An appeal as a matter of right is allowed from all final judgments or orders so long as this is made within 45 days of the entry of the order of judgment. This means that you can appeal post-judgment motions which are considered final, but cannot appeal interim relief such as pre-divorce "pendente-lite" motions that are not yet final until the divorce.
The Role of the Appellate Court Is Limited
The role of the appellate court is to "determine whether the result could reasonably have been reached by the trial court based on the evidence, or whether it is clearly or unjustly distorted by a misconception of the law or findings of fact that are contrary to the evidence." Perkins v. Perkins, 159 N.J. Super. 243, 248 (App. Div. 1978). An appeal is not a second opportunity to re-argue the case and is not something to be considered lightly.
Some bring an appeal to gain greater understanding, others out of frustration at the motion judge's decision or to make the other party incur further expense. However, "[m]ore than a feeling of dissatisfaction is needed to fuel an appeal. It is a mistake for parties to seek satisfaction in this court simply because it has eluded them in trial court. The advantage sought here is apt to be illusory." Perkins, supra, at 248.
Appeals Are Costly and May Take a Year to Be Decided
Appeals are costly and while hard to generalize, you could expect to pay an experienced appellate advocate $5,000 to $10,000 plus the filing and transcript costs. Secondly, while the appeal is pending, and it takes about a year before a decision is reached, none of the issues on appeal can be modified by the lower court. So for example if you were appealing a child support order and wanted to bring a motion for changed circumstances to modify it during the pendency of the appeal, this would first require the granting of a motion for a limited remand by the appellate division.
If you are truly interested in winning on appeal then there are three key questions to consider:
Did the Trial Judge Make Findings of Fact?
A trial judge must make findings of fact and state conclusions of law. New Jersey Court Rule 1:7-4. The judge is required to put these findings on the record either orally or in writing. The trial judge must clearly state the factual findings and relate those findings to relevant legal conclusions "so that the parties and the appellate courts may be informed of the rationale underlying [the] conclusion." Esposito v. Esposito, 158 N.J. Super. 285, 291 (App. Div. 1978).
The scope of appellate review of a trial court's fact-finding function is limited and is not to re-try the case, but consider whether the judge made findings of fact and whether they were reasonable based on the evidence. Deference is also given by the appellate division to the factfinding undertaken by the family court due to their specific expertise in this area.
Are the Findings of Fact Supported by Substantial Credible Evidence?
If a trial court judge has made findings of fact, then the general rule is that these are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This means that if the motion judge reviewed exhibits or case information statements and then made specific findings of fact, or if a judge holds a plenary hearing and takes into account the credibility of the witnesses when giving their testimony, the appellate division will be bound by the judge's findings. This does not mean that another judge might not have decided it differently, only that the role of the appellate division is not to re-try the case or rehear the motion de-novo on appeal when they don't have the benefit of hearing the witnesses and reviewing the exhibits.
In Any Discretionary Decision, Was the Trial Judge Reasonable?
The other main area that frequently appears in family appeals is whether the judge abused their discretion in deciding a particular matter. Family part judges have considerable power to exercise their discretion in how to equitably decide a case and balance the fairness to the parties and best interests of the children. Discretionary decisions come into play in the amount of an alimony award or how to allocate assets during equitable distribution. Another example of this frequently seen in post-judgment motion practice is the allocation of counsel fees, which is entirely at the discretion of the judge. See Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). The applicable standard of review by the appellate division of discretionary decisions is whether the allocation falls within a reasonable exercise of the trial judge's discretion. See Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978).
The purpose of this guide is to highlight some of the questions that need to be considered when deciding whether to appeal? If you can answer "yes" to the three previous questions then your chances of prevailing on appeal may not be as high as you might like. This brief discussion of appellate practice does not cover all the grounds for appeal e.g. when the judge erred in his interpretation of the law. An experienced appellate attorney should be consulted to review the unique facts of any case and provide legal advice on the merits of an appeal.
Additional resources provided by the author
A guide to the standards of review on appeal can be obtained on the New Jersey Judiciary web-site.
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