NJSBA Family Law Section

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  • 1.  Appellate Time Constraints

    Posted 12-14-2016 10:23 AM

    Hello all,

    Just a  quick question, after the entry of an FRO would a motion for reconsideration stop the appellate 45 day clock on filing an appeal, or must an appeal still be filed within that 45 day time period? Any case law or applicable statute would be greatly appreciated.

    TIA,

    Eric B Hannum  

    ------------------------------
    Eric Hannum Esq.
    Jackson NJ
    (732)370-9596
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  • 2.  RE: Appellate Time Constraints

    Posted 12-14-2016 10:27 AM

    Rule 2:4-3(e) provides that the filing of a motion for reconsideration stops the clock, which then begins to run again once the motion is decided:

     

    "The running of the time for taking an appeal and for the service and filing of a notice of petition for certification shall be tolled: ... (e) In civil actions on an appeal to the Appellate Division by the timely filing and service of a motion to the trial court for rehearing or to amend or make additional findings of fact pursuant to R. 1:7-4; or for judgment pursuant to R. 4:40-2; or for a new trial pursuant to R. 4:49-1; or for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2. The remaining time shall again begin to run from the date of the entry of an order disposing of such a motion."

     

    Very truly yours,

    Andrew

     

    ---

     

    ANDREW M. SHAW, ESQ.

    Divorce & Family Law Attorney

     

    DeTommaso Law Group, LLC

    73 Grove Street

    Somerville, NJ 08876

     

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  • 3.  RE: Appellate Time Constraints

    Posted 12-14-2016 10:50 AM
    Think of it as a VCR (remember VCR), the filing of the Motion is like a Pause button and after the Motion the VCR resumes. Be mindful that if the Appeal is then NOT filed within the aggregate 45 day time period, then the Appeal (if filed only within 45 days of the Order as to the Motion for Reconsideration) then the Appeal is only as to the Order as to the Motion for Reconsideration. This is the general advice. Check the Rule and case law. 


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  • 4.  RE: Appellate Time Constraints

    Posted 12-14-2016 12:05 PM
    Eric: It's my understanding that the clock stops when you file the reconsideration motion. Check part two of the court rules.

    Sent from my iPhone



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  • 5.  RE: Appellate Time Constraints

    Posted 12-14-2016 12:27 PM

    See Rule 2:4-4(e) the counting of 45 days commences with the order or judgment you are looking to appeal - - - then the counting is tolled on the date you file the motion to reconsider - - the counting of days recommences with the remaining part of the 45 days after the issuance of the order on the motion to reconsider.

     

    Best of luck,

    Jill

     

    Law Office of Jill Anne LaZare, LLC
    55 Union Place

    Suite 330
    Summit, NJ 07901

    (908) 219 - 4366 Direct
    (908) 219 - 4362 (Fax)


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  • 6.  RE: Appellate Time Constraints

    Posted 12-14-2016 01:13 PM
    Eric -
    <x-tab>        </x-tab>This was just discussed / reviewed at the Appellate Practice Committee. I agreed with the other answers - just want to stress: The 45 day clock stops temporarily ticking when you file a motion for reconsideration (assuming it's timely filed -- within 20 days). The clock does not restart when you get the decision on the reconsideration motion - it is only tolled. For example, if you had 29 days to go to file your notice of appeal when you filed for reconsideration, you have 28 days left to file it when you get your decision on the reconsideration motion. You don't start over with 45 days when you get the order on the reconsideration motion.
    <x-tab>        </x-tab>Also, as pointed out, you must list both the original order and the order on the reconsideration motion in your notice of appeal. If you don't, you're left arguing only that the trial court erred in denying the motion for reconsideration (with its higher hurdle). The law on the issue, consequences for not appealing the original order as well as the reconsideration order, and exceptions to the general rule start on page 54 of the Respondent / Cross Appellant's brief on http://dpdlaw.com/appeals.htm#Corrello .
    <x-tab>        </x-tab>Finally, although obviously time limits should be adhered to whenever possible, one of the great things about our Appellate Division is that they are very focused on getting to the merits. If you miss a deadline, file with a "motion to file as within time" and explain why. I appealed a FRO ( https://scholar.google.com/scholar_case?case=6926044084237387070 ) that had been entered nine months earlier, based in part on the wording on the FRO that says "only a Family Part judge may change the terms of this order." The client had read that as meaning there was no appeal available. The Appellate Division granted the motion to file as within time. In another, the trial court didn't send me an order and it was only when I inquired three months later that we learned one had been entered ( http://dpdlaw.com/Napier_v_Hall.pdf ). The Appellate Division granted the motion to file as within time. Finally, in DYFS v. SG ( https://scholar.google.com/scholar_case?case=169307741646116353 ), the client didn't receive the final agency decision for almost two years after it was entered. Again, the Appellate Division granted the motion to file as within time. There are more examples, but you get the idea.


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