Nearly everyone who has a judge rule against them thinks that the judge got it wrong.  Why litigate if you didn’t think you were right?  Judges are human and some times they actually do get it wrong.  In those cases it is easy to get their decisions reversed, right?  After all, that’s why we have a Appellate Division, right?

Right and wrong.  That is why we have an Appellate Division.  That said, given the standards of review in family court matters (and in all appellate matters in general), if you were betting, you should bet on the house because more cases are affirmed then reversed.  Other cases are remanded, not necessarily because the judge got it wrong, but because she/he did not provide sufficient fact finding in the decision to allow for appellate review.

I have rarely seen the standards of review set forth so cogently then in the unreported (non-precedential) case of Schleiffer v. Schleiffer released on December 6, 2012, citing the recent reported case of Milne v. Goldenberg (previously discussed on this blog).

The standards on appeal, we noted was follows:

In Milne v. Goldenberg, 428 N.J. Super. 184, 197-98 (App. Div. 2012) we recently restated our commitment to the principle that the work of the Family Part will not be disturbed absent compelling circumstances:

Generally, the special jurisdiction and expertise of the family court requires that we defer to factual determinations if they are supported by adequate, substantial, and credible evidence in the record. Cesare v.Cesare, 154 N.J. 394, 413 (1998). Accord N.J. Div. of Youth & Family Servs. v. E.P.,196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). It is well settled that Family Part fact finding receives particular deference because of "the family courts’ special jurisdiction and expertise in family matters," Cesare, supra, 154 N.J. at 413, which will be disturbed only upon a showing that the findings are "’manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence’" to ensure there is no denial of
justice, Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Also, we accord great deference to discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). "'[J]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.’" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). An abuse of discretion "arises when a decision is ‘made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’" Flagg v. Essex Cnty.
Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). However, a judge’s legal
decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194
(App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995)); Lobiondo v. O’Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

In this case, the remand judge’s factual findings were well tethered to the evidence, his legal conclusions comported with applicable precedent, and his discretionary decisions were rationally explained.

There are the standards all in one place:

  • Family part judges are granted deference based upon their "special expertise"
  • Deference is given to their decisions if supported by adequate, credible evidence in the record.  This does not mean correct, mind you, or that the appellate judges would have found the same way, only that they have to affirm if there is sufficient evidence in the record to support the decision.
  • If a decision is discretionary, it will be hard to overturn it since it is hard to show an abuse of the discretion if the decision is reasonably supported by the law and facts (or at least the facts that the judge chooses to cite to support her/his decision.
  • Legal decisions, however, are afforded no special deference.

This is not meant to say that you should not appeal.  But you should think long and hard before you do because even in the best of circumstances, you have an uphill battle.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.