An Ohio divorce is a very complicated, emotional, and intricate process. There are many different inter-workings of the process that can only be explained and illustrated by an attorney experienced in the field. For instance, many hearings in a domestic relations or family law court are heard in front of a Magistrate and not a Judge. How does a Magistrate differ from a Judge? What happens if the Magistrate issues a decision in my case that I do not agree with? What if my case is in heard in front of a Judge and I do not agree with the outcome? To answer these questions, your attorney may explain to you the appeals process and how it works at each level of your case.
Appealing a Magistrate’s Decision/ Order
Magistrates are similar to Judges in that they hear your case and make a decision based on the evidence and arguments presented to them. However, Magistrates are not elected officials as are Judges, rather they are hired by Judges to help ease the caseloads on the Judges by presiding over hearings and performing other tasks requested by the Judge or Judges of the Court. Because Magistrates aren’t elected by the people, the Ohio Civil Rules allows a Judge to review orders or decisions issued by Magistrate’s under a de novo standard of review. Simply put, this means the Judge will review your case as if he or she is hearing it for the first time. This standard somewhat differs from the standard used by the appellate courts which will be discussed later.
In almost all counties in Ohio, the temporary orders hearing, which is the initial hearing in a divorce case, is heard in front of a Magistrate. The Magistrate will hear arguments (or evidence depending on the county you are located in) and issue an order regarding how both parties are to act financially and as parents during the divorce process. This is referred to as a Magistrate’s Order and a party who disagrees with a Magistrate’s Order has ten (10) days after the filing of the order to appeal the order of the Magistrate to the Judge assigned to the case. If you wish for the attorney representing to appeal the Magistrate’s Order, your attorney will file what is called a Motion to Set Aside and also request a copy of the transcript from the Court reporter. It is important to note, that whether you are appealing to the Common Pleas Judge, the Appellate Court, The State Supreme Court, or even the United States Supreme Court, each level requires the appealing party to prepare a transcript of the proceedings at the cost of the appealing party. Transcripts can get expensive, especially if your hearing lasted for a day or more.
After your attorney has filed your Motion to Set Aside and requested a transcript, the Judge assigned to the case will schedule your Motion to Set Aside for an oral hearing at which time your attorney and your spouse’s attorney will present arguments to the Judge as to why the order should be changed, modified, or upheld. The judge then will then review the transcript of the proceedings and issue a decision. It is again important to note, that if the Judge does not have the transcript to review, it is likely your appeal to the Judge will get dismissed and you will be stuck living by the order until the case is over.
Magistrates are able to hear full trials on your case, and in some instances jury trials in other types of cases, and this procedure will stay the same if you disagree with how a Magistrate finally disposes of your case. Only the name and time for filing your appeal is changed (Objection to Magistrate’s Decision and fourteen (14) days after the filing of the decision).
When can I Appeal a Judge’s Decision
In order to appeal a decision made by a Judge, the decision must be final. The Ohio Rules of Civil Procedure and case law prevent what are called interlocutory appeals which means there has not been a final disposition of the case and therefore, it is not ripe for appeal. In fact, an Appellate Court will only hear an interlocutory appeal if a substantial right of the appealing party is at risk of being harmed. This is a hard to standard to meet and in most Ohio divorce cases, interlocutory appeals are not entertained by the Appellate Court.
You can appeal a decision handed down by a Judge when the Judge issues a final appealable order. This is an order that brings a final resolution to all the issues in the case. Again, a transcript of the hearing in which the order arose from will need to be requested and prepared for the appellate court to review. The timeline to file a notice of appeal after a Judge’s decision is thirty (30) days and only extends beyond that with leave from the Court for good cause shown. It is best to not take any chances and file your appeal within the thirty (30) day timeframe.
The Appellate Court Process
After you have filed your notice of appeal, your attorney has much work ahead of him. Your attorney must prepare an appellate brief based on the transcript and the relevant case law related to the disputed issues in your case. The state of Ohio is divided up into twelve (12) appellate districts. Each appellate district is in charge of at least one or multiple counties. It is a difficult idea to grasp for a layperson, but these appellate districts set precedent for their specific counties. In other words, what may be a correct application of law and statute in Summit County (9th District) may not be the correct application of law and statute in Stark County (5th District) or Cuyahoga County (8th District). Different appellate districts applying the law differently is another major reason why having an experienced domestic relations attorney on your side is of extreme importance in domestic relations appeals. A good Ohio Domestic Relations Attorney will be able to effectively locate the correct case law and apply past precedent in the correct appellate jurisdiction to make a persuasive argument for your case.
The standard for an appellate review of a Judge’s decision is different than discussed above. Above, we discussed how Magistrate’s orders and decisions are reviewed by a judge using a de novo standard of review. Although there are certain types of cases in which an appeals Court can use a de novo standard of review, this is not usually the standard of review used by appellate courts in divorce appeals. Often times, an appellate court will use what is known as an abuse of discretion standard of review. This is the standard of review that is commonly used in appeals of a custody decision standard handed down by a Judge. This standard is also a lot tougher than the Judge’s do novo standard of review, because in order for an appellate court to find a lower court abused its discretion, the appellate court must find that the decision arrived at by the lower court judge was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140. It must be stressed that it is extremely difficult to get a Judge’s decision overturned using an abuse of discretion standard. As previously stated, there are several different standards of review used by the appellate courts. Discussing your case with an experienced domestic relations Attorney is important to see where you stand and what your odds are of getting a favorable appellate review.
What Happens if the Appellate Court Does Not Rule in my Favor?
If the appellate court does not rule in your favor on appeal, there is one last ditch effort to change the ruling handed down by the Judge. That last-ditch effort is a writ of certiorari to the Ohio Supreme Court. Unlike the appellate Court that governs your district, the Ohio Supreme Court is not required to hear your case. The Court is given the discretion to pick and choose which cases it hears. It is very unlikely that the Supreme Court will pick your case to hear and set precedent on unless it meets one or more of its several criteria. There are several different circumstances the Supreme Court will look for when deciding whether or not to accept your case for consideration. One of those circumstances is whether there is conflict among the appellate districts as to how facts should be applied to the law. For example, the Supreme Court may hear a case that was decided one way in District 3, 9, and 12, but similar cases with similar fact patters were decided differently in districts 8 and 10. Again, discussing your options with an attorney is of the utmost importance before spending mass amounts of time and money on an application to the Supreme Court.