Cary Appeals Lawyers

The North Carolina District Court Division has exclusive jurisdiction over all family law matters, including actions for annulment, divorce, property division, alimony, child support, child custody, and the enforcement of separation agreements between spouses (See N.C. Gen. Stat. § 7A-244). If you believe the District Court Judge made a significant error in your case, you have the right to seek review of the decision by the North Carolina Court of Appeals.

In order to bring an appeal, you must file a “Notice of Appeal” to the Court of Appeals before the deadline to appeal expires. The deadline for filing a “Notice of Appeal” is thirty (30) days after the final order is entered by the presiding District Court Judge.

Divorce & Post-Trial Motions

As an alternative to filing an appeal, you should first consider filing a “post-trial motion.” Following trial, you may bring a motion to the same District Court Judge that decided your case, asking the Judge to reconsider his or her decision and/or to grant you a new trial of your case. It is advisable to first ask the District Court Judge to reconsider his or her decision in your case before attempting an appeal to the North Carolina Court of Appeals.

In order to file a post-trial motion:

• You must file your motion to the District Court before the deadline to file such motion expires.
• The deadline for filing a “post-trial motion” is ten (10) days following the entry of the District Court’s order.
• Due to this short deadline, immediately consult with an experienced family law attorney if you believe the District Court Judge has made a serious error in your case.

When Should I File an Appeal?

While you might technically have the right to file an appeal to the North Carolina Court of Appeals, it must be understood that North Carolina District Court judges have broad leeway and discretion in their decision-making authority over family law matters. It is often the case that the District Court’s decision would not likely be overturned by the Court of Appeals, even if you strongly disagree with it.

This is why it is very important that you present your best case and most compelling arguments the first time at the District Court level trial. Further, appeals can be costly and time consuming, due to the complexities involved. It is important that you seek the advice of an experienced family law attorney to review the facts of your case and determine whether an appeal is really worth pursuing.

Basis of an Appeal

A decision of the District Court is “appealable” (i.e., is worthwhile to pursue appeal) when the District Court erroneously applies the law or there is some other significant error in the decision-making process (for example, not enough credible evidence presented to support the District Court’s decision).

The Court of Appeals will review the District Court’s decision for “errors of law” and/or for “abuses of discretion.” In other words, it will review the evidence presented and the law applied by the District Court to determine if the decision was legally correct and supported by the evidence.

However, the Court of Appeals will not make a truly independent decision upon review of your case. The Court of Appeals will only review the evidence that was presented to the District Court Judge. If the evidence relied upon by the District Court was truly insufficient to support the District Court’s original decision, the Court of Appeals might instruct the District Court to consider additional evidence and/or to make new findings.

Technicalities of an Appeal

Numerous rules must be complied with in order to protect your right to bring an appeal (in legal terminology, to “preserve” your right to appeal). If the proper steps are not taken to preserve your right to appeal, including filing proper “Notice of Appeal” within thirty (30) days of the District Court’s final order(s) in your case, you will be forever prohibited and barred from seeking an appeal (except perhaps in very exceptional circumstances involving fraud).

The Appeals Process

To begin the appeals process, the appealing party must file a “Notice of Appeal” to the North Carolina Court of Appeals and also compile a “Record on Appeal.” The “Record” includes all relevant court filings and evidence, including a transcript of the District Court hearing.

Each party must also prepare a legal brief containing their written legal arguments.

There are fifteen North Carolina Court of Appeals judges. These judges sit in panels of three judges to hear each appeal. The assigned three-judge panel will review the District Court Judge’s decision, the Record on Appeal, and the arguments of each party to determine if the District Court made significant errors in its decision. In a limited number of cases, oral argument is permitted before the three-judge panel. However, the majority of appeals are decided solely upon the Record on Appeal and the parties’ written legal briefs.

If a Court of Appeals judge dissents from the majority opinion (i.e., disagrees with the other two Judges), the case can be further appealed to the North Carolina Supreme Court, as a matter of right. If there is no dissenting opinion, appeal to the North Carolina Supreme Court occurs only in cases where the Supreme Court allows a “Petition for Discretionary Review.” However, the grant of such a Petition is quite rare.

Discuss Your Appeal: (919) 348-2317

The appeals process is complex, lengthy (typically at least one year), and can be costly. Due to the complexity of family law appeals and the short deadline to file Notice of Appeal, you should immediately contact an experienced family law attorney if you believe that your District Court Judge made an erroneous decision in your case. Remember that the deadline to file a post-trial motion is only ten (10) days following the entry of the District Court’s order and the deadline to file an appeal is only thirty (30) days following the entry of the District Court’s order.

Our experienced family law attorneys would be happy to discuss with you the individual merits of your case and whether filing a post-trial motion and/or appeal is advisable.

Call us at (919) 348-2317.