Coburn v. Coburn

• Decision Date: 26 May 1998
• Docket Number: Docket No. 197116
• Parties: Dennis Ward COBURN, Plaintiff-Appellee, v. Lorraine Marie COBURN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 490

583 N.W.2d 490

230 Mich.App. 118

Dennis Ward COBURN, Plaintiff-Appellee, v. Lorraine Marie COBURN, Defendant-Appellant.

Docket No. 197116.

Court of Appeals of Michigan.

Submitted Jan. 29, 1998, at Lansing.

Decided May 26, 1998, at 9:30 a.m.

Released for Publication Sept. 10, 1998.

Cross Wrock, P.C. by Phillip J. Holman and Russ E. Boltz, Detroit, for Plaintiff-Appellee.

Kathleen Solomon, Wateford, for Defendant-Appellant.

Before MARKEY, P.J., and BANDSTRA and HOEKSTRA, JJ.

MARKEY, Presiding Judge.

While retaining jurisdiction over a pending delayed application for leave to appeal, the Supreme Court has remanded this case to us with instructions to provide "an explanation of the reasons for concluding that defendant's failure to pursue her appeal in conformity with the court rules was vexatious." Coburn v. Coburn, 456 Mich. 918, 575 N.W.2d 546 (1998). Our task is thus to explain in detail the egregious behavior of defendant and her counsel that required our previous order.

The parties were divorced pursuant to a consent judgment on October 23, 1991. That decree provided in pertinent part that the parties would begin with joint physical and legal custody of their only minor child. Subsequently, both parties petitioned for sole physical custody. Plaintiff had remarried and moved to another state. The parties submitted their custody dispute to binding arbitration. Dick v. Dick, 210 Mich.App. 576, 588, 534 N.W.2d 185 (1995). The arbitrator awarded sole physical custody to plaintiff. After the circuit court confirmed that award by order of August 16, 1996, the matter came to this Court as an appeal of right.

After defendant filed her first brief as appellant, plaintiff filed a motion to strike for failure to conform to the requirements of the court rules. A motion to strike a brief as nonconforming is one of the types of motions that can be adjudicated by the chief judge or another designated judge, acting alone. MCR 7.211(E)(2)(c). The chief judge pro tempore granted the motion to strike, MCR 7.201(A)(2), in an order that specified the following deficiencies:

The brief as submitted does not comply with MCR 7.212(C)(4), (6) and (7). Appellant shall within 21 days of this order submit an appellant's brief that complies with all those rules.

The referenced subrules require a statement of the basis of the jurisdiction of the Court of Appeals, MCR 7.212(C)(4), a statement of facts that, inter alia, provides "specific page references to the record," MCR 7.212(C)(6), and, correlatively, that when facts are stated in the argument portion of the brief, such assertions likewise "be supported by specific page references to the record," MCR 7.212(C)(7). Defendant's original brief on appeal contained no jurisdictional statement whatsoever, and absolutely no page references to the record either in the statement of facts section of the brief or in the argument portion of the brief as facts were iterated.

Defendant's substitute brief was then timely filed and again met with a motion to strike. Again, the motion to strike pursuant to MCR 7.211(E)(2)(c) was granted, this time by the chief judge with the following directive:

Appellant shall within 21 days of this order file an appellant's brief that is limited to documents filed and hearings held in the trial court prior to the claim of appeal being filed on August 16, 1996. Any documents filed, hearings held, or factual allegations made after August 16, 1996 are not properly before the Court in this appeal.

Examination of this second attempt to submit the appellant's brief reflects, among other patent defects, that defendant had appended to the proposed brief, as exhibits, affidavits that were not part of the lower court record and orders and transcripts that related to matters that occurred in the trial court after the order from which appeal of right had been claimed. Because this was already defendant's second opportunity to comply with the court rules, it is worth listing the improprieties facially evident within the defect specifications noted in the chief judge's order:

1. Neither affidavits nor depositions may be presented in this fashion as a means of enlarging the appellate record. Isagholian v. Transamerica Ins. Corp., 208 Mich.App. 9, 18, 527 N.W.2d 13 (1994).

2. Even by stipulation, in the absence of a motion to enlarge the record and the granting of such motion by this Court, MCR 7.216(A)(4), the parties cannot add to the record on appeal anything not considered by the court below in rendering the decision that is the subject of appeal. Lorland Civic Ass'n v. DiMatteo, 10 Mich.App. 129, 137-138, 157 N.W.2d 1 (1968).

3. Exhibits offered on appeal that were either not offered to the court below or that were excluded by the lower court from the settled record on appeal are not properly part of the record on appeal. Dora v. Lesinski, 351 Mich. 579, 581, 88 N.W.2d 592 (1958); Singer v. Hoffman Cake Co., 281 Mich. 371, 375, 275 N.W. 177 (1937).

4. Facts not appearing from the record cannot be considered on appeal. Associates Discount Corp. v. Gear, 334 Mich. 360, 367-368, 54 N.W.2d 687 (1952). This is a limitation on the power of the appellate court, which is confined to the record in conducting its review. Sims v. Sims, 298 Mich. 491, 496, 299 N.W. 158 (1941). The record to be considered on appeal must be made in the trial court. Stephenson v. Golden, 279 Mich. 710, 732-733, 276 N.W. 849 (1937).

5. Nothing arising after the order from which appeal has been taken can be considered on appeal. ¹ Sandusky Grain Co. v. Borden's Condensed Milk Co., 214 Mich. 306, 323-324, 183 N.W. 218 (1921); Monyhan v. Detroit & Saline Plank Road Co., 129 Mich. 549, 552, 89 N.W. 372 (1902). This is true even of official proceedings subsequently occurring. See Klotz v. Chatfield, 163 Mich. 86, 87-88, 127 N.W. 774 (1910).

Defendant's third effort to file her appellant's brief generated yet another motion to strike, as well as a motion to dismiss and a motion to affirm. Those motions were submitted to this three-judge panel, MCR 7.21 1(E)(1), which granted the motion to dismiss, MCR 7.211(C)(2)(b), MCR 7.216(A)(10), and denied the other motions as moot.

Again, the numerous defects in this third brief merit iteration:

1. Although there were some references to the record in the statement of facts, numerous crucial factual assertions therein, and within the argument portion of the brief, had no affiliated record references. The rule in this state is that assertions of fact in a brief that are not supported by references to the record represent an improper attempt to enlarge the record. In re Marx's Estate, 201 Mich. 504, 507, 167 N.W. 976 (1918). Because this was defendant's third effort, and because the first brief was stricken for precisely the same defect, among others, this Court had reasonable grounds for concluding that such repeated flouting of the court rules and of a fair presentation was intentional and deliberate, rather than accidental or negligent.

2. Various factual assertions concerned matters previously stricken as outside the record. These included statements of fact that had, in the stricken second appellant's brief, been supported by the affidavit of defendant's former attorney and were stricken because they were never part of the record below or were derived from psychological reports also stricken from the second brief as being matters not of record. ² Ironically, although the nonrecord material was no longer attached to the brief as exhibits, it was now incorporated into the body of the brief and constituted a significant part of it. Again, this Court reasonably inferred that defendant's pleadings were designed to circumvent the requirements of the court rules and the prior rulings of the chief judge and chief judge pro tempore, and that this effort was in no way a good-faith mistake.

3. Such record references as were provided did not support the assertions of fact to which they pertained. Rather, the references often were to defense counsel's arguments before the trial court for which no supporting evidence was ever adduced or properly proffered, MRE 103(a)(2). Other references may have related generally to the point at issue but did not verify the essential details that were the basis of the argument for reversal. Once again, this Court could derive no other impression from this method than that defendant was attempting to manufacture the requisite factual support for appellate relief in the absence of the necessary record. See Lemanski v. Ford Motor Co., 82 Mich.App. 244, 250-252, 266 N.W.2d 775 (1978).

After the appeal was dismissed and a motion for rehearing was denied, plaintiff moved for actual and punitive damages pursuant to MCR 7.216(C). That motion was also granted by this panel, Judge Hoekstra dissenting. The order provided:

Plaintiff-Appellee's motion for actual and punitive damages is GRANTED. MCR 7.216(C)(1)(a), (b).

This matter is hereby remanded to the trial court for a determination of damages as set forth in MCR 7.216(C)(2). These damages are to be assessed jointly and severally against both defendant-appellant and her counsel. ³

In awarding damages pursuant to MCR 7.216(C)(1)(a), this Court found that the appeal was taken for the purposes of hindrance or delay or without any reasonable basis for belief that there was a meritorious issue to be determined on appeal. Given that appellant's presentation consistently relied on matters not of record as a basis for appellate relief, not once, or twice, but three times, we concluded that where the only basis asserted for appellate relief is outside the record, an appellant cannot entertain a reasonable belief that any issue depending on such non-record matters is even arguably meritorious. Cvengros v. Farm Bureau Ins., 216 Mich.App. 261, 269, 548 N.W.2d 698 (1996). On further review, we adhere to this conclusion. As noted earlier, Michigan jurisprudence bars...