The Kiss of Death in Family Law Cases

 Everyone has the right to appeal. Keep in mind that about 98 percent of all cases settle at some point. A small percentage of cases do go to trial, and a percentage of those cases will be appealed. Family law cases are different from civil appeals because in family law trials, there is no jury. You have either a judge or a court commissioner. That person will make all of the determinations of facts and law. In a civil action, the court decides questions of law while the jury makes findings of fact. The judge instructs the jury on the law. The “kiss of death” at the trial court level in a family law case is when the judge decides the case based upon the credibility of witnesses, usually deciding that one party was not credible. Because the appellate courts feel that the trial courts are in a much better position to determine credibility, they will rarely disturb the findings made by a family law court on the issue of credibility. If the family law court’s decision is based upon “substantial evidence,” it will be affirmed upon appeal. The focus is on the quality, not the quantity, of the evidence. Thus, very little solid evidence may be “substantial,” while a lot of extremely weak evidence might be “insubstantial.” Unfortunately, the testimony of a single credible witness, even if a party to the action, may constitute “substantial evidence.” And, so long as the witness’ testimony is “substantial,” the party is not aided by the fact that several other witnesses testified to the contrary. Appellate lawyers know and will tell you that appeals based on credibility of the evidence are extremely rare. Evidence will be disregarded on appeal for credibility reasons only if it is “inherently improbable” or “implausible” in the strictest sense. It must appear that the truth of the testimony was physically impossible, or the falsity of the testimony must otherwise be apparent without resorting to inferences or deductions. Of course, if the person testifying one way at trial has contradictory deposition testimony, one might be able to make a winning argument that the truth of the trial testimony was inherently improbable or implausible.
For questions regarding family law and civil appeals and litigation, contact the Law Offices of Richard A. Marcus at 661-257-8877.