In re the Guardianship of the Person of Gallop

South Dakota Supreme Court

In re the Guardianship of the Person of Gallop

453 N.W.2d 616, 1990 S.D. LEXIS 40, 1990 WL 37991

CourtSouth Dakota Supreme Court

DecidedApril 4, 1990

DocketNo. 16735

StatusPublished

Cited by2 cases

This text of 453 N.W.2d 616 (In re the Guardianship of the Person of Gallop) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Guardianship of the Person of Gallop, 453 N.W.2d 616, 1990 S.D. LEXIS 40, 1990 WL 37991 (S.D. 1990).

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Opinion

SABERS, Justice.

Gabrielle McClintic, the mother of Charles and Jesse Gallop, appeals an order appointing William and Diana McClintic co-guardians of Charles and Jesse.

In March of 1988, Charles and Jesse, in a unique move, petitioned to have their former step-father and his wife appointed as their co-guardians. This followed a dispute with their mother about their discipline. The circuit court granted the petition. Gabrielle filed a notice of appeal on June 22, 1989, and filed her brief with the court on September 21, 1989. On December 11, 1989, this court was informed by letter that Charles and Jesse would not be filing a brief.

We have previously held that an appel-lee’s failure to file a brief constitutes an abandonment of his position. Littler v. South Dakota Dep’t of Labor, 426 N.W.2d 314 (S.D.1988); see also Price v. Price, 430 So.2d 848, 849 (Miss.1983) (“[F]ailure to [file a brief] is tantamount to confession of error.”). When presented with an appel-lee’s failure to file a brief in Birchfield v. Birchfield, 417 N.W.2d 891 (S.D.1988), we stated that: “We will not overlook or tolerate such omissions in the future.” Id. at 893.

We will not automatically treat an appellee’s failure to file a brief as a confession of error, but may do so at our discretion. See In re Appeal in Pima County Juvenile Action Number J-65812-1, 144 Ariz. 428, 698 P.2d 223 (Ct.App.1985); Rhode Island v. Prins, 96 Nev. 565, 613 P.2d 408 (1980). We treat this failure to file a brief as a confession of error because we believe this case is inappropriate for decision without briefing by both parties. Gabrielle raises important questions regarding inherent conflicts between statutes governing guardianship and those governing termination of parental rights. We will not decide such important questions without the benefit of complete briefing and advocacy by both parties. Therefore, we reverse the decision of the circuit court appointing William and Diana McClintic co-guardians of Charles and Jesse.

All the Justices concur.

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SABERS, Justice.

Gabrielle McClintic, the mother of Charles and Jesse Gallop, appeals an order appointing William and Diana McClintic co-guardians of Charles and Jesse.

In March of 1988, Charles and Jesse, in a unique move, petitioned to have their former step-father and his wife appointed as their co-guardians. This followed a dispute with their mother about their discipline. The circuit court granted the petition. Gabrielle filed a notice of appeal on June 22, 1989, and filed her brief with the court on September 21, 1989. On December 11, 1989, this court was informed by letter that Charles and Jesse would not be filing a brief.

We have previously held that an appel-lee’s failure to file a brief constitutes an abandonment of his position. Littler v. South Dakota Dep’t of Labor, 426 N.W.2d 314 (S.D.1988); see also Price v. Price, 430 So.2d 848, 849 (Miss.1983) (“[F]ailure to [file a brief] is tantamount to confession of error.”). When presented with an appel-lee’s failure to file a brief in Birchfield v. Birchfield, 417 N.W.2d 891 (S.D.1988), we stated that: “We will not overlook or tolerate such omissions in the future.” Id. at 893.

We will not automatically treat an appellee’s failure to file a brief as a confession of error, but may do so at our discretion. See In re Appeal in Pima County Juvenile Action Number J-65812-1, 144 Ariz. 428, 698 P.2d 223 (Ct.App.1985); Rhode Island v. Prins, 96 Nev. 565, 613 P.2d 408 (1980). We treat this failure to file a brief as a confession of error because we believe this case is inappropriate for decision without briefing by both parties. Gabrielle raises important questions regarding inherent conflicts between statutes governing guardianship and those governing termination of parental rights. We will not decide such important questions without the benefit of complete briefing and advocacy by both parties. Therefore, we reverse the decision of the circuit court appointing William and Diana McClintic co-guardians of Charles and Jesse.

All the Justices concur.

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453 N.W.2d 616, 1990 S.D. LEXIS 40, 1990 WL 37991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-guardianship-of-the-person-of-gallop-sd-1990.

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