By Richard A. Marcus, Esq.


Everyone has the right to appeal. Keep in mind that about 98% of all cases settle at some point. A small percentage of cases do go to trial, and a percentage of those cases will be appealed. Family law cases are different than civil appeals because in family law trials, there is no jury. You have either a judge or a court commissioner. That person will make all of the determinations of facts and law. In a civil action, the court decides questions of law while the jury makes findings of fact. The judge instructs the jury on the law.

In two particular situations, it is very difficult to prevail in a family law appeal. The first is when the judge decides the case based upon the credibility of witnesses, usually deciding that one party was not credible. Because the appellate courts feel that the trial courts are in a much better position to determine credibility, they will rarely disturb the findings made by a family law court on the issue of credibility. The second, is when the challenged thing the Court has done is within the Court’s discretion. Unfortunately, many ruling by family law judges are discretionary.

If the family law court’s decision is based upon “substantial evidence”, it will be affirmed upon appeal. The focus is on the quality, not the quantity, of the evidence. Thus, very little solid evidence may be "substantial," while a lot of extremely weak evidence might be "insubstantial." Unfortunately, the testimony of a single credible witness, even if a party to the action, may constitute "substantial evidence." And, so long as the witness' testimony is "substantial," the party is not aided by the fact that several other witnesses testified to the contrary.

Of course if the person testifying one way at trial has contradictory deposition testimony, one might be able to make a winning argument that the truth of the trial testimony was inherently improbable or implausible. In any event, your attorney should request a statement of decision at the time of trial so that the appellate court can conduct a meaningful review.