The term “non-final order,” also known as an “interlocutory order,” is a temporary order entered before the end of a case and entry of a Final Judgment. An appeal cannot be taken from every non-final order family law case. The following is a list of non-final orders from which an appeal can be taken.
- Venue–where the case is filed
- Jurisdiction–whether a court can rule on the case or bind the parties
- Having to do with injunctions
- Decisions relating to immediate possession of property
- Monetary relief
- Child custody or time-sharing under a parenting plan
- A determination that a settlement marital agreement is invalid in its entirety
An exception is that an order suspending temporary child support until disbursement of the parties’ assets due to payor-spouse’s financial situation is not subject to review by appeal.
When a court issues a non-final order from which an appeal can be taken, a party can appeal the decision without waiting for the end of the case, or a party can wait for the end of the case so that all issues can be heard in one proceeding.
The time to take an appeal is no more than 30 calendar days from the date the order was signed. Appeals are to a district court of appeal. Notice of the appeal is filed with the Clerk of the trial court. A non-final order can be appealed once the case is over but the Notice must be filed within 30 calendar days after entry of the Final Judgment ending the case.
Even then, review before final judgment is within the discretion of the appellate court, not a matter of right. The court will hear a non-final order only when it finds that “there is some necessity or desirability of expeditious review.”
If the order that you want to appeal does not fall under one of the categories above, an appeal cannot be taken until after the case is over by entry of a Final Judgment.
Some orders may be subject to appeal by way of extraordinary writs. The most common extraordinary writs sought in family law cases are: 1) writs of certiorari; 2) writs of mandamus; and 3) writs of prohibition. These extraordinary writs for relief are available only when there are no other appropriate and adequate remedy at law.
In Florida family law matters, appeals are typically taken to district courts of appeal.
Notice of Appeal and Briefing
The initial Notice of Appeal is filed with the Clerk of the Court for the trial court. Payment of the appellate filing fee is given to the Clerk of the Circuit Court when the Notice is filed.
Briefs are submitted to the appellate court. The party bringing the appeal files an initial brief called “Appellant’s Brief” with the Clerk of the District Court of Appeal. The other party then has 20 days to file an Answer Brief. The party taking the appeal can then file a Reply Brief.
Writ of Certiorari
A Writ of Certiorari can correct an allegation that a lower court has departed from the essential requirements of law. Like other appeals, a Petition for Writ of Certiorari must be filed within thirty calendar (30) days from the date the trial court order was signed. The request for issue of a Writ of Certiorari subject to the discretion of the appellate court, so, even if you demonstrate the lower court departed from essential requirements of the law, the district court can deny you grant of certiorari.
When filing a Petition for Writ of Certiorari in Florida to limit your financial discovery–production of documents, or disclosure of information–a party must convince the appellate court that the trial court (1) departed from the essential requirements of the law and (2) the party will suffer prejudice throughout the remainder of the proceedings so that an appeal taken after entry of a Final Judgment would be meaningless–the disclosure of information will already have hurt the disclosing party and reversing the discovery order would not matter–one cannot put the toothpaste back in the tube.
Writ of Mandamus
Judges manage a large court docket. As such, they try their best to issue their rulings or set hearings as quickly as possible. There are also deadlines set for judges by statue, rules of procedure, and rules of judicial administration.
If the trial judge has failed to follow the mandatory (not discretionary) deadline or there has been an excessive delay in issuing a ruling, a party can file a Petition for Writ of Mandamus. If issued, a Writ of Mandamus “commands a preexisting, public ministerial duty,” meaning it forces the judge to quickly take action in the party’s case.
Unlike other appeals, the rules do not impose a deadline for filing a Petition for Writ of Mandamus. However, the petition must be filed within “reasonable temporal bounds.” The Petition is submitted directly with the appellate court. As with a Petition for Writ of Certiorari, a Petition for Writ of Mandamus is a discretionary remedy. Unlike other appeals, when a Petition
for Writ Mandamus is filed, the appealing party must at the same time the Petition is filed with the Clerk of the appellate court.
If the appellate court decides to hear the matter, it will require the other party to file a response to the request for your Petition. The appealing party will have a chance to file an answer to the other party’s response before the appellate court makes a final decision.
Writ of Prohibition
A party may encounter a divorce court judge display behavior which makes the party reasonably believe the judge could be biased when deciding a case. In this situation, the party may consider asking the judge to recuse himself/herself. The request is called a Motion for Disqualification. It must be filed within 10 days from the event giving rise to the belief.
Trial judges are concerned that a party unhappy with a decision is simply “shopping” for another judge. A decision against a party does not mean there is bias. Such requests are typically not granted.
The aggrieved party is then permitted to seek a Writ of Prohibition, which is a request to the appellate court to review the situation and order the judge removed from the case.
As with other appeals, a Petition for Writ of Prohibition must be initiated within thirty (30) calendar days from the rendition date of the lower court’s order. As with a Petition for Writ of Mandamus, the party seeking a Writ of Prohibition files the Petition directly with the District Court of Appeal, and files the initial brief at the same time. If the court of appeals, in its discretion, decides to hear the matter it will require the other party to file an Answer Brief to the request, and the appealing party will have a chance to file a response to the other party’s response before the appellate court makes a final decision.
In conclusion, Aislynn Thomas-McDonald, Esq. understands that appeals are complex and highly technical. If you have any questions, contact our firm so that you are ensured an experienced family law appellate attorney will protect of your rights throughout your case.