French v. French, 2018-CA-000878-ME

• Decision Date: 12 July 2019
• Docket Number: NO. 2018-CA-000878-ME,2018-CA-000878-ME
• Citation: 581 S.W.3d 45
• Parties: Jon-Mark FRENCH, Appellant v. Rebecca FRENCH (Now Paul), Appellee
• Court: Kentucky Court of Appeals

581 S.W.3d 45

Jon-Mark FRENCH, Appellant

v.Rebecca FRENCH (Now Paul), Appellee

NO. 2018-CA-000878-ME

Court of Appeals of Kentucky.

JULY 12, 2019; 10:00 A.M.

BRIEF FOR APPELLANT: Laura A. Phillips, Barbourville, Kentucky.

BRIEF FOR APPELLEE: Rebecca French, pro se, Corbin, Kentucky.

BEFORE: ACREE, GOODWINE AND KRAMER, JUDGES.

OPINION

ACREE, JUDGE:

Appellant, Jon-Mark French, appeals the February 27, 2018, order of the Laurel Family Court modifying timesharing. Finding no manifest injustice, we affirm.

FACTS AND PROCEDURE

Jon-Mark (Father) and Rebecca French (Mother) married in 1999. Two children, a boy and a girl, were born of the marriage. Both were little more than toddlers when the parties' divorce decree was entered in 2007.

The decree incorporated a settlement agreement that awarded joint custody with near equal timesharing, no primary residential parent, and no child support. The arrangement worked for many years until the children reached adolescence. Father’s relationship with the parties' son, J.F., became strained. Now emancipated and living with Mother, J.F. is not a subject of this appeal. However, the parties' daughter, T.F., born in 2003, remains the subject of the custody and timesharing dispute between the parties.

Concerned about T.F.’s relationship with Mother, Father arranged counseling for T.F. with Therapeutic Solutions and one of its counselors. Mother was neither included nor informed of the counseling sessions. The counselor made recommendations less favorable to Mother and more favorable to Father. Father used these recommendations to pursue a change in the custody arrangement.

The procedural history is more complex, but it is enough to say both Father and Mother moved for sole custody or, alternatively, for more timesharing.

Prior to hearing these motions, the family court ordered Father, Mother, and the children to engage in counseling at Intrust Healthcare. The social worker there recommended granting Mother additional timesharing with T.F. and noted his concern about the lack of reconciliation between Father and J.F.

The court held a hearing on the pending motions on February 6, 2018. Nothing worthy of note was atypical about this proceeding. On March 8, 2018, the family court ruled that the parties shall continue to have joint custody of T.F., but modified timesharing to allow Mother more time with T.F.

Father timely appealed.

STANDARD OF REVIEW

Standards for modifying custody and timesharing are succinctly stated in Pennington v. Marcum , 266 S.W.3d 759 (Ky. 2008). "[A]fter two years from the date of the custody decree, the standard [for modifying custody] reverts to review of the best interests of the child, either under KRS 403.270 or KRS [403.340(3) ]." Id. at 767. "Visitation, [or timesharing] ... can be modified upon proper showing, at any time ... pursuant to KRS 403.320" based on the best interests of the child. Id.

A party who complies with our rules of appellate procedure is entitled to review under the above standard. When a party chooses to disregard or deviate from our rules, a different standard may apply. As explained below, the judicial grace of substantial compliance will save an appeal from dismissal almost always. But, it will not save a rule violator from all sanctions. In cases like this, in which non-compliance with our rules does not prejudice or cause harm to the opposing party, a permissible sanction is to review the case for manifest injustice only.

ANALYSIS

We regret having to address, yet again, an attorney’s failure to comply with rules of appellate procedure. In this case, Father failed to comply with several sections of our rule governing the preparation of briefs, CR 76.12.

Section (4)(c)(i) and (ii) of that rule requires an appellant’s brief to begin with an "INTRODUCTION" followed by a "STATEMENT CONCERNING ORAL ARGUMENT." Father’s brief begins with his "POINTS AND AUTHORITIES." And his "POINTS AND AUTHORITIES" section does not conform to the requirements of the rule’s section addressing that part of the brief, CR 76.12(4)(c)(iii).

In fact, Father violates section (4)(c)(iii) in several ways. A proper "POINTS AND AUTHORITIES" section is like a table of contents. It is supposed to "set forth, succinctly and in the order in which they are discussed in the body of the argument, the appellant’s contentions with respect to each issue of law relied upon for a reversal, listing under each the authorities cited on that point and the respective pages of the brief on which the argument appears and on which the authorities are cited." CR 76.12(4)(c)(iii). Father’s "POINTS AND AUTHORITIES" lists two statutes and five cases. He does not set out any argument for appellate relief. He does not associate any of his seven authorities with any ground for reversal. He does not even identify the pages of his brief on which the two statutes and five cases may be found.

Father also fails to comply with CR 76.12(4)(c)(v). Coincidentally with his failure under CR 76.12(4)(c)(iii) to set forth the arguments in the "POINTS AND AUTHORITIES" section, the three argument sections appearing on pages 6, 9, and 14, do not "conform[ ] to the statement of Points and Authorities[.]" CR 76.12(4)(c)(v). More significantly, none of these three argument sections includes "at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Id.

Father did not comply with CR 76.12(4)(c)(vii). That section of the rule requires that "[t]he first item of the appendix shall be a listing or index of all documents included in the appendix." CR 76.12(4)(c)(vii). We found the appendix index attached as the second page of the brief. Having located that index, we see that it further fails to comply with the requirement that "[t]he index shall set forth where the documents may be found in the record." Id. Appellant violates this section of the rule in a third way, by failing to "place the judgment, opinion, or order under review immediately after the appendix list so that it is most readily available to the court." Id. Father chose as the first item of the index a copy of KRS 304.340 instead of the order from which the appeal is taken. We found that order under the third of eighteen tabs.

Additionally, the text of a brief "shall be double spaced...." CR 76.12(4)(a)(ii). Much of the brief is single-spaced, noticeably pages 8 through 13, in violation of this rule.

Finally, CR 76.12(6) requires the attorney preparing the brief to certify that, at the time the brief is filed, "the record on appeal has been returned to the clerk of the trial court or that it was not withdrawn by the party filing the brief." CR 76.12(6). Appellant’s certificate says that the record "will be returned" and not that it has been returned. Although this may seem a minor deviation from the rule, "records in the hands of the clerk are the records of the court." Ex parte Farley , 570 S.W.2d 617, 624 (Ky. 1978) (quoting Summers v. City of Louisville , 140 Ky. 253, 130 S.W. 1101, 1102 (1910) ). And "whatever belongs to the courts belongs to the public. In a fundamental sense we are only trustees...." Id. at 625. We trust attorneys who engage in appellate advocacy as temporary custodians of these important records. It is not too much to expect them to assure this Court that they have returned the records to the proper trustee. For that reason, the certification requires the lawyer’s oath that the records have already been returned, not merely a promise they will be returned in the future.

What is the consequence for violating these appellate rules? Fortunately for Father and others who find the rules challenging, inconvenient, or annoying, compliance with procedural rules in the appellate courts, like horseshoes and hand grenades, need not be precise to be effective, at least in obtaining some kind of review. Substantial compliance is firmly entrenched in our procedural jurisprudence. Ky. Farm Bur. Mut. Ins. Co. v. Conley , 456 S.W.3d 814, 818 (Ky. 2015). And, some members of the bar have shown no reluctance to embrace this judicial leniency when presenting appeals to this Court, confident that dismissal is highly unlikely. Id. ("appropriate sanction for the violation of a rule is not automatic dismissal").

Still, says the Supreme Court, "where a[n advocate’s] procedural misstep is appreciably serious, dismissal may be the appropriate remedy." Id. (citing CR 73.02(2)(a) ("Failure to comply with other rules relating to appeals ... is ground for ... dismissal of the appeal...."). Not to worry, however. If an appellant names and timely notices the proper parties, sufficient harm to dismiss an appeal is virtually never to be found. This is because whether that procedural misstep is "appreciably serious" enough depends on "the harm caused and the severity of the defect, as determined on a case-by-case basis." Id. (citation omitted) (emphasis added)). The key phrase here is "the harm caused."

"The harm caused" refers to any harm or prejudice caused "to the parties." See id. (citing Flick v. Estate of Wittich, 396 S.W.3d 816 (Ky. 2013) (clerical error in naming parties to an appeal did not prejudice the parties); Crossley v. Anheuser-Busch, Inc., 747 S.W.2d 600 (Ky. 1988) (a tardy prehearing statement properly served did not result in harm to the parties)). Other potential for harm caused by the routine application of substantial compliance is rarely addressed in our opinions.

For example, we have never considered any possible harm to the image of bench and bar caused by making "close enough" the standard when it comes to rules for lawyers. We seem to treat a professional advocate’s actual failure to follow appellate rules as no more harmful than his Constitutionally-protected right to "criticize [such rules] and published court decisions [which we conclude] does not ... undermine the public’s confidence and respect for the judiciary." J.C.J.D. v. R.J.C.R. , 803...