This Week’s Blog by Sarah E. Murray.
Do the Trial Court’s Orders Take Effect Immediately Following a Divorce Trial?
Once an appeal is filed, the order(s) associated with the final judgment may be automatically stayed. This means that until the appeal is finally concluded, the trial court cannot enforce the order(s) that are the subject of the appeal. Generally speaking, orders regarding the division of assets and liabilities are stayed while a family law appeal is pending. A common example of the automatic stay in practice in family cases occurs where the trial court orders that the marital home be sold. Pursuant to the automatic stay rule, that order would not be enforced during the pendency of the appeal without the trial court terminating the stay of execution of that order, as discussed herein.
There are certain exceptions to the automatic stay rule that are permitted by the Practice Book in family cases. For example, final orders concerning periodic alimony, child support, custody, and visitation are not automatically stayed pending an appeal. If you are unhappy with the trial court’s alimony orders, those orders will go into effect during the pendency of your appeal unless you ask the court to impose a stay where there is not one automatically imposed by the court rules.
Is There Anything I Can Do to Have Divorce Orders that are Stayed Pending Appeal Take Immediate Effect?
Under Connecticut rules, the trial court can terminate the automatic stay of its orders on its own volition or after a motion is filed by either party. A Motion to Terminate Stay is filed in the Appellate Court, but is decided by the trial court judge who decided the divorce case following a hearing. In deciding a Motion to Terminate Stay, a trial court must consider the following factors: 1) the needs and interests of the parties and their children (and any other third parties affected by the orders); 2) the potential prejudice to either party, the children, or a third party affected by the orders if a stay is or is not imposed or if a stay is terminated; 3) the need to preserve the mosaic of the trial court’s orders; 4) the rights of the party taking the appeal to obtain effective relief in the event that his or her appeal is successful; 5) the effect of the Automatic Orders on any of the other factors; and 6) any other factors affecting the equities of the parties. At the hearing on a Motion to Terminate Stay, both parties can present legal argument, and sometimes testimony, regarding whether the automatic stay should be terminated.
Can I Request that Orders that Go into Immediate Effect be Stayed While the Appeal is Pending?
It is also possible to file a Motion to impose a discretionary stay on any orders that go into immediate effect while an appeal is pending. Such a Motion is filed in the trial court, unlike a Motion to Terminate Stay. The trial court judge must consider the same factors recited above in deciding whether to impose a stay of the court’s orders or not.
What is My Remedy if I Do Not Agree with the Trial Court’s Decision Regarding a Request for Stay or to Terminate Stay?
The trial court is not necessarily the final arbiter of determining whether there should or should not be a stay of execution of its order. A party aggrieved by orders regarding the termination of a stay can seek review of those orders by filing a Motion for Review with the Appellate Court. The Appellate Court has the same power to review the issuance of a stay as it does the termination of one.
Broder and Orland LLC provides appellate representation in addition to litigating at the trial court level. If you are contemplating an appeal, contact Sarah E. Murray, Esq., Chair of the firm’s Center for Family Law Appeals.
