In Montana, an appeal from a divorce or dissolution case must be filed within 30 days after the entry of judgment. If you fail to file your appeal before that deadline, you may lose the ability to appeal. However, there are procedural issues which can occasionally extend the window for filing. Even if you think your time has run, it’s important to contact an appellate attorney immediately to determine whether you can still file.

An appeal is not a new trial. Following an unfavorable decision from the trial judge, people often want another chance to present their case. This is not what a divorce appeal is for. Instead, the Montana Supreme Court will be reviewing the District Court’s decisions for mistakes. The question on appeal is not whether you should have won. Instead, the appeal asks whether the District Court make errors.

The Record on Appeal

When you file an appeal of your divorce case you do not get a re-trial. Instead, the appellate court, in this case the Montana Supreme Court, will take another look at what happened before and determine if any mistakes were made. This is called appellate review and it is basically the same in a dissolution case and in a criminal defense case.

This means that the record is extraordinarily important. The record basically consists of two things: 1) the filings in the district court; and 2) the transcripts of what happened in court.

The filings consist of everything you filed, your spouse filed, and the court filed. Usually, one of the most important documents in that file on appeal is the Decree of Dissolution. This is the order from the Court that officially ends your marriage. It should incorporate the terms of the ordered property distribution and parenting plan (if you have minor children).

Not all transcripts are necessary for appeal. Depending on what you’re appealing, you may need the transcript from trial or just from a hearing. This is ordered from the court reporter and has to be filed with the Supreme Court along with everything else. It lets the Supreme Court know what actually happened at trial. It’s not perfect because it’s like reading a script instead of seeing the actual movie – but it’s invaluable on appeal.

One thing to remember is that you can’t present new evidence on appeal. This isn’t a chance to redo the things you forgot to do at trial. The things that happened at trial are going to be reviewed by the Montana Supreme Court to see if legal mistakes were made. That makes it incredibly important to present all your evidence at trial.

Types of Error

The types of errors the Supreme Court will look at in a divorce case are the same as they would in any case. There are multiple standards that the Supreme Court will consider on appeal, but the most common are “mistake of law” and “abuse of discretion.”

In a divorce appeal, a mistake of law might mean that the judge applied the wrong law to the issue at hand. When the Supreme Court is addressing a claimed mistake of law they conduct what’s called a de novo review. This means that the Supreme Court is making up its own mind about what law should have been applied and how it should have been applied.

An abuse of discretion is a more difficult standard to meet. These generally apply to factual findings made by the District Court. Because the trial judge was there to actually see witnesses testify and hear evidence, the Supreme Court gives a certain amount of deference to the judge and assumes that his decisions are correct. It’s not impossible to overcome that presumption, but it’s a bigger hill to climb.

Property Division Appeals in Divorce

A common reason for appeal following divorce is the property division. Courts are required to divide property equitably. This doesn’t necessarily mean even, and you may not be happy with the Court’s idea of equitable. Also, factoring premarital property into the marital estate is often a disputed part of the case. And disputed parts of the case often lead to appeal.

If you’re unhappy with the way the District Court divided your marital estate, you only have 30 days for the entry of judgment to file an appeal. There are certain circumstances that can extend that, so even if you’re beyond the 30 days and want to appeal you should still contact a divorce appeals lawyer immediately.

 

Child Custody Appeals in Divorce

Another part of divorce cases that is often appealed are child custody determinations. If you are divorcing in Montana and you have minor children, the law requires the judge to order a parenting plan which includes a residential schedule for your children. You and your Ex may not agree on how much time the children should spend where. If the District Court makes a child custody determination you are unhappy with you can appeal that decision just like any other. But remember, you only have 30 days to file that appeal as well.