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Can I appeal a Family Court Order Divorce Judgment
November 20, 2019
Can I appeal a Family Court Order or a Judgment of Divorce in New York?
Appeals from decisions and orders of the lower court are complex to perfect. Not all orders are appealable as a matter of right. For instance, a temporary Order can not be appealed unless you make a special motion to the Appellate Division asking for leave to appeal. You must also know that even if the Appellate division accepts your motion and allows you to appeal the lower court action is still pending at the same time before the same judge and that judge will be aware of the fact that you appealed its temporary order. Sometimes you can ask for a stay of the lower court order until the Appellate Division makes its ruling but even after it does make its ruling the court will likely send the entire matter back to the same Judge you had. If you are appealing a Final Order or Decision, then it must be known that if you lose your appeal the case will likely be sent back to the trial judge. If you prevail on some points but lose on others, then the court will send the case back with instructions to the trial judge to make a ruling consistent with the holdings they made in the Appellate Division Decision.
Just filing a Notice of Appeal is not enough though it is imperative that you file one to protect your rights in the courthouse in which your case was heard and be sure you also serve it on your adversary.
You also need to perfect the appeal by following the Appellate Division court rules of practice which are very detailed and complex. These rules can be found on the New York Government website. This consists of preparation of Briefs which are formatted in accordance with the rules of court. The rules of practice vary between Appellate Division Departments so be sure to read the rules that appertain to the county in which your appeal will be heard. The form of the brief in the Second Department is governed by rule 50.8. Even the cover of the brief must be in accordance with the rules of court. The cover must include the titles of the case and in the upper right-hand corner it must ask for how many minutes you are requesting for oral argument and the name of the attorney you select to argue it, along with the name, address, email address, and telephone number of said attorney. The brief itself is also highly regulated as to form. In all departments, the form the brief takes are usually uniform. But you should check the practice rules before you write and submit a brief. The Appellant’s brief should have a table of contents, and under that should be listed points you wish to make, the contents of the appendix with references to each document you will address by page number including direct, cross and redirect, a table of case law indicating the page where the case can be found, a express articulate separate Statement of the issues and questions you want the court to address, a two page neutral restatement of the questions involves with the answers directly below, a statement of facts of the case with citations to the record, a certification statement by the submitting attorney, the argument you intend to make as appellant, divided into distinct points, a statement stating under oath that you are in conformity with printing requirements, a CPLR 5531 Addendum, a copy of the order you are appealing from and a copy of the Notice of appeal. There exist many other rules which you can find on the government website, but the above requirements will give you an idea as to how complex appeals really are. The Respondent is required to perfect their appeal in a manner consistent with the above rules, with some deviations therefrom. I always tell my clients to order the lower court transcripts and exhibits admitted into evidence before even retaining our services. Then, of course, you must write the brief consistent with the table of contents so the court may follow your thinking, Moreover, there are printing and filing and service of process rules that need to be followed and that need further filings with the court. An appeal generally takes a month to draft and several months before a court will render its decision. I would strongly recommend that you retain counsel before you try to file an appeal given the above complexities but if that is not an option then the web site will help guide you and the clerk of the court will assist on any non-legal question you might have.
I hope this has been instructive, but it is not legal advice, see a lawyer before you attempt to file any Notice of Appeal or Appeal since any mistake can be fatal to having your case heard in the appropriate court
Your Bronx Divorce Lawyer and Bronx Child Custody Lawyer
Lisa Beth Older