Divorce Appeals
A trial of a divorce matter will take place in the New York State Supreme Court - Appellate Division. Once a decision is issued by the trial court judge, either or both spouses can appeal the judge's decision to a higher court. A supreme court judge's decision is appealed to a higher court, which is known as the Appellate Court. Once a decision is rendered, the decision must first be served on either the opposing attorney or the litigant, if the litigant is not being represented by an attorney. The decision must then be served upon you or your attorney and you will then have thirty (30) days to file the Notice of Appeal and Pre-calendar Statement. Filing a Notice of Appeal and Pre-calendar Statement are the documents, which will preserve your right to file the actual appeal. Filing the Notice of Appeal and Pre-calendar Statement will also require the parties to the appeal to attend a Civil Appeals Settlement Program (CASP) conference. The purpose for attending the conference is to allow the parties to the divorce matter one final opportunity to settle and/or limit any of the issues that are the subject of the appeal. Attendance at the conference is mandatory and cannot be waived.
Once initial documents preserving your right to an appeal are filed, you then have nine (9) months to perfect the appeal by filing the record, which is a written version of what happened in the trial court, and your brief, which sets forth the legal arguments, supported by reference to case law and facts/documents submitted into evidence at the trial level. You can only submit facts/documents on the appeal that were actually submitted into evidence and addressed in the trial court. In contrast, you cannot submit facts/documents that were not submitted into evidence in the trial court.
The main form of argument on appeal is the written appellate "brief," which is filed by counsel for each party. With this brief, the party that was given an unfavorable ruling in the trial court will argue that the trial court judge incorrectly applied the law in making a decision. The opposing party will argue that the trial court's decision was correct. The lawyers for the parties submit their briefs to the court and then are permitted to have an oral argument before the Appellate Court judges.
The success of your appeal usually depends on what occurred at trial; new evidence may not ordinarily be introduced on appeal. Once an appeals court has made its decision, the opportunity for further appeals is limited.
Settlement agreements usually cannot be appealed if both spouses agreed to the terms of the settlement. So, if you and your former spouse reach a settlement agreement on issues such as property division, custody provisions, spousal support and appropriate child support payments, and the settlement agreement is approved and finalized by the judge, you are most likely stuck with the terms of that agreement.
Motions to Modify the Divorce Judgment
In lieu of an appeal, you can ask the trial court to change certain aspects of the divorce judgment after it has been entered -- including child custody arrangements, visitation schedules, child support, and spousal support (alimony). These changes can only be requested if there has been a change in circumstances since the entry of the judgment, which would require a change in the terms of the settlement.
Family Law Appeals
Family Court does not have the authority to grant you a divorce or make decisions regarding a property distribution in the context of a divorce action. Family Court does, however have the authority to hear matters involving custody, child support, spousal support, domestic violence, and juvenile dependency and delinquency matters. Child support and spousal support matters are usually decided by a Support Magistrate, while other matters are decided by the Family Court Judge. Any adverse decision by a Support Magistrate must first be reviewed by a Family Court Judge before you can take an appeal to the Appellate Court. The document filed before the Family Court Judge is in the form of written objections, which must be filed no later than thirty (30) days after you have received a copy of the adverse decision. No oral arguments are allowed when written objections are filed. If the objections are not resolved in your favor, then you will be entitled to file an appeal with the Appellate Division, as described above under the heading Appeals - Divorce. If an adverse decision is issued by a Family Court Judge, then the appellate process is similar to the one under the heading Appeals - Divorce.
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During your initial consultation, an experienced attorney from our firm will review with you the critical facts in your case. We believe in starting with your end goals and strategizing backwards to ensure the most efficient and cost effective method of attaining your desired result.
Contact us to see how we may assist with your case. We can be reached 24 hours a day, 7 days a week at 518-250-4281 or via email at attorneys@tebanolaw.com.
