Common wisdom in the New Jersey legal community says that appeals require a year or two to resolve. The length of time it requires to file, brief, argue, and receive a decision from the Appellate Division often dissuades litigants and attorneys alike from taking that route. For example, if the Trial Court enters an order in July directing your children to be enrolled in a particular school district for the upcoming year in September, what use is an appeal that vindicates your rights in one or two years?
Fortunately, you have options.
- EMERGENT APPEALS
Whenever the Trial Court’s decision threatens to cause immediate and irreparable harm, you can request emergent relief from the Appellate Division. Generally, in this context, “immediate” means before a more traditional motion or appeal could be heard, and “irreparable” means harm that cannot be adequately redressed by monetary damages.
Notably, decisions affecting the safety and well-being of minor children are more likely to warrant emergent intervention. For example, in the Appellate Division in the 2010 case of Parish v. Parish, the Court noted that “interference with custody and parenting time may immediately and irreparably impact the best interests of a child and often represent classic cases necessitating court review.”
If the Appellate Division grants emergent relief, the order will specify the relief granted, which might include either immediate reversal or a “stay” (which prohibits enforcement of the Trial Court’s order pending the outcome on appeal) alongside an abbreviated briefing schedule.
- INTERLOCUTORY APPEALS
Second, all interlocutory appeals are heard on an expedited basis. So, what is an interlocutory appeal? That issue requires a bit of explanation.
When the Trial Court has decided all issues between all parties, the order is considered “final,” and you have the unqualified right to seek review by the Appellate Division. In divorce cases, the final order is typically labeled something like “Final Judgment of Divorce.” Of course, the finality of an order can be tricky. Speak with a qualified attorney about your specific case.
Nevertheless, the Trial Court is likely to enter a number of temporary orders pending the final outcome of the divorce, especially if that case is complex and requires a substantial period of time to resolve. Such orders may include temporary custody, temporary financial arrangements, discovery disputes, enforcement motions, and more. Any order that does not resolve all issues as to all parties is non-final, and we refer to those orders as “interlocutory.”
While you do not have the automatic right to appeal an interlocutory order, you can file a motion asking the Appellate Division for permission, which is referred to as a “motion for leave to appeal.” Generally, the Appellate Division is not inclined to intervene pending the final outcome of the case. But in those rare cases where permission is granted, the appeal automatically will be heard on an expedited basis. Accordingly, Court Rule 2:11-2 provides as follows: “Appeals on leave granted shall be expedited.”
- ACCELERATED REVIEW
Third, you can file a motion with the Appellate Division seeking accelerated review. Court Rule 2:11-1(a) provides as follows: “The clerk of the appellate court shall enter all appeals upon a docket in chronological order and … cases shall be argued or submitted for consideration without argument in the order of perfection, insofar as practicable, … unless the court enters an order of acceleration as to a particular appeal on its own or a party’s motion.”
Which categories of cases are likely to warrant accelerated review? In their current form, the Rules of Court are silent on the issue. History, however, can be instructive. The former Court Rule 1:2-5, which was adopted in 1978 but deleted in 1996, provided that certain categories of cases should be given preference in scheduling and, therefore, heard on an accelerated basis. Critical to those going through divorce, that list included, among other things, “all contested matters where a principal issue is the custody, status, welfare and protection of minors.”
The rule was later deleted because the Courts believe that issues of calendar control are better addressed behind the scenes through administrative action. Even so, the Appellate Division remains more willing to entertain motions for accelerated review of actions involving the custody, status, welfare, and protection of minors. (You might be noticing a trend when it comes to cases involving minor children.)
- SUMMARY DISPOSITION
Fourth, if the order being appealed is so obviously erroneous that reversal is the only reasonable outcome, you can request summary disposition. Under Court Rule 2:8-3(b), “[a]ny party to an appeal may move the Appellate Division for summary disposition.” To prevail, Rule 2:8-3(b) requires that that the issues on appeal “do not require further briefs or full record.”
As explained by the Appellate Division in the 2000 case of G.E. Capital Mortgage Services, Inc. v. New Jersey Title Insurance Company, summary disposition is designed to weed out appeals “whose ultimate outcome is so clear as not to require further briefs or a full record for decision. The procedure is intended to provide a pre-transcript, pre-argument opportunity for the screening of those cases involving issues which are clear-cut or which demonstrate that the decision on appeal was patently in error.”
Before you abandon the idea of an appeal because of the time required to receive a decision, consider these options and call Shaw Divorce & Family Law LLC at (908) 516-8689 to discuss your rights.