Setting Yourself Up for Success on Appeal: Considerations for the Family Law Attorney by Elizabeth Savage, OTLA Guardian We’ve all been there: you sit down after closing argument, heart still racing, able to relax a bit for the first time in hours, or even days. Legal pads and exhibits litter the table in front of you. Your client sits ramrod straight next to you, their gaze fixed upon the judge. You know without looking the scene at the other table is the same. It’s been a hard-fought battle, but finally, justice is about to be served. The court begins with its factual findings, a custom that creates an atmosphere akin to the elimination portion of a reality competition show — one where the stakes couldn’t be higher. At some point during those findings, it begins to dawn on you, gradually and then all at once, you lost. Your client realizes it a second or two later, and you motion for them to stay still and quiet as the court delivers its rulings. You gather yourself enough to ask some questions, or answer them, as details are ironed out. But a part of you remains dazed and dismayed with the result. As soon as you are out of the courtroom, having gathered up your things and shuffled out, your client begins peppering you with questions. “Why didn’t the court consider this? How could the judge believe their testimony over mine?” And of course, the big one: “What happens now?” To that question, you might explain the attorneys will circulate a form of judgment. Or you might explain that your client needs to start observing the court’s rulings immediately, which might mean transferring real property, assets or children to the other side, despite their deep misgivings. I have yet to meet an attorney who answers the question, “what happens now?”, with the answer, “Now, we appeal.” And for good reason. Domestic relations decisions are reviewed for abuse of discretion1 — meaning the trial court’s getting it wrong is not nearly enough to warrant a reversal. The court’s factual findings will be left undisturbed so long as they are supported by any evidence on the record. The client’s complaint is often that the court gave more weight to the evidence or testimony presented by the other side and not enough weight to the evidence you presented. But weighing evidence is part of the court’s factfinding mission and arguing the court weighed the evidence incorrectly has rarely won an appeal. Under the abuse of discretion standard, the Court of Appeals asks only whether the trial court’s decision was within the range of legally correct outcomes. Only a determination that is plainly unsupported by reason or evidence will be reversed. When I explain that last bit to a potential client, I can see the light going out of their eyes. As an attorney who handles family law appeals, I spend many consults talking myself out of a job. If the abuse of discretion standard doesn’t get them, the amount of time and money an appeal will take almost certainly will. And personally, I don’t feel good about taking that much money unless I’m fairly confident of the outcome. So, when does an appeal make sense? When the trial court’s mistake wasn’t in how it weighed the evidence but in how it interpreted and applied the law. While a trial court’s findings of fact are entitled to deference, its interpretation of purely legal questions is not. An error of law — a decision that does not turn on the trial court’s factfinding but is simply an objectively incorrect interpretation of Oregon law — forms a solid basis for an appeal. What does legal error look like? A few examples I’ve come across include: (1) explicitly applying the presumption of equal contribution to a domestic partnership proceeding, (2) denying without comment or procedural grounds, a facially sufficient motion for order to show cause, and (3) treating one spouse’s social security disability treatment as a marital asset subject to the presumption of equal contribution. These types of determinations present pure questions of law, namely, does the law permit this result? A trial court does not have discretion to do that which the law does not permit. A pure legal error is a good foundation for an appeal. If what is at stake is worth the cost and will not be mooted by delay of a year or two, then maybe you’ve got a good reason to appeal. Another important consideration is preservation. As fellow family law appellate attorney Tyler Belerin, of Brincat & New, PC, ELIZABETH SAVAGE specializes in appeals, personal injury and family law. She is co-chair of the OTLA Amicus Committee. Savage operates Elizabeth Savage Law, 7805 SW 40th Ave., #80278, Portland, OR, 97219. She can be reached at 971-430-4030 or elizabeth@savage-attorney.com. 36 Trial Lawyer | Summer 2024
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