Just about any time a client receives a decision they find anything short of a 100% victory, that client say to me: “File an appeal!” What clients need to understand, however, is that it is easier said than it is to actually follow through. Several issues are in play in proceeding with any form of a family court appeal.
In terms of the process, in the counties where I practice in Southeastern Pennsylvania, first-level hearings and conferences are not before a judge, they are before a hearing officer or custody conciliator. In terms of child support or divorce, after the hearing officer, parties have the right to file what are called “exceptions." That is an appeal to a judge where the appealing party spells out what the hearing officer did that was inappropriate or in error. On exceptions, some counties give you what is called a hearing “de novo,” meaning a whole new hearing. Some counties have the lawyers on both sides file briefs and then schedule an oral argument before the assigned judge and the judge decides the case based on the briefs, the argument, and the transcript from the proceedings before the hearing officer. The judge then issues a divorce decree or final support order addressing all of the issues raised in the exceptions.
For child custody, in some counties the process is similar to the process I outline above for support and divorce. In some counties, after a conciliation conference, upon request of either party, a de novo custody trial is scheduled.
In all of these situations, there are costs for filing briefs, getting transcripts typed up and prepare whatever type of pre-trial statements the court requires. These costs mount quickly.
In Pennsylvania, all of these proceedings are in the Court of Common Pleas. If a client still wants to appeal after that, the appeal goes to the state-wide appellate court, called Superior Court. This is where things get tricky and expensive very quickly. First, not all orders are what are called “final orders” and appealable to Superior Court. Anything that is interim in nature, like a decision on the date of the parties’ separation, an interim counsel fee award, alimony pendente lite, an order for interim exclusive possession of the marital residence, or any other court order disposing of a special relief petition before the divorce is over, is generally referred to as “interlocutory.” Generally, these orders cannot be appealed until the case is over, unless the trial or appellate court certified the order as being appealable. Note as well, if you settle the final resolution of your case, you have no right to appeal anything, either the entire case or some interlocutory issue.
Filing an actual appeal to Superior Court is easy, it is a one-page notice filed with the trial court. From there, however, things get much more complicated and costs can mount exponentially. Upon receipt of the Notice of Appeal, in Pennsylvania, the trial judge is obligated to serve the appealing party with a request for a Concise Statement of Matters Complained of on Appeal. In that filing the appealing party’s lawyer needs to state with specificity what the trial court got wrong. The trial court then writes an opinion addressing those issues. he party who appeals, called the “appellant,” is bound by the stated reasons in their Concise Statement; they cannot raise any new issues after that point.
The appellant has the obligation to file with the Superior Court not only their brief but also the reproduced record from the trial court, meaning transcripts, exhibits, and all relevant pleadings, decisions and orders of the trial court. You can see why I say costs escalate quickly and exponentially.
Assuming all of that has been submitted properly, an oral argument will be scheduled before a panel of Superior Court. That is usually several months after the brief and reproduced record are submitted to the court. Another important point in any appeal is that the Superior Court is an “errors” court, meaning that their job is not to rehear the case or decide whether or not the three-judge Superior Court panel would reach a different decision, their only charge is to determine whether or not the trial court abused its discretion and either made a legal error or whether there is sufficient evidence in the reproduced record to support the decision and the conclusion of the trial court.
This is reflected in the statistics issued by Superior Court each year. In 2020, the Superior Court “affirmed”, meaning that it didn’t change, 79% of the cases it heard. On top of that, 6% of the appeals filed were either quashed, dismissed or transferred to another court. Four percent (4%) of the 2020 appeals were partially reversed, and only 13% reversed. So, an appellant has about a 13% chance of changing the case’s outcome in any appeal.
While Superior Court hears appeals as of right, the Pennsylvania Supreme Court only hears cases that it wants to hear, meaning cases where there is some novel legal issue that the justices of the Supreme Court feel needs to be addressed. Also, while it is possible to have a family court matter heard by Pennsylvania’s Supreme Court, the chances are extremely limited.
In all of this, there has to be a cost/benefit analysis; is it worth it to incur the costs and time associated with an appeal if the chances of changing anything are so small? Also, while custody appeals follow something called “Family Fast Track,” divorce appeals from trial court to
Superior Court decision, take about a year. Family Fast Track appeals take about six months. Generally speaking, unless you have a unique legal issue where an appeal is financially and emotionally worth the risk, it does not pay to take an appeal beyond the Common Pleas Court level.
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