme Court is $375. A $25 fee must be paid to the trial court. There are motion fees in the Court of Appeals ranging from $100 to $200 dollars depending on the nature of the motion. Motion fees in the Supreme Court are $75 to $150. There is a 3% surcharge for electronic filings in the Court of Appeals and Supreme Court, but the speed and convenience of efiling make that surcharge worthwhile.
Initial retainers of at least $10,000 are typical in an appeal from a divorce judgment or a child custody or change of domicile decision, or any case involving complex factual or legal issues. Some initial retainers will run $20,000 or more if the record is extremely long and the issues or time constraints particularly challenging.
A post-judgment appeal involving a single issue, or an appeal with a very short trial court record, may require a smaller retainer, but rarely less than $7,500 plus costs (filing fees, transcript costs, etc.). My standard hourly rate is $300 for basic appeals. I charge more than $300 per hour for most custody, domicile, or adoption appeals due to the time constraints involved in those cases.
Depending on the case, it is possible, even likely, for the total fee to exceed the initial retainer. The initial retainer, which is structured as a non-refundable engagement fee in my standard Contract for Legal Services, is payable in full at the beginning of the appeal. It may be paid by personal or cashiers check or money order. Upon request, I also accept credit cards for the initial engagement fee and subsequent fee and cost payments.
If a party prevails on all or most issues, the Court of Appeals may let them tax costs. That means the losing party must pay the winning party. It is important to note that taxable costs do not include attorney fees. Taxable costs include filing, transcript, and certain other fees based on the number of pages in the brief. Of these costs, the transcript fees are usually the largest. Unless the record was very long, taxable costs rarely exceed $1,500.
In rare cases, the Court of Appeals may order one party to pay the other party's attorney fees. In domestic relations cases, this may be based on one party's need for attorney fee assistance and the other party's ability to pay, not which party prevailed. The Court may also impose sanctions on an appealing party if their appeal was totally devoid of merit. Those sanctions usually include attorney fees. Sanctions for an meritless appeal are rare. I've seen only a handful during my career.
What happens if I win in the Court of Appeals?
If the Court of Appeals accepts some or all of your arguments and reverses the trial court, it typically sends the case back to the trial court for further proceedings consistent with its decision. One of the problems often facing both parties in this situation is the lack of clear remand instructions from the Court of Appeals to the trial court. here can be enough ambiguity in remand instructions that remand proceedings can be contentious and uncertain. It is possible to win a case in the Court of Appeals, only to lose it again on remand in the trial court. Working with trial counsel to develop a winning strategy on remand is often as important as winning in the Court of Appeals. You need to maintain good relations with your trial counsel, including making sure his or her fees are paid.
The prevailing party in the Court of Appeals may tax costs against the losing party. Costs do not include attorney fees. It is rare for these costs to exceed $2,000, and they are typically less than $1,000. They include the cost of the transcript, the appeal filing fee, motion fees, and a nominal amount per page for printing the brief on appeal.
Victory in the Court of Appeals cannot be celebrated too soon. The losing party has 42 days from the date of the Court of Appeals decision to file an application for leave to appeal with the Michigan Supreme Court. During that time, unless otherwise ordered by the Court of Appeals or Supreme Court, the Court of Appeals decision does not take effect and any trial court proceedings to implement the decision are stayed. If an application for leave to appeal is filed with the Supreme Court, that stay continues until the Supreme Court finally disposes of the appeal.
What happens if I lose in the Court of Appeals?
You may consider appealing to the Michigan Supreme Court. The Supreme Court rarely grants leave to appeal in family law cases. It happens perhaps once each year, but that can vary from year to year. If your case involves a novel or particularly important issue, the Supreme Court may be interested in hearing the case and weighing in on the issue. If your Court of Appeals decision was published, and therefore precedential, the Supreme Court may be more willing to hear the case. A majority of four Justices on the seven-Justice Michigan Supreme Court must agree to hear your case in order for leave to be granted. You have 42 days to file a Supreme Court application, which, as in the Court of Appeals, is a complete brief stating the facts, issues, and argument. Realistically, the decision to appeal must be made long before the 42 day deadline in order to give the appellate attorney sufficient time to prepare the application/brief. The Supreme Court filing fee is $375. The retainer agreements used by most appellate attorneys, me included, do not cover an appeal to the Supreme Court. A new retainer agreement for the Supreme Court appeal must be signed.
A losing party can also file a motion for reconsideration in the Court of Appeals within 21 days after the opinion is released. This is usually a futile exercise. Few reconsideration motions are granted. However, if it was a 2 to 1 decision and, from reading the majority decision, you and your attorney conclude that at least one member of the majority thought it was a close call, you may want to file a reconsideration motion.This type of motion cannot simply rehash the arguments already made. Ideally, such a motion would point out flaws in the majority’s reasoning.
Most appellate decisions in the family law area include a remand to the trial court for further proceedings. Those proceedings must wait until the 42 day Supreme Court appeal period has expired, unless otherwise ordered by the Court of Appeals or Supreme Court. If the case involves a time-sensitive matter such as child custody, change of domicile, or adoption, the Court of Appeals may retain jurisdiction and impose limits on the time the trial court has to conduct remand proceedings. However, in the vast majority of cases, the Court of Appeals does not retain jurisdiction over a case once it issues it decision. If jurisdiction is not retained, a party who disagrees with the trial court’s decision on remand must file a new appeal and the process begins anew.
Finally, be prepared to pay the other side’s costs, including the cost of ordering the transcript, their filing fee and motion fees, and a nominal per page cost for printing their brief on appeal. In family law cases, both the Court of Appeals and the trial court have the authority to order you to pay some or all of the other side’s appellate attorney fees. This does not happen often, however. An order to pay attorney fees is usually based on the need of the requesting party and the other party’s ability to pay those fees. It is not necessarily based on which party wins the appeal.
In rare cases, the Court of Appeals will determine that an appeal is “vexatious.” This means that the appealing party had no reasonable legal or factual support for the appeal. When that happens, the appellant can be required to pay all of the appellee’s costs and attorney fees as a sanction. There have been cases where sanctions have been ordered in double the amount of actual attorney fees and costs. For this reason, you want to be sure you have a solid reason to appeal. Appealing solely to delay or run up fees and costs for the other side is improper and could come back to haunt you.