Harney v. Harney, ___ N.C. App. ___ (September 3, 2024)
Held:
Affirmed
- Facts: Mother appeals custody order granting Grandfather custody of the child. Mother’s appellate brief included three appendixes: one with a table listing challenged findings or conclusions with analysis and arguments for each, singled spaced in sans serif font; one with portions of the transcript of the proceedings; and one of an unpublished opinion cited in her brief. Mother’s brief with appendixes was 73 pages and about 17,000 words. Grandfather’s reply brief with appendixes was 83 pages and about 14,000 words. The summary discusses the court’s determination of Mother’s substantial violation of the Rules of Appellate Procedure and discretionary sanctions imposed.
- An appellate court must consider whether a violation of the Rules of Appellate Procedure is a “substantial failure” or “gross violation” of the rules. Sl. Op. at 15 (citation omitted). “If so, our Supreme Court has instructed that in our discretion, we should ‘fashion [ ] a remedy to encourage better compliance with the rules’ ” by conducting a “fact-specific inquiry.”Sl. Op. at 15-16, 17. Appellate courts may impose sanctions for substantial failure to comply with the rules or gross violation of the rules that may include monetary damages, dismissal, or “any other sanction deemed just and proper.” Sl. Op. at 16-17, quoting N.C. R. App. Proc. 34, 25.
- Rules of Appellate Procedure:
- 26(g)(1) provides formatting requirements, including font and spacing, for documents filed with the court.
- Rule 28(b) requires the appellant’s brief to contain a non-argumentative statement of the material facts, the appellant’s argument, a statement of the applicable standard of review, and analysis with appropriate references to the record, the transcript, or exhibits. Rule 28(d) requires appendixes in limited circumstances, including necessary portions of transcripts and proceedings, and establishes formatting requirements. “The purpose of the appendix is to include parts of the transcript, evidence, statutes, or other documents necessary or helpful to understand ‘the issue[s] presented in the brief’ or, for the appellee, to address an issue raised in the opposing brief.” Sl. Op. at 13 (referencing N.C. R. App. P. 28(d)). The purpose of the appendix “is not to extend the body of the brief.” Sl. Op. at 13.
- Rule 28(j) establishes word limits for principal briefs and reply briefs, not including appendixes.
- Rule 30(e) requires providing a copy of an unpublished opinions cited in a party’s brief or argument.
- Mother violated Rules 28(j), 28(d), and 26(g) by using an appendix to make arguments required to be included in her principal brief, by greatly exceeding the word limit permitted for a principal brief by using the appendix as an extension of her brief, and by ignoring the formatting requirements for appendixes. Mother’s violation is substantial and imposed a burden on Grandfather and the court. Grandfather incurred increased costs in responding to the brief and violated the rules by adding a similar table to his reply brief to address the arguments in Mother’s appendix. If Grandfather had instead motioned to strike part of Mother’s brief or requested another sanction, he’d still have incurred additional costs and created additional delay in the appeal. The court spent more time in reviewing improperly extended briefs, determining how to address the issues and rule violations, and the appropriate sanction for violations. The court used its discretion to sanction Mother by not addressing or considering Mother’s arguments in the improper appendix, disregarding much of her challenge to the court’s findings and conclusion that she acted inconsistently with her constitutionally protected status as a parent. The court notes Mother also violated Rule 28 by placing part of her argument in her statement of the facts. Mother’s two other appendixes were proper under Rules 28 and 30. The court declined to sanction Grandfather as his violation of the rules was in response to Mother’s violation and his brief otherwise complied with the rules. The court admonished both counsel to comply with the rules and stated that “if an appellant violates a rule, this does not give the appellee license to violate the rules in response.” Sl. Op. at 22.
Category:
Civil Cases with Application to Child WelfareStage:
CustodyTopic: