Appeals

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Background

Lawyers love fighting for client's rights and it is in an appeal that a lawyer gets her best chance to change the world. Because that is why lawyers become lawyers, to change the world of course, one case at a time. Every once in awhile a lawyer is lucky enough to have a case that is appealed to a higher court. An appeal takes a passionate client and a dedicated lawyer. The odds are stacked against overturning a lower court's decision, yet to some, it is important enough to do.

Susan's appellate practice began simply enough, writing appellee's memoranda in civil traffic and misdemeanor appeals while prosecuting for the towns of Fountain Hills, Cave Creek and Carefree. In the process of responding to hundreds of such appeals over her 20 year prosecuting career (as a contract prosecutor and consultant for a number of municipalities) she honed her writing skills. A well-written appeal requires lots of research, tons of dedication, a bit of creativity and a knack for turning a phrase. She would use those skills throughout her career in family law, mineral rights and photo radar appeals.

Higgins v. Higgins: A mother fights for her rights to see her children

In 1998, Sara Deane Higgins hired Susan to appeal the decision in her divorce that gave custody of her children to her ex-husband. In allowing Sara only limited visitation, the court ordered Sara "to marry her boyfriend or evict him, if she wanted to see her children in her home." The appeal, known as Higgins v. Higgins, 981 P.2d 134, 194 Ariz. 266 (1999) made front page news (above the fold) when the Court of Appeals ruled in Sara's favor. The case stood for the idea that a "court has no authority to dictate the terms of future relationships for the parties or to tell them with whom they can and cannot live if they want to see their own children in their own home." In Sara's case, the trial court found that a mother should not live with her boyfriend of 2 1/2 years and stated that it harmed the children, calling it "adultery." The appellate decision clearly established that Sara was a mother who had made good decisions for her children, including her choice of a boyfriend, and that there were no facts or law to support the trial court's ruling. It was a victory for women and children.

What Has Happened Since the Decision

• The Higgins case has been cited by the Arizona Court of Appeals in 27 decisions since 1999, with 2 of those in 2015.
• The case is listed in the Table of Cases in Mediation Law and Practice published in 2007 by Cambridge University Press.
• The Higgins case is the subject of a 2002 article by Lynn Wardle published in the Catholic University Law Review, entitled Parental Infidelity and the "No Harm" Rule in Custody Litigation.
• The case was reviewed by the Family Law Quarterly, a publication of the American Bar Association, in a 2000 article, A Review of the Year in Family Law: Century Ends with Unresolved Issues by Linda Elrod and Robert Spector.
• The case is referred to in Not Just Roommates: Cohabitation After the Sexual Revolution by Elizabeth Pleck and published in 2012 by the University of Chicago Press.
• Judge Jay Polk refers to the case on his Maricopa County Superior Court website page.
• The case is cited in a 2012 Family Law News article by Helen Davis titled Judicial Interview of Children: Proceed With Caution published by the State Bar of Arizona.
• The court ordered the father in Higgins to pay the Mother's attorney's fees for the appeal. The father chose to file bankruptcy and has never paid the fees as ordered.

While the court was still announcing the details of its decision, Mother asked for further explanation, and she disputed the testimony that she was "cold" to the children. The court again stressed how "very important" the adultery was to its decision

Higgins v. Higgins, Read it here.

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