The last thing people want to deal with after a long, drawn out trial over custody or divorce is more court proceedings. But unfortunately, appeals are often the reality. Sometimes, it’s because someone didn’t get the result they wanted in trial court. Or maybe, the other side is appealing and you are forced to defend your hard-earned trial court victory.
New Hampshire has one state appellate court: the New Hampshire Supreme Court. The Supreme Court hears appeals from all New Hampshire trial courts (including the Superior Court and Circuit Court (which is composed of the District Division, Probate Division, and Family Division)).
Most appeals in New Hampshire are termed “mandatory” appeals. That means that the Supreme Court is obliged to accept them. However, a major exception to that rule is that many family law related matters (RSA Title XLIII) are not entitled to a mandatory appeal unless they’re a “first final order.” For example, if the family judge establishes a Parenting Plan for a child pursuant to a Divorce Decree, that would be a “first final order.” However, if a parent files a petition to modify that Parenting Plan down the road, the family division’s resulting order would not be a “first final order.” Non-mandatory appeals are called “discretionary” appeals.
The first element of a successful appeal is “preserving” the relevant arguments. As a rule, the NH Supreme Court will refuse to consider a particular argument on appeal unless it is “preserved” at the trial level — that is, the argument must be raised before the trial court. The most common way to preserve a particular argument for appeal is through a “Motion to Reconsider” (filed within 10 days of the trial court’s initial decision), though in some situations the argument must be raised via an objection at trial.
Appeals require a specific skill set. At most, 30 minutes of the entire appeals process will be spent before judges. Often, the entire appeal is conducted “on the papers”; that is, entirely through briefs. Briefs are the formal legal documents through which each side argues his or her position on appeal. Appellate briefs are typically more formal than trial court pleadings and require substantial legal research. For that reason, some attorneys are not comfortable handling appeals or recommend finding an attorney who specializes in appellate work.
Legal research and writing is so important on appeal because only “legal” (as opposed to “factual”) issues are before the Supreme Court on appeal. Factual findings by the trial court (for example, a finding that a child was left unsupervised for two nights) will not be overturned by the Supreme Court unless clearly erroneous.
Additionally, many determinations by the trial court are considered “discretionary” decisions, and will not be overturned absent a finding of “unsustainable exercise of discretion” (formerly called an “abuse of discretion”). For example, if the trial court determines that it is in a child’s best interest to reside primarily with his mother, that conclusion will not be disturbed by the Supreme Court unless there was an unsustainable exercise of discretion. The “unsustainable exercise” standard is extremely high, and the Supreme Court very rarely finds that a trial court’s discretion was exercised unsustainably.
That leaves purely “legal” issues as the most effective arguments before the Supreme Court. For example, if the family court applied the incorrect statute (RSA) to a parenting determination, the trial judge may have made a legal error. This type of legal error is considered a “question of law” and is reviewed “de novo” (literally, “of new”: no deference is granted to the trial court’s conclusion).
If you would like to appeal a trial court order, or if the opposing party is appealing an order which was favorable to you, consider contacting the attorneys at Welts, White, & Fontaine to assist with your appeal. We have decades of experience handling New Hampshire Supreme Court appeals and would be happy to discuss your case.
Author: Israel Piedra
If you’re interested in talking with the attorneys at Welts, White & Fontaine PC about a possible appeal or appeal defense, please contact us by clicking here or by calling (603) 883-0797. Welts, White & Fontaine is Nashua’s largest law firm and serves the legal needs of both individuals and businesses in towns such as Amherst, Milford, Hudson, Brookline, Windham, Hollis, Merrimack, Litchfield, Bedford, Londonderry, Pelham, and, of course, Nashua.
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.
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