gavel A recent decision handed down by the Appellate Division in an estate litigation matter serves as a reminder of the all-too-frequent intersection of family law and trusts and estates law. The fact that this case, In the Matter of the Estate of Douglas Castellano and the Parentage of Gregory Bock, is a published decision

Sometimes, litigants never want to give up the fight.  An adverse ruling is rendered against them so what’s next, a motion for reconsideration that does not meet the criteria for motions for reconsideration.  What’s next?  Typically an appeal.  But some times, you even see a motion for reconsideration of a denial for motion for reconsideration. 

An interesting case was recently decided by the United Supreme Court involving an international custody dispute, which has particular relevance for members of the military. For the case, click here. When there are allegations of parental kidnapping, or an unlawful removal of children to another country, there is an international treaty, known has the The Hague Convention on the Civil Aspects of International Child Abduction which provides an expeditious method intended to return a child removed by a parent from one member nation to another.   The primary intention of the Convention is to maintain the custody arrangement which existed immediately before an alleged wrongful removal thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

Unfortunately, not all countries are signatories to the treaty (most notably, the majority of Middle Eastern countries are not). However, those that are give litigants an important process to be heard when a child is unlawfully taken. The core premise of the Hague Convention is that custody disputes should be resolved in what is known as the child’s “habitual residence.” Recently, a father who had been denied relief by an American Court when it was found that Scotland was the habitual residence of his daughter had his case reinstated by the United States Supreme Court.

The Hague Conventions requires the judicial or administrative authority of a signatory country to order a child returned to his or her country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the contracting country. The International Child Abduction Remedies Act (the name of the United States law which implements the Convention in the United States) also requires defendants to pay various expenses incurred by plaintiffs associated with the return of children. Generally, once a child has been return to his or her country of habitual residence, the case is considered concluded. However, this can, as the Supreme Court concluded, lead to inequities.

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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:

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Trials are often won or lost based upon credibility determinations.  More often than not, cases are replete with he said/she said situations, or real differences of opinion as to almost every issue.  In an interesting unreported Appellate Decision released on July 15, 2009, credibility was critical.  As the author of this post was the successful

Previously I blogged about what happens during a family law trial.  To see that post, click here.  In this post, I will discuss what happens during an appeal.

The first question that has to be answered is whether a matter is ripe for an appeal. If the case is still pending and you want to file an appeal, there is no appeal as of right.  The case is called "interlocutory" and you need to file a Motion for Leave to Appeal.  Similarly, in most circumstances, a matter is not ripe for appeal unless the Order or Judgment being appealed from resolves all issues as to all parties.  Motions for leave to appeal are seldom granted because courts do not like piecemeal litigation and it frustrates the notion of judicial economy.  If you are going to file a Motion for Leave to Appeal, it must be filed within 20 days of service of the Order.

For appeals as of right, typically filed when a matter is over, in the case of a divorce, or upon receiving an Order resolving a post judgment motion, these must be filed within 45 days from the date of the Order or Judgment. 

In an appeal, you must show that the trial judge made an error as to the law or the facts.  In fact, the scope of Appellate review is whether the trial judge’s findings could reasonably have been reached on sufficient credible evidence present in the entire record (meaning the evidence and testimony presented to the trial court.) Moreover, the factual findings of the trial judge, his assessments of credibility and the discretionary decisions he may make are entitled to great deference. When the reviewing Court is satisfied that the findings and the result meet the above criterion, they should not disturb the result, even though they may have reached a different conclusion. 

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Frequently in divorce, and I am sure many other cases, there are diverging versions of an event.  Often that is caused by the fact that people have a different perception of events.  Maybe it is a Mars/Venus thing when it comes to husband/wife relationships.  in these cases, both people honestly believe their version of events.