Appeals to the Appellate Division from Family Court
Appeals to the Appellate Division from the Family Court
An appeal may be taken from the Family Court to the Appellate Division,1 as of right, from any order “of disposition” and from any other order only by leave of the Appellate Division.2 It has been held that the words “order of disposition” are synonymous with the words “final order or judgment.”3 Thus, an appeal, as of right, may generally be taken from orders in Family Court proceedings that have resulted in a final order or judgment,4 and may not be taken from non-dispositional intermediate orders.5 An order of filiation in a paternity proceeding which makes no provision for support is appealable as of right where support is not requested in the paternity petition but is not appealable without permission where support is sought in the paternity petition.6 As a general rule, an order made after a hearing, containing one of the permissible determinations on the petition, is appealable as of right. Orders of protection, denying protection, awarding or denying support, awarding or denying requests for custody, and an adjudication of juvenile delinquency fall within this category.7 An order which awards support, subject to review by the Court at a hearing at a later date, is an order of disposition which may be appealed.8 An order denying a motion to vacate a prior support order, on the ground that subsequent to the order of support the marriage was dissolved, was held to be appealable as of right.9 Family Court Act §§365.1 and 365.2 which apply in juvenile delinquency proceedings were intended to supersede the general appeals provisions of the Family Court Act (art 11).10 The Respondent in a juvenile delinquency proceeding may appeal to the appropriate appellate division, as of right, from any order of disposition under Article 3 of the Family Court Act, in accordance with Article 11 of the Family Court Act.11 The Respondent may take an appeal, in the discretion of the appropriate appellate division, from any other order under Article 3 of the Family Court Act.12 The presentment agency in a juvenile delinquency proceeding may appeal to the appropriate appellate division, as of right, from the following orders of the family court: an order dismissing a petition prior to the commencement of a fact-finding hearing;13 or an order of disposition, but only upon the ground that such order was invalid as a matter of law;14 or an order suppressing evidence entered before the commencement of the fact-finding hearing pursuant to Family Court Act §330.2, provided that the presentment agency files a statement pursuant to Family Court Act §330.2 (9).15 In Matter of Leon H,16 Family Court dismissed the petition for noncompliance with Family Court Act §350.1 following the fact-finding hearing. The Court of Appeals held that Family Court Act §§365.1 and 365.2 were intended to supersede the general appeals provisions of the Family Court Act (art 11) and, by implication, exclusively govern appeals to the Appellate Division in juvenile delinquency proceedings. It observed that only a respondent is permitted to appeal by permission to the Appellate Division. An order dismissing the petition, as was granted by Family Court, is only appealable by a presentment agency to the Appellate Division as of right if the dismissal was made before the commencement of the fact-finding hearing. Here, the order of dismissal, although finally determining this proceeding, was made following the fact-finding hearing, and was not an order of disposition within the meaning of Family Court Act article 3. As such, it was not appealable pursuant to Family Court Act §365.1(2)(b). It followed that the Appellate Division lacked jurisdiction to entertain the presentment agency's appeal from Family Court's dismissal of the petition. In Matter of Jose R.,17 the Court of Appeals rejected the argument that appeals by a presentment agency in juvenile delinquency proceedings under article 3 of the Family Court Act are governed exclusively by Family Court Act §365.1(2). It pointed out that Family Court Act §365.1 was enacted as part of a comprehensive procedural recodification of juvenile delinquency proceedings in a new, separate article 3 of the Family Court. By its express terms, section 365.1(2) applies only to “[a]n appeal to the appropriate appellate division *** as of right by the presentment agency.” Family Court Act §365.1 does not expressly cover appeals to the Court of Appeals by either a respondent or a presentment agency. In the absence of any specific provision of Family Court Act article 3 dealing directly with appeals by either a respondent or a presentment agency from an order of the Appellate Division, the Court of Appeals held that the Legislature intended to leave operative its earlier decisions treating orders of the Appellate Division as appealable in juvenile delinquency cases appealable pursuant to the provisions of CPLR article 56.18 To be appealable as of right, the Family Courts order must appear in the record.19 An oral order, decision, opinion or finding cannot be appealed.20 An appeal as of right does not lie from a Family Court order entered upon the default of the aggrieved party.21 Temporary Family Court orders are non-final and not appealable as of right. An order awarding or denying temporary custody, exclusive occupancy, support,22 or a temporary order of protection23 is non-final. Other types of Family Court orders which have been held to be non-final include orders pertaining to examinations before trial,24 visitation rights,25 a motion to intervene in a custody proceeding between natural parents,26 an application to stay an existing order pending disposition of a motion to modify an existing support order,27 a remand of appellant for psychiatric examination and observation,28 a motion to grant or quash a subpoena,29 denial of a motion to vacate a prior order approving a compromise agreement,30 a motion to set aside a prior decision and for a new hearing,31 and an order denying a request to transfer a support proceeding from one county to another.32 An appeal from the Family Court is taken to the Appellate Division of the Supreme Court of the judicial department in which the Family Court whose order is appealed from is located.33
Consistent with the provisions of Family Court Act §§354.2, 760 and 1052-b the provisions of Family Court Act §1121 apply to appeals taken from orders issued pursuant to Family Court Act Articles 10 and 10-A and Family Court Act Article 6, parts 1 and 2, and pursuant to social services law §§358-a, 383-c, 384, and 384-b.34 Upon the filing of the order, it is the duty of counsel to the parties and the child to promptly advise the parties in writing of the right to appeal to the appropriate appellate division of the supreme court, the time limitations involved, the manner of instituting an appeal and obtaining a transcript of the testimony and the right to apply for leave to appeal as a poor person if the party is unable to pay the cost of an appeal. It is also the duty of such counsel to explain to the client the procedures for instituting an appeal, the possible reasons upon which an appeal may be based and the nature and possible consequences of the appellate process.35 It is also the duty of counsel to ascertain whether the party represented by the attorney wishes to appeal and, if so, to serve and file the necessary notice of appeal and, as applicable, to apply for leave to appeal as a poor person, to file a certification of continued eligibility for appointment of counsel pursuant to Family Court Act §1118, and to submit such other documents as may be required by the appropriate appellate division.36 If the party has been permitted to waive the appointment of counsel appointed pursuant to Family Court Act §§249-a or 262, it is the duty of the court to advise the party of the right to the appointment of counsel for the purpose of filing an appeal.37 Where a party wishes to appeal, it is also be the duty of counsel, where appropriate, to apply for assignment of counsel for the party pursuant to applicable provisions of the family court act, the judiciary law and the civil practice law and rules, and to file a certification of continued eligibility for appointment of counsel, and, in the case of counsel assigned to represent an adult party, continued indigency, pursuant to Family Court Act §1018, and to submit such other documents as may be required by the appropriate appellate division.38 Except as provided for in Family Court Act §1121, counsel for the appellant must, no later than 10 days after filing the notice of appeal, request preparation of the transcript of the proceeding appealed from.39 Counsel assigned or appointed pursuant to CPLR Article 11 or Family Court Act §1120 must, no later than 10 days after receipt of notice of the appointment, request preparation of the transcript of the proceeding appealed from.40 In any case where counsel is assigned or appointed pursuant to Family Court Act §1121(6) (b) subsequent to the filing of the notice of appeal, counsel must, within 10 days of the assignment or appointment, request preparation of the transcript of the proceeding appealed from.41 Where the appellant is seeking relief to proceed as a poor person pursuant to CPLR
Article 11 the transcript of the proceeding appealed from must be requested within 10 days of the order determining the motion.42 The transcript must be completed within 30 days from the receipt of the request of the appellant. Where the transcript is not completed within that time period, the court reporter or director of the transcription service responsible for the preparation of the transcript must notify the administrative judge of the appropriate judicial district. The administrative judge must establish procedures to effectuate the timely preparation of such transcript. The appellate divisions may establish additional procedures to effectuate the timely preparation of transcripts.43 The appellate division is required to establish procedures to ensure the expeditious filing and service of the appellant's brief, the answering brief and any reply brief, which may include scheduling orders.44 The appellant must perfect the appeal within 60 days of receipt of the transcript of the proceeding appealed from or within any different time that the appellate division has prescribed for perfecting such appeals under CPLR 5535 (c) or as otherwise specified by the appellate division.45 The 60 day or other prescribed period may be extended by the appellate division for good cause shown upon written application to the appellate division showing merit to the appeal and a reasonable ground for an extension of time. If the appellate division grants an extension of time the appellate division will issue new specific deadlines by which the appellant's brief, the answering brief and any reply brief must be filed and served.46
1 Family Court Act §1111. CPLR §5702 provides that the right to appeal from the Family Court to the Appellate Division is governed by the Family Court Act.
3 Taylor v. Taylor, 23 A.D.2d 747, 258 N.Y.S.2d 659 (1st Dep't 1965); Rizzo v. Rizzo, 31 A.D.2d 1001, 298 N.Y.S.2d 118 (3d Dep't 1969); Koch v. Ackerman, 142 A.D.2d 581, 530 N.Y.S.2d 239 (2d Dep't 1988); Staley v. Staley, 134 A.D.2d 911, 522 N.Y.S.2d 67 (4th Dep't 1987).
4 Family Court Act §1112(a) however also allows an appeal as of right from an intermediate order or decision in a case involving abuse or neglect. In Holliday v. Holliday, 35 A.D.3d 468, 828 N.Y.S.2d 96 (2d Dep't 2006), the Appellate Division held that an appear from an Order of a support magistrate must be dismissed as no appeal lies from an order of a Support Magistrate where the appellant has not submitted objections to the order to a Family Court Judge.
5 No appeal lies as of right from the denial of a motion for protective order, Morhaim v. Morhaim, 63 A.D.2d 702, 405 N.Y.S.2d 105 (2d Dep't 1978); No appeal as of right from the denial of a motion to vacate a support order on the basis of the husband's subsequent foreign divorce, Allen v. Allen, 16 A.D.2d 674, 227 N.Y.S.2d 211 (2d Dep't 1962); No appeal of right from an order vacating the dismissal of a petition to increase support, Matthews v. Matthews, 11 A.D.2d 813, 205 N.Y.S.2d 272 (2d Dep't 1960); No appeal as of right from an order denying a motion to vacate or set aside a prior order that disposed of the proceeding, as it is not on order of disposition, Matter of Cote, 127 A.D.2d 1011, 513 N.Y.S.2d 315 (4th Dep't 1987); An order of the Family Court, made pursuant to former Personal Property Law, §49-b, (now CPLR §5242) enforcing a temporary order of support is not an order of disposition, Forbes v. Rivera, 98 A.D.2d 640, 469 N.Y.S.2d 709 (1st Dep't 1983); An order denying a motion for summary judgment, in a visitation proceeding, is not an order of disposition. Koch v. Ackerman, 142 A.D.2d 581, 530 N.Y.S.2d 239 (2d Dep't 1988). In Gertzulin v. Gertzulin, 27 A.D.3d 562, 810 N.Y.S.2d 355 (2d Dep't 2006), a child support proceeding pursuant to Family Court Act article 4, the father appealed from an order of the Family Court which dismissed his objections to a temporary order of support of the same court. The appeal was dismissed. No appeal lies as of right from a nondispositional order, and leave to appeal had not been granted. The order appealed from dismissed the father's objections to a temporary order of support on the basis that such objections cannot be brought. As it was not an order of disposition, it was not appealable as of right. In Kelly v. Kelly, 34 A.D.3d 809, 826 N.Y.S.2d 117 (2d Dep't 2006), the Appellate Division dismissed an appeal from an Order of that found the father guilty of criminal contempt. It held that where, as here, the purported contempt was committed within the immediate view and presence of the court and was punished summarily, review must be held under CPLR Article 78 and not by way of direct appeal. Moreover, because the matter involved a Family Court Judge, the court was without original jurisdiction to entertain it as a CPLR article 78 proceeding.
6 Harstein on Behalf of Julie S. v. Mike S., 107 A.D.2d 684, 484 N.Y.S.2d 39 (2d Dep't 1985); Jane PP v. Paul QQ, 64 N.Y.2d 15, 483 N.Y.S.2d 1007, 473 N.E.2d 257 (1984); Plantz v. Rounds, 115 A.D.2d 951, 497 N.Y.S.2d 527 (4th Dep't 1985). In Harvey-Cook on Behalf of Margaret W v. Kevin X, 204 A.D.2d 793, 611 N.Y.S.2d 702 (3d Dep't 1994) (the Appellate Division affirmed an order of the Family Court which granted petitioner's application to adjudicate respondent as the father of a child born out-of-wedlock). The Appellate Division held that no appeal lies of right from an order of filiation entered in the proceeding in which an order of support is requested pursuant to Family Court Act §1112(a). However, the court determined that it should treat respondent's notice as an application for leave to appeal and grant him permission to appeal. In Jane PP v. Paul QQ, 64 N.Y.2d 15, 483 N.Y.S.2d 1007, 473 N.E.2d 257 (1984), the Court of Appeals said: “We have recently had reason to consider the problems arising from the fact that traditionally the sole purpose of a paternity proceeding was to establish the father's obligation for support.” Cathleen P. v. Gary P., 63 N.Y.2d 805, 481 N.Y.S.2d 332, 471 N.E.2d 145 (1984); Sharon Gg. v. Duane Hh., 63 N.Y.2d 859, 482 N.Y.S.2d 270, 472 N.E.2d 46 (1984). Recognizing that recent statutory developments have made it possible for the mother, a putative father or a welfare official to bring a support proceeding, we held in Cathleen P., supra, that a mother was not barred from instituting an action for paternity and support, by the prior dismissal of a support proceeding begun by a welfare official. On similar reasoning, we conclude that although a filiation order may constitute an appealable order of disposition when the paternity proceeding does not seek support, it should not be so regarded when support is sought in the paternity proceeding, even if by a separate petition a support proceeding is commenced at the same time. So, to hold conserves judicial resources by making piecemeal appeals unnecessary and does not adversely affect any party to the filiation proceeding because under Family Court Act §1112, appeal by permission is available when cause for a separate appeal of the filiation order is shown. To hold as did the majority below, on the other hand, gives too great an effect to the happenstance that two proceedings were instituted when only one need have been, particularly since in the Family Court litigants often appear pro se and proceedings are instituted on forms prescribed by the state administrator (Family Court Act §214) which the clerk of the court is directed to give to any person requesting them (Family Court Act §216-b) and which the clerk or a member of his staff completes.
7 In re H., 35 A.D.2d 845, 317 N.Y.S.2d 95 (2d Dep't 1970); Staley v. Staley, 134 A.D.2d 911, 522 N.Y.S.2d 67 (4th Dep't 1987) (dismissal of a counterclaim for downward modification was an order of disposition and appealable although there was a remittal to determine arrears on the wife's enforcement petition.
8 Freihofer v. Freihofer, 104 A.D.2d 92, 481 N.Y.S.2d 823 (3d Dep't 1984) (failure to appeal the order which awards support subject to review precludes review on appeal from the later order. Failure to serve the notice of appeal on the county attorney is a mere technical defect where he is not an interested party and the court will grant leave to serve a late notice of appeal on him).
16 Matter of Leon H., 83 N.Y.2d 834, 836, 611 N.Y.S.2d 498, 499, 633 N.E.2d 1102, 1103 (1994).
17 Matter of Jose R., 83 N.Y.2d 388, 391-92, 610 N.Y.S.2d 937, 938–39, 632 N.E.2d 1260, 1261–62 (1994).
18 Citing, e.g., Matter of Quinton A., 49 N.Y.2d 328, 425 N.Y.S.2d 788, 402 N.E.2d 126 (1980); Matter of Anthony S., 47 N.Y.2d 754, 417 N.Y.S.2d 256, 390 N.E.2d 1180 (1979); Matter of Tony M., 44 N.Y.2d 899, 407 N.Y.S.2d 634, 379 N.E.2d 162 (1978); In re D., 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627 (1970).
19 Matter of Schultz, 420 N.Y.S.2d 54 (Jud. Ct. 1978); Brenner v. Brenner, 57 A.D.2d 813, 394 N.Y.S.2d 703 (1st Dep't 1977); Gauquie v. Gauquie, 17 A.D.2d 611, 229 N.Y.S.2d 881 (1st Dep't 1962); Giuliano v. Giuliano, 278 A.D. 850, 104 N.Y.S.2d 604 (2d Dep't 1951).
20 In Lay v. Lay, 144 A.D.2d 652, 535 N.Y.S.2d 7 (2d Dep't 1988), the Appellate Division dismissed the father's appeal from an order denying him visitation because his petition was dismissed for his failure to appear on the hearing date. A party may not appeal from an order entered on default. Moreover, assuming for purposes of argument the father was also seeking to appeal from the court's oral decision directing the issuance of a bench warrant his appeal had to fail because an oral directive is not an appealable order. See, Fiore v. Fiore, 6 A.D.2d 834, 176 N.Y.S.2d 32 (2d Dep't 1958) (Oral opinion and decision are not appealable); Bogart v. Bogart, 15 A.D.2d 529, 223 N.Y.S.2d 75 (2d Dep't 1961) (order must appear in the record). Matter of Bonnie RR, 141 A.D.2d 931, 530 N.Y.S.2d 285 (3d Dep't 1988) (an order settling the transcript of the proceedings, which adjudged respondent in contempt is not an order of disposition).
21 Mitcham v. Mitcham, 125 A.D.2d 473, 509 N.Y.S.2d 573 (2d Dep't 1986) (where husband's petition for downward modification of support order was dismissed upon his non-appearance at Family Court hearing).
25 Rizzo v. Rizzo, 31 A.D.2d 1001, 298 N.Y.S.2d 118 (3d Dep't 1969) (where issue referred to Family Court from Supreme Court during divorce action, pursuant to Family Court Act §467, held there was no appeal as of right); Biser v. Biser, 40 A.D.2d 534, 334 N.Y.S.2d 194 (2d Dep't 1972); (court, sua sponte granted leave to appeal and directed a preference) Cf. Bolatin v. Bolatin, 29 A.D.2d 534, 285 N.Y.S.2d 625 (1st Dep't 1967), order aff'd, 22 N.Y.2d 794, 292 N.Y.S.2d 897, 239 N.E.2d 641 (1968) (Order of Family Court suspending visitation was appealable as of right, on the ground that in the absence of a referral from the Supreme Court the Family Court was without jurisdiction to suspend visitation rights which had been previously granted by the Supreme Court).