Read the Transcript of this Podcast Below.
In family law, what is an appeal, and when can one be taken?
An appeal is a request by a party to seek to overturn the ruling by a trial court. It is essentially appealing. I know that you shouldn’t use the same word to define another word, but it is appealing to a higher authority and asking the higher authority to take a look at what was done below and fix it. One can be taken really any time you have a final judgment from which you are seeking some type of modification or vacating of that order.
When should someone appeal a decision a judge made in their divorce case?
The decision to appeal is a very difficult one sometimes, because you can always legally appeal, but the question becomes when should you appeal. If there’s an injustice in a case, you really have to consider what is the economic loss that you have as a result of that wrong decision? If the loss is less than $5,000 or $10,000, and the cost of appealing the matter is going to cost you more, then appealing on principle doesn’t make any economic sense because you’re going to come out behind. If the issue is one that is very personal to you, such as a child custody decision, or perhaps distribution of property that you believe is personally your property or property that should belong in your family, you might want to appeal because it has a greater significance to you that really isn’t monetary.
How long does the appeal typically take to be resolved?
From the time we file the notice of appeal, which is the first document that initiates an appeal, I normally tell clients to expect that you’re going to be waiting about a year for the case to be totally resolved, because even though you start the process off (in about a month), you’re going to get a scheduling order that tells you that briefs need to be filed once every 30 days. There’s a total of three briefs, a moving brief, a responsive brief, and a reply brief. You then have a lengthy period of time during which the judges (you have a panel of judges) are going to be reading this information, digesting it, and then ultimately bringing you in for oral argument. Then after oral argument, you’re going to have another several months before a written decision is issued. About a year is the timeframe for most appeals.
Are there any downsides of taking an appeal?
There are definitely downsides to taking an appeal. First, you have the expense to consider. Normally, people that have gone all the way from filing a complaint for divorce to trial, and they’re finally resolved at trial, are spent economically – tens of thousands of dollars, if not hundreds of thousands, depending on the issue – and so the additional expense is something to consider.
Second, you have a delay in finality. If you know what the trial judge has done, even if you dislike it, you can at least start to live with it. If you file an appeal, you’re going to have yet another year of question mark over your head, and if the trial court did something wrong, and you “win” your appeal, or one of the issues on your appeal, you’re going to have even more time litigating before that same judge.
On the flip side, if you take an appeal and you ultimately are not successful, you sometimes will beholden to or embolden the other side such that they dig their heels in, and now that they feel they are somehow vindicated, they will become even more difficult to deal with on a lot of issues. Worse, worst case scenario, you have to go back to that same judge that you fought to appeal, and that judge is going have power over post-judgment issues that he or she are not going to view very favorably, because they feel that you did not accept their decision, however well-reasoned it might have been. You really have to consider what you have to gain from taking an appeal before you risk angering your judge by going up.
If an appeal is successful, does that mean that the litigants automatically receive everything they asked for?
The way that we characterize an appeal as successful or not successful is going to depend on what we want to accomplish. Now, of course, that sounds somewhat self-explanatory. Of course you want to accomplish the win, but there are times when you’re going to the Appellate Division, and there may be 10 or 15 issues on appeal. However, you really only want two or three of them. You’re just going to reference the fact that there were a multitude of issues that the trial judge got wrong, because you want to show the Appellate panel that the trial judge didn’t analyze the facts clearly or didn’t have a full grasp of the law, or whatever it is. You want to make sure that when you are going into an appeal, just as when you’re going into any trial court process, that you really have a realistic expectation. There are definitely times when you could win the issues that you want even though you did not prevail on all of them. You really have to think about what the biggest picture tells you, what you should be seeking is, and what you ultimately achieve.
If the court granted apparent permission to move to a different state or even country with the children, can the other parent appeal the judge’s decision? What is that process?
If a court grants out-of-state relocation to one parent, the other parent certainly has the right to appeal. Normally that process involves a little bit more than in your traditional appeal. The first step in any appeal is once you have the order, you file a notice of appeal with the court. However, in a situation where there could be some irreparable harm to you if the trial court decision is executed before the Appellate Division seeks to reverse it, you would want to request what’s called a stay. A stay is exactly what it sounds like. It is a “stay put” decision by the higher court, or it could be by the trial court allowing things to remain status quo until the appeal has been prosecuted.
Once you have gotten that issue resolved, you have to first request it from the trial court. If the trial court says no, you then have to request it from the Appellate Division, but at some point, very soon in the process, you’re going to get an answer. Once you get that answer, you then have to go through your normal appeal process, but oftentimes there are motions that are filed during an appeal when you have a relocation case, because a child has a parent on behalf of a child who’s gotten the expectation that the child is going to be enrolled in a new school, and is going to have to assimilate to a new community. All of those things may have been put on hold or may not have been, depending on the outcome of the stay.
You’re going to normally start to see issues such as parenting time, and travel expenses. Oftentimes these issues, if they weren’t addressed in the trial court decision, are going to have to be addressed in motion practice before the Appellate Division. It’s a little bit different. A little bit more involved to appeal a relocation application, but you absolutely can if you’re not happy with the outcome.
What is the deadline to file a notice of appeal?
You file your notice of appeal of any final court order, any final judgment, within 45 days of the date that the order was issued. Now, that’s slightly different than what we call the deadline for leave to appeal. Leave to appeal is what you have to seek of the court. You’re asking permission to appeal in a circumstance where there is some issue that is outstanding in the trial court order, so not everything has been resolved. We call those orders executory. If you have an executory provision in an order, you still have to ask the Appellate Division to give you permission to file the appeal. You can’t just file it. Those have to be filed within 20 days of your receipt of the order.
It’s very important that you stay on top of those deadlines, because if you miss them, there is a provision to seek good cause exception to meeting those deadlines, but it’s not to be liberally construed. You should not play around with those deadlines at all. As soon as you have a decision you’re not happy with, you should consult an attorney right away to make sure that you don’t miss your fling deadline to appeal.
Do you need to wait until a final order has been entered to pursue an appeal?
There are times where you have to wait until a final order, and there are times when you can seek to address your appeal even before the final order has been issued. A very common situation is when you have resolved certain issues by way of settlement, and you’re going to have a trial. If upon resolution of, let’s say, the economics of your divorce, you decide to put through your divorce, but custody still has to be litigated, then in that situation, you may have modification issues, and enforcement issues. Trial court orders could be issued post-judgment about the finances, because that’s now been resolved. You might have a situation where you want to go ahead and appeal that even though you don’t have your full judgment of divorce that would incorporate custody. Because you have a bifurcation of issues, you’d be seeking to appeal whenever the issues are finally resolved.
There are also times when you have received your final decision on a lot of issues, but there could be a few outstanding issues. For instance, the court might decide what child support’s going to be, but might not be able to decide how much each person is going to pay toward daycare, and that might be based on which daycare the child’s going to be in or related issues. Perhaps there’s going to be the involvement of a parenting coordinator, or a third party to help you facilitate the resolution of those issues. If you’re not happy with the underlying child support amount, there’s no need to wait in that scenario. You would normally go ahead and appeal that, because the outcome of the other issues is not dependent upon the child support. They really are separate issues.
Can all court orders be appealed?
All court orders can be appealed except those that are issued by consent. If you and the other party have decided that you’re going to disengage from litigation and resolve issues amicably, the only time that you can appeal the consent order is when you are seeking to set it aside and ultimately a court says, “You entered into it freely and voluntarily.” If the court makes the threshold finding, you are essentially going to be stuck with your consent order. Beyond that, all other orders can be appealed, and the question is going to be: Are they a final order that would entitle you to file a notice of appeal as a matter of right? That has to be filed within 45 days. Or, is it an interim order or an executory order that you have the right to seek permission to file an appeal? That permission is called leave to appeal, and again, you have 20 days to file that application.
Yes, in theory all orders can be appealed, but the standard is pretty high and stringent for appealing a consent order, and everything else really is based on the timeline and how final the order is.
What does success on appeal mean? Does winning the appeal always end the case?
Success on appeal means that you have achieved either one of three things. Either you have gotten the trial court to reverse. That means that whatever the decision was that the trial court issued has been turned on its side or turned on its head. Second, you may have gotten the case remanded. If a case is remanded, that means that the Appellate Division saw a need for either supplementation of the trial court record i.e., “We don’t know if the trial judge got it right or wrong. We just don’t have enough information.” In that scenario, you would have a remand, and you would be able to present even more information to the court to decide the issue.
Third, you’re going to have the issue reversed and remanded. Reversed and remanded means the trial court got something wrong. So the Appellate Division says, “No, we need to do that portion over.” We can actually determine that we can’t rightly answer on reading the papers, so we need the trial court to issue a decision after having fixed the issues in the case that we reversed on. Your best case scenario whether you get it reversed, remanded, or reversed and remanded, is typically going to be that you get it reversed outright.
Sometimes you don’t want your trial court decision to be reversed outright because you like some of the things that happened. Maybe you were seeking to appeal one of three things, and your spouse or your former spouse is seeking to appeal the other two. If the Appellate division says, “I’m going to deem this to be reversed,” then in that scenario you will have lost two things that you won, as well as the one things that you lost. In that scenario, it’s never wise to simply want it reversed. Best case scenario is going to depend on your facts and circumstances, and success on appeal really is that you got enough of what you wanted in the Appellate Division that you can either go back to the trial court and convince them to give you all of the remainder of what you want. Or, best case scenario, you’re going to settle it without having the trial court decide, and you’re going to be able to get to a place where you’re happy enough with the outcome that you can move forward with your life.