The appellate, or appeals, process is the part of the law where errors committed by the trial court can be reviewed by a court of appeals. Your Lincoln, Nebraska appeal attorney handles all types of appellate action whether an error in a family law case, criminal action, in the bankruptcy court, business and contract law, or a variety of other cases.
It’s important to review with your legal appeal attorney the merits of your appeal action. In most Nebraska cases, a notice of appeal must be filed within 30 days after a final order of the trial court. In Nebraska divorce cases this is the entry of a Decree, in criminal cases this is the sentence, in most other cases this is the entry of a Judgment or Order. If a Notice of Appeal is not filed timely, you lose your chance to appeal.
The legal appeal process is a long process and it is important to review your case with us as soon as possible so that we can fully understand and best advise you of the process. This is especially important if we didn’t represent you in the original action.
Here are a sample of decisions appeal attorney Ryan D. Caldwell has been involved in (You can click on the link to find the Court’s Opinion):
Lower Court issued a domestic violence protection order against an ex-spouse of the petitioner, the client. The summary of facts point out that the parties were on a telephone call and got into a fight and the client proclaimed he would beat the petitioner in a custody battle, which the petitioner took as a threat of violence. Nebraska Appeal Attorney Caldwell successfully argued that the petitioner could not have reasonably believed she was in imminent danger since the “threat” occurred over the phone when the client was two counties away. The Nebraska Court of Appeals dismissed the domestic violence protection order. Nebraska Court of Appeals (Case No. A-10-057)
Removing Child from Nebraska:
Custodial mother of child recently married a man serving in the military. She wanted to remove the child she shared with client to another state to join her new husband on a military base. The trial court denied the request stating it was not in the child’s best interest to be removed from Nebraska and be separated from his father and extended family. Mother appealed. Nebraska Appeals Attorney Ryan D. Caldwell successfully argued that the move would not benefit the child and would do more harm to the father-child relationship and thus was not in the child’s best interests. The Nebraska Court of Appeals ruled in favor of the client. Nebraska Court of Appeals (Case No. A-11-446)
A father of two children began modification of a paternity decree action requesting a change in custody. Father failed to provide sufficient legal notice to client to make her aware that a hearing was being held to determine custody. The trial Court asked the father, at trial, if he provided notice to client, and he answered affirmatively. The trial judge stated he believed the client received adequate notice and allowed the trial to begin. The principal at the children’s school was called in to testify. The court eventually continued the trial to conclude on another day. The principal informed client that a trial was being conducted and client sought legal representation. At the continued trial, the judge allowed client to participate, however, could not call any witnesses who previously testified at the previous day of trial. The trial court awarded the father custody of both children. On appeal, Lincoln, Nebraska Appellate lawyer, Ryan D. Caldwell successfully argued that client was not provided legal service and proper notice of the trial and the court’s questioning of father prior to trial was not under oath, thus not proper evidence to consider. The Nebraska Court of Appeals reversed the custody determination and required a new trial. Mann v. Rich, 16 Neb.App. 848, 755 N.W.2d 410 (2008)
Modification of Custody Decree
Father petitioned for a change of custody a mere four months after the court initially awarded mother, the client, with custody of the parties’ children. Trial court indicated it would only hear evidence of events that transpired during that four month window to determine whether there was a change of circumstances. Trial didn’t occur until over three years later due to appeals and delays. Despite the four month window of evidence, the parties did provide some evidence outside of that time-frame. The trial court awarded father custody of the children. On appeal, Omaha Appellate Attorney, Ryan D. Caldwell, argued that father was not justified in filing a modification action four months after the initial custody determination and then waiting years before bringing the case to trial. Caldwell also argued that events that occurred in the past are not as important as events which are more more recent because they are more relevant to the current situation. The Nebraska Court of Appeals agreed and reversed the change of custody and ordered a new trial to determine custody of the children. Mann v. Rich, 18 Neb.App. 849, 794 N.W.2d 183 (2011)
Modification of Custody, Removal from Jurisdiction and Child’s Testimony
Divorced couple previously modified divorce decree to award joint custody to parties and allow mother, client, to remove the child during her portion of custody out of the state of Nebraska. A break-down in communication commenced and the parties requested the trial court to modify the decree, each party asking for custody. Client requested the child to testify on-camera outside of court to give his preference of parent, but the trial court denied the request. Father argued that since client was not in Nebraska, she should have to prove that removal out of Nebraska is in the child’s best interest. In the end, the trial court determined that there was not a material change in circumstances from the previously agreed modification to warrant modification. During argument before the Nebraska Court of Appeals, both parties argued that the parties’ failure to communicate is a material change of circumstances. Nebraska Family Law Appeal expert attorney, Ryan D. Caldwell also successfully argued that the trial court committed an error by not allowing the child to testify and that client need not establish that removal would be beneficial to the child because the parties had already agreed to a removal during the previous modification. The Nebraska Court of Appeals reversed the decision of the trial court and required a new trial. Donscheski v. Donscheski, 17 Neb.App. 807, 771 N.W.2d 213 (2009)