Thursday, January 29th, 2009
1. What is an appeal?
An appeal is not a new trial. An appeal is a request by a party (the “appellant”) asking the appellate court to review the decision of the trial court because he or she believes the trial court entered an erroneous decision. The party who opposes the appeal is called the “appellee.”
The appeal is filed with the Appellate Division. The Appellate Division is an intermediate court. It is bound by the standards of review that severely restricts the court’s ability to intervene. Please keep in mind that most appeals are lost. The statistics that are compiled by the Administrative Office of the Courts indicate that approximately 74% of divorce appeals are lost.
When you file an appeal you are claiming that the higher Appellate Division should “reverse” or overturn the lower (trial) court’s decision in your divorce case. The law generally favors the finality of a divorce judgment. Therefore, it is very difficult for a person to obtain any relief from a final judgment of divorce judgment. There must be some very exceptional and compelling circumstances to justify a reversal of a divorce judgment. Some courts find that while they are without legal authority to modify a divorce judgment, they can interpret a final judgment of divorce in a more fair way by modifying terms of payment, or whatever is equitable under the circumstances.
The purpose of an appeal is to determine whether the family court judge made a legal error such as misinterpreting the law, or allowing into evidence or testimony that should not have been admitted. If the Appellate Division determines that the family court judge did make a legal error that is “material,” then it may send the case back to the same family court with the instructions to correct the mistake. The term “material” is a legal term of art, and it basically means that the legal error(s) was very important. If a case is reversed, then in most cases a new trial is ordered.
An appeal is generally not a procedure to question the trial judge’s factual conclusions. The Appellate Division will generally not second-guess factual conclusions that the trial judge has reached, because the Appellate Division does not take testimony or hear witnesses. Instead, the Appellate Division reads and listens to the arguments of the lawyers to determine if the trial judge made a reversible legal error that affected the outcome of the trial. If so, the case may then be remanded or sent back down to the trial court to have the error corrected.
The appellate process generally takes approximately one to two years. After any trial, the spouse who lost the trial may use the threat of an appeal as a negotiating tactics to induce the winning spouse to make a settlement, or to obtain some financial concessions. For example, let’s say a judge splits up the couple’s assets and gives the wife a $250,000 buyout of the husband’s business, and also a lifetime alimony award of $1,000 per month. After the husband recovers from this “shock,” he can then threaten to appeal unless his ex-wife settles the case. The husband can use the threat of an appeal to force his ex-wife to make concessions. For example, the husband can propose that he will not appeal if his ex-wife agrees that he has to give her only a $150,000 buyout, and if the alimony award is reduced to $500 per month.
Thereafter, the wife has to decide whether to pay lawyers to fight the appeal for the next year or two, or to simply accept a reduced buyout amount, and a reduced alimony award. Sometimes, putting an end to a legal battle is worth losing some assets or receiving less alimony. The emotional toll and the stress of endless divorce litigation can physically and emotionally destroy many people. Sometimes your physical and mental health is worth more than the assets and alimony that you have received from the family court judge at the divorce trial.
The bottom line is that an appeal costs thousands of dollars in legal fees and court costs. Moreover, most appeals take approximately one to two years to be decided. Many clients are anxious to put the divorce experience or a bad marriage behind them. To many clients a divorce appeal is simply another way of keeping a bad marriage alive. In summary, if there is a divorce appeal then the sense of a closure of the relationship is not achieved.
In summary, uncontested cases are not appealed because you both have agreed on the terms of your divorce judgment. Very few cases are appealed, probably for one of both of two reasons: (a) An appeal entails a great deal of expense. It costs thousands of dollars to provide a transcript of the trial proceedings, and thousands of dollars in attorneys’ fees to have the briefs drafted and for the attorneys to appear at oral argument before the Appellate Division. No new testimony is allowed on appeals; the Appellate Division bases its review entirely on the record of the trial court. (b) In most appeals, the trial court’s decision is upheld. Unless the trial court clearly abused its discretion, the Appellate Division will defer to the trial court in weighing the credibility of the witnesses and all of the complex evidence before it. However, if the trial court committed a legal error, then the Appellate Division may independently review the case, and reverse the trial court’s decision.
In my professional opinion, you should consider the trial as your only opportunity to prevail in your dispute with your spouse. But if, after trial, you strongly feel the need to appeal, then you should discuss with your attorney the risks, costs, and likelihood for success.
2. What do I have to consider before I file a divorce appeal?
Because issues are more complicated and technical in an appeal rather than at the trial level, it is important for you to consult an experienced matrimonial lawyer. You may actually need a different lawyer for your appeal. An appellate attorney is an attorney who is familiar with the appellate process. Be prepared to pay for the new attorney to come up to speed on your case because any lawyer representing you at the appellate level must know the intricacies of your case and that means poring over your “record below” and knowing it as well as you do.
The process might last a year or two and sometimes even longer. On top of paying your own legal fees you may be required to pay any fees and legal expenses of your former spouse if the court thinks your appeal was frivolous.
In summary, the time and costs are factors that cannot be overlooked. Appeals are very expensive. The costs of the trial transcripts alone can easily costs thousands of dollars. The filing fees for a divorce appeal are very high. The filing fee for filing an appeal is $200, and you also must pay another fee of $300 for costs for the appeal. Therefore, the filing fees and court costs for an appeal are $500. Moreover, there is a tremendous amount of legal work that is needed to effectuate an appeal. In many cases, an appeal may not be cost effective. Although you may have a flat-out reversible error, the cost of the appeal may outweigh the legal errors that were made at the divorce trial.
3. Can I present new evidence on appeal?
The Appellate Division can only consider what happened in the trial court. The Appellate Division can only review the pleadings and orders, and trial transcripts for the case below. If there is any additional evidence, or a “change in circumstances” since the date of the divorce, then a person may have to consider filing a motion to reopen the case, or a Lepis motion.
4. When can an appeal be filed?
An appeal cannot be filed until a final judgment is entered by the family court the trial court. A person has forty-five (45) days to file an appeal after the trial judge has signed and filed the divorce judgment. The forty-five (45) day period does not begin to run until the divorce judgment is filed with the County Court Clerk. In some circumstances, the time for an appeal may be extended for a period not exceeding thirty (30) days upon a showing of good cause and the absence of prejudice.
5. How many issues can I appeal?
You are not limited in how many issues that can be raised on appeal. However, you should limit your appeal to the top four or five issues. You want your attorney to be able to focus the Appellate Division’s attention to the top four or five issues instead of ten issues. There are also page limitations for your appellate brief, and your attorney must be able to effectively argue your position within these page limits. In short, use a rifle rather than a shotgun approach. The more specific your brief, then this will increase your odds to have a favorable outcome on your appeal.
6. How much does an appeal cost?
This depends on how many issues are being appealed, whether you are the appellant (the person appealing) or the appellee (the person answering the appeal), the length of trial, and legal complexity of the issues being appealed. Some lawyers charge by the hour and some lawyers charge a set fee. An average appeal will cost between $5,000 to $10,000 in legal fees. Moreover, there will be approximately $2,500 to $3,500 in costs to handle the appeal. These costs include paying for the transcripts, appellate filing fees, postage, and for copying costs. Moreover, the filing fees cost $500.
7. Do I have to use the same lawyer on appeal?
The main advantage of having the same lawyer for the appeal is that this lawyer is familiar with the case. This factor can enable the litigant to save on thousands of dollars on legal fees. The advantage of hiring a new lawyer is that this brings a fresh, and sometimes more objective approach to the case. However, if a person hires a new lawyer to handle the appeal, then the new lawyer will have to spend many hours reading the record to prepare for writing the appellate brief. This task alone will cost several thousands of dollars in legal bills. Therefore, if at all possible in my professional opinion it really does not make economic sense to hire a new lawyer to handle an appeal. A person will have to spend a tremendous amount of money on legal fees to pay the new lawyer to read the trial record and the transcripts. Meanwhile, these legal fees would not have to be paid if the litigant simply uses the original trial lawyer handle the appeal because he or she is already very familiar with the case.
8. What happens if I win the appeal?
If you win your appeal and if the trial court’s decision is overturned, then the Appellate Division can either rule on the issue(s) itself or “remand” the case. The term remand basically means that the case sent back to the trial court. The Appellate Division will also provide the trial court with specific instructions as to how conduct the case.
If, after reviewing your matter, the Appellate Division believes that your appeal has merit, then it will then afford you, the appellant (the litigant filing the appeal), another bite at the apple by ordering a reversal. A “reversal” is exactly what it sounds like, an appellate ruling overturning a trial decision(s) in a divorce case. A “remand” is a directive from the Appellate Division to the trial court to conduct the trial once again. However, the new trial must be conducted according to the directives that the Appellate Division has issued.
If the Appellate Division finds that your appeal has no merit, then it will affirm the final judgment of divorce. The case will then be upheld based upon the trial court’s rulings and decision. If that occurs, then you are usually out of options. Although, another, even higher, level of appellate review (after the intermediate appellate court) exists. A person can always file an appeal to the New Jersey Supreme Court. This process is called a Petition for Certification. Thus, it is possible, but unlikely, that your case can be reviewed by the highest appellate court in New Jersey.
In general, it is extremely uncommon to obtain a review of an appellate opinion from the New Jersey Supreme Court. The New Jersey Supreme Court will only accept an appeal if the case if “one of first impression.” Basically, this means that the case must have novel issues. The New Jersey Supreme Court’s main role is to create new law. Therefore, only cases that have “cutting edge” issues are accepted for review by the New Jersey Supreme Court. Moreover, the New Jersey Supreme Court also accepts appeals that have issues on legal areas that has “splits in the law.” This term basically means that there is conflicting case law on the legal issues that are raised on the appeal.
9. I have recently settled my divorce case without having a trial. However, I now feel that my divorce settlement is very unfair. Can I now appeal my divorce settlement?
Generally, except in rare instances, a person cannot appeal from a property settlement agreement. If you have some questions about the settlement, then you should consider exploring the filing of a motion to reopen a divorce judgment. However, please be advised that motion to reopen a divorce judgment is only available on very specific grounds, and only for a limited time period. The grounds to reopen a divorce judgment are thoroughly discussed in my article Can I Reopen My Divorce Case? The major grounds to reopen a divorce case are when you can show a mistake, inadvertence, surprise, or excusable neglect. These types of application(s) must be filed within a reasonable time after the final judgment of divorce was filed with the court.
In summary, in most cases a property settlement agreement usually cannot be appealed if both spouses have agreed to its terms. Therefore, if you and your former spouse reach a settlement agreement on issues such as equitable distribution, child support and alimony, and if the property settlement agreement is approved by the court, then you are most likely stuck with the terms of that agreement. However, you may be able to ask the court to modify the terms of the divorce judgment.
10. What is the procedure to appeal my divorce case?
The appellate process is very complex. It is almost impossible for a pro se litigant to adequately represent themselves on appeal.
a. File Notice of Appeal
The first step is to file a notice of appeal. You must inform the trial court, the adversary (your ex-spouse), as well as the court reporter, that an appeal will be filed. You will be required to describe the issues you will appeal and explain the reasons you believe the trial court was wrong in deciding the case the way it did.
b. Pay the Filing Fees
The filing fees for an appeal are very high. Currently, the cost to file a notice of appeal is $200. Moreover, the appellant is also required to pay costs for the appeal. Currently, the appellant is required to deposit with the court clerk the sum of $300 to pay for costs of the appeal. This fee is due within 30 days after filing the notice of appeal. The filing fees must be paid when the notice of appeal is filed.
c. File a Civil Appeal Case Information Statement
You will also have to file another form called a civil appeal case information statement. This form basically contains information about the trial, the bio information about the lawyers, and the issues that are to be raised on the appeal. In this form the appellant must give a summary of the facts of the trial. The appellant also must list the proposed issued to be raised on appeal.
d. Order the Transcripts
When an appeal is filed, the appellant must complete a form that verifies that the transcripts have been ordered. You will need to pay a deposit to the court reporter to start the process of transcribing the divorce trial proceedings. The transcripts are the verbatim record of all of the testimony that was stated in the trial court. The court reporters typically require half the money up front to start working on transcribing the record. The cost to produce the transcripts typically ranges from $1,500 to $3,000 in an average divorce case. Once the transcripts are obtained, then three copies must be sent to the Appellate Division. Moreover, the appellant is also required to send a copy of the transcripts to the adversary/appellee.
e. Preparation of the Briefs
Usually, the appellate legal briefs will be due within a period of time (45 days) after you receive the trial transcripts from the court reporter. In most divorce appeals a 30-day extension is routinely granted to file the brief.
Your appeal consists of what is called a “record below” which is: all stenographic transcripts of the proceedings in the lower court (the trial court); all evidence admitted in the case; all papers, pleadings and documents filed in the lower (trial) and appellate court in reference to your divorce. This appeal, typed by a paralegal or attorney whom you pay, must be meticulously typed and organized, complete with an appendix, numbered pages, index, paginated and bound.
You must also file these appellate documents in groups; generally an original and four copies with the appellate court, two copies to your adversary, and one copy for your client. (A total of eight copies of briefs and appendixes’ that can be hundreds of pages long!) Although an appellate legal brief is usually limited, depending upon the individual state, to 65 pages or so, the record below is as big as it is! Consequently the copy costs incurred in the appellate process are often huge!
After all the paperwork has been reviewed, typed, copied and distributed to all it is now in the hands of the Appellate Division. The Appellate Division is usually made up of three judges, and it reviews your appeal and all of its supporting documents. Unlike the trial court, the Appellate Division does not consider new evidence or hear testimony of the parties or witnesses.
f. Oral Argument of the Appeal
If a party in an appeal wants to have oral argument then he or she must file a request for oral argument. Each party is allowed a maximum of thirty (30) minutes. It must be emphasized that the most important part of an appeal is the brief. If your brief is inadequate, then even if your lawyer argues your case sounds like the late great “Johnnie Cochran,” then you will probably not be successful on your appeal. Many lawyers take the view that oral argument really does not make a difference in the outcome of the appeal.
11. What is the record on appeal?
The record on appeal consists of all papers on file with the family court below, all entries made on the record by the court, the transcripts, and all papers filed with the court. It must be emphasized that the appellate court will not consider evidentiary material that is not contained in the record below.
12. What are the standards of appellate review?
Generally, in matrimonial cases, the findings of a trial court are not disturbed unless they are so wholly insupportable as to result in a denial of justice and are upheld when they are supported by adequate, substantial and credible evidence. See, Rolnick v. Rolnick, 262 N.J. Super. 343 (App. Div. 1993).
The standards of appellate review are legal principles that are set forth in the New Jersey court rules and case law that govern the way an appellate court reviews a divorce case. The standards of appellate review permits the Appellate Division to determine: (a) whether an error has been committed by the trial court; and (b) if the error has been committed, whether the error is so significant that a reversal is warranted.
13. What are the standards of review that the Appellate Division uses to review a family court case?
The majority of the case law has held that, because the family courts have special jurisdiction and expertise in family court matters, appellate courts should accord deference to the fact-finding of the family court judges. See, Cesare v. Cesare, 154 N.J. 394 (1998). However, this level of deference has not been applied evenly to all issues that arise in the family court arena. For example, with regard to alimony, the appellate court will give deference to the family court’s findings, so long as the findings are supported by substantial credible evidence in the record as a whole. Reid v. Reid, 310 N.J. Super. 12 (App. Div.), certif. denied, 154 N.J. 608 (1998).
In simpler terms, a person who appeals must show that there was not sufficient credible evidence in the record to support the decision reached or that a matter of law the decision was wrong. You are not getting a second bit at the apple.
14. What is the legal standard of review used to determine if a child support award is correct?
With respect to the issue of child support, the Appellate Division recently held that a trial judge’s denial of a petition for reconsideration to modify a child support obligation was required to be accompanied by findings of fact and legal conclusions. An illustrative case is Fodero v. Fodero, 355 N.J. Super. 68 (App. Div. 2002). Here, the Appellate Division remanded a case because the trial court failed to provide written reasons to support its child support guideline award.
15. What is the legal standard of review used to determine if an alimony award is correct?
To overturn a trial court’s findings, for example, in a case modifying alimony, the appellate court must conclude that the trial court clearly abused its discretion or that it failed to properly consider the prevailing and controlling legal principles. Another standard is that it must be settled that the court’s findings were mistaken, or that a determination could not reasonably have been reached on sufficient credible evidence present in the record, after a consideration of the proofs as a whole.
16. What is the legal standard of review used to determine whether a trial court’s decision on equitable distribution is correct?
The issues of what assets are available for distribution and of their value are governed by the sufficient credible evidence standard. Rothman v. Rothman, 65 N.J. 219 (1974). The issues of the amount of the award and the manner in which eligible assets are allocated are addressed to the trial judge’s discretion. Borodinsky v. Borodinsky, 162 N.J. Super. 437 (App. Div. 1978). The standard of review applicable to issues to issues involving which assets are available and the valuation of those assets is whether the trial judge’s findings are supported by adequate evidence in the record. Id. 443-444
17. What are some strong appealable issues?
- The family court judge did not make sufficient findings of fact or conclusions of law.
- The family court judge made only legal conclusions, and his or her decision was not based on a careful analysis of the law and of the evidence.
- A case may have strong grounds for an appeal if the amount of the alimony is not consistent with the range of awards that are normally given.
18. I have appealed my divorce case. I have basically lost all of my assets to my ex-wife at the trial. Moreover, I have been ordered to pay my ex-wife $2,000 per month in alimony. Does my appeal automatically suspend my alimony obligations?
It is important to emphasize that an appeal does not automatically stay the terms of a divorce judgment. The term stay basically means to stop. The terms of a divorce judgment are still enforceable even if an appeal is filed. If a person wants to stop the terms of the divorce judgment from being enforced, then he or she must file a motion for a stay with the Appellate Division. Once an appeal is filed, then the trial court loses jurisdiction of the case. Thereafter, the Appellate Division assumes jurisdiction, and any motions must be filed there and not in the trial court. In summary, once an appeal is filed, then the trial court generally loses jurisdiction to make any rulings in the case.
19. I have won my appeal against my husband. I have spent $20,000 on legal fees to pay my lawyer to represent me on appeal. Can I file an application to make my husband reimburse me for my high legal fees?
Yes, a party on appeal may move in the Appellate Division for a reimbursement of legal fees. Rule 2:11-4 provides an avenue for a litigant to make an application to be reimbursed for his or her legal fees incurred for the appeal.
20. I have just lost my appeal in the Appellate Division. Can I file yet another appeal?
Yes. A person can file an appeal with the New Jersey Supreme Court. This type of procedure is called a Petition for Certification. A Petition for Certification must be filed within twenty (20) days after the Appellate Division has rendered a final judgment of the appeal. In general, it is extremely uncommon to obtain a review of an appellate opinion from the New Jersey Supreme Court. The New Jersey Supreme Court will only accept an appeal if the case if “one of first impression.” Basically, this means that the case must have novel issues. Therefore, a person only has about a one in a hundred chance of having the New Jersey Supreme Court accept a Petition for Certification.
21. The appellate process sounds like it is very expensive and time consuming. Is there any alternative to the appellate process?
The Appellate Division has instituted a program called the Civil Appeals Settlement Program. In this program, a retired appellate judge or a trial judge will serve as an arbitrator of the appeal. The parties can meet with the retired judge to try to discuss a settlement. The meeting is usually held at the Hughes Justice Complex located in Trenton, or at the judge’s office. The meeting is usually held before the transcripts are ordered and the briefs are written.
It can’t be over emphasized that the appeal process is extremely expensive. I have seen many families drive themselves into bankruptcy by engaging in endless litigation. I have been involved in one divorce case where the parties have litigated for more than 12 years. There are no winners or losers in a divorce case. The bottom line in any divorce litigation is to obtain a settlement that both parties can live with. Therefore, I always advise my client to participate in the Civil Appeals Settlement Program. This program is not mandatory. However, I strongly believe that in matrimonial cases the participation in the Civil Appeal Settlement Program should be mandatory. This program is excellent, and it should be expanded by the Administrative Office of the Courts. In my opinion, the cost of divorce appeals is so expensive and time consuming, that all efforts should be made to encourage the parties to reach a settlement.v. 1978).