Tonya Sherrie Hall v. Paul Brady Hall

• Court: Court of Appeals of Kentucky
• Decided: September 14, 2023
• Docket: 2023 CA 000190
• Status: Unknown

Opinion

RENDERED: SEPTEMBER 15, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0190-MR

TONYA SHERRIE HALL APPELLANT

APPEAL FROM BULLITT CIRCUIT COURT v. HONORABLE MONICA K. MEREDITH, JUDGE ACTION NO. 20-CI-00508

PAUL BRADY HALL APPELLEE

OPINION AND ORDER DISMISSING APPEAL

** ** ** ** **

BEFORE: COMBS, DIXON, AND ECKERLE, JUDGES.

DIXON, JUDGE: Tonya Sherrie Hall appeals from additional findings of fact and

conclusions of law related to her claim for spousal maintenance, entered by the

Bullitt Family Court on December 29, 2022, upon remand from this Court.

Because Tonya failed to follow briefing requirements set forth in the Kentucky

Rules of Appellate Procedure (RAP), we strike her brief and dismiss the appeal. FACTS AND PROCEDURAL BACKGROUND

The parties were divorced upon entry of Findings of Fact, Conclusions

of Law, Judgment, and Decree of Dissolution by the Bullitt Family Court on July

29, 2021. Tonya appealed the family court’s ruling related to classification and

distribution of marital and nonmarital property, as well as denial of her request for

spousal maintenance. See Hall v. Hall, No. 2021-CA-1003-MR, 2022 WL

2080185 (Ky. App. Jun. 10, 2022). After citing numerous instances of Tonya’s

failure to follow the briefing requirements set forth in Kentucky Rules of Civil

Procedure (CR), we reviewed for manifest injustice only, citing Elwell v. Stone,

799 S.W.2d 46, 47 (Ky. App. 1990). We affirmed the family court regarding

property matters, but reversed and remanded the issue of spousal maintenance.

The family court held a hearing upon remand and entered additional

findings of fact, conclusions of law, and an amended judgment. After considering

the factors of Kentucky Revised Statute (KRS) 403.200(2), the family court

awarded Tonya maintenance in the amount of $867.00 per month, retroactive to

October 2021, and continuing until Paul retires, at which time Tonya will begin to

draw from his monthly pension. The family court ordered Paul to pay his

maintenance arrearage in monthly installments of no less than $250.00. Tonya

again appealed.

-2- LEGAL ANALYSIS

Tonya makes numerous arguments on appeal, which focus generally

upon what she contends is the inadequacy of the amount of monthly maintenance.

She also claims the family court erred by terminating maintenance upon Paul’s

retirement. Finally, Tonya claims the family court erred in structuring a payment

plan for Paul’s arrearages and in its failure to address pre- and post-judgment

interest. However, we do not reach the merits of Tonya’s arguments.

In Tonya’s previous appeal, she was warned about failure to comply

with the then-governing civil rules related to briefing. Specifically, Tonya failed to

provide ample and specific citations to the record on appeal in both her statement

of the case and her arguments.1 Tonya also failed to state whether her various

claims of error were preserved for appeal and failed to identify where the multiple

exhibits appended to her brief could be found in the record.2 Additionally, Tonya

failed to properly format her citations to the video record on appeal.3 Citing

Elwell, supra, we reviewed her arguments for manifest injustice only.4 Although

1 See former CR 76.12(4)(c)(iv)-(v); now RAP 32(A)(3)-(4). 2 See former CR 76.12(4)(c)(v) and (vii); now RAP 32(A)(4) and RAP 32(E)(1)(d). 3 See former CR 98(4)(a); now RAP 31(E)(4).

4 See also Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010):

Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief

-3- now governed by the RAP, the substantive requirements of the procedural rules

related to briefing have not changed.

Unfortunately, Tonya failed to heed our warnings, and her brief in the

instant action is as deficient and noncompliant as it was in her earlier appeal.

While her references to the video record are now in conformity with the format

required by RAP 31(E)(4), they are used sparingly. We acknowledge that Tonya’s

statement of the case includes several video citations; however, there is only one

citation to the video record contained in her multiple arguments. More

importantly, in contravention of RAP 32(A)(3)-(4), Tonya’s brief contains no

citations to the paper record whatsoever. While she does cite to the prior opinion

of this Court, as well as the order of the family court, these are not pinpoint

citations to the record and do not constitute “ample” citations to support her factual

assertions. Commonwealth v. Roth, 567 S.W.3d 591, 594 (Ky. 2019).

Tonya also fails to set forth in the index to her appendix where each

document may be found in the record, in contravention of RAP 32(E)(1)(d).5 We

reiterate “[i]t is well-settled that an appellate court will not sift through a

voluminous record to try to ascertain facts when a party has failed to comply with

or its offending portions, [RAP 31(H)]; or (3) to review the issues raised in the brief for manifest injustice only, [Elwell, 799 S.W.2d at 47].

5 For example, Tonya included a Social Security award letter in her appendix, but without proper citation, it is unclear whether the letter was ever made part of the record before the family court.

-4- its obligation . . . to provide specific references to the record.” Parker v.

Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009). Finally, Tonya fails to include

any statements of preservation, in contravention of RAP 32(A)(4).6

The importance of procedural rules “cannot be disdained or

denigrated.” Hallis, 328 S.W.3d at 696. Enforcement of said rules “is a judicial

responsibility of the highest order because without such rules substantive rights,

even of constitutional magnitude, . . . would smother in chaos and could not

survive.” Id. (internal quotation marks and citation omitted). RAP 31(H)(1)

provides that “[a] brief may be stricken for failure to substantially comply with the

requirements of these rules.” Tonya again failed to substantially comply with the

briefing requirements of the RAP. Permitting continued non-compliance after

specific warnings in a previous appeal – concerning these same parties – would

render such warnings meaningless. Accordingly, we exercise our discretion to

strike Tonya’s brief, which necessarily requires we dismiss her appeal. See Roth,

567 S.W.3d at 593.

CONCLUSION

Therefore, be it ORDERED that Appeal No. 2023-CA-0190-MR is hereby

DISMISSED.

6 “If a party fails to inform the appellate court of where in the record his issue is preserved, the appellate court can treat that issue as unpreserved.” Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021).

-5- ALL CONCUR.

ENTERED: _______________ JUDGE, COURT OF APPEALS

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Joseph J. Wantland Amber L. Cook Shepherdsville, Kentucky Shepherdsville, Kentucky

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