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Appeal of Divorce Decree

An appeal will lie only from a final order unless otherwise permitted by statute or rule.[i] However, there are certain exceptions to the rule.  One exception is interlocutory orders or rulings to be reported to the law court when the presiding justice believes that questions of law have been presented which require determination prior to any further proceedings in the case.[ii]

A final order is one which ends the litigation, or alternatively disposes of the entire case.[iii] An order is interlocutory and not final unless it effectively puts the litigant out of court.  An order is not interlocutory if it precludes a party from presenting the merits of claim to the lower court.

In Fried v. Fried, 509 Pa. 89 (Pa. 1985), the court held that there is an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted.  An order is considered final and appealable if:

  • it is separable from and collateral to the main cause of action;
  • the right involved is too important to be denied review; and
  • the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

In Book v. Book, 59 Wyo. 423 (Wyo. 1943), the court held that a proceeding for divorce is not a special proceeding, but an action to which general equity rules ordinarily apply, though limited in some respects by statute.

In Claudius v. Melvin, 146 Cal. 257 (Cal. 1905), the court held that in a divorce decree the courts enter an interlocutory judgment declaring that the party in whose favor the court decides is entitled to a divorce.  The interlocutory judgment for a divorce can be modified or vacated by an appeal.[iv] An interlocutory divorce decree is appealable, since it is a special order made after final judgment.[v]

However, in Gaudette v. Gaudette, 89 N.Y.2d 1023 (N.Y. 1997), the court held that the portion of an order entered in a divorce action which does not finally determine the action is not subject to appeal.

[i] Fried v. Fried, 509 Pa. 89 (Pa. 1985)

[ii] Boyle v. Share, 377 A.2d 458 (Me. 1977)

[iii] Fried v. Fried, 509 Pa. 89 (Pa. 1985)

[iv] Suttman v. Superior Court of San Francisco, 174 Cal. 243 (Cal. 1917)

[v] Orloff v. Orloff, 144 Cal. App. 2d 541 (Cal. App. 2d Dist. 1956)

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