In the event you believe that a decision made by a judge in your divorce case is not based on the law, or if you believe the judge abused his or her discretion in arriving at a Judgment or Order, you have the right to appeal. A Notice of Appeal must be filed within 45 days from the date of receipt of the Order or Judgment as well as a Case Information Statement which provides the Appellate Court with a concise statement of the facts and procedural history, the ruling(s) being appealed from and the legal argument you intend to make with regard to each of those rulings. In addition, you must order a transcript of the underlying proceedings and have it sent to the Appellate Court. A legal brief detailing your legal arguments and an Appendix with all the relevant documents included, must be filed within 45 days from the Notice of Appeal (unless the transcript has not yet been received, and in that event 45 days from receipt of the transcript).
The opposing litigant has the right to file a cross-appeal if he/she also believes the trial court erred in arriving at its rulings and must file the same forms (Notice of Cross-Appeal and Case Information Statement) as well as a Brief not only responding to the Appellant’s brief, but setting forth his/her legal arguments on the issues raised in the Cross-Appeal. If the Appellant’s Appendix does not contain all the documents necessary to support the Cross- Appeal, then the Cross-Appellant must also file an Appendix.
Once the issues are briefed, the Appellate Division will schedule a date for oral argument. This is generally about a year after the Notice of Appeal was filed. At oral argument, the litigants are not allowed to testify – it is an opportunity for the attorneys to reiterate their arguments and answer any questions the appellate judges may have. The Appellate panels consist of either two or three judges, depending on the issues.
Generally, it will take another month before receiving a decision, which may be that the lower court’s decision is affirmed, the lower court’s decision is reversed, or the lower court’s decision is reversed and remanded. This means that the issues appealed from must be retried before a trial judge. In the latter case, the Appellate Division may give some guidance to the lower court, pointing out what issues need to be re-tried and why.
Appeals are costly and it is best to review the facts and the law with an experienced Appellate Practice attorney who will help determine whether it is in your best interests to appeal.
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Reported Appellate Division Divorce Decisions handled by Stark & Stark:
- Risoldi v. Risoldi, 320 N.J. Super. 524, 727 A.2d 1038 (App. Div. 1999)
- Cleveland v. Cleveland, 249 N.J. Super. 96, 592 A.2d 20 (App. Div. 1991)
- O’Connell v. O’Connell, 313 N.J. Super. 426, 712 A.2d 1266 (App. Div. 1998)
