Preserve Your Case for Appeal

In August of 2011, a divorce case started, Harris v. Harris. A few weeks ago, on October 28, 2014, the judgment of the trial judge in the original trial in this case was upheld by the Missouri Court of Appeals No. SD32851.

The loser at trial, the father, Mr. Harris, appealed on three grounds.

Three court of appeals judges presided over this particular appeal. Interestingly, one of them was Judge Mary Sheffield. Back when I started practicing law, she was one of the 25th Circuit’s two Circuit Judges. She moved to the appeals court back in 2012.

The first judge ruled: Father loses on Points I, II, and III because he didn’t preserve any of the points for appeal.

The second judge concurred with the result saying Point I wasn’t preserved, but Points II and III were and should lose on their merits. This opinion was the longest.

The third judge (Mary Sheffield), with the shortest opinion, agreed with the first judge on Points I and II (saying those issues were waive) and agreed the second judge on Point III saying it should have been denied on the merits.

As far as I can tell, then, the rationale behind the denial on point I was unanimously upheld and therefore controls.

The rationale of the first opinion on point II had two out of three votes and therefore controls. The rationale of the second opinion on point III had two out of three votes and therefore controlled.

Point I: The Judgment calls Mother’s physical custody “sole” while the parenting plan calls it “joint.”
Unanimous decision: this sort of inconsistency must be specifically brought to the trial court’s attention. He must have a fair shot at correcting any mistake like this. A party cannot

Point II: The Decree calls Mother’s custody “sole” but gives Father about 75 days of custody a year (page 6). By definition, 75 days of custody is “joint physical custody.”
Two out of three judges: This issue must be specifically brought to the trial court’s decision—same as point I.

Point III: The Decree was just plain wrong when it gave Mother most of the custody with Father only getting 75 days of custody. There was not enough evidence (no substantial evidence) supporting the trial court’s decision.
Two out of three judges: This issue was preserved for appeal. The merits should be analyzed. Father should till lose.

Judge Lynch disposed of all three issues with the same basic argument: You didn’t give the trial judge the opportunity to fix the error, so you can’t bring it before our court to fix the error. The fact that two of the three points on appeal get shot down so easily emphasizes the importance of preserving claims for appeal. If there is any are in the case where the trial judge made a mistake, be sure to attack that issue immediately and allow the judge to fix his error. If he fails, then at least the issue can be brought before the appeals court.
Interestingly, Judge Rahmeyer believed that Lynch overstepped this basic and vital principle on two of the three issues. Rahmeyer argues: “”No court thus far has interpreted Brown[, an earlier case on this point,] to require preservation of a broad contention regarding the sufficiency of the evidence.” As explained by Rahmeyer and multiple case citations is this: When the issue is relatively small, like an objection to the admissibility of evidence or the error between calling it “sole custody” in the Decree and “joint custody” in the parenting plan, it simply makes no sense to go through the exhaustive and expensive ordeal of an appeal when the issue can quickly and easily be dealt with by the trial court.

If, after giving the trial court a chance to fix what the party sees as a mistake (legal error), then the appeals court is an appropriate referee to resolve the issue.

Rahmeyer argues that on Points I and II the issue at stake isn’t a specific issue that could have been resolved relatively simply by the trial judge. Everyone knew, Rahmeyer argues (the GAL, the two attorneys, the parties, the judge) that they were fighting over the ultimate custody of the child. Therefore, the matter WAS constantly and thoroughly brought before the trial court to make a judgment. When the party that believes the judgment is wrong appeals the judgment, he can do so knowing that he has preserved his appeal all along by the very process of litigating the case.

Ultimately, I side with Judge Sheffield in her opinion that Judge Lynch got it right on points I and II and Judge Rahmeyer was only correct as to point III.

Point II really is more like Point I than it is like Point III. The question of Point II (does 75 days of custody constitute “Joint” or “Sole” Physical custody) could easily have been brought to the Court’s attention with a simple motion stating that the custody awarded by the Court must be called Joint because designating the custody as “sole” to Mother would be a legal error. There was no overarching contention that reached into all the areas of the judgment. There was simply this single legal question with the relevant facts already established. This particular point doesn’t ask the question “Is it best for the child that Dad only gets 75 days?” but merely asks, “Isn’t 75 days of custody ‘substantial’ and therefore ‘joint’ custody?”

Judge Rahmeyer tries to argue Points II and III as if they are the same, but they are not. Point II is a simple, narrow question. Point III is much broader: did the judge have the evidence before him necessary to justify the specific award of custody that was granted?

Judge Lynch thought this last question could be dismissed with a mere shrug of the shoulder: No preservation for appeal.

The problem with this is that even Missouri Statute specifically states the issue of “sufficiency of evidence to support a Judgment” can be appealed even without a Motion for New Trial. You don’t have to try to put everything back before the trial judge and hope for a better ruling before taking the whole matter before the appeals court. One of the fundamental concepts of “preserving points for appeal” is that you don’t want to waste time and resources on an expensive appeal without giving the trial judge the opportunity to fix his mistake. However, asking for and getting a whole new trial with a good chance you’ll get the same result is hardly likely to save time and resources.

A second and related fundamental concept of preservation is the idea that a trial judge can’t really be said to have made a mistake if no one ever points out that there is something that needs fixing. The problem in this third point, though, is that the whole issue of the case was how custody should be divided. The Father was claiming the whole time that he should get sole custody, so when he only got 75 days, it was obvious to everyone that Father’s position was: “Judge, you just made a darn huge mistake.”

Judges Rahmeyer and Sheffield agreed that the trial judge was told all along that Father believed he was making a mistake, and therefore, they believed the point was preserved for appeal.

Interestingly, everyone came to the same conclusion on all three points: Father lost. Point III is the most interesting because this point deals with the biggest, most far reaching issue. The reason Father lost is because the standard he had to meet was an extremely high standard.

Father argued that the trial judge did not have substantial evidence to rule as he did. The problem with this
standard is that, when you’re in Mother’s position, you have a very strong position that’s hard to lose: The appeals court takes all the facts in the record that support the winner’s position and make all reasonable inferences from those facts. If, after you take all those pro-Mother facts and make pro-Mother inferences, if you can see that the judgment makes sense, then the judgment stands.

In the end, it actually looks like Judge Lynch logically but not overtly agrees with the other two judges. In a footnote, he claims that Judge Rahmeyer is incorrect, but then adds this sentence: “Once opinion testimony has been admitted, as any other evidence, it may be relied upon for purposes of determining the submissibility of the case.”

An interesting thing (and a fairly common one) that happened in this case was that the Guardian Ad Litem did not offer any evidence at trial, did not himself testify, and did not at trial issue a recommendation. Rather, he submitted a parenting plan (ultimately accepted by the court) as his recommendation. The judge’s agree that this parenting plan is “evidence” and “expert opinion” of the GAL.

Judge Rahmeyer agrees that this is evidence and says that there was no need for Father to object to this evidence in order to preserve his point on appeal. Judge Lynch, by saying that no point was preserved for appeal, was essentially arguing that unless the Father directly attacked the GAL’s parenting plan before the trial court, he could not preserve a point on appeal. But there is, in fact, no requirement that evidence be objected to in order a judgment wrongly based on that evidence to be appealed. This is because evidence can be “admissible” without supplying “substantial evidence” to support a judgment. Whether evidence is “admissible” on the one hand or whether it is sufficient to supply “substantial evidence” to support a judgment on the other hand are two entirely different points.

The admissibility of evidence must be addressed at the outset. One must object to inadmissible evidence in order to preserve issues arising from that issue for appeal.

Contrarily, admissible evidence that simply does not support a judgment can be admitted all day long and still result in a judgment that no substantial judgment to support it.

Judge Rahmeyer argued that the GAL’s parenting plan was admissible evidence that Father believed was insufficient to support the judgment. Judge Rahmeyer then addressed the merits of the claim and pointed to several facts from which the judge could have made inferences leading him to his final conclusions and judgment.

Judge Lynch appears to want to have his cake and eat it, too. In the body of his opinion he says that Father’s issues here was not preserved for appeal, but in his footnote he says that the GAL’s evidence “may be relied upon” by the trial judge. On that last point, Rahmeyer and Lynch agree: there is no question that the judge had the right to rely on the GAL’s parenting plan.

Judge Lynch uses this simple fact (the parenting plan can be relied on to reach the judgment) to incorrectly conclude that Father needed to attack the GAL’s recommendation directly in order to preserve an appeal. This conclusion negates the principle that a party does not have to (a) ask for a new trial or (b) cross examine every witness in order to appeal a case.

Further, Judge Lynch’s footnote is basically an oblique admission that “See, the Court did have substantial evidence.” In other words, the footnote obliquely decides the issue on the merits. But the implication “because the case loses on the merits, Father should have attacked the GAL’s opinion to preserve the point on appeal” is logically fallacious.
A few take away points:

1. Turn off your Facebook when you’re involved in a custody case. I didn’t talk about it in this post, but there are many references to Father’s many off-color and downright despicable Facebook posts that surely played a role in the trial judge’s decision and GAL’s opinion. Attorneys—advise your clients to turn off their Facebook accounts.

2. Preserve everything for appeal.

3. Sometimes a motion for new trial just isn’t worth it. But how do you know that you aren’t giving up a valuable issue on appeal by not asking for a new trial? If you think the judge made a mistake, try to decide if the issue relates to a specific allegation of error or something that reaches much farther into many issues of the case. Be sure the specific issues are brought before the trial judge for a decision. You might skip the “motion for new trial” stage if you think the judge is unlikely to change his mind and the issues at stake are the broad, far reaching issues underlying the whole case.

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