What Does It Mean to Appeal a Family Court Decision?
An appeal in a family court case is the formal consideration of whether one party was wronged in the initial decision made by the family court. In this sense, a family court appeal serves as a formal check and balance against the actions of the family court, the idea being that if any of the following were true, then the original decision may be reversed: The appellate court does not take new evidence into account; it is simply a matter of looking at the process of the lower court and determining whether that process followed the rules of law. Read in a different light , it is a second chance for a party to seek justice—sometimes, seeing the issue from a different set of eyes makes all the difference. An appellate judge may have a different opinion of what the law says than a trial judge, for instance. Appeals in family court cases are less common than appeals in criminal cases, if for no other reason than the fact that there is usually less at stake than in a criminal case. Still, the decisions made in family court have a life-long influence on those involved—especially children—and as such, sometimes it is prudent to pursue an appeal.
Reasons for Filing an Appeal
The grounds for filing an appeal in Family Court cases are much the same as those in any other civil action. Among the most common are errors of law, procedural defects, and misinterpretation or misapplication of the evidence. The condemning of a person to a sentence of death, for example, is not likely to survive an appeal if the panel of jurors did not deduce a unanimous conclusion from the evidence that the defendant committed murder beyond a reasonable doubt.
Where a judge of the Family Court is clearly mistaken in a principle of law, this too is widely regarded as a proper basis for appealing the judge’s decision. A judge may, for instance, incorrectly apply the law of non modifiable alimony under some set of facts, and thereby deny a petition to modify a divorce decree. In such a case the appellate court will reverse a Family Court judge, and send the case back to Family Court, for a proper application of the law of non modifiable.
The Family Court is not however bound only by strict precedent. In some areas of law, such as child custody or grounds for divorce, the Family Court has some discretion to apply the law to the facts of a case. But the Family Court judge must be consistent in his application of the law. If he establishes a precedent, he must apply it uniformly to other similar sets of facts, unless there is a material difference in the material facts of the cases. This notion limits the discretion of the Family Court judge, which is designed to assure fairness and equal treatment in the Family Court system.
An example might be helpful in making clear the concept. If a parent who has not seen her child for five years moves the court for an order modifying parental rights and responsibilities, the Family Court judge may view this fact as a basis for denying the motion, or even denying unsupervised visitation. If another parent who saw his child on a less than frequent basis files a motion for a more satisfying schedule of visitation, and the Family Court judge denies the petition, this will likely be considered an error upon appeal.
On the other hand, if the Family Court judge applies this doctrine in a somewhat erratic way, then a panel of justices on the appeals court may well look to the next case similar in fact to the previous, and deny the appeal. The facts must be material to the outcome of the case, but there is no precise framework of facts that determines the outcome of an issue.
This does not make the Family Court judge a poor jurist. It is a healthy function of the judicial system. Different judges are going to apply different facts differently. The appellate court is just as alive to this variation as the Family Courts. Instead of looking askance at such inconsistencies among Family Court judges, an appellate court recognizes that part of its mandate is to encourage the Family Court to develop the law.
How to Appeal Family Court Orders
The reason for filing an appeal is to get the higher appellate court to overturn or modify the decision of the lower court in some way. In doing so, it is important that the parent appealing the case be aware of the process and timeframe that must be followed.
The timeframe starts running any time the parent appealing the case, either parent, pays for the transcript of evidence. In family court matters, for most issues, the full content of the record is important. The record includes all the exhibits that were offered, any pre-trial motions that may have been filed but not ruled on prior to trial, the recommended order from the Master as it pertains to that motion. The transcript of evidence is very important to appellate cases because the Appellate Court does not accept new evidence, only what was presented in the lower court. The Appellate Court will only rule on the law as it pertains and verbatim statements are critical to the review of the issues presented and argued to the Appellate Court.
The financial costs of the transcript and record can be significant. To expedite the process, the transcript can be split with the other party. The party filing the appeal will have to pay for the entire transcript and record up front to file the appeal, but on appeal, the opposing party can be responsible for sharing the cost.
Once the record is filed with the Appellate Court, then a notice is filed to the Appelle and the transcript is served to the Appelle advising that the information has been filed. The Appelle has limited time to respond by filing a counterstatement or statement as the Appellant’s statement is filed. It is important to do this because the lower court is the court of original jurisdiction. Even if the Appellant wins, unless the appeal is successful, the lower court is unlikely to modify its order.
The Appellate Court wants the parties to cleanly state the issues undiluted by needless verbiage that is not mandatory. An appellate brief is normally limited to 14 pages. The Appellant’s brief is limited to 14 pages. Both sides may file separate briefs so that the Appellate Court will understand both sides of the situation as presented in the lower court.
After the Appellate Court has ruled, either parent can petition the court to reargue the case. To get an order from the court, the petition for reargument must note the specific issues that you believe the Court did not address. The Court is reluctant to review the case a second time. The Court does not want to hear issues that the Court already addressed or to re-evaluate an issue. It needs substantial reasons to do so.
Factors That Influence the Success of an Appeal
As with any legal proceeding, there are many factors that can significantly affect the prospects of winning an appeal. These factors may include the quality of the underlying evidence in the family court, the objectives and tactics of your current counsel on appeal, your financial resources, and the complexity of the issues in your family law case. The persuasiveness of the appellate lawyer and his or her legal team can be a significant factor in appellate outcomes, particularly in complex cases with substantial conflicting evidence and legal issues. The ability of appellate counsel to demonstrate the proper use of the law in the lower court proceeding can be equally important. A persuasive appellate brief and due preparation for oral argument can be critical in less complex cases.
Statistical Odds of Victory
The odds of winning an appeal in the Family Court are much worse than you might think. As an initial matter, you should know that only a small fraction of all family court orders are appealed. The number is statistically insignificant. For example, for the year 2008 in New York County, the most thorough study on appellate practice I know of, only 0.82% of decisions were appealed. In other words, your chances of winning an appeal are literally 99 out of 100. New York isn’t the only place of which we have good objective information. An article written by the Chief Justice of the Supreme Court of Georgia, Leah Ward Sears, dated March 19, 2009, titled "The Statistical Unlikeliness of Winning an Appeal" divulges interesting statistics on the state of appellate practice in Georgia. For instance, she observes that her court had only 71 family law cases appealed to it between July and December 2008 of more than 35 , 000 final orders of family cases in our state’s superior courts. This represents a 0.20% appeal rate of family cases. The numbers plummets even further when analyzing chambers outside of family law. For instance, Judge Sears cites a 0.0057% appeal rate for civil cases and an appeal rate of less than 0.02% for criminal cases. I can’t help but think it’s around the same in most states. But the challenge is these numbers are only objective when it comes to final rulings. For other rulings, there is an absolute avalanche of intermediate orders. Ample underscore of this is reflected by the fact that further review is available to determine whether these pre-the appellate review orders will stand without being the basis of an appeal is virtually non-existent. My readers should know that there are a finite number of issues that can be reviewed on appeal. This means that if you can’t win on them, you probably shouldn’t bother.
Tips for Winning on Appeal
When considering an appeal, start by selecting the most experienced, exceptional, and the majority of the time, the most expensive appellate lawyer that you can afford. No attorney can guarantee an outcome on an appeal or in court for that matter; however, if there is a chance, you want to do everything you can to increase your odds of winning. Chose an appellate lawyer who writes and speaks extremely well and has had extensive positive outcomes.
I am often asked by potential clients who call my office looking to appeal their family court judgments if I personally handle appeals. Most of the time the answer is yes, but not always. The majority of the time, I will serve as the senior attorney on the case and work with a team of appellate lawyers including an appellate brief writer and potentially even an appellate oral argument lawyer or an appellate researcher.
Lawyers who concentrate in Family Law appellate work understand the nuances of Family Court appeals and may be able to spot issues that someone who focuses most of their time on litigating matters may overlook. Also, Family Court appeals are often filed because the parties are so emotionally involved that the trial court’s rulings seemed unjust. Most Family Court appeals are a collection of many different Family Court rulings and the success of the appeal depends on issues that go beyond Family Court Law.
Once on appeal the presentation of the issues becomes paramount. The judge reading the appeal typically does not have a lot of time to review the brief. A well written, concise and organized appellate brief will have more impact than an appellate brief that the judge struggles to read and understand. The same goes for the oral argument before the appellate court judges. The attorneys need to roll out their arguments, provide a clear picture of the dispute and be able to succinctly respond to the court’s questions. How this occurs comes from training and an understanding of how the appellate court works and what it expects.
In some situations, a family law attorney can get so caught up in the emotional dispute that they do not have the objectivity required to look at the Family Court judgments from the judge’s perspective. When this occurs the appeal is doomed. Sometimes this fact might be overlooked because the attorney is a friend or someone you have used in the past or when they are the family law attorney for a close relative. I have often seen this situation where good, solid attorneys from off island ended up referring clients to us after their relative’s appeal was filed.
The reality is that family members, close friends, and significant others should not be handling each other’s family law matters. There is too much risk that the relationship can end up being damaged because a family member or friend took a different position than the relative or friend would have taken if they were handling the matter themselves. When this occurs there is no winning and only hard feelings are left.
Emotional and Financial Considerations
In contemplating whether you are going to have an appellate victory or a loss, emotions will run high. For those few who have the time and money to go to trial and are unhappy with the results, the natural reaction is to lash out at the Courts. Sometimes they are correct and occasionally judges do make errors. However, you should keep in mind the human factors that judges also bring to the appeal decision process. You are not the only party going through a divorce and prospective appellate judges are overwhelmed with cases. Those sitting in the Appellate Division of the Superior Court ultimately decide whether to hear your appeal based on the procedural statutory criteria under Rule 2:12-1(b).
In New Jersey, the prevailing party will ultimately be ordered to pay your fees for the appeal but will only be required to pay a small portion of the actual bill because fees on appeal are limited to $1,500 under R.2:11-4. The average appellate brief is 100 pages so this can get expensive. Given the complicated statutes in the New Jersey as well as specific family law issues related to support, distribution, custody, parenting time, etc., there is no way to gauge probability of success on appeal.
To illustrate what I mean, when filing a Motion for Reconsideration under Rule 4:49-2 , the rules are clear and the Court considers what was decided at the motion level and whether the result should be changed. In turn, if you are appealing the substantive Order under Rule 2:6-1, there are multiple opportunities for success or failure. The Appellate Judges can decide not to hear your appeal and not even issue a written decision. Or, if your case is heard and the Appellate Judge agrees that there was an error made at the Motion level, the Judge could just remand the matter to the Family Court for further proceedings. Thus, the probability of success/appeal is totally up in the air.
There is a human aspect to this as well because heirs of both parties are affected by appeal. Typically, a decision on an appeal is not going to happen any time soon; maybe a year or even longer depending on the issues involved. During this time, the ability to collect support and enforce Orders may be delayed. If one party filed for bankruptcy during the divorce, the pending appeal could impact the payment of pre-divorce support.
In fact, the New Jersey Association of Justice published an article in its May 2010 issue of "The New Jersey Justice" magazine that detailed the devastation an appeal can cause for both parties. One thing that Divorce litigants should realize is that an appeal will not only take time, but it will take the emotional and financial toll on their families.