Appeal

Appealing a Child Custody Case in Montana

While appealing a child custody or parenting case in Montana can be just like any other appeal, there are a few important things litigants need to know when considering whether or not to appeal the district court’s decision.  Parenting/Child Custody cases can be a bit different than other appeals, even divorce appeals.   Here are few things to consider before diving in to an appeal:

1.  You’ll Have to Head Back to Mediation.

That’s right, even though you likely attended mediation prior to going to trial, the Montana Supreme Court will make you take another stab at resolving your case.  If the parties cannot agree on an appellate mediator within 15 days of filing the Notice of Appeal, the Montana Supreme Court will simply assign you an appellate mediator.  You could end up with a mediator on the other end of the state – although the Clerk of the Supreme Court does his best to nominate someone in close proximity to the parties.  Your appellate mediation has to be accomplished within 75 days of the filing of the Notice of Appeal.  If you settle the case, the appeal is dismissed.  If not, you proceed like any other appeal.

2.  You’ve Got to Have a Final Order.

Generally speaking, in order to file an appeal with the Montana Supreme Court, you have to have a final judgment or order from the district court.  Aside from some extraordinary remedies, the Montana Supreme Court is not there to deal with interim issues.  If you have an interim parenting plan you are dissatisfied with, you probably cannot appeal the district court’s decision.  Instead, you will have to wait until you get the court’s final parenting plan.  If there are still problems, an appeal would be initiated at that point.

3.   It Can Get Expensive.

Think your trial was expensive?  Wait for an appeal.  While the overall cost will probably be less than your district court case, the cost of an appeal can rack up pretty quickly.  Your appellate attorney will have to do a huge amount of research and briefing to adequately prepare your case for the Montana Supreme Court.   When it comes to parenting and child custody cases, there is often no cap on the amount of money a parent will spend.

4.  It Can Take Time.

You have probably already experienced a fairly slow moving district court case.  Depending on the county you live in, it may have taken well over a year for your case to get to trial.  In recent years, the Montana Supreme Court has made it a point to clear up their backlog and push cases along as quickly as possible.  They have truly succeeded and the time cases spend at the Supreme Court is often much shorter than the time spent in district court.  Still, litigation just takes time.  For litigants it can feel like forever.  Plan on your appeal taking at least 6 – 8 months.

5.  Its Tough to Do-It-Yourself.

While there are many family law proceedings that parties can handle on their own (particularly if the case is uncontested), an appeal is not really the time to try your hand at lawyering.  Because appeals involve a great deal of legal research and briefing, it is important that you find someone with experience to help you.  In particular, you want to find a lawyer that has experience with appeals and enjoys doing them.  Your trial lawyer might be great, or they may refer you on to someone else.  Either way, if you are going to go to the time and expense of appealing, make sure you find someone to help.

Appealing Divorce Decisions in Montana

Unlike many other states, Montana does not have an intermediate appellate court and, instead, district court cases in Montana are appealed directly to the Montana Supreme Court.  If you have had a divorce or parenting trial and believe that the result was improper under the law, your remedy is generally to initiate an appeal to the Montana Supreme Court.

The Montana Supreme Court is located in Helena, MT.   All appellate proceedings take place in Helena (except in a few limited circumstances), regardless of where you live in the state and regardless of where your district court case took place.  The beauty of the appellate court being located in Helena is that parties have an entire state of attorneys to choose from.  You can easily hire an appellate attorney on the western half of the state, even if you live in Eastern Montana.

After having been through months of litigation in district court, you will find that appellate procedure is a lot different than trial court procedure.  Generally speaking, the Montana Supreme Court decides issues of law, not issues of fact.  In other words, appellants argue that the district court made the wrong decision as a matter of law.  This means that you cannot necessarily appeal just because you were unhappy with the result at district court.  Instead, you have to have a legal basis for your appeal.  Unlike district court, the Supreme Court will never hold a hearing where the parties tell their side of the story.  Instead, the Supreme Court sees a transcript of the trial, along with the district court file.   Most family law litigants never even see the Supreme Court.  Instead, the parties submit briefs and the case is generally decided based on those briefs only.

Because appellate procedure can be very different from regular district court rules, many litigants choose to use a different attorney for appellate work than for district court/trial work. It can often be beneficial to have a fresh set of eyes look at your case or prepare it for appeal. Most importantly, you want to be sure to utilize someone with appellate exprience and with experience in research and brief writing.

Montana Divorce or Child Custody Appeal

Montana’s Constituion allows for direct appeals from Distrt Court judgments or orders (whether the case is civil or criminal), directly to the Montana Supreme Court.  Unlike many other states, Montana does not have an intermediate appellate court.  Instead, cases go directly from District Court to the state Supreme Court.

The party that initiates an appeal is called the “Appellant.”  The party responding is called the “Appellee” or “Respondent.”  Appellate is a very different animal than district court.  Appellate procedure has its own set of rules, separate from the Montana Rules of Civil Procedure.  The appellate rules are called the Rules of Appellate Procedure and can be found in Title 25, Chapter 21 of the Montana Code.

The Montana Supreme Court is located in Helena, MT.  This means that any documents filed in your appeal are filed in Helena and any oral argument would take place in Helena (except in a few very limited circumstances).  Oral argument does not happen in all cases.  In fact, many appeals never require an appearance in person at the Montana Supreme Court.   The great thing about that is Montana litigants have a much larger pool of attorneys to choose from.  You could easily hire an attorney at the other end of the state to handle an appeal.  All the documents go to the place regardless ofwhere you live!

If you are appealing a family law case from a Montana District Court to the Montana Supreme Court, you will likely have to head back to mediation.  Under Rule 7 of the Montana Rules of Appellate Procedure, domestic relations (divorce/parenting/child support/maintenance) cases are submitted to mandatory appellate alternative dispute resolution (i.e. mediation).

Because appellate procedure can be very different from regular district court rules, many litigants choose to use a different attorney for appellate work than for district court/trial work.  It can often be beneficial to have a fresh set of eyes look at your case or prepare it for appeal.   Most importantly, you want to be sure to utilize someone with appellate exprience and with experience in research and brief writing.

Does spousal maintenance under Montana law end after another marriage? Wolf v. Wolf

Sometimes called “alimony” or “spousal support,” maintenance is the word Montana law uses to describe financial support from one party to the other after a dissolution.  Though maintenance seems to be more and more rare these days, due in large part to the troubled economy and the decrease in the number of couples that can survive on one income, it remains an issue in a number of Montana divorces.

A recent Montana Supreme Court case discussed spousal maintenance obligations after a spouse remarries.  In re the Marriage of Holly Wolf and Walter Wolf, was decided on August 11, 2011.  The Montana Supreme Court determined that Montana statute cutting off a maintenance obligation after a subsequent marriage is clear: unless you agree in writing otherwise and it is expressly provided for in the decree of dissolution, the obligation to pay maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.”

Unfortunately, Appellee Holly Wolf had to find this out the hard way.  According to the Court’s decision, Ms. Wolf was receiving spousal maintenance from her husband Walter in the amount of $4,000 per month until her son graduated high school and then for $6,000 per month thereafter.   According to the Dissolution Agreement signed by Holly and Walter, the maintenance obligation was to continue until Holly’s death.   The Agreement went on to state that Holly’s maintenance payment would decrease to $2,000 per month if she lived with someone for over 6 months in an intimate way.  The Dissolution Agreement, however, did not provide for maintenance after Holly remarried.   In 2008, Holly remarried and Walter stopped paying maintenance.

The Montana Supreme Court determined that M.C.A. 40-4-208(4) (which states that maintenance is terminated upon death or remarriage unless expressly agreed otherwise) is serious.  Since Holly and Walter did not expressly include a statement about whether or not maintenance should terminate upon Holly’s remarriage, the maintenance obligation terminated upon Holly’s remarriage.

The lesson here is:  if you are eligible for spousal maintenance and intend to continue receiving it even after a subsequent remarriage, MAKE SURE you expressly include that language in your Property Settlement Agreement AND the Court’s Decree of Dissolution.  If you didn’t make sure to do so, don’t get remarried without thinking through the financial ramifications.

Advice from a Kalispell Divorce Lawyer: What Happens at a Hearing/Trial for a Montana Divorce?

There is a great deal of valuable and reliable information available for divorce litigants regarding how Montana family law works and where to find forms to file.  However, there seems to be a lack of information on how divorce procedure works.  This leaves many litigants, particularly unrepresented litigants, completely terrified of walking into court.  Though it is impossible to convey the finer points of trial advocacy through a blog, some basic tips about what to expect when you walk in to court can help ease some of that anxiety.

Over the next several weeks I will blog about Montana divorce and parenting hearings and trials – how they work, what happens, and how to prepare.  Because the bulk of my practice is in Flathead County District Court in Kalispell, this series is most relevant to my local court.  Scheduling, practice and procedure can very from county to county and even from judge to judge.  Because of that, I strongly urge anyone with a hearing/trial to go and observe their local court and the judge specifically assigned to their case.  In Kalispell, you can access each of the Judges’ court schedules (also known as the “docket”) online.  Nearly all court proceedings are open to the public, so do not hesitate to go see the courtroom, watch your judge in action, and become familiar with how your judge runs her/his courtroom.  I find that seeing where your hearing/trial will take place and watching how your judge works calms a massive amount of those pre-hearing jitters.

If you are involved in a divorce case, you can pick out a hearing for another divorce case.  You will know it is a divorce case because the case will be called “In re Marriage of____.”  For parenting cases, find a case called “In re Parenting of ______.”   Though the online docket does not tell you what kind of hearing it is (i.e. child support, contempt, interim parenting, etc.), you can always contact the Clerk of District Court to find out what kind of motion the hearing is about.

Part 3: Appealing a Montana Divorce Case or Appealing a Montana Parenting Case

This is Part 3 of a series dedicated to appealing Montana divorce cases or Montana parenting cases.  See Part 1 and Part 2 for more information.

Though there are several other documents that are required in throughout the appellate process, the “guts” of the case is set forth in a brief filed by each party.  A brief is a written argument filed by each party that explains why that party should win.  The brief explains to the Montana Supreme Court the facts of the case, the procedural posture (what happened at district court) and the argument of law.

Once the Supreme Court has made their decision, it will be set forth in an opinion.  The opinion is a written explanation of the Court’s decision.  Past decisions by the Montana Supreme Court can be located at the Montana Courts website.   The Montana Courts website also provides copies of the briefs filed by each party.

Part 2: Appealing a Montana Divorce Case or Appealing a Montana Parenting Case

This week, I’ll be blogging about appealing decisions in Montana divorce cases or Montana parenting cases.  See Part 1 of this series here.

One of the most important things to understand about filing an appeal with the Montana Supreme Court is that timing is everything.  In civil cases (including divorce/parenting/child support/maintenance), a notice of appeal must be filed in the district court where the case originated within 30 days of the date of the entry of judgment or order being appealed.  If you blow that deadline, an appeal may be impossible.   In the event your case involves the State of Montana as a party or a political subdivision as a party, you may have a 60 day deadline.

When you begin reviewing the Montana Rules of Appellate Procedure, you will notice that there are many specific requirements for the pleadings.  Word limits, paper color, cover pages, font/size…it can get pretty confusing if you are not familiar with the rules or do not know where to look.  Luckily, the Montana Courts website includes an Appellate Filing Guide for guidance.

Appealing a Montana Divorce Case or Appealing a Montana Parenting Case

Montana’s Constituion allows for direct appeals from Distrt Court judgments or orders (whether the case is civil or criminal), directly to the Montana Supreme Court.  Unlike many other states, Montana does not have an intermediate appellate court.  Instead, cases go directly from District Court to the state Supreme Court. 

The party that initiates an appeal is called the “Appellant.”  The party responding is called the “Appellee” or “Respondent.”  Appellate is a very different animal than district court.  Appellate procedure has its own set of rules, separate from the Montana Rules of Civil Procedure.  The appellate rules are called the Rules of Appellate Procedure and can be found in Title 25, Chapter 21 of the Montana Code.  

The Montana Supreme Court is located in Helena, MT.  This means that any documents filed in your appeal are filed in Helena and any oral argument would take place in Helena (except in a few very limited circumstances).  Oral argument does not happen in all cases.  In fact, many appeals never require an appearance in person at the Montana Supreme Court.   The great thing about that is Montana litigants have a much larger pool of attorneys to choose from.  You could easily hire an attorney at the other end of the state to handle an appeal.  All the documents go to the place regardless ofwhere you live! 

If you are appealing a family law case from a Montana District Court to the Montana Supreme Court, you will likely have to head back to mediation.  Under Rule 7 of the Montana Rules of Appellate Procedure, domestic relations (divorce/parenting/child support/maintenance) cases are submitted to mandatory appellate alternative dispute resolution (i.e. mediation).   

Because appellate procedure can be very different from regular district court rules, many litigants choose to use a different attorney for appellate work than for district court/trial work.  It can often be beneficial to have a fresh set of eyes look at your case or prepare it for appeal.   Most importantly, you want to be sure to utilize someone with appellate exprience and with experience in research and brief writing.