Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

What May Prevent A Person’s Ability To Appeal A Final Judgment of Divorce in New Jersey?

As a divorce attorney, I understand that very few cases are resolved by way of a full-blown trial.  In my twenty years of practice in the state of New Jersey, I find that one or both parties are rarely pleased with the end result, which is one of many reason I promote global settlements to my clients.  However if a divorce trial does occur and my client is displeased with the decision, I know that I have an affirmative duty as a lawyer to advise my client of their right to file an appeal.  However, I always further explain that if they begin to enjoy the benefits of the family court’s decision we cannot then turn around and file an appeal regarding that issue.  That was the case in the New Jersey Appellate Division case of Tassie v. Tassie.

In the case the parties were married for almost thirty years when the husband left the marital home and deserted his wife. Eight children were born of the marriage and at the time of the trial, seven were alive. Three of children were minors and living with their mother, while the remaining children were all emancipated.

The husband was a very successful corporate executive. From 1960 to 1971 his salary and capital gains surpassed $100,000 per year. In fact, in 1965 his gross income totaled $810,135. The husband’s total net worth was around $2.5 million. He and his family enjoyed a very lavish lifestyle. The house they lived in sat on twenty-one acres in Lawrence Township and was attended year round by live in servants and gardeners. The wife even has her own personal secretary to tend to her daily affairs. In addition, the children all went to private school. Also, the family took numerous trips and had exclusive memberships at clubs such as the Bedens Brook Club in Skillman.               

In January 1970 the husband left his wife and the marital home. Months later in June, the wife filed a complaint against her husband based on extreme cruelty and sought alimony, child support, equitable division of the assets, and a restraint enjoining her husband from disposing of the assets. The husband responded denying practically all of his wife’s allegations and counterclaimed for the return of $350,000 in bearer bonds, which apparently his wife had unlawfully removed from his safe deposit box.

Subsequently, the wife amended her complaint to seek an absolute divorce based on cruelty and desertion. She still sought alimony, child support for the minor children, and accounting and equitable distribution of the marital property. Yet again, the husband denied what his wife requested and counterclaimed for divorce on the ground of cruelty as well. He, too, still wanted to be repaid the $350,000 for his bearer bonds.

In January 1973, the trial court granted the wife a divorce from her husband. The court found that he had deserted her and was guilty of extreme cruelty. Furthermore, the judge stated that the wife would have custody of the minor children, whereas the husband would merely have visitation rights. In addition, the judge distributed the marital property so that the wife received property having an aggregate value of approximately $1,000,000, which provided her with an annual tax-free income of $42,432. The court also ordered the following:

1)    the husband would transfer tax-free municipal bonds having a face value at maturity of $705,000 and a present market value of $741, 200, together with interest paid on the bonds since January 1973 to the wife

2)    the husband would transfer title to the marital home and the land on which it was situated to the wife

3)    all furnishings and equipment were to remain in the marital residence; the wife would have sole ownership over these things, appraised at $82,360

4)    the husband would transfer his membership at two prestigious country clubs to the wife, and pay their annual dues until the youngest child graduated from college

5)    the husband would pay education costs for his minor children

6)    the husband would pay any outstanding Bergdorf Goodman or Bloomingdales bills incurred by the wife in 1972

7)    the husband would pay all future extraordinary medical and dental expenses for his minor children in excess of $558 per year

8)    the husband would transfer the Chrysler station wagon to the wife

9)    the husband would provide health insurance, so long as it was available through his employer, to his minor children

10) the husband would pay the wife’s attorney fees

Moreover, the judge ordered that the wife return the bearer bonds to her husband in addition to transferring him a six-acre parcel of land that she had the right of first refusal to purchase. The parties agreed to the terms and made their respective transfers and exchanges; however, the following day the wife served a notice of appeal from certain financial aspects of the final judgment. After learning of this, the husband immediately moved to dismiss the wife’s appeal. He stated that she had accepted the benefits of the entire judgment and therefore was barred from an appeal. The lower court agree with the husband and denied the wife’s motion. She appealed.

On appeal, the wife alleged that she did not waive her right to appealing the final judgment of divorce by voluntarily accepting the benefits of the judgment. However, the New Jersey Appellate Division stated that it is a well recognized rule that a litigant who voluntarily accepts the benefits of a judgment is estopped from attacking it on appeal. The court further noted that any act upon the part of a litigant by which he expressly or impliedly recognizes the validity of a judgment operates as a waiver or surrender of his right to appeal therefrom.

The court held that the wife knowingly and voluntarily accepted all of the benefits of the judgment without reserving her right to appeal by accepting them without protesting. Furthermore, at the time she accepted the benefits, she had her attorney present. If she had any concerns with the terms of the final judgment, she should have raised them to her attorney before agreeing to the terms. Moreover, the court looked to the case of Harris v. Harris, holding that “where a divorce is granted against the wife to whom an award of alimony is made, that, by accepting the alimony, she is precluded from taking and prosecuting an appeal from the decree of divorce.” Therefore, the New Jersey Appellate Division affirmed the findings of the lower court and held that the wife was barred from appealing the judgment she had already willingly accepted.

For more questions on this red-hot area of the law, please do not hesitate to contact my office today