Family law appellate practitioners have one of the most difficult jobs in the bar. They have to master the complicated family law statutes and the quirks of District Court practice, navigate the treacherous waters of the Appellate Rules, and, to top it off, understand how those two realms interact in the appellate arena. In short, their job is scarier than a six-foot tall teenager with no costume demanding candy at your door an hour after trick-or-treating was supposed to have already ended.
The Court of Appeals’ opinion in Balawejder v. Balawejder, released this morning, serves up a grab bag of Halloween tricks that we can all learn from, whether we pursue Chapter 50 cases or not.
In the case, the divorcing wife was awarded child custody in a March 2009 “handwritten order” of the court. After the husband moved to modify the order, the court issued an “order for permanent child custody” in 2010 denying the motion to modify. The husband noticed an appeal from both orders, challenging the child custody awards and any attorneys’ fees award. A few months later, the district court entered a written order awarding the wife her attorneys’ fees.
Simple enough? Apparently not. The Court of Appeals identified three Appellate snags in the matter.
The Take Home Lessons:
1. Be Sure Your Record is Complete
The Law: Chapter 50 employs a more stringent standard for those seeking to modify a permanent custody order than for modifying a temporary custody order.
The Problem: The husband contended on appeal that the district court’s first custody order was merely temporary in nature, and that the court therefore erred by holding his motion to modify to the higher standard applicable to modifying permanent custody orders. The husband argued on appeal that the district court declared the March 2009 order “permanent” during a later July 2009 hearing. But the husband failed to include the transcript from that hearing in the record on appeal. The Court of Appeals found this fatal to his argument on appeal under Appellate Rule 9(a), explaining that “it is the duty of the appellant to ensure that the record is complete.”
The Solution: Be sure to include all relevant hearing transcripts in your record on appeal! Now, in a simple summary judgment context, this is as easy as recording the hearing, having it transcribed in line with Appellate Rule 7, and having it filed with the Court. In the family law context, however, cases are often resolved through a series of hearings that can span several months. If your county does not supply a court reporter for all such hearings, investigate whether the courtroom is outfitted with electronic recording devices that you can later request as needed. If all else fails, consider recording the hearing yourself and using that recording to generate a “narration” (or “paraphrase”) of the hearing as allowed by Appellate Rule 9(c)(1).
2. Preserve Your Appellate Arguments Below
The Law: An appellant may not “change horses on appeal,” in the words of the Balawejder Court.
The Problem: The husband argued on appeal that the trial court should not have considered pre-March 2009 circumstances in awarding child custody in 2010. But below, the husband himself had presented evidence of pre-March 2009 circumstances and, in asking for modification, had required the district court to analyze just those circumstances.
The Solution: If you can, select a theory and stick with it. You can always argue in the alternative, but be as clear as possible that you are not waiving your primary argument.
3. If You Want to Appeal Attorneys’ Fees, Ask the Court to Award them in the Final Order
The Law: Once a proper notice of appeal is filed, the trial court is divested of jurisdiction over the case except over those matters “not affected by the judgment appealed from.”
The Problem: Under North Carolina law, awards of attorneys’ fees to the “prevailing party” under N.C. Gen. Stat. § 1-294 are “affected by the judgment appealed from,” and are therefore not within the realm of matters the trial court can pursue post-appeal. Husband could not challenge the attorneys’ fees order here because the trial court did not have jurisdiction to award them in the first place after the notice of appeal was filed.
The Solution: Ask the court to refrain from reducing the “merits order” to writing until the attorneys’ fees issue is resolved. If the trial court announces its decision from the bench, take that opportunity to make the request. If the trial court takes the matter under advisement, you can ask then, or better yet, reach agreement with opposing counsel that the winning party will refrain from drafting the order until after attorneys’ fees motions are decided.
Trick or Treat!