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What is an Appeal?

An appeal is an application wherein a litigant at the trial court level applies to a higher Court in order to request a reversal of lower court's entire decision or a portion of that decision. In most cases, a litigant applies to the Appellate Division to request reversal of a trial court's decision. It is also possible to appeal a decision from the Appellate Division to the Supreme Court of New Jersey. A litigant may appeal any part of an issue contained in a family court decision, but the most common areas that are appealed relate to custody, alimony or equitable distribution.

There are two different types of appeals. The first type of appeal is called an appeal as of right. An appeal as of right is an appeal from a Judgment or Order that is final. A final Judgment or Order resolves all issues as to all parties. Examples of final Orders include Judgments of Divorce or post-divorce-judgment Orders that completely dispose of all issues. In other words, a final Order will usually come at the end of a case.

The second type of appeal is called an interlocutory appeal. An appeal is interlocutory if it is made to overturn a decision made by a lower court in a matter which has yet to reach a final decision. Any Order that does not resolve all issues as to all parties is considered interlocutory. For example, if a party makes an application to the court for custody of his or her children. A custody matter typically requires a trial to resolve (if the issues cannot be settled) and parties typically have to wait as long as a year before they receive a trial date. During the time the parties are waiting for a trial date, the trial court may enter a temporary parenting time schedule for the party seeking custody. If either party is unhappy with the amount of parenting time included in the schedule, either party may seek an appeal. If they do, it would be considered an interlocutory appeal as the final custody determination has yet to be made. Another example of an interlocutory appeal would be one wherein a party appeals a pendente lite support order in a matrimonial matter. The pendente lite support order is meant to be temporary and to last only as long as the litigation is pending. Therefore, if either party objects to the amount of pendente lite support awarded by the court, the party would have to file an interlocutory appeal because the court has yet to make a final determination as to support. Nearly all Orders issued prior to the Judgment of Divorce are considered interlocutory.

The procedure for filing an appeal as of right is different than the procedure for filing an interlocutory appeal. Once a final Judgment or Order has been entered, a litigant may appeal as of right from that Judgment or Order. In other words, a litigant is not required to seek permission from the Appellate Division prior to filing an appeal as of right. However, before filing an appeal from an interlocutory Order (any Order that does not resolve all issues as to all parties), the litigant must file a Motion wherein he/she requests that the Appellate Division grant "Leave to Appeal," which allows the litigant to file an appeal even though the Order they seek to appeal is not final.

All appeals as of right must be filed within 45 days of the entry of the Judgment or Order being appealed. For appeals from interlocutory orders, the Motion for Leave to Appeal must be filed within 20 after the date of Service of the Order. If the Motion for Leave to Appeal is denied, then the litigant must wait until their case is over to file an appeal, which would be then considered an appeal as of right. It is important for a litigant to know how much time he/she has to file an appeal. If the deadline to file an appeal passes, the litigant may very well be barred from filing an appeal.

At Donahue, Hagan, Klein & Weisberg, LLC, we have extensive experience in appellate matters. We may make every effort on behalf of our clients to make sure that your rights on appeal are preserved and that any unfair lower court decisions are properly reversed.