Be aware that in some Texas counties, “Associate Judges” are allowed to preside over Family Law cases. Generally, when an Associate Judge presides over a temporary or a final Family Law hearing, their order must subsequently be signed by a District Judge. Sadly, we have quite often found that when an opposing party is upset with an Associate Judge’s ruling and is either well-funded (they do not worry about paying their attorney to come back to court) or representing themselves; they may request what is termed a “de novo” hearing. A de novo hearing is a blank slate, a new hearing. This circumstance, unfortunately, harms numerous well-meaning clients who received good results in their initial hearing but may not have the funds to pay their attorney to, in effect, do it all over again. Izzo & Associates always analyze each of our client’s case facts, considering this possible eventuality to determine when and if a Temporary Orders Hearing is actually necessary or advisable.

In addition, our Attorneys always make the sound determination when we file original pleadings in every case, whether we want to include an objection to the appointment of an Associate Judge to preside over a final hearing in said case. Be aware, however, that such an objection will generally not be effective in prohibiting the appointment of an Associate Judge to preside over any Temporary Orders hearings scheduled.

Final decision

A writ of mandamus is considered an extraordinary remedy. It is basically an emergency appeal of a court’s ruling. A writ of mandamus will only be issued to correct a clear abuse of discretion by a judge or a judge’s violation of a legal duty imposed upon him or her. There are several instances when a writ of mandamus might be necessary in a Family Law case. Please note that there are strict deadlines and filing requirements where mandamus is concerned.

The filing of an appeal from a final order

The decision of whether or not to file an appeal of a Family Law final ruling involves numerous considerations, including the specific facts presented to the court and their relationship to the judge’s ruling, availability of funding, locating experienced appellate counsel, and the willpower to withstand a continuing multi-year battle. The appellate process is extremely costly, and even the act of purchasing trial transcripts (termed the appellate record) can be very expensive. In addition, expert knowledge of correct timetables and the substantive and procedural criteria necessary to perfect an appeal, as well as understanding exactly what kind of orders may be appealed, are all critical.

Types of final rulings which can be appealed

Final Modification, Enforcement, Divorce, and SAPCR rulings generally can be appealed. The subject of such appellate challenges may involve a final result that you believe was incorrectly decided, including such matters as child visitation, child support, custody, parental rights, spousal support, and property and debt division, in divorce cases. As long as the legal criteria are present and specific procedures are followed, most family law matters can be appealed, but overturning a Family Law judge’s opinion is difficult. (Hint: Appeals are based on an appellate court reviewing what is often termed “the dry record” of what occurred during the trial.)

Appealing your decision

The role of your trial attorney in defense of a potential appeal

Quite often, a trial counsel is intimately involved with drafting and/or aiding an appellate attorney when an opposing party files a notice of appeal after a Family Law case. When an appeal is requested, the trial judge may be required to execute what is termed as “Findings of Fact and Conclusions of Law.” Under such circumstances, the trial judge will often request the prevailing party’s counsel to draft said document and provide it to the trial court for review and submission.

The preparation of Findings of Fact and Conclusions of Law involves outlining the facts of the case, which were presented to the court at the trial, and the court’s rationale for then rendering the final order. Quite often, trial counsel is of great assistance to an appellate attorney in preparing to prosecute or defend an appellate challenge, as trial counsel was present for the actual trial and has firsthand knowledge of the evidence introduced and rulings made.

Some grounds for an appellate court to reverse all or a portion of a final order

An “Abuse of Discretion” can be found by an appellate court. Such a finding asserts that the trial judge issued a ruling that was incorrect, unreasonable, or unjustified by the facts of the specific case or the law. It should be noted, however, that Family Law trial judges are generally granted a great amount of discretion when making their decisions.

An appellate court could determine that the trial court made an “Error of Law.” This would be based on the consideration that the lower court had not applied the correct legal standard to utilize in its ruling. An appellate court has the power to reverse the trial court’s ruling.

“Findings that are Against the Great Weight of the Evidence” could be found to have occurred if a lower court ruling was considered to be contrary to the vast majority of the evidence presented at trial. In other words, the judge’s ruling was considered to be inaccurate. Do remember, however, as stated above, that a trial judge is referred to as the ‘trier of fact” because they are considered to have been in a better position to have determined the truthfulness of witnesses, etc., than the appellate court, which can only review “the Dry Record.”

Final thoughts

Be aware that the trial court’s final order, a complete copy of all case pleadings, the complete transcript recorded at the final hearing, including exhibits admitted to the court, as well as input from the trial attorney will most likely be utilized by appellate counsel to conduct a thorough analysis before drafting appellate briefs, which will also allow for their preparation of oral arguments if allowed by the appellate court.

When a non-revocable settlement agreement was utilized to draft a final order in a Family Law case or the litigants stipulated to the said order, the opportunity for a successful appeal is significantly decreased in Texas.  In such cases, however, Izzo & Associates attorneys may be able to modify or enforce such orders to assist our clients, especially when a substantial and continuing change of circumstances has occurred.

If an Appeal is Not Timely Filed, but Potential Fraud on the Trial Court Occurred – In certain circumstances, a litigant in Texas can file a “Bill of Review” within four years from the date that a final order was executed in a Family Law case. A bill of review is an attack on the trial court’s judgment when that judgment is no longer subject to challenge by a motion for a new trial or appeal. There are several points a party pursuing a bill of review must prove to be successful in setting aside the prior judgment.

Please give us a call at 512-218-9292 to set up a free phone consultation when you are seeking experienced trial counsel. Even if your case is in the post-trial stage and you need a recommendation for an Austin-area appellate attorney, Izzo & Associates will be glad to help. We have worked diligently with numerous experienced Family Law Appellate Law Firms over the decades.