Ask any good attorney a question, and you will probably be given the following response: “It depends.”  The answer usually serves as a preface to a more thorough discussion about the specific facts of your case, what the issues are, and a general risk assessment based on the legal grounds you are traversing.  This blog focuses on the latter point concerning risk assessment, specifically with respect to appealing your case to the Court of Appeals.  More specifically, you need to understand that the Court of Appeals will have different “standards of review” that they use to review your case—and depending on the applicable standard of review, you may have a better chance of succeeding on appeal.

Here is an example using what is known as the “abuse of discretion” standard of review.  Under this standard, the Court of Appeals will review the issue to see if the trial judge’s decision was “manifestly unreasonable or exercised on untenable grounds or for untenable reasons,” such that “[i]t is one that no reasonable person would have made.”[1]  Imagine your divorce case goes to trial, and the trial judge divides your property in a way that you feel is inequitable to you.  Put differently, you think the judge made a mistake and want to appeal the property division.  It is important to know that the Court of Appeals will use the abuse of discretion standard to determine whether the trial judge erred in dividing the property.  Knowing this information apprises the appealing party of their risk—here, in this property division example, there is considerable risk because the Court of Appeals will be afford “wide latitude” to the trial judge’s decision under the abuse of discretion standard of review.[2]

Now flip that example on its head and imagine you are the other party, satisfied with the trial court’s ruling on property division.  You do not want an appeal and just want the case to be over; but the losing party appealed nonetheless.  Fortunately for you, as the non-appealing party, the abuse of discretion standard works in your favor because all you need to do is show that the judge did not rule on untenable, manifestly unreasonable grounds.  You will naturally want to emphasize this standard in making your argument to the Court of Appeals, knowing that “[t]rial court decisions in a dissolution action will seldom be changed upon appeal.”[3]

Another common standard of review used by appellate courts is “de novo” review. “De novo” is a Latin phrase which literally translates to “from the beginning.”  De novo review is the opposite of the abuse of discretion standard.  The de novo standard means that the Court of Appeals will review the issue “(a)new; afresh” without any deference to the trial judge’s decision.[4]  Unlike the previous example where the appealing party had a high hurdle to clear under the abuse of discretion standard, the de novo standard places the appealing party on even footing with the non-appealing party.  One example of de novo review being applied to a family law appeal is where the Court of Appeals is reviewing a clarification of a dissolution decree.[5]

So far I have discussed two standards of review and how they relate to property division appeals and clarification of a divorce decree.  However, there are plenty of other family law issuesthat can be appealed—e.g., child support modification, contempt, relocation with children, parenting plan, etc.—and you should be aware of what standard of review the Court of Appeals will employ when you bring your appeal.

If you are considering an appeal, or if the other party has appealed your case, and you need appellate counsel, consider discussing the case with a family law attorney at Lasher Holzapfel Sperry & Ebberson for guidance on what to expect and how best to go about the appellate process.  Attorneys with appellate experience can help guide you through case law to better your chances of success.

For background on differences in trial level legal work versus appellate work, please see my previous blog on the subject here.

[1] In re Marriage of Tower, 780 P.2d 863, 865 (Div. I, Wash. Ct. App. 1989).

[2] Rogstad v. Rogstad, 446 P.2d 340, 341 (Wash. 1968).

[3] In re Marriage of Landry, 699 P.2d 214, 215 (Wash. 1985) (en banc).

[4] State, Dept. of Motor Vehicles v. Andersen, 525 P.2d 739, 742 (Wash. 1974) (en banc).

[5] In re Marriage of Michael, 188 P.3d 529, 531 (Div. II, Wash. Ct. App. 2008).