Matrimonial and Divorce Appeals Lawyer in Suffolk New York

If the judge in your divorce trial made a significant error or series of errors throughout your divorce, an appeal may be an important option for you if any of the following apply:

• The judge misapplied the law
• The judge misunderstood important facts
• The judge conducted the trial in a way that prevented you from putting on your own case
• The judge's use of discretion was so far outside the normal parameters that it falls into the category of abuse of discretion

As an appeals lawyer, we have represented many clients who have obtained results in an appeal. They include both reversals by the appellate division, and also those that are settled after the appeal is complete but before the appellate division makes a decision.

1. Appeals involving misapplication of the law

A good appellate attorney will always look for misapplication of the law in deciding the strength or weakness of an appeal. The reason is an appellate court reviews questions of law without deferring to how the trial court decided issues of law. Questions of law are the strongest argument to make in an appeal. Misapplication of the law commonly falls into one of the following categories:

1. The judge did not use the appropriate statute
2. The judge applied the appropriate statute but misunderstood it
3. The judge applied the wrong statute
4. The judge disregarded controlling case law
5. The judge misapplied controlling facts to the law

This list is not exhaustive

2. Appeals involving the Court misunderstanding the facts

An appeal involving the court misunderstanding the facts falls into two broad categories.

1. The court misunderstood undisputed facts
2. The court incorrectly resolved disputed facts

(a) Undisputed Facts

When facts are undisputed between the parties, the court may still misunderstand them. When this situation occurs, it presents itself as a strong argument on appeal as the factual dispute is not litigated nor did the trial court decide which version of the facts to accept. If the court's decision would differ from correcting undisputed facts, the correct result should be explained. In addition, since the facts were not disputed, the issue whether the side not appealing preserved this argument on appeal should be reviewed by the appellant.

(b) Disputed Facts

When there is a factual dispute, the determination by the trial court is given significant weight. Issues of credibility are very difficult to win in an appeal, and any factual dispute challenged in an appeal has a much greater chance of prevailing if the court failed to consider all evidence. In defending an appeal, a common tactic is whenever possible, try to reframe the appeal into a factual dispute involving credibility.  A good appellate attorney will know this line of defense, and when possible, try to structure a brief so that credibility is not an issue, or when it is, that it is minimized.

3. Procedural Errors that Prevented a Fair Trial

Courts can commit a number of procedural errors that run afoul of the rules of procedure. While many are minor, many more are not. It is impossible to list all potential procedural errors which can result in a reversal of the judgment. Such procedural errors include:

• The Court failing to give a reasonable opportunity to obtain counsel.
• The Court failing to order a translator when one party does not speak English
• The Court issuing sua sponte orders which materially affect the rights of the parties
• The Court fails to follow its own orders and procedural road map
• Multiple summary judgment motions being permitted. While not prohibited, this process is highly discouraged as it is fertile grounds for procedural violations
• The Court revising its own orders except under authorized circumstances
• The Court proceeding when a statutory stay is in effect
• The Court considered testimony without allowing the other side to cross examine the witness

When a court commits a procedural error, the effect often prevents one side from putting on their case, depriving them of due process. When a significant procedural error is involved, the argument on appeal often shifts from the merits of the appeal to requesting these procedural violations be reversed and the case being sent back to the trial court for a further proceedings.

 

4. Abuse of Discretion

When the trial court exercises its discretion in a way that is so far outside the normal boundaries, the appellate division may find the court abused its discretion and substitute its own discretion instead of the trial courts. The key here is to find case law with similar facts to obtain a range of discretion that is considered within the court's broad discretion. If the trial decision was outside that range, there is a good argument for abuse of discretion. Conversely, when defending an appeal, arguments framed as involving the court's discretion favor the defense, and finding case law that shows the trial court's discretion was within normal parameters is a key defense strategy in defending against any appeal.

 

5. Costs of a Matrimonial Appeal

Appeals are not cheap. Costs include the legal fees as well as the costs in obtaining transcripts and preparing the record. These costs must be estimated up front and weighed against the issues in the appeal and the likelihood of success. If you are contemplating a matrimonial appeal, there are two ways which may reduce your costs.

1. An award of counsel fees under DRL 237
2. An award of costs in the appeal decision

(a) Counsel Fee Awards are Authorized in Appeals

If there is a financial disparity between you and your spouse, Domestic Relations Law 237 allows an award of counsel fees to be granted to prosecute or defend an appeal.

 

Read More: Counsel Fee Awards

 

(b) Awards of Costs in the Appeal

When an appeal is decided, the Appellate Division has the discretion to award costs. For individuals, an award of costs can be significant, as they include the appellate printing costs of the record, transcripts, filing fees and even legal research. Awards of costs appear to be based on the merits of the appeal. While costs cannot be guaranteed, the relative strength of the appeal and the likihood of being awarded costs is a factor in determining whether or not an appeal is worth prosecuting.

 

Read More: Appeals and Appellate Practice 

 

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options in prosecuting an appeal or defending against an appeal To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.

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