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Understanding The Standards Of Review in Divorce Appeals

According to data published by the Colorado Courts, the Court of Appeals oversees over 900 civil appeals in an average year. A significant portion of these cases involve domestic relations, and given the complexity of the average divorce, this should come as no surprise. Family courts must consider numerous factors when making decisions on child custody, equitable distribution, and other aspects of divorce – and many of these factors are somewhat open to interpretation. If a spouse believes that the family court has made a mistake in handling their divorce, an appeal could be possible. Those who wish to engage in this process should strive to understand the standards of review in divorce appeals before moving forward. For more information and guidance, call (720) 593-6442 to consult with an experienced family law and appellate lawyer with the Colorado Divorce Law Group. 

Why Are Standards of Review Important in Divorce Appeals?

Standards of review are important in divorce appeals because they help spouses predict their chances of success. These standards represent the willingness of an appellate court to overturn a decision made by a lower court. Like a supervisor overseeing an employee, appellate courts only step in and “take the reins” when absolutely necessary. The Colorado Court of Appeals defers to the judgment of lower family courts in most cases, and the standards of review are in place to ensure the integrity of the lower court’s authority and to establish a clear rubric for when, why, and how an appellate court may intervene. Spouses may also hear the term “standards of error” in reference to this concept. 

Lawyers at the Colorado Divorce Law Group may carefully consider the standards of review before appeals. Many lawyers will recommend proceeding with a divorce appeal course of action only if they believe the Court of Appeals will be willing to negate the lower court’s decision, pursuant to the appellate court’s application of the standards of review – thereby preventing spouses from wasting their time with pointless appeals. In short, comparing the circumstances of their own cases with the standards of review can help spouses determine the probable outcome of a potential appeal.   

What Are Three Common Standards of Review on Appeal?

Not all standards of review are the same, and this variance adds another layer of complexity to divorce appeals in Colorado. Although many standards exist, there are three main types to consider before a potential appeal:

What Is the “De Novo” Standard of Review?

The term “de novo” is Latin for “from the new,” although “from the beginning” is perhaps a more straightforward translation. With the de novo standard of review, the Colorado Court of Appeals makes decisions on disputed questions of law without reference to the lower court’s original decree. As the Latin phrase implies, the Court of Appeals considers these legal questions as if they had arisen for the first time. In theory, this makes de novo appeals easier to achieve compared to other standards, as these appeals do not carry the burden of showing that the trial court erred. 

For example, a divorce proceeding might have stemmed from an incorrect assumption that the underlying marriage was valid – when in fact the spouses had an alternative wedding ceremony that was not recognized by any jurisdiction. A de novo appellate review may therefore reverse all previous decisions associated with the divorce, leading to an annulment instead. 

What Is the “Clear Error” Standard of Review?

The clear error standard of review deals with erroneous factual findings. In this situation, the appellate court will review the trial record to search for any potential evidence that supports these allegedly erroneous findings by the judge in the trial court. If the appellate court cannot find any support for the judge’s findings, they may deem the situation to be an instance of “clear error” and overturn the lower court decision. 

In some instances, the Court of Appeals may uphold the lower court’s decision even in the absence of evidence supporting the judge’s findings. The error must be clearly erroneous, and less obvious errors may not meet this standard of review. In other words, the appellate must be very certain that the lower court has made a serious mistake – a high bar that makes successful appeals based on the clear error standard of review fairly challenging to achieve. 

What Is the “Abuse of Discretion” Standard of Review?

The Colorado Court of Appeals may consider the abuse of discretion standard of review in family law appeals. This standard encompasses not only clear errors, but also unreasonable acts, arbitrary decisions, bias, unfairness, and other less obvious mistakes. In this type of appeal, the parent or spouse essentially argues that they did not get a fair trial. For example, the family law judge might have arbitrarily refused to admit crucial evidence – or they might have exhibited favoritism. 

While a spouse can appeal most family law decisions under this standard, appellate courts give considerable deference to lower courts. In fact, the Colorado Court of Appeals gives family courts more respect in these decisions than with any other standard of review – making these appeals relatively difficult. 

What Is the Substantial Evidence Standard of Review?

The standard that sounds most familiar to the average person who does not practice law may perhaps be the “substantial evidence” standard of review, and many former spouses may feel drawn to this standard because of their familiarity with standards of evidence used in civil and criminal courts. According to the Colorado Judicial Branch, the burden of proof in civil cases is a “preponderance of evidence” – or a likelihood of more than 50%. This standard of evidence is distinct from the “reasonable doubt” standard of evidence required in criminal trials. 

Colorado family law courts do generally follow the rules of civil, rather than criminal, procedure, but the evidence standard of review of a trial judge’s decision may nonetheless differ in important ways from the way the preponderance of evidence standard is applied to burden of proof in a Colorado civil case. An individual considering a divorce appeal will need to remember that the substantial evidence standard of review does not mean that the appeals court will reassess the evidence presented in the original trial; rather, the Court of Appeals will review whether the judge in the trial court had “substantial” evidence for their decision. 

What Is “Substantial” Evidence? 

Past cases have defined substantial evidence as “more than a scintilla but less than preponderance,” and a reasonable individual would accept that this type of evidence supports a particular conclusion. Although this is similar to the “clear error” standard, the appellate court gives more deference to the lower court when considering the substantial evidence standard – as it may determine a less than 50% likelihood of correctness and still uphold the original decision, as long as the trial court has articulated an adequate basis for their findings of fact. 

What Does the Evidence Standard Mean for Divorce Appeals? 

The substantial evidence standard is commonly used in reviewing cases decided by juries or, in some instances, the determinations of government agencies, but it can also be applied in review of a judge’s decision. The annotations on Rule 52 in the Colorado Rules of Civil Procedure For Courts of Record in Colorado (2023) explain that judges in trials with no jury must “make separate findings of fact and conclusions of law,” to facilitate the appellate court’s review. 

Rule 52 of the Colorado Rules of Civil Procedure establishes that a trial judge’s findings of fact may not be set aside by the appeals court unless “clearly erroneous”; the decision of the judge sitting without a jury will only be reversed when the findings themselves are inadequate and neglect to indicate the basis for the judge’s decision. As a result of all these factors, the substantial evidence standard of review can set a high bar for appellants to clear to succeed in their appeal. 

Contact an Experienced Colorado Divorce Lawyer Today

Spouses considering potential appeals should carefully consider the standards of review before moving forward. However, this is one of the most complex aspects of family law in Colorado, and online research only provides a basic overview. The standards of review in divorce appeals also depend on the unique circumstances of each case, and an internet article cannot provide personalized advice based on each unique divorce. For more specific guidance, spouses can consult with experienced divorce lawyers in Colorado. A consultation provides plenty of opportunities to voice questions, raise concerns, and receive targeted guidance on potential appeals. Call (720) 593-6442 to begin this important discussion with the Colorado Divorce Law Group.