Introduction to Appeals 

First, I want to thank Peter Searcy for the music intro and then after that I wanted to talk about something that comes up in my practice all the time and that's appeals. People ask me, “Hey, if something happens in the trial court, can we just appeal it and be done with it and get this trial court reversed?” Let's go through that process and I'll explain as best as I can. 

I have done I don't know probably more than 100 appeals in a couple different states and here's what I can tell you. Number one, in order to appeal something, at least in the state of Kentucky, it has to be what's called a final and appealable order. So sometimes at the end of a judgment you get the court will write, “This is a final and appealable order. No just cause for delay in its entry.” And at that point, you typically have 30 days to file something called a notice of appeal. But it's also not that simple.

The reason it's not that simple is sometimes a judge will write that and it's actually not a final and appealable order. You can't actually appeal it even though the judge wrote that special language we need.

If something is what's called an interlocutory order, then you can't appeal it until the case is final. So, if it's a ruling on something in the middle, let's say the judge orders one side to advance attorney fees for the other side, you can’t appeal that decision.

I had a case once years and years ago where the judge made a ruling in my favor, which threw out a prenuptial agreement. The other side appealed that and I told them, "Hey, you can't appeal that right now. It's interlocutory. You can't appeal it till the very end." Well, they disagreed with me and I waited and waited and waited until they filed their brief. At that point, I filed a motion to dismiss it, saying, "This is this is interlocutory. It's not appealable yet." The court of appeals agreed with me, dismissed the appeal and said, "You can do it later, but you can't do it right now because the case isn't over".

The Appeal Process: Initial Steps 

Let's assume though that you've litigated the case.  You've gone to trial. The judge has issued an order. What do you do next? You don't like the order. You think there's some legal error or factual error in it. Well, the first thing you have to do is you have to file something called a motion to alter, amend, or vacate and/or a motion for additional findings. It's a motion saying, "Judge, you got this wrong for the following reasons. There's a case out there that that disagrees with your legal interpretation. You got the facts wrong here or you did a mathematical error.” 

All of those things I've seen happen over the years. Most of the time you have to give the trial court the opportunity to fix its error. Sometimes if you don't file that motion to amend, alter or vacate and/or motion for additional findings of fact you can lose in the court of appeals just because of that.

So let's go through this process. You file that motion to amend, alter or vacate. You have filed that motion for additional findings of fact before the judge. The judge typically gives the other side an amount of time to file a response. The other side files a response, the judge gets it, and most of the time they overrule. Okay? They you going back to the same judge and say, "Judge, you got it wrong." And they're like, "No, I didn't. I just looked at that. How can you tell me I got it wrong? I looked at this 30 days ago. My opinion hasn't changed."  So, most of the time, they'll tell you, "Hey, you're overruled." 

Once that new order comes out, you have 30 days to file a notice of appeal. Not only do you have to notice the appeal, but you have to pay a new filing fee. And that's one of those things that must be done on time. If you don't do it on time, the Kentucky Court of Appeals will lose jurisdiction or the ability to even hear the case.

Documentation and Briefing 

So, let's say that you did file it on time. What is the next thing that happens here? Sometimes my cases are what are called expedited, because the majority work that I do is in family court. A lot of my cases, especially those considered domestic violence or child support will be expedited. When that happens, I don't have to file a document called a prehearing statement. 

What's a prehearing statement? A prehearing statement is a form that says, "Hey, what are you really appealing here? What are you complaining about?" Okay? Because in the beginning, you just file a one-page saying, "Hey, judge, I appeal." But you don't actually say what you appeal there. This this prehearing statement will you go through and say, "Judge got it wrong here. Judge got it wrong there. Judge got it wrong in the other places.” You then give some supporting case law as to what cases are on point and a few other formalities that go into this document and that has to be filed. 

A lot of times if you don't put that that information on that prehearing statement, you could lose the appeal because you didn't put the information on that prehearing statement. If it's expedited there is no prehearing statement.

The next thing you kind of have to do is you have to do something called designate the record. And what that means is you have to tell the court of appeals, “Here's what's important here. Look at the following documents. Look at the hearing on this date.” You have to say, “These are the things that I need the circuit court clerk to certify for me.” You file this this document saying the important things. 

And eventually, this isn’t a quick version, but eventually the clerk in the clerk's office goes through and, you won't believe this, will actually handwrite at the very bottom number one, number two, number three, all the way up to thousands sometimes. There's got to be a better way to do this in 2025, but we're not there yet, at least not in Kentucky. They number them all. They give a certificate and say, "The record is now certified". Okay, once that record certified, your time to start doing things starts.

If it's a normal appeal, you have 60 days to file a brief and the brief is very formal in the way it has to be presented and how you have to say you preserved your error.  There are so many formalities of this.  You have to cite to the record.  Writing appellate briefs is a time-consuming process. So every time I were to say something like, “Hey the parties in this action were married on June 1st 1999” I then cite to the record and say, “Here's proof of that because it's in the record on page 72 of the record.” You put a little footnote or you can put it straight in the document. You do that over and over and over again. And sometimes you have to watch the videotape and say, "Hey, this is what this person said. Here's what they said over here. Here's why it was wrong".

Eventually you finish your brief up. And again, if it's a normal appeal, it's 60 days. And the other side has 60 days to then file a responsive brief and saying, "Hey, here's why you're wrong.” If you're appealing, the other side is saying, “Here's why the court got it right". Okay. 

Once that's done, you have a little bit of time, if I remember right, it's 10 days. I could be off a little bit on that. Maybe it's 20 days to file a reply brief. I actually have to take out the rule book myself and look at this stuff when I'm doing it. The reply brief is a very short brief. It used to be that the appellant brief, that's the person who appeals, their brief was in red, the other side was in blue, and then the reply brief was in yellow. The pretty colors are now going away, because now we electronically file things.

Oral Arguments and Decision 

All right, so you've done all of that. Everything has been fully briefed. What happens next? Well, that depends on what the court wants to do. The court sometimes will say, “You know what, we want to hear oral arguments on this.” In the beginning, in your brief, you tell the court whether we need to hear oral arguments? Is this an important issue? Is it something that's really complex?  The court has discretion to say, “You know what?  We want to hear some oral arguments on this.” But most of the time they don't. It doesn't mean it's a bad sign for you. They just don't have oral arguments very often. I probably get oral arguments once every 5 to 6 years. It's not very common, but I have been successful in appeals many times when we did not have oral arguments. 

So, after the court decides we're going to have oral arguments or not, the judges take it under submission and in Kentucky, it is a three judge panel and they will eventually issue a decision. Is this quick? No, it's not quick at all. From the time you appeal until you get a decision, most of the time it's at least a year, sometimes longer. Every now and then I will get something that is a lot shorter in duration, but it's still 6-7 months. I don't think I have ever gotten something back on a traditional appeal in 6 to 7 months. 

Now, I told you the traditional route that's 60 days on each side. When your appeal is expedited, which means it's supposed to be done quickly because there's an important issue there. Your time to get your brief in is 30 days. The other side is 30 days. So, it's much quicker. Here's the bad part. The court of appeals doesn't appear to be any quicker in getting their opinion out to you. So, your rush to do your job, but they don't always do theirs so great.

Challenges and Standards of Appeal 

Now, why are appeals difficult? Appeals are difficult not just for the procedural manner that we have to do everything, but because we have to get around the standard called abuse of discretion. 

If something falls within this abuse of discretion land, it's really hard to win. You have to get somewhere around there when you're looking for a procedural error or legal error. Okay. It's easier to win. Still not easy, but it's easier. And so the majority of people who appeal their cases, well, they lose, okay? 

I've been doing this near 25 years.  I've been fairly successful at appealing decisions that I thought were wrong. So, let me give you some examples. Sometimes you got to keep going at it a long time before you get there.

Case Studies: RSUs and Domestic Violence Orders 

So, I went to court years ago on an issue on these things called restricted stock units, RSUs. And a question was, are these marital property? Are they non-marital property? And we didn't have any kind of clear case law on that. RSUs, if you don't know, these are Restricted Stock Units, additional forms of compensation typically given to high-level individuals at big corporations. It doesn't have to be that way, but in my case, it was. I was representing the spouse of a high-level person at Humana. 

The trial court there decided that all of the RSUs, which represented hundreds and hundreds of thousands of dollars, were all non-marital property and my client wasn't entitled to any of them, even the ones that were vesting literally weeks after trial. 

So, the way they used to work at Humana was that you got these RSUs and they were what's called golden hand handcuffs, right? You had to stay with the company for another, at that point 3 years, and then they would fully vest. Well, in this case, the first batch of those were completely vesting just weeks after trial and the next batch a year and a week after. The next batch two years and a week after. The trial court here said, "No, they're all they're all non-marital and your client's not entitled to any of them". Well, I thought the judge was wrong and I thought that can't be the case. So, I appealed it and I went to the court of appeals. 

I briefed everything, everything I just told you about. I thought I wrote a really good brief, in fact, and I lost. I lost two-to-one in that three judge panel. Well, I wasn't happy with that because I still thought I was right. But that took a while longer. That took about a year and a half later. 

If you lose in the court of appeals, what can you do? You can you have one option left essentially. Okay. You can ask the Kentucky Supreme Court for what's called discretionary review. You can also ask that same appellate panel to look at this again, a motion to reconsider. Those aren't typically successful. Okay? 

So, you can ask the Kentucky Supreme Court to look at a case. You're seeking discretionary review. The Kentucky Supreme Court doesn't have to take your case. In general, they're looking for cases that there's an unsettled principle of law or that something's going to apply to a large group of people. So, in this case, the argument I made was we need some clear law in these restricted stock units. This is going to affect a lot of people. Kentucky didn't have clear law in it. I got lucky because the Kentucky Supreme Court took up my case. 

This was during covid and eventually the Kentucky Supreme Court scheduled oral arguments on this issue. But because of covid, my oral arguments got cancelled and the case took forever. Eventually the Kentucky Supreme Court issued an opinion in my favor and decided that RSUs were marital, although there could be a non-marital component to it. We use what's called a coverture formula, but it changed the law for the entire state and it got my client a tremendous amount of more money. 

How long did that take? Years; years and years and years. So, you've got a client in the meantime who is frustrated because they just lost at the trial court level. They lost in the court of appeals. And finally, in this case, we were successful in the Kentucky Supreme Court. But my god, that took a long time, and clients don't like waiting like that, but there's nothing you can do. And this is how law is often made.

So, here are other cases that come up that are important.  I had a an interesting case a couple years back.  I represented a former NFL player.  His ex-spouse, maybe it was a spouse at the time, had filed seeking the entry of a domestic violence order against him. We didn't think there was any domestic violence order. The allegation was that my client was stalking, I believe, because he was at the school at the same time as mom. He was picking up his children at school. It was his day. But that was the allegation. 

We went to court on this and the day we go to court, while we're there lightning hits the courthouse and all of the computer systems, the recording system, it all goes out.  The court itself cancels court and we leave. We're not told when to come back. We don't know what's going on really, but nobody does. 

After that, I look at this thing called CourtNet, where we can look up cases to see what's going on. CourtNet showed that it was scheduled in two weeks. So fine, I contact the client, we'll be back in two weeks, no problem. Well, in the meantime, mom without her attorney goes in front of the judge and says, "Hey, judge, you know, remember that thing I was there for when they lied at the courthouse? Well, I'd like a domestic violence order against my against my husband” (or ex-husband, I can't remember what it was at this point). The trial judge then says something like, "Hey, was he served?" and everybody kind of like shrugs their shoulders.

The trial judge then reads in the petition, the request, and enters domestic violence order against my client. We didn't get any notice of it and we're like, "How did this happen?" We don't even know what happens at first until we get something in the mail. So, we get that thing in the mail. 

Remember, I told you guys in the beginning, "Hey, file that motion to alter, amend or vacate saying judge, you got it wrong for the following reasons…”? So, we file that motion to alter, amend or vacate in this case. And this is one of the few times I thought I would win on that motion saying, "Judge, you can't conduct a hearing and not tell us when the hearing is." I mean, that's not legally how said it, but that's the reality of it. All I'm really saying is you got to give somebody notice, due process. And the judge denied the motion to alter, amend or vacate, claiming that it needed to be verified or sworn to by the client. 

Well, the Kentucky Civil Rules of Procedure actually state the opposite. They state that motions themselves do not need to be verified unless a special rule says that they do. Well, it doesn't matter. The trial court judge disagreed with us and there was a domestic violence order entered against our client and there was literally nothing we could do about at that point. So what do we do? We appealed. 

But in the meantime, my client, he lost his job because at that point he was working at a school and there was a domestic violence order against him. Finally, we get to the court of appeals and in a correct opinion, they vacate the order for all of the reasons that most lay people would understand is you've got to give somebody notice. It doesn't mean you can't have a hearing later, but you got to give my client the opportunity to be present at the hearing, notice of the hearing, and in a footnote, the court of appeals said, "Hey, these things, these motions to amend, alter or vacate, they don't have to be verified. They don't have to be sworn to.” In fact, like I said, the rules state the exact opposite. So, we got that reversed.

By the time we got back to the trial court, mom who was seeking the order said, "You know what? I don't even need this" and didn't even continue on it. Now, that took a year and a half or so. And again, my client lost his job.

Expedited Appeals: Writs of Prohibition and Mandamus 

So, these things are important. But what's also important is sometimes you have to appeal, because sometimes trial courts get it wrong. They're tired. Their dockets are extremely busy. And we all have internal biases.  All of us do; not just trial court judges, but all of us. People get things wrong sometimes, so you have to appeal. But you know what? Court of Appeals gets things wrong sometimes, too. They're not perfect either. Nobody's perfect. 

So that that's but one example or two examples of some appeals. The process itself again it's painfully slow. So the question becomes is there ever a quick way to do an appeal? The answer is sometimes there is in a case there are these things called writs. 

There are two main writs that I use: a writ of prohibition and a writ of mandamus. A writ of prohibition says to the trial court, “Hey you can't do this. We prohibit you.” It’s a writ of prohibition. A writ of mandamus is saying, “Hey trial court, I'm ordering you to do this. You better do it.” Okay, those are for extreme remedies for extreme cases. 

Here’s an example of a writ case, not a case that I worked on, but a case I cited to once. A trial court had ordered a father to pay child support and said you have to pay this much money and the guy didn't or couldn't pay that much money. They were going to put him in jail for not paying it. Okay. The problem with that case is that the mom there never filed a motion increase child support. 

One of one of the things you have to do in order to get more child support is put the other side on notice again and say, “Hey this is what I'm asking for,” that wasn't done there and they were about to put him in jail. So he filed a writ saying, “If you don't immediately help me well really bad things are going to happen to me, like I'm going to go to jail and you can't fix that that slow wave of the appeal.” They issued a writ and stopped it because there's no jurisdiction. Nobody had filed a  motion to modify support.

I cited that case once in an appeal I did out of Eastern Kentucky. I had a physician in Eastern Kentucky come to me and say, "I'm in the middle of this enormous child support mess." Right. When I got the case, he was ordered to pay $1,000 a month in child support and they raised it to $5,000 a month. This is a long time ago. When I got in the case and I looked through everything and you know, every document , I'm looking for the first thing that started this. Where where's the motion that says, "Hey, I want more money." Well, it wasn't there, right? There wasn't a motion saying, "I want more money". In fact, the other side just sent over some discovery documents and said, "Hey, answer this". 

Well, you can't do that. At least you're not supposed to be able to do that because in order to figure out what discovery documents are relevant, we got to know what you're fighting over. And what you're fighting over is the motion; what do you want, right? In this case, mom had wanted more child support. She never filed a motion or attorney never filed a motion. 

So at the time we had a trial.  The trial court in the meantime before they even got there had raised his child support from $1,000 to $5,000 a month. We finally have a trial and at trial I tell the judge, “You don't have jurisdiction to do this because mom didn't file a motion.” The trial court didn't like what I had to say and also asked me if I was from New York, and in Kentucky, that's not the question you want to get. 

I lost that case and then I appealed it.  I won on appeal and they said exactly what the other previous cases said. If you don't file that motion, well, you don't have jurisdiction. And without jurisdiction, none of these orders that were entered are valid orders. And at that point, with $5,000 a month, we were now talking close to $200,000 that had built up over time. So, it was significant money.  It got lowered back down to $1,000 a month. Eventually, that case did settle.  That's another reason sometimes you've got to file that appeal or that motion to alter, amend or vacate first, and then go the appellate courts.

Appeals in Other States and Importance of Appeals 

So Kentucky isn't the only state where I have done appeals. I did one I can think of right now in in the state of New York and it was a little bit different. So in New York, you more often than not, in fact I think all the time, have oral arguments.  In my case they were in Albany, New York. I was used to Kentucky where we have three judge panels.  In New York, there were five judge panels.  I went up during covid had an oral arguments there.  We were successful there and it was something called on the UCCJEA which is a stands for the uniform child custody jurisdiction and enforcement act. It's a really long thing to really say which state hears a case. 

After that five judge panel, we actually got a ruling really quick. The cool thing for me is that in Kentucky, it takes so long to get a ruling, but in New York, this huge state, I got a ruling in weeks.  I hadn't had that before. So, that was pretty neat to see. So, overall, sometimes you have to do appeals and they're hard to win, but it's the only way good law is made. 

Sometimes trial courts get it wrong. They are busy. They are swamped. Judges get angry and judges get upset. So, I encourage attorneys and litigants who have good faith reason to appeal to do so. We need that. We need people saying, "Hey, you get it wrong sometimes, and we're not going to let you misapply the law". And that's it. I hope you all have a nice weekend.

For more information about Louis Winner and his family law practice, visit www.LouisvilleFamilyLaw.com.

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