One of the most important points to address in an appeal is the applicable standard of review. It determines the amount of deference the appellate court will give to the lower court’s decision. As a result, it can sometimes be the most important consideration regarding your chances of prevailing on appeal. Stated otherwise, the standard of review can mean the difference between hope and despair.

An appellate attorney should address the applicable standard at the outset of a brief’s legal analysis section, and very early during oral argument. This article provides guidance on the three general appellate standards of review for most family law and other civil appeals. They are the clearly erroneous standard, abuse of discretion standard, and de novo review. Note that this article does not cover appeals involving constitutional questions, which involve wholly different standards.

Clearly Erroneous Standard

Appeals centering on fact-finding issues are governed by the clearly erroneous standard. This is an almost impossible hurdle to overcome. It is exceedingly rare for a trial court judge to be reversed on appeal for finding facts a certain way. Even if the appellate court completely disagrees with the way the lower court decided a factual issue, the appellate court still may not reverse the lower court “[i]f there is any competent evidence to support the factual findings below[.]” Solomon v. Solomon, 383 Md. 176, 202 (2004) (emphasis added).

For any given fact scenario, it is often impossible to find an analogous case where a trial court was clearly erroneous for determining facts a certain way because the failure of an attorney to present any evidence in support of an argument is “a rare phenomenon, indeed.” Travis v. State, 218 Md. App. 410, 423 (2014). Having said that, such a rare case occurred in Lemley v. Lemley, 109 Md. App. 620 (1996). The case involved a family law dispute where the trial court ordered the husband to reimburse the wife for legal fees. Since there was no finding of bad faith, the pertinent factual issue was simply whether “the relative financial needs and resources of the parties” justified an award of counsel fees. Id. at 633. The appellate court held that there was no competent evidence to support a finding that the relative financial needs of the parties justified an award of counsel fees in favor of the wife where the wife “earned approximately twice as much income” as the husband, and the husband appeared pro se because he was “unable to afford” an attorney. Id.

Basically, the above cases illustrate that the clearly erroneous standard is very strict. There is usually no hope for appellants in such appeals.

Abuse of Discretion Standard

Most family law appeals involve the abuse of discretion standard. This is because family law cases are equitable in nature. Most decisions by a trial judge in such cases hinge on fairness opinions rather than factual findings. While factual findings form the basis of these decisions, the evidence is usually clear (i.e., the clear wording of text messages, emails, bank statements, and other documents), and the judge’s decision typically boils down to his opinion of what is fair in light of the evidence (i.e., who should get more custody, how much alimony should be paid, how long should alimony be paid, etc.). Although the abuse of discretion standard is not as tough as the clearly erroneous standard, it still presents a significant challenge for appellants.

The standard requires an appellant to show that “no reasonable person would take the view adopted by the [trial] court.” Santo v. Santo, 448 Md. 620, 625-26 (2016). In other words, the clearly erroneous standard (again, factual findings) requires the appellate court to affirm the lower court even if it believes the trial judge was unreasonable, so long as there was some evidence to support a given finding; whereas the abuse of discretion standard (again, judgment calls) allows reversal if the appellate court believes a decision was unreasonable. Thus, the abuse of discretion standard is theoretically less burdensome than the clearly erroneous standard.

However, in practice, showing an abuse of discretion is still really, really hard. For example, in Santo, the appellate court upheld the lower court’s decision to award joint legal custody “to parents who cannot effectively communicate together regarding matters pertaining to their children,” where there were “tie-breaking provisions.” Id. at 646. This illustrates how hard it is to show an abuse of discretion because, frankly, giving two parents who cannot agree on anything equal voting rights with respect to their children seems, on its face, to be kind of whacky. Even with so-called “tie-breaking” provisions, it is hard to see how such an arrangement would not just lead to more of a one-up challenge between the parents (as opposed to reserving joint legal custody for parents who can get along). Nevertheless, since there was some reasoning behind the theory that tie-breaking provisions could somehow conceivably create some tranquility, the trial court’s ruling was affirmed.

De Novo Review

De novo review applies where an appeal revolves around a legal issue. This type of appeal does not involve a bad factual finding or an unreasonable judgment call. Instead, this standard of review applies where the issue involves a purely legal matter, such as interpreting a statute, or the application of clearly defined legal principle.

An example of when a trial court commits a legal error under the de novo standard is the case of In re Mark M., 365 Md. 687 (2001). The case did not involve statutory interpretation, but rather a legal principle developed by case law, or past Maryland appellate decisions. The legal principle was that “a trial court may not delegate judicial authority to determine the visitation rights of parents to a non-judicial agency or person.” Id. at 704. The trial court, however, ruled that visitation would not occur “until [the child’s] therapist recommends it.” Id. at 703. Since a determination as to visitation was a judicial function, the appellate court held that the trial court’s ruling delegating that authority to a non-judicial person (the therapist) was “legally incorrect.” Id. at 705.

Essentially, this is the best type of issue for an appellant, because the appellate court is not required to show any deference to the lower court’s legal determination (unlike issues that invoke the clearly erroneous standard or abuse of discretion standard). The trial court’s decision is not saved if there was some evidence to support it, or if it was arguably reasonable. Instead, the trial court’s decision survives only if the appellate court believes it was legally correct.

Conclusion

If you are defending against an appeal that involves a fact-finding issue or a judge’s discretion, then you should remind the court at various times throughout your argument that the clearly erroneous standard, or abuse of discretion standard, applies, as either standard would seriously hinder the other side’s chances of prevailing. On the other hand, if you are the appellant in such a case, in order to have any realistic chance of prevailing, you absolutely have to dive deep into legal research and present analysis on one or more prior appellate cases with facts and issues similar to yours. These should be cases where the lower courts were reversed for not ruling in the manner for which you are advocating.

If the applicable standard is de novo review, then it is essentially a free-for-all. While appeals are always an uphill battle for the appellants, here the chances of success are generally at their highest. Each side must thoroughly research past case law involving the pertinent legal issue. If the appeal involves an open question (meaning, a legal issue that has not yet been decided by the state’s appellate courts), then each side must closely examine analogous legal issues that have been decided, and further explain why, from a policy perspective, their desired relief would be the most just outcome while the other side’s argument would lead to an absurd result.

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