Divorce lawyers are frequently asked: What are my chances of winning an appeal? The answer is never simple. The answer to the question requires counsel to consider (1) whether the trial court committed errors of law, which would be considered reversible error; (2) whether the trial court committed evidentiary errors which were not harmless; (3) whether the trial court abused its substantial discretion in making its financial and custody awards; and (4) whether trial counsel preserved the right to appeal.

While the Appellate Division has jurisdiction to address unpreserved issues in the interest of justice, the general rule is that the Appellate Division will not consider issues not preserved for review by an appropriate motion, objection, or other action. Merrill v. Albany Med. Ctr. Hosp., 71 N.Y.2d 990, 991 (1988). The failure to do so is fatal to an appeal. Nor may it consider matters outside the record, i.e., materials not presented to the trial court. See Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291 (1974).

Failure To Appeal an Issue