Bye, Bye Bucks
By: Dr. 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 two million dollars 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 worldwide 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?
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 usually 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 support. However, there are many decisions overturning alimony awards as too high or too 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.
Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Mr. Gora may be reached by e-mail at mhgora@sbwlawfirm.com.
