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APPEALS IN NEW JERSEY
- 1 APPEALS IN NEW JERSEY
- 1.1 WHAT CAN I DO WHEN THE JUDGE GETS IT WRONG?
- 1.2 OVERVIEW OF APPEALS
- 1.3 APPEAL OF FINAL JUDGMENT
- 1.4 APPEAL OF INTERLOCUTORY JUDGMENT
- 1.5 WHAT IS THE DIFFERENCE BETWEEN INTERLOCUTORY ORDERS AND FINAL ORDERS?
- 1.6 STANDARD OF REVIEW ON APPEAL
- 1.7 WHEN WILL A LOWER COURT’S RULING BE REVERSED?
- 1.8 RECOMMENDATION TO HIRE ATTORNEY
WHAT CAN I DO WHEN THE JUDGE GETS IT WRONG?
When you disagree with a Court Order, you have five basic options: (1) request correction of a clerical error; (2) file a motion for reconsideration; (3) file an appeal; (4) file a motion to vacate; and (5) file a motion to modify based on “changed circumstances,” which applies only to custody and support orders.
CLERICAL ERRORS. Correction of a clerical error can occur at any time and does not necessarily require a motion. Clerical errors include, for example, simple mathematical mistakes. But be warned, there is often significant disagreement over whether an error was merely clerical or was actually a substantive mistake. You can read more about correcting clerical errors here: [Guide to Clerical Errors.]
RECONSIDERATION. A motion for reconsideration must generally be filed within twenty days of receiving a final Court Order. However, when seeking reconsideration of a non-final Court Order (i.e., “interlocutory” or “pendente lite”), no time limit applies and the burden is much lower. You can read more about motions for reconsideration here: [Guide to Reconsideration.]
APPEAL. An appeal of a final Court Order must generally be filed within 45 days of the date on which the Order was entered. However, when appealing a non-final Court Order (i.e., “interlocutory” or “pendente lite”), you must generally file that appeal within 20 days of the date on which you received the Order. There are exceptions and circumstances in which these deadlines can be extended.
This section of the Divorce Guide discusses the filing of appeals.
MOTION TO VACATE. Even after those deadlines expire, you have another option: file a motion to vacate the Order. There are several reasons listed in the Rules of Court that might warrant vacating a Court Order. Depending on the reason for which you are asking to vacate the Court Order, you are required to file your motion within either one year of the Order’s entry, within a “reasonable time,” or at any time. You can read more about motions to vacate here: [Guide to Motions to Vacate.]
CUSTODY/SUPPORT ORDERS. The fourth option applies only to custody and support orders. Those kinds of orders are modifiable at any time on a showing of “changed circumstances.” You can learn more about how to modify custody and support orders here: [Guide to Modifying Custody/Support Orders.] Additionally, you can read more about the law governing custody here: [Guide to Custody.] You can read more about the law governing child support here: [Guide to Child Support.] You can read more about the law governing alimony (otherwise known as spousal support) here: [Guide to Alimony.]
All the requests above, except appeals and correction of clerical errors, are made by filing a motion. You can find out how to file a motion here: [Guide to Filing Motions.]
OVERVIEW OF APPEALS
WHAT IS AN APPEAL? Filing an appeal allows the Appellate Division, which is a higher court, to review the decision of a lower court (e.g., the Family Part). Further, the Appellate Division is typically made up of at least three judges elevated to that position because their legal judgment is widely respected. Trial Courts often make legal errors, but the Appellate Division does so, for obvious reasons, much less often.
WHAT WILL THE APPELLATE DIVISION CONSIDER? An appeal is based solely on the information that is presented to the Trial Court. You are generally barred from showing anything to the Appellate Division that was not shown to the Court below, and it is not a chance to re-litigate the case. In all but exceptional circumstances, the Appellate Division is bound by the factual determinations of the lower court (unless those determinations were obviously incorrect) and will review primarily for legal errors.
HOW LONG DOES AN APPEAL TAKE? An appeal from a final order takes approximately eight to fourteen months to conclude. Further, even if you win an appeal, the Appellate Division will rarely render a final judgment. In most circumstances, the Appellate Division will reverse a portion of the judgment below and then send the case back to the Trial Court with binding instructions on how to proceed.
APPEAL OF FINAL JUDGMENT
RIGHT TO APPEAL OF FINAL JUDGMENT. You have the automatic right to an appeal of a “final” judgment. [R. 2:2-3(a).] An Order or Judgment is only final when it has resolved “all issues as to all parties.” [Vitanza v. James, 397 N.J. Super. 516, 517-18 (App. Div. 2008).]
TIME TO FILE APPEAL. When the Order or Judgment is final in a New Jersey divorce, you must file your appeal within 45 days of the date on which it was entered (not within 45 days of when you received it). “Appeals from final judgments of courts, final judgments or orders of judges sitting as statutory agents and final judgments of the Division of Workers’ Compensation shall be taken within 45 days of their entry.” [R. 2:4-1(a).]
TOLLING OF TIME TO APPEAL BY FILING FOR RECONSIDERATION. The time for filing an appeal is “tolled” by the filing of a motion for reconsideration. For example, if you had 16 days left to file your appeal on the date that you filed your motion for reconsideration, you will still have 16 days left on the date your motion for reconsideration is decided. In other words, filing a motion for reconsideration will effect a temporary pause in the countdown until the motion for reconsideration is decided. “The running of the time for taking an appeal and for the service and filing of a notice of petition for certification shall be tolled: … (e) In civil actions on an appeal to the Appellate Division by the timely filing and service of a motion to the trial court for rehearing or to amend or make additional findings of fact pursuant to R. 1:7-4; or for judgment pursuant to R. 4:40-2; or for a new trial pursuant to R. 4:49-1; or for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2. The remaining time shall again begin to run from the date of the entry of an order disposing of such a motion.” [R. 2:4-3(e).]
EXTENSION OF TIME TO APPEAL. The Appellate Division may also extend, for a short period, the time for filing a notice of appeal under limited circumstances. [R. 2:4-4.]
APPEAL OF INTERLOCUTORY JUDGMENT
NO ABSOLUTE RIGHT TO APPEAL INTERLOCUTORY ORDER IN DIVORCE. If the Order has not resolved all issues as to all parties, it is not final and remains “interlocutory.” [Vitanza v. James, 397 N.J. Super. 516, 517-18 (App. Div. 2008).] If the Order or Judgment is interlocutory, you must seek permission from the Appellate Division to file an appeal. [R. 2:2-4.] The Appellate Division generally will not grant permission to appeal an interlocutory order because “there is strong policy against piecemeal review and interruption of the orderly processing of cases to disposition in the trial courts.” [Vitanza v. James, 397 N.J. Super. 516, 518 (App. Div. 2008).] The decision whether to review an interlocutory order is “highly discretionary” and “customarily exercised only sparingly.” [State v. Reldan, 100 N.J. 187, 205 (1985).]
TIME FOR SEEKING LEAVE TO APPEAL INTERLOCUTORY ORDER. When the Order or Judgment is interlocutory, you must file your motion for leave to appeal with the Appellate Division within 20 days of the date on which you received the interlocutory Order or Judgment. “Applications for leave to appeal from interlocutory orders of courts or of judges sitting as statutory agents and from interlocutory decisions or actions of state administrative agencies or officers shall be made by serving and filing with the court or agency from which the appeal is taken and with the appellate court a notice of motion for leave to appeal, as prescribed by R. 2:8-1, within 20 days after the date of service of such order, administrative decision or notice of such administrative action.” [R. 2:5-6(a).]
RESETTING TIME FOR SEEKING LEAVE TO APPEAL BY FILING FOR RECONSIDERATION. The 20-day deadline for filing a motion for leave to appeal is reset by the filing of a motion for reconsideration. As stated under the Rules of Court: “If, however, a motion to the trial court for reconsideration of the order from which leave to appeal is sought is filed and served within 20 days after the date of its service, the time to file and serve the motion for leave to appeal in the Appellate Division shall be extended for a period of 20 days following the date of service of an order deciding the motion for reconsideration. The filing of a motion for leave to appeal shall not stay the proceedings in the trial court or agency except on motion made to the court or agency which entered the order or if denied by it, to the appellate court. [R. 2:5-6(a).]
EXTENSION OF TIME TO SEEK LEAVE TO APPEAL. The Appellate Division may also extend, for a short period, the time for filing a motion for leave to appeal under limited circumstances. [R. 2:4-4.]
WHAT IS THE DIFFERENCE BETWEEN INTERLOCUTORY ORDERS AND FINAL ORDERS?
The distinction between an interlocutory (or pendente lite) order and a final order is worth exploring. An interlocutory order is one that does not resolve all issues as to all parties.
“[A]ny order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” [R. 4:42-2.]
An interlocutory order by its very nature is temporary and often entered based on incomplete or conflicting evidence. After all, the Court generally has not taken testimony at trial, allowed cross-examination, heard expert opinions, or had the benefit of complete disclosure of the relevant facts obtained during the discovery phase of litigation.
A final order/judgment does resolve all issue as to all parties.
“It is firmly settled that ‘final judgment,’ as used in the rules, means final judgment or final disposition of the case not only as to all issues but as to all parties.” [Thatcher v. Jerry O’Mahony, Inc., 37 N.J. Super. 139, 142-143 (App. Div. 1955).]
To constitute a final judgment, the order generally must “dispose of all claims against all parties.” [S.N. Golden Estates, Inc. v. Cont’l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998).]
Generally, in a divorce proceeding, every order is interlocutory until a final judgment of divorce is entered. When the order results from a post-judgment motion, however, it is generally final. But a post-judgment order may be interlocutory depending on the circumstances. For example, if further proceedings are scheduled by a post-judgment order (e.g., a plenary hearing), it is probably interlocutory.
The distinction between an interlocutory order and a final order can be quite tricky in the post-judgment context, and I strongly recommend consulting an experienced attorney.
STANDARD OF REVIEW ON APPEAL
When filing an appeal, you can argue either (or both) that the Trial Court: (1) misunderstood or improperly applied the law; or (2) improperly determined the facts of the case. The Appellate Division will apply a different standard of review depending on which argument you make.
FACTUAL FINDINGS OWED DEFERENCE. The Appellate Division’s review of a trial judge’s factual findings, following a non-jury trial, is limited. [Cesare v. Cesare, 154 N.J. 394, 411 (1998).]
Generally, “findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.” [Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).]
“The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.” [Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013).]
In matrimonial matters, this “[d]eference is especially appropriate when the evidence is largely testimonial and involves questions of credibility.” [Cesare v. Cesare, 154 N.J. 394, 412 (1998).]
“Because a trial court hears the case, sees and observes the witnesses, and hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses.” [Cesare v. Cesare, 154 N.J. 394, 412 (1998).]
The trial judge has “a feel of the case” that can “never be realized by a review of the cold record,” and it is in the best position to “make first-hand credibility judgments about the witnesses who appear on the stand.” [N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).]
Review of the cold record alone “can never adequately convey the actual happenings in a courtroom.” [N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).]
Therefore, reversal is warranted only when a mistake must have been made because the trial court’s factual findings are “so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]” [Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).]
When the Appellate Division concludes there is satisfactory evidentiary support for the trial court’s findings, “its task is complete and it should not disturb the result[.]” [Beck v. Beck, 86 N.J. 480, 496 (1981).]
Further, the Appellate Division will “accord particular deference to the judge’s factfinding because of the family courts’ special jurisdiction and expertise in family matters.” [Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013).]
LEGAL CONCLUSIONS REVIEWED WITHOUT DEFERENCE. While factfinding is owed deference, legal conclusions are reviewed anew. The Appellate Division, which is composed of multiple judges recognized for their skill and experience, has if anything, a superior understanding of the law than the Trial Court.
“Deference is appropriately accorded to factfinding; however, the trial judge’s legal conclusions, and the application of those conclusions to the facts, are subject to … plenary review.” [Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013).]
The Appellate Division’s review of “a trial court’s legal conclusions is always de novo.” [Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013).]
The Appellate Division is not bound by “[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.” [Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).]
WHEN WILL A LOWER COURT’S RULING BE REVERSED?
During the appellate process, the reviewing Court will analyze the lower Court’s decision to determine whether it was incorrect. If deemed incorrect, the decision may be reversed. Generally, a decision of the lower Court will only be reversed for “plain error” or “harmful error.” Those terms are effectively synonymous. The New Jersey Supreme Court has reaffirmed that “[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result.” [State v. Macon, 57 N.J. 325, 337 (1997).]
RECOMMENDATION TO HIRE ATTORNEY
Andrew M. Shaw, Esq. is the author of this New Jersey Divorce Guide and the founder of Shaw Divorce & Family Law LLC in Somerville, New Jersey.
ASSOCIATIONS & MEMBERSHIPS:
- American Bar Association - Family Law Section
- New Jersey State Bar Association – Family Law Section
- New Jersey State Bar Association – Appellate Practice Special Committee
- Somerset County Family Law Practice Committee
- MENSA International