No right to an automatic appeal in post-divorce cases

February 3, 2014 10:00 am Published by Leave your thoughts

New Hampshire is one of the few states that only has one court of appeal – the New Hampshire Supreme Court.  Most other states have at least one intermediate appellate court. Since one court cannot possibly hear every possible appeal in the state, the result is that it has a system for picking and choosing what cases it will hear.  There is a mandatory appeal for criminal cases and certain other kinds of cases, including final divorce cases.  Other family court cases, including  post-divorce cases — such as a dispute over child custody that occurs after the original divorce order — are only allowed a “discretionary” appeal. This means that the losing party can try to appeal, but must justify why an appeal should even be allowed, and the New Hampshire Supreme Court has no obligation to take the case.

This was well illustrated by the First Circuit Court of Appeals last week, when it rejected a claim by a father who wanted to appeal the Derry Family Division’s decision that he had misrepresented his income and therefore had to pay a large figure of back child support. The father happens to be a lawyer and was representing himself –never a good idea.  He tried to argue that the New Hampshire Supreme Court’s refusal to hear his appeal of the Family Division’s ruling was unconstitutional.  The First Circuit found no merit in his argument, noting that, in fact, there is no constitutional right to an appeal at all.

The moral of the story is that you must take whatever judge you are in front of very seriously.  Often we hear people, who are not happy with their judge, dismissively say something like, “that judge doesn’t know anything, I will just appeal.”  This is a big mistake. First, just because the judge did not go your way doesn’t mean he or she is making a mistake.  Somebody always loses and the knee jerk reaction is to blame the judge — usually without truly understanding or appreciating the basis for the ruling.  Second, even when you have the right to appeal, you should never expect to be bailed out by a successful appeal.  Appeals are very expensive to bring and most often are denied.  This is not to say that an appeal is never justified,  but having said that, you should generally assume that the judge’s decision is probably going to be final and take it very seriously.

 

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This post was written by Andrew Winters

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