Divorce appeals are necessary in cases in which the trial court made an error of law. However, there are also other vehicles for relief prior to filing a divorce appeal.
Motion for New Trial
Oregon Rules of Civil Procedure (ORCP) Rule 64 allow for a new divorce trial under the following circumstances:
- Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having fair trial,
- Misconduct of the jury or prevailing party,
- Accident or surprise which ordinary prudence could not have guarded against,
- Newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial,
- Insufficiency of the evidence to justify the verdict or other decision, or that it is against law, or
- Error in law occurring at the trial and objected to or excepted to by the party making the application.
Note: Oregon divorce trials are tried to a judge and not a jury, and the factors above apply to more than just divorce trials.
Motion to Set Aside or Vacate a Judgment
Oregon Rules of Civil Procedure (ORCP) Rule 71 allows a court vacate or “set aside” a judgment based on:
- clerical mistakes,
- mistake, inadvertence, surprise, or excusable neglect,
- newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 64 F,
- fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party,
- the judgment is void, or
- the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
Motion to Modify a Judgment
Aside from retrying the whole divorce case, retrying part of the divorce case, setting aside the entire judgment, or setting aside part of the judgment, a party can request that the court modify part of a judgment by filing a Motion to Modify a Judgment. ORS 107.135 allows a party to vacate or “set aside” portions of a judgment. The court may:
- Set aside, alter or modify any portion of the judgment that provides for the appointment and duties of trustees, for the custody, parenting time, visitation, support and welfare of the minor children and the children attending school… including any health or life insurance provisions, for the support of a party or for life insurance,
- Make an order, after service of notice to the other party, providing for the future custody, support and welfare of minor children residing in the state, who, at the time the judgment was given, were not residents of the state, or were unknown to the court or were erroneously omitted from the judgment,
- Terminate a duty of support toward any minor child who has become self-supporting, emancipated or married, and
- After service of notice on the child in the manner provided by law for service of a summons, suspend future support for any child who has ceased to be a child attending school
Some provisions of a judgment may not be modified (such as a property award or compensatory spousal support), but other provisions may be modified (such as parenting time and transitional spousal support). For more information on what provisions may be modified– and to what extent– contact an attorney.
Divorce Appeals in Oregon
Statistically speaking, the Oregon Court of Appeals and the Oregon Supreme Court have a very strong tendency to uphold trial court decisions unless there is legal error or unless there are no facts to support a trial court’s ruling. The Oregon Court of Appeals is one of the busiest appellate courts in the nation. Most cases that are appealed are affirmed without an opinion. The legal slang for this is “AWOPed.” This means that the appellate court leaves the trial court ruling alone, and does not issue a written opinion as to why the appeal was denied.
Oregon Appellate Courts for Divorce and Family Law Cases
Divorce cases in Oregon are tried at the Circuit Court level. Appeals are then filed in Oregon’s Appellate Courts. Oregon has two appellate courts: the Oregon Court of Appeals, and the Oregon Supreme Court. In most cases, the Court of Appeals is the appellate court that decides whether the trial court’s decision should be affirmed, affirmed in part, reversed, or reversed in part.
Oregon Court of Appeals
The Oregon Court of Appeals is one of the busiest appellate courts in the country. This court is typically the first step in the appellate process for Oregon divorce or family law appeals. If a party files an appeal, the opposing party files a response. If the Court of Appeals believes the matter appealed is important, a panel of judges will discuss the case and then issue a written opinion. It can take several months for the court to decide a case.
Oregon Supreme Court Review
After the Oregon Court of Appeals decides a case by affirming without an opinion, or writes an opinion, either party can ask the Oregon Supreme Court to review the decision of the Court of Appeals. The Oregon Supreme Court reviews only a small percentage of the cases decided by the Oregon Court of Appeals. If the Oregon Supreme Court does review the decision of the Oregon Court of Appeals, it will write an opinion that will affirm the decision of the Court of Appeals or reverse it. It is uncommon for matters to be appealed further than the Oregon Supreme Court unless the case involves a matter of federal constitutional law, in which case a party might appeal to the United States Supreme Court.
“Do I Have a Strong Case for an Appeal?” and “What are the Best Grounds For Appeal?”
The best grounds for an appeal exist when the trial court made a ruling that is inconsistent with existing Oregon law. That law could be the Oregon Constitution, Oregon Revised Statutes, Oregon Administrative Rules, or Oregon appellate case law. Good grounds for an appeal may also exist when the issue presented has not yet been decided by an Oregon Appellate court.