As attorneys, and especially as attorneys focusing solely on family related issues, it is not uncommon for us to come across a case with no “clear winner.” Orders and Judgments entered after an hour of oral argument or a 10 day trial regularly contain terms that are favorable and detrimental to the same party. For the losing party (or perhaps parties), when a decision comes out in an entirely unexpected way, or in an entirely expected, yet still disappointing way, is there any way to turn back the clock?
People sue over a lot of things in this country – hot coffee, foot-long sandwiches that aren’t quite a foot long – but, as a group of Plaintiffs recently learned the hard way, suing a Judge because you disagree with their decision is not the answer to the question posed. In fact, the District Court of New Jersey recently dismissed a civil rights lawsuit filed by 13 fathers against 14 Superior Court judges who had presided over their family matters. Rather than sue these Judges for making what they alleged to be improper and unconstitutional decisions, the District Court found that the litigants should have filed an appeal within the time frame provided by the Rules of Court.
Appeals are generally not a “do over” of the case that appeared before the judge in the Superior Court. Rather, the Appellate Division judges generally look at whether or not the judge in the Trial Court abused their discretion in making the determination now on appeal. Fortunately, and unfortunately, family judges are given significant amount of discretion, which often makes it difficult to convince the Appellate Division that their use of discretion in a particular case was in fact abusive, and which often makes filing an appeal a futile effort at changing what had been done below.
Whether or not your appeal has merit is a completely separate issue from whether or not your appeal has been properly filed. An appeal must be filed within 45 days after the entry of the Order that you seek to appeal. While that sounds like plenty of time to submit a form, a lot of thought and careful consideration should go into deciding whether or not to appeal, which can be done with or without a lawyer, but is a difficult process to navigate without one. Simply because you have the right to file the paperwork does not mean that every decision should be appealed, and you can be liable for counsel fees and subject to sanctions for filing an improper (or frivolous) appeal. It can also be an incredibly expensive undertaking as numerous copies of transcripts must be sent to the Appellate Division and the other party, along with numerous copies of a brief that must be filed in support of your appeal.
In addition to appealing an unfavorable Order or Judgment, family litigants can also seek to have the Order or Judgment reconsidered. A Motion for Reconsideration must be filed within 20 days of service of the Order or Judgment. Notice the difference in the deadlines – with an appeal, you have 45 days from entry of the Order to file. With Reconsideration, you are given 20 days from the date of receipt of the paperwork. Confusing these 2 deadlines, especially when dealing with an appeal, can have drastic consequences, and having an attorney can help you decipher these deadlines and determine the appropriate course of action.
Reconsideration, like an appeal, is not a “do over” of the initial case, but rather, a consideration – by the same judge who just decided your case – of whether or not there were any particular facts or law(s) that were overlooked or applied incorrectly in making the initial decision. Reconsideration can additionally be granted if new information that could not have been brought to the Court’s attention initially is thereafter brought before the Court on Motion.
While the rules and case law governing each are completely different, often times, litigants first try reconsideration before ultimately filing an appeal. It can be a lower cost and more time efficient way of changing a prior Order, and also has the effect of “tolling,” or placing a hold, the amount of time you have to file your appeal. But that does not mean that everyone should first file a Motion for Reconsideration while they mull whether or not to file an appeal, as counsel fees and sanctions can be assessed for an improper Motion just like they can for an appeal.
Determining which path to follow when the Court rules against you can be difficult to do on your own, and as the litigants in the Federal case realized (even when represented by counsel, as they were), filing in the wrong Court or making the wrong application can have disastrous, expensive, and time consuming consequences. The attorneys of Jacobs Berger, LLC, can help you navigate your way through the entire court process, but if you find yourself with an unfavorable or unexpected order already in hand, contact us today to discuss in a comprehensive case assessment what the next steps in your case can be.
For more information, or to talk about your divorce options with a NJ same sex divorce lawyer, give our office a call at 973-718-7705.