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Bar News - August 14, 2009

Rule Change Reduces Domestic Appeals by 25 Percent

Effective January 1, 2008, the New Hampshire Supreme Court amended the definition of "mandatory appeal" in a way that significantly reduced the number of domestic cases that now qualify for automatic appellate review. The new definition exempts from automatic review any final decision issued in or arising out of a domestic relations matter filed under RSA Chapters 457 to 461-A. Supreme Court Rule 3. The rule preserves automatic appeal rights to those parties appealing issues from a Final Divorce or Legal Separation Decree. Id. Appeals from Domestic Violence Petitions are still entitled to automatic review, as they do not arise under RSA 457-461-A. All post-divorce matters, including motions to set aside property agreements, relocation disputes, changes in custody, visitation schedule disputes, child support and alimony modification or extension are subject to discretionary review.

Notices of Appeal

Since Discretionary Notices of Appeal are not guaranteed appellate review, a Notice should be approached and drafted as a persuasive pleading. In a discretionary appeal, the appealing party must convince at least one member of the Supreme Court that his/her appeal warrants further review to garner acceptance. Appealing parties are allowed two pages to describe the underlying factual background of their appeal and eight pages to identify each appeal issue and the reasons why the Court should accept those issues under the Courtís discretionary criteria acceptance.

The discretionary Notice of Appeal form describes three acceptance criteria, including whether the issue raises a question of first impression, a novel question of law, an issue of broad public interest, an important state or federal constitutional matter, or an issue on which there are conflicting decisions in the New Hampshire Courts. Second, whether the decision on appeal conflicts with state statutes or prior decisions of the Supreme Court, and third, whether the decision on appeal is erroneous, illegal, unreasonable or an unsustainable exercise of discretion.

Many of the Courtís landmark family law cases have involved issues that would be decided today, only if the appealing party successfully convinced the Court to accept his/her appeal under discretionary review. For example, the enforceability of college education expense stipulations, In re Donovan, 152 N.H. 55 (2005); In re Goulart, 158 N.H. 328 (2007); grandparent standing to intervene and seek custody, In Matter of R.A. and J.M., 153 N.H. 82 (2005); alimony modification because of retirement In re Arventis, 152 N.H. 653 (2005); standards for determining voluntary underemployment, In re Rossino, 153 N.H. 367 (2006); interest upon accrued child support or past due property distributions, In re Giacaomini, 151 N.H. 775 (2005); In re Aube, 969 A.2d. 338 (2009).

In re Aube was accepted under discretionary review, as was the first relocation case, Tomasko v. Dubuc, 145 N.H. 169 (2000) and Shafmaster, which set aside the parties property settlement because it was based on an outdated and inaccurate financial disclosure. 138 N.H. 460 (1994). The acceptance of these cases under discretionary review suggest that cases of first impression and/or novel questions of law will still get reached under todayís discretionary review; however, the litigantís cost for such review will be significantly greater than the cost of automatic appellate review.

Cost Can Be High

The appealing party in a discretionary review is likely to incur several thousand dollars in legal fees in connection with the preparation of the persuasive 10-page Notice of Appeal brief. Discretionary appeals are also subject to Motions for Summary Affirmance under Supreme Court Rule 25, which, if filed, subject the appealing party to additional pleading costs, before transcript and briefing costs. As a result, even if a party is successful in securing appellate review for legitimate post-divorce appeal issues, they do so at significantly greater cost under the 2008 rule change.

From 1983 through the end of 2003, all civil cases were subjected to discretionary appellate review. Beginning with appeals docketed after January 1, 2004, the Court agreed to automatically accept most civil appeals from a final decision on the merits as "mandatory appeals." For purposes of family law, all final decisions on the merits were encompassed by the Courtís 2004 definition of "mandatory appeal."

In calendar year 2007, the year before the Court restricted the availability of automatic appellate review for family law appeals, it received 103 mandatory family law appeals. A review of the Notices filed in those cases confirms that 47 of the cases, approximately 45 percent of total filings, would have been subject to discretionary review under the 2008 "mandatory appeal" amendment. In calendar year 2008, the Court received 112 family law appeals. Fifty-four of those appeals were subject to discretionary review. The foregoing statistics suggest that, for two years in a row, roughly half of the Courtís domestic relation filings have involved issues that are now exempt from automatic review.

Of the 54 discretionary Notices of Appeal received by the Court in calendar year 2008, 27 were declined. This means the Court rejected approximately 50 percent of the discretionary appeals filed last year. The Courtís discretionary appeal declination rate in calendar year 2008 reduced the Courtís overall domestic relation caseload by approximately 25 percent.

The 2008 rule change followed Court concerns over the burgeoning family law docket under automatic review. (Bar News June 9, 2006.) Court representatives met with the Family Law Section to voice concerns about fact-based appeals, repetitive appeals within the same case and the growing number of pro se filings. Although the decision to exempt many family law appeals from automatic review gives the Court the option of declining appeals that fall within the foregoing categories, if they do not otherwise meet the Courtís discretionary acceptance criteria, that decision has increased the costs incurred by 50 percent of those who file family law appeals.

Impact on Family Law Clients

Family law practitioners have observed that the rule change has a more significant impact on their clients because of the long period of time following divorce during which legal issues can arise. Compare for example, the right of an individual with more than one personal injury suit over the course of 18 years to guaranteed appellate review of his/her fact-based jury verdict, with a similarly situated individual with more than one fact-based family law dispute arising over the course of 18 years who has no such right to automatic appellate review.

Current budget constraints make a return to automatic appellate review in family law appeals unlikely. The Rules Committee, however, might consider expanding access in a way that would ensure family law litigants are allowed at least one automatic appeal during the tenure of their cases. It would also be helpful if the Court identified the common elements of rejected discretionary appeals in the family law area to better define what it will not accept, thereby giving more guidance to practitioners and the public on what cases will qualify for redress at the appellate level.

Doreen F. Connor

Doreen F. Connor is a shareholder at Wiggin & Nourie, where she has practiced for 23 years. She is a graduate of Bates College and the University of Maine School of Law. She has been involved in more than 100 proceedings before the NH Supreme Court in the areas of family law, insurance coverage and negligence. She was inducted into the American Academy of Appellate Lawyers in 2006.

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