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Civil versus Criminal Appeals

by merlin on February 6th, 2013
  • Sumo

Those who have no grasp of the idea that there is a fundamental difference between criminal procedure and civil procedure can sometimes rely on their ignorance with disastrous results.  This fundamental distinction arose not long ago concerning contempt – it can be either criminal, or civil, and the two aspects have very different natures, but are often used indiscriminately by the ignorant.

What folks with no clear grasp of the differences between civil and criminal procedure fail to appreciate, among other things, is the substantial difference between an appeal from a criminal conviction and an appeal from a civil judgment.  Because it is useful to illustrate this fundamental point, examine the text of Section 5-7-5 of the Official Code of Georgia, concerning appeals in criminal cases (it governs the rare situation in which the State may appeal):

In the event the state files an appeal as authorized in this chapter, the accused shall be entitled to be released on reasonable bail pending the disposition of the appeal, except in those cases punishable by death. The amount of the bail, to be set by the court, shall be reviewable on direct application by the court to which the appeal is taken.

This provision is needed because in criminal cases, the conviction stands unless and until it is reversed or set aside by an appellate court.  The statute actually explicitly gives a person the right to have bail set in a reasonable amount in non-death penalty cases (in one case presently being appealed, the man spent over a year in jail, and only entered a guilty plea because that way he could get out of jail eventually).

On the other hand, the conditions that govern civil appeals are a little different.  There, the Code expressly states that the judgment doesn’t take effect upon the filing of a notice of appeal – that it acts as supersedeas (“A suspension of the power of the trial court to issue an execution on judgment appealed from” in Black’s Law Dictionary).  Further, the Code expressly provides what exceptions exist to these rules (hint: not divorce judgments, even when they involve child custody and visitation issues), since it expressly says that judgments in child custody cases (a specific type of case, itself, as opposed to a divorce case) go into effect from the date of the judgment unless and until they are reversed or set aside at both Sections 5-6-34(e) and 5-6-35(k).  They expressly provide that the only thing that happens immediately – notice of appeal and supersedeas notwithstanding – is nonmonetary relief.  In other words, monetary relief (i.e. – division of property, alimony, support, costs, etc., in a divorce matter) doesn’t happen unless and until the case is reversed or set aside.  What’s more – that monetary judgment would garner interest.  The calculation for the interest is found in Section 7-4-12 of the Georgia Code:

(a) All judgments in this state shall bear annual interest upon the principal amount recovered at a rate equal to the prime rate as published by the Board of Governors of the Federal Reserve System, as published in statistical release H. 15 or any publication that may supersede it, on the day the judgment is entered plus 3 percent.

(b) If the judgment is rendered on a written contract or obligation providing for interest at a specified rate, the judgment shall bear interest at the rate specified in the contract or obligation.

(c) The postjudgment interest provided for in this Code section shall apply automatically to all judgments in this state and the interest shall be collectable as a part of each judgment whether or not the judgment specifically reflects the entitlement to postjudgment interest.

(d) This Code section shall apply to all civil actions filed on or after July 1, 2003.

This seems like a staggering amount of money, ordered due all at the same time.  It seems like it would force a person to declare bankruptcy if they wound up being responsible for even a portion of such a judgment.  However, the law has recognized the propensity of people to take this kind of reckless action (getting a divorce and then trying to discharge their obligations in bankruptcy), and has expressly made an exception to the general bankruptcy discharge for “domestic support obligations” at 11 U.S.C. Section 523.  Subsection (a)(5) holds that  “[a] discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt for a domestic support obligation.”

To get an idea of what constitutes a “domestic support obligation”, this excellent disquisition is given on the Rochester Family Lawyer page at

“Under bankruptcy law, a “domestic support obligation” is any debt incurred before or after a bankruptcy filing that is owed to or recoverable by a spouse, former spouse, child or governmental unit; in the nature of alimony, maintenance or support; and established pursuant to the terms of a divorce decree, separation agreement, property settlement agreement, court order or administrative determination.

In Chapter 7 bankruptcy, essentially all marital and domestic relations obligations are not dischargeable, regardless of whether they are support in nature, property divisions or “hold harmless” agreements, provided they were incurred by the debtor in the course of a matrimonial proceeding or a divorce action which resulted in a separation agreement, divorce decree, court order or administrative determination.

A debtor’s obligation to pay marital debts directly to a third party ( ie., pay the mortgage on former marital residence) and to hold the former spouse harmless on said debts is also deemed to be non-dischargeable if the obligation has the effect of providing support to the former spouse. A debtor’s duty to pay the following expenses are usually deemed to be in the nature of support and not dischargeable: educational expenses of a minor child; medical insurance coverage for a minor child; and life insurance, with the minor children as beneficiaries.

Attorney’s fees owed by debtor to his own lawyer are clearly dischargeable in bankruptcy, but as a general rule, attorney’s fees owed by debtor to a former spouse’s attorney are not dischargeable, if the underlying legal proceeding resulted in the entry of an order or judgment directing payment of maintenance or spousal support to the former spouse.”


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