What Can be Appealed in Family Law in New York State?

In family law, appeals may be taken as of right from a final or an interlocutory judgment and from an order that determines a motion that's been made on notice to the other party, which adversely affects a substantial right of the person filing the appeal. These typically appeal the judgment of divorce, temporary support orders, issues related to child custody, or orders related to child custody. The most common orders that we see – which are not appealable as of right, but which may be appealed with permission – include non-dispositional or non-final orders.

The Appeal Process in New York State

After the attorney has served the order or judgment upon their adversary with a notice of entry, they have a 30-day period to file a notice of appeal with the clerk of a court that issued the decision or the order. This generally starts the appeal process in New York. For cases filed in Westchester County Supreme Court, you typically have six months to "perfect your appeal" (which means to file your briefs). The courts at the appellate level may grant extensions of various deadlines which sometimes delays the process. If the case is argued orally, it could take time for the case to appear on the appellate division court calendar as the court does not hear cases over the summer during recess. Sometimes, appeals can take years from the date of the original order or judgment to be decided.

Deadline to File a Notice of Appeal in New York State

The deadline for filing a notice of appeal is 30 days from the date the order or judgment is served upon a party with a notice of entry, which starts the clock ticking for the filing of an appeal. The prevailing party on a motion, for example, usually files the notice of appeal promptly so that they can get that clock running. If the other side chooses to appeal, they will have to move promptly to get their notice of appeal filed.

Appealing the Judge's Decision

In New York State, if a party opposes a judge's decision because they think the judge either abused his or her discretion, or a rendered an erroneous decision, they would have that decision turned into an appealable order by submitting a proposed order or a judgment to the judge who issued the decision based upon the fact that the decision in and of itself is appealable.

Most appeals are filed when a judge has made a significant legal or factual mistake in a case which results in significant harm or prejudice to a party.

When a mistake has been made, or something transpired prior to the decision having been rendered, the litigants can make an application to the judge before the decision is rendered. For example, if all evidence has been submitted to the judge who is reviewing the evidence but has not yet rendered a decision, and the stock price of a public company held by one spouse tanked unexpectedly, you could then make an application to the trial judge to reopen the trial, and take judicial notice of the current, much lower, stock price. If the judge grants the motion, you can avoid having to appeal after the trial has concluded.

Downsides of Taking an Appeal

An appeal can be an expensive endeavor. Not only do parties have to pay the lawyers, but the appealing party will also have to pay for the assembly of the record and transcript as well as appellant printing services. After spending a significant amount of money, you are not guaranteed success. An appeal may also result in an order directing that a new trial be held, which would be an additional large expense to try the same case all over again.

Even if an appeal is successful, a litigant might not receive everything he or she pursued the appeal for. The appellate court could modify an order, or grant only part of the relief requested and affirm the rest.