September 28, 2021

Volume XI, Number 271

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September 27, 2021

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The Judge Got It Wrong- Now What Do I Do?

Judges don’t always get it right, so what happens when a party of a matter believes the decision of the judge was wrong? This answer is a bit complicated in Family law cases, and often depends on what stage the case is in.

The general answer is that a litigant is entitled to appeal the judge’s decision to a higher court. However, there are many rules about when an appeal can be taken, and the standards that the Appellate Division has to apply when reviewing a trial court’s decision.

When a case is in progress, it is very rare to be able to appeal an interim order of the court. This is because it is preferable to get a final decision by a court, after all of the facts and evidence has been considered prior to it being reviewed by a higher court. That being said, there are extraordinary circumstances that the Appellate Division will review an interim decision by the trial court, this is called an interlocutory appeal. These types of appeals are rarely granted because the Appellate Division has to be convinced that the trial court made such a grievous error in the middle of a case that it would be unfair to allow the case to move further. If you believe the trial judge has made a mistake as your case is proceeding, you may  ask the Appellate Division for permission to file an interim appeal. If this request is granted, the case will be paused until the Appellate Division decides whether or not the trial court’s interim decision was correct.

Most appeals occur at the end of the case when the trial judge has made a final decision. A litigant has 45 days from the date of the court’s order to file a notice of appeal. The notice of appeal puts the courts and the other party on notice that there is dissatisfaction with all, or part of the court’s decision. Then the Appellate Division will schedule the submission of transcripts of the record, and legal briefs in which the Appellant provides the court with the reasons why the decision was wrong. There is no automatic right to a new hearing, meaning it is not a “do over.”

There are only certain reasons that an Appellate Division court will overturn a trial court’s decision. In family law cases, judges have a great deal of discretion when making decisions. Therefore, simple dissatisfaction with the decision of the court is not going to be a basis to have it overturned. The judge must have made a mistake in applying the law to the facts of the case or must have reached a decision that is clearly unjust. Family court cases are also sometimes reversed based upon decisions to include or exclude certain evidence by the court. Family courts are courts of equity and equitable remedies are left to the discretion of the court. Therefore, decisions of a family court will only be reversed for cases in which the Appellate Division finds that there has been an abuse of discretion. This can sometimes be a very high bar to reach.

The Appellate Division may also only review the facts and evidence that the trial court considered when making its decision. If at the end of the case, a litigant believes that there was information that was not provided to the trial court which may have been important, the Appellate Division may not be able to change the result.

The decision of the Appellate Court will generally be one of four things. First, the court may affirm the trial court’s decision, which means that it says the trial court did nothing wrong. Second, the Appellate Division may say the trial court did not necessarily reach the wrong result, but did not explain the decision thoroughly or accurately. This means that the trial court has to either revise its decision or may have to hold another hearing in order to obtain more information to properly justify the decision. This is known as a remand. Third, the Court may say it has reached the wrong decision and has to hold another hearing in order to come to the correct result. This is also a remand. Finally, the Court can simply say that the incorrect result was reached and reverse the decision without any further proceedings.

From start to finish the process of an appeal tales a long time, generally about a year. It is important to make sure that you have all the information to make a decision as to whether to file an appeal.

The rules for filing an appeal of a decisions  can be very strict and time sensitive.

COPYRIGHT © 2021, STARK & STARKNational Law Review, Volume XI, Number 4
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About this Author

Jennifer Weisberg Millner, family law attorney, Stark law
Shareholder

Jennifer Weisberg Millner is a Shareholder and member of Stark & Stark’s Family Law & Divorce practice. Ms. Millner concentrates her practice in divorce, custody, adoption, and appeals. She is also certified in collaborative law, a method of dispute resolution in which the parties and their attorneys mutually agree to reach a settlement outside the courtroom without resorting to litigation.

Ms. Millner is deeply familiar with the complex legal, and emotional, challenges that arise when families must turn to...

609.895.7608
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