Factors to Consider When Deciding Whether to Appeal

You tried your custody case in Maryland and you are unhappy with the Judge's decision. Now you are considering whether or not to appeal the decision. In considering your options, you should understand the legal frame work within which your appeal will be heard.

First of all, you must understand that, except in the most unusual circumstances, the appellate court will not consider new evidence or testimony. The appellate court will review the evidence and testimony presented at the trial.

Second, and most imporantly, is the legal standard to be applied by the appellate court when considering your appeal. The standard of review to be utilized in considering a decision of a trial court after a bench trial is well established by the appellate courts. As stated by the Court of Special Appeals in Brown & Sturm v. Frederick Road LP, 137 Md. App. 150, 768 A.2d 62 (2001):

"In a bench trial like this one, 'the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.' Md. Rule 8-131( c). The trial court is thus the gatekeeper for receiving and weighing the evidence. In contrast, we are bound by the trial court's evidentiary findings, and we will not disturb those findings on appeal if they have support in any competent material evidence, even if we would have reached a different conclusion regarding that evidence. Barnes v. Children's Hosp., 109 Md. App. 543, 553, 675 A.2d 558 (1996); Mayor & Council of Rockville v. Walker, 100 Md. App. 240, 256, 640 A.2d 751 (1994). Likewise, for mixed questions of fact and law, such as the questions posed by the appellants, we will affirm the trial court's judgment when we cannot say that it evidentiary findings were clearly erroneous, and we find no error in that court's application of the law. Bowers v. Eastern Aluminum Corp., 240 Md. 625, 626-27, 214 A.2d 924 (1965)." Id., 137 Md.App. at 170.

This standard of review has been applied equally to matters involving child custody. Maness v. Sawyer, 180 Md. App. 295, 950 A.2d 830 (2008)("because only [the trial judge] sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.")

Therefore, unless you can show the that trial court erred in applying the applicable law or that the judge's findings of fact were clearly erroneous, it is unlikely that the appellate court will reverse the trial court.

Finally, an appeal is an expensive process.  The appellate courts have very explicit rules on the format and number of copies of briefs that are filed in their courts.  In addition, the party bringing the appeal is required to file a specific number of copies of a record extract, which is a bound version of the transcript and evidence that that party believes supports their position.  The costs to prepare these documents and then have them bound and copied can be extremely high.  Further, the party bringing the appeal has an opportunity to respond to the brief of the other party.  Finally, the appellate courts typically hold oral arguments.  This is an opportunity for the attorneys for each party to present to the appellate court thier arguments in favor of their positions and respond to any questions the judges may have.  All of this requires significant time by the attorneys.

The appellate court has three options available to it.  First, the appellate court can affirm the decision of the trial.  This means that the trial court's decision is upheld. Second, the appellate court can reverse all or a part of the trial court's decision and remand the matter back to the trial court for further proceedings.  Third, the appellate court can reverse all or a part of the trial court's decision and replace the trial court's ruling with a ruling of its own.  This is very rare.  Accordingly, if you are lucky enough to succeed on your appeal, most likely, the appellate court will send you back to the trial court for further proceedings. 

When considering your alternatives, you will need to evaluate the likelihood of success against the costs to pursue the appeal.  All the foregoing having been said, you should speak with an attorney versed in appellate practice to determine whether your appeal has a likelihood of success.