James Nolletti is a New York attorney who provides his clients peace of mind. Assertive and client-centered, Mr. Nolletti and his team of professionals are dedicated to providing prompt, efficient, and exceptional legal services. In this podcast James discusses if and when a divorcing party should consider appealing a judge’s decision, and how long the process of appealing could take.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: James Nolletti is a White Plains divorce lawyer and founder of Nolletti Law Group. James has over 30 years of experience in providing excellent service to individuals going through divorce who have complex divorce issues and significant assets.
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Read the Transcript of this Podcast Below.
In family law, what kinds of issues are typically the subjects of appeals?
Generally an appeal 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.
If one or both parties strongly oppose the judge’s decision, can they appeal to have it changed? If so, how would this work?
If a party opposes a judge’s decision because they think the judge either abused his or her discretion or 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 because the decision in and of itself is appealable.
Then the attorney would serve the order or judgment upon the other side with a notice of entry; they have a 30-day period after they’ve served the notice of entry to file a notice of appeal. This generally sparks the appeal’s process in the Second Department of the appellant division of New York. In the First Department, which is New York City, you have six months to affect your appeal (which means to file your briefs) and nine months to perfect your appeal by filing your record.
Do you find that clients sometimes think that their lawyer has made a mistake and therefore their case could or should be appealed?
I’ve seen situations where clients have appealed or sought a reversal of decisions based upon things like incompetency of counsel. And, you know, it can happen and judges will go through that record and look to see if there is not only a conduct that was not proper representation but it has to be more than just harmless error.
When should someone appeal a decision a judge made in a divorce case?
Harmless error is not going to get you very far, so it’s generally when a judge has a made a significant legal or factual mistake in the case that causes great prejudice to a party.
Sometimes when there has been a mistake, or when something transpired prior to a decision being rendered, the litigants can make an application to the judge before the decision is rendered. For example, I had a situation a few years ago when all the evidence had been submitted to the judge; the judge was in the process of reviewing the evidence and making the decision. While the judge was reviewing the evidence, the stock price of a public company held by my client tanked.
We made an application to the trial judge to reopen the trial and take judicial notice of the stock price; we did this in an effort to avoid an appeal. The judge granted the motion, re-opened the evidence and took judicial notice and considered that change in the stock price as part of the decision – even though it was submitted subsequent to the close of the evidence.
What is the process for appealing a decision, and how long does an appeal typically take to be resolved?
Appeals start by the filing of a notice of appeal with the clerk of a court that issued the decision or the order. Sometimes appeals can take years from the date of the original order or judgement appeal from although one generally has either the six or the nine months. I mentioned earlier to perfect their appeal. But the courts at the appellate level do liberally grant extensions, which could hold up the process to some degree. If the case is argued orally it takes time for the case to appear on the appellate division court calendar as the court does not hear cases over the summer during recess.
Are there any downsides of taking an appeal?
An appeal can be an expensive endeavour. Not only do you have to pay the lawyers, you also have to pay for the assembly of the record and transcript and appellant printing services. After spending a significant amount of money, you’re not guaranteed success – and sometimes, an appeal can result in an order directing that a new trial be held, which obviously involves another large expense to try the same case over again.
If an appeal is successful, does that mean that the litigant automatically receives everything that they’ve asked for?
No. The appellate court may modify an order or grant just part of the relief asked for by the litigant or otherwise agree or affirm the remainder of the order. So, it can be done, the appellant has discretion to pick and choose what they think was the reversible error and just change it.
What is the deadline to file a notice of appeal?
The deadline for filing a notice of appeal is 30 days from the date the order or judgment is served upon a party with what’s called notice of entry. Notice of entry is a formality in the sense that something has to start the time-clock ticking for the filing of an appeal. Usually, we see the prevailing party on a motion, for example, file the notice of appeal promptly so that they can get that time-clock running. If the adversary chooses to appeal, they will have to move promptly to get their notice of appeal filed.