By: Mike Gora
Q: My husband and I used to have a lot more money then we do now. After a year of litigation, and a two-week trial, we have spent about $2 million on lawyers, accountants, and psychologists in our divorce case. The trial was over two month’s ago and we still do not have a decision from the judge.
At the end of the trial which covered a custody fight, a fight over what assets were marital and what weren’t, a fight over the value of my husband’s world wide business interests, and my request for particular items in distribution of property, including our home, which my husband also wants, the judge asked both attorneys to submit a proposed judgment. Both attorneys sent in proposals over a month ago.
My lawyer told me that he could not predict the outcome on most of the important issues. Many questions boil down to whom the judge believed: me or my husband, my accountant or his accountant, my psychologist or his psychologist, etc.
My lawyer also told me that while I have a right to appeal any of the judge’s decisions, the appellate court is limited on the grounds for overturning a trial judge’s decision. Can you explain that for me?
Dr. Mike Gora
A: A very small percentage of appeals are successful because trial judges are given broad discretion under most circumstances. For instance, judicial decisions regarding the credibility of witnesses cannot be overturned.
According to our jurisprudence, trial judges are in a much better position to determine creditability than are appellate judges because they have seen the witnesses in person, and can consider their demeanor.
Discretion in decisions would include the amount of alimony to award, as alimony is not governed by a schedule, as is child custody and child support. A child custody lawyer would have the insight and experience to provide this assistance and achieve a more positive outcome than before. Child Family Law Experts, such as those found at Family Lawyers In Glasgow, are adept at helping you and your family mitigate the damage and distress during this difficult time, whether you opt for court proceedings or aim to settle matters amicably with your partner.
However, there are many decisions overturning alimony awards as too high or two low, based on the principle that such an award should not impoverish either party. Therefore, there is a limit to judicial discretion, which can form the basis for overturning a trial judge.
Other times, trial judge decisions are just wrong, as a matter of law. For instance, in valuation questions the judge has the right to accept the testimony of one expert or the other, or neither, but cannot insert his or her own opinion of value, or average the opinions of the experts.
Judges are often overturned, although they may have made a correct decision, because they did not make certain findings of fact required by the statutes and case law to show the appellate court exactly how the decision was reached.
The basic premise in the appellate court is that the trial court’s decision arrives there with a presumption of correctness, which must be overturned in order to have a successful appeal.