§ 65.02 PROCEDURE FOR INITIATING APPELLATE REVIEW
This section provides a brief overview of the RAPs directed toward commencing an appeal, the procedure for staying the trial court orders pending appeal, the record on appeal, and the trial court's authority while an appeal is pending and after appellate review commences. You are encouraged to consult the WASHINGTON APPELLATE PRACTICE DESKBOOK (Wash. St. Bar Assoc. 4th ed. 2016) for a more comprehensive review.
[1] Know the Type of Appellate Review Sought
Before filing a notice of appeal, you must first determine whether the ruling you wish to challenge is appealable as a matter of right, or whether it is a ruling that may only be reviewed by the appellate courts as a matter of discretion. RAP 2.2 lists trial court decisions that are appealable as a matter of right. For most family law practitioners, the relevant decisions that are appealable as a matter of right are final judgments, RAP 2.2(a)(1), including decrees of dissolution, final parenting plans, final child support orders, and orders modifying final decrees; and decisions determining an action, RAP 2.2(a)(3), including orders denying adequate cause for an action to modify a parenting plan, to establish third-party custody, or to order third-party visitation. Decisions reviewable as a matter of right are characterized by their finality or an impact on the parties or the litigation that is sufficiently fundamental to warrant the right to immediate appellate review.
Although not listed among the orders that are appealable as a matter of right under RAP 2.2, there are some orders appealable as a matter of right by statute. First, RcW 7.21.070 allows immediate review of contempt orders, even while an action is pending. Courts prior to the enactment of RCW 7.21.070 reasoned that a contempt order was immediately appealable because it is "a final determination of the rights of the parties to the contempt proceedings in that it determined and established the contumacy of, and afforded a basis for, respondents to have a coercive remedy applied against appellant." Arnold v. Nat'l Union of Marine Cooks & Stewards Ass'n, 41 Wn.2d 22, 27, 246 P.2d 1107 (1952).
Second, certain arbitration orders are also appealable as a matter of right. Orders denying a motion to compel arbitration and orders confirming, modifying, correcting, and vacating arbitration awards are all appealable under RcW 7.04A.280. See, e.g., In re Marriage of Bernard, 137 Wn. App. 827, 832, 155 P.3d 171 (2007), aff'd, 165 Wn.2d 895, 204 P.3d 907 (2009) (reviewing as a matter of right an order denying husband's motion to enforce arbitration clause in prenuptial agreement, based on trial court's finding that the prenuptial agreement as a whole was unenforceable). Courts prior to enactment of RcW 7.04A.280 reasoned that orders denying motions to compel arbitration affected "a substantial right" or "discontinue[d] the action" for arbitration, which would be appealable as a matter of right under RAP 2.2(a)(3). Herzog v. Foster & Marshall, Inc., 56 Wn. App. 437, 440-41, 783 P.2d 1124 (1989).
Decisions that are not among those listed under RAP 2.2—and are not otherwise appealable as a matter of right by statute—are reviewed as a matter of discretion by the appellate court under RAP 2.3. Family law decisions that may only be reviewed in the appellate court's discretion include orders granting adequate cause for actions to modify parenting plans, for third-party custody, and for third-party visitation, along with orders allowing children to relocate while a relocation action is pending, and other temporary orders.
Discretionary review is rarely granted, and only if the challenged order meets one of the grounds recited in RAP 2.3(b):
1. The superior court has committed an obvious error which would render further proceedings useless;
2. The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act;
3. The superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court; or
4. The superior court has certified, or all the parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation.
Unfortunately, most decisions arising from rulings granting discretionary review of nonfinal orders do not address the reasons why discretionary review was granted and, instead, focus solely on the merits of the order being reviewed. Generally, however, the types of orders that warrant discretionary review tend to be ones whereby the impact on the litigation is significant and the alleged error fairly apparent. See, e.g., In re Custody of M.W., 185 Wn.2d 803, 374 P.3d 1169 (2016) (discretionary review of order granting adequate cause for paternal step-grandfather to assert de facto parentage of child whose parents were dead and who was in the third-party custody of his maternal grandparents); In re Amburgey & Volk, 8 Wn. App. 2d 779, 440 P.3d 1069 (2019) (discretionary review of order denying male cohabitant's motion for summary judgment seeking determination that female cohabitant was judicially estopped from pursuing equitable distribution of assets acquired during alleged committed intimate relationship because she did not list those assets in prior bankruptcy petition); In re Marriage of Long & Borrello, 4 Wn. App. 2d 231, 421 P.3d 989, review denied, 191 Wn.2d 1025 (2018) (discretionary review of order exercising jurisdiction under the UCCJEA to enter a temporary parenting plan and order return of child from Italy).
[2] Initiating Appellate Review
Regardless whether review is sought as a matter of right or a matter of discretion, review is commenced the same way—by timely filing a notice of appeal or discretionary review in the superior court in which the decision being challenged was entered. RAP 5.1(a). The first party to file a notice of review must pay the statutory filing fee at the time the notice is filed. RAP 5.1(b). As of 2021, the filing fee is $290. The filing fee is paid with the notice of review and made payable to the clerk of the superior court in which the notice is filed.
If the decision is reviewable as a matter of right, the appeal is commenced by filing a notice of appeal, which must be attached to a copy of the order from which the appeal is made, and "must (1) be titled a notice of appeal, (2) specify the party or parties seeking the review, (3) designate the decision or part of decision which the party wants reviewed, and (4) name the appellate court to which the review is taken." RAP 5.3(a). If...
