Tyler Steven Berwanger v. Meagan Elizabeth Berwanger ( 2023 )

RENDERED: APRIL 7, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0419-MR
TYLER STEVEN BERWANGER APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KATHY STEIN, JUDGE1
ACTION NO. 20-CI-02953
MEAGAN ELIZABETH
BERWANGER APPELLEE
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: ACREE, EASTON, AND JONES, JUDGES.
EASTON, JUDGE: The Appellant, Tyler Steven Berwanger (“Tyler”), seeks
review of two decisions of the Fayette Family Court regarding division of marital
1
Judge Kathy Stein retired and was replaced by Judge Carl Devine. The current judge of the
originating division of the Fayette Circuit Court for this case is Judge Tiffany Yahr.
property and debt. First, Tyler argues the family court erred in awarding the
Appellee, Meagan Elizabeth Berwanger (“Meagan”), the entirety of the marital
residence and the furnishings therein. Second, he argues the family court abused
its discretion in its division of a portion of Meagan’s student loan debt. Finding no
error, we affirm.
We will first address Meagan’s motion to strike appellant’s brief and
to dismiss appeal based upon the deficiencies of Tyler’s brief pursuant to RAP2
32(A)(3), (4), and 32(E). An Appellant’s brief must contain “[a] statement of the
case consisting of a summary of the facts and procedural events relevant and
necessary to an understanding of the issues presented by the appeal, with ample
references to the specific location in the record supporting each of the statements
contained in the summary.” RAP 32(A)(3) (emphasis added). Tyler’s brief
contains no specific references to the record at all. Additionally, the brief contains
no statement of preservation as required by RAP 32(A)(4). The brief also lacks an
appendix containing the items required by RAP 32(E).
It would be well within our discretion to strike Tyler’s brief and
dismiss this appeal based on failure to comply with procedural requirements.
Commonwealth v. Roth, 567 S.W.3d 591, 593 (Ky. 2019). Meagan is correct in
that it is not our responsibility to search the record for errors. When an appellant
2
Kentucky Rules of Appellate Procedure.
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fails to adhere to the procedural rules, our options are 1) to ignore the deficiency
and proceed with the review, 2) strike the brief or its offending portions, or 3) to
review the issues raised in the brief for manifest injustice only. Hallis v. Hallis,
328 S.W.3d 694, 696 (Ky. App. 2010).
Because the issues are essentially resolved from review of a single
evidentiary hearing, the record is not particularly voluminous. While we choose to
proceed with review, we do not condone the failure to comply with the briefing
requirements. The brief filed by Tyler’s counsel has earned the well-reasoned
dissent in this case. The dissent should serve as a warning not to rely on the
discretion of this Court to permit consideration of appeals despite deficient briefs.
With hesitance, we hereby DENY Meagan’s motion to strike, but this decision
should not be viewed as precedential.
FACTUAL AND PROCEDURAL HISTORY
Tyler and Meagan were married in 2014. They have one minor child,
R.B., who was born in 2019. Throughout the marriage, they lived in Fayette
County. The parties purchased their marital home in late 2018 using funds
Meagan received from an inheritance from her grandfather’s estate.
The parties separated in August 2020. The event precipitating this
separation led to issuance of a domestic violence order against Tyler. At the
hearing about this event, the family court heard testimony that Tyler had a firearm
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and was threatening suicide while he was alone in the home with R.B. Tyler was
required to vacate the parties’ marital home. Meagan was granted temporary sole
custody of R.B. The later permanent custody determination was not appealed by
Tyler.
The family court conducted a final hearing on June 8, 2021. The
parties were the only witnesses to testify. Meagan testified she was the primary
wage earner during the marriage. There were periods of time when Tyler was
unemployed or only working part-time. Meagan said when she was working,
Tyler would care for the child, although she had serious concerns over the quality
of that care.
Meagan confirmed she received a sizeable inheritance from her
grandfather’s estate during the marriage. The total inheritance was $342,283.07,
which was given to her in two payments. The first check was written to her on
November 11, 2017, for $100,000, with the balance being distributed to her on
May 17, 2018. These payments were deposited into a new joint account Meagan
opened. Meagan testified very little else went into that account. According to
Meagan, Tyler made two deposits into the account, one for $100 and another for
$250. Tyler’s testimony was consistent with Meagan’s regarding this account.
On December 12, 2018, a check for $120,000 was written from that
account to purchase the parties’ marital residence. The $120,000 was the full
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purchase price of the home, and the parties did not execute a mortgage or any other
type of loan. There were no liens on the house.
Meagan testified the house required a new HVAC unit, which cost
approximately $7,000. Meagan obtained a loan from her sister for this expense,
which has yet to be repaid. A dishwasher was installed, for which Meagan used
money from her inheritance. Meagan and Tyler purchased a shed for the yard, at a
cost of approximately $3,500. Meagan testified they used tax refund and stimulus
money to pay for the shed.
Meagan remembered that within weeks after she received the first
installment of the inheritance, Tyler quit his job. Tyler explained he could not
keep the jobs and go on all the trips they were planning to be financed with the
inheritance money. Tyler did not seek reemployment for several months. Tyler
did not get another job until March 2018. Meagan said Tyler was unemployed
again from fall 2019 until March 2020, when he began driving for Grubhub,3
making approximately $100 per week. Tyler obtained another job a few months
later.
Meagan observed Tyler did not seem concerned about employment,
because he thought they could just use her inheritance money. She testified he
often wanted to use this money for unnecessary expenses. Meagan testified that
3
A food delivery service.
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even when Tyler wasn’t working, he would not contribute much to household
duties. This was a source of contention between them because Meagan would ask
Tyler to do the chores around the house he agreed to do, but she would end up
doing most of them.
Meagan additionally testified about the debts of the parties. They had
debt on both of their vehicles, as well as some credit card debt, medical debt from
when their son was born, and Meagan had about $40,000 in student loans. Meagan
testified that the credit card debt was all incurred by Tyler. Meagan stated they
only opened the card to get some credit established. Meagan charged about $300
on it right after they opened the card, but she paid it off in full and never used it
again. After the parties separated, Meagan received notification the card was
“maxed out.” Meagan theorized Tyler began using the credit card when she kept
him from using her inheritance money.
Meagan testified they owed about $12,300 in medical debt from her
hospital stay and their son’s NICU stay when he was born. She stated she had
insurance, which paid for most of the cost. Meagan testified Tyler told her that he
also had insurance, but that turned out to be incorrect. Tyler disputed that he
intentionally misrepresented his health insurance status to Meagan. He testified he
did not know if he had health insurance or not, and he did not find out for sure until
the hospital attempted to run his information.
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Meagan owed approximately $40,000 in student loan debt. She said
that about $10,000 of the loan was not used for educational expenses, but for living
expenses for the parties during the marriage. According to Meagan, Tyler had
encouraged her to take out the maximum amount of loans she could so that they
would have extra funds.
Tyler did not dispute that some of Meagan’s student loans went to pay
for marital expenses. He stated he does not believe it was as much as $10,000, but
he was unable to give an amount that he thought was more accurate. He also
testified he never coerced Meagan in any way to take out extra loans, but he did
agree that he encouraged it.
Tyler testified he has very few assets. When he had to leave the
marital residence, he began staying with a friend in a garage, which is where he
was still residing at the time of the hearing. He stated it has been difficult for him
to save money, due to the child support and other bills he must pay. Tyler asked
the family court to grant him maintenance, because he was unable to meet his daily
living expenses.
The family court issued its findings of fact, conclusions of law, and
decree of dissolution of marriage on March 21, 2022. The family court found the
marital residence was purchased with nonmarital funds, and it found no marital
equity in the home. It granted the entirety of the home to Meagan, along with the
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furnishings in the home. The family court found that marital funds were only used
on the purchase of the shed, but no evidence was presented that the shed increased
the value of the property.
The family court granted each party the vehicle in their respective
possession at the time of the hearing, as well as their individual bank accounts and
any personal property in their possession. The family court divided the medical
debt between the parties. The family court reiterated its previous order that
required Tyler to be responsible for the credit card debt. The family court denied
Tyler’s request for maintenance and found his income to be substantially like
Meagan’s. Finally, the family court found that $10,000 of Meagan’s student loan
debt was used to pay marital expenses. It ordered Tyler to be responsible for
$5,000 of that debt, while Meagan was responsible for the remainder of the
$35,000 debt.
STANDARD OF REVIEW
Property distribution awards in dissolution of marriage actions are
reviewed for abuse of discretion. McGregor v. McGregor, 334 S.W.3d 113, 118-
19 (Ky. App. 2011). “The test for an abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
reasonable principles.” Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky. App.
2013). Appellate review of a trial court’s factual findings is governed by the
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clearly erroneous standard; factual determinations supported by substantial
evidence will not be disturbed. Truman v. Lillard, 404 S.W.3d 863, 868 (Ky. App.
2012). In evaluating abuse of discretion, this Court reviews legal conclusions
applied by the trial court de novo. Ehret v. Ehret, 601 S.W.3d 508, 511 (Ky. App.
2020).
ANALYSIS
Tyler’s first contention of error is that the family court abused its
discretion in its division of the parties’ marital and nonmarital property. Tyler
specifically takes issue with the family court’s award of the entirety of the marital
home to Meagan. The marital residence in question is a house located in
Lexington, which was purchased in 2018. The parties had been married for a little
over four years when this residence was purchased. Prior to purchasing the home,
the parties rented an apartment as their residence. The home was purchased
outright with funds from an inheritance Meagan received from her grandfather’s
estate.
KRS4 403.190 controls the disposition of property in a dissolution of
marriage action. It states: “(2) For the purpose of this chapter, ‘marital property’
means all property acquired by either spouse subsequent to the marriage except:
(a) Property acquired by gift, bequest, devise, or descent during the marriage and
4
Kentucky Revised Statutes.
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the income derived therefrom unless there are significant activities of either spouse
which contributed to the increase in value of said property and the income earned
therefrom[.]” There is a presumption that all property acquired during a marriage
is marital unless the property can be shown to have originated in one of the
exceptions of KRS 403.190(2). Terwilliger v. Terwilliger, 64 S.W.3d 816, 820
(Ky. 2002). A party claiming that property acquired during the marriage is
nonmarital property has the burden of proof. Id. The burden of proof is that of
clear and convincing evidence. Browning v. Browning, 551 S.W.2d 823, 825 (Ky.
App. 1977). The family court found the funds Meagan inherited from her
grandfather clearly fall into the exception of KRS 403.190(2)(a).
Tyler does not dispute that the house was purchased with these funds.
Meagan provided copies of the checks she received from the estate, where they
were deposited, and that the check written for the house came from that account.
The parties were able to purchase the house outright, without a mortgage, due to
these funds. Despite this, Tyler claims Meagan failed to provide adequate
“tracing” evidence that the property was nonmarital.
In Turley v. Turley, 562 S.W.2d 665, 668 (Ky. App. 1978), this Court
ruled it was error to grant property to a party as nonmarital when that party was
unable to show that the property currently owned was acquired by use of his
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inheritance. Tyler contends this case is controlling, and Meagan is unable to trace
the house and the items inside to her nonmarital assets. We disagree.
In Turley, the parties were married for twenty-three years, and they
used the inheritance money throughout the long marriage. It could not be
determined by the time of dissolution what specific assets were purchased with
said inheritance. Id. That is not the case here. Meagan and Tyler were married for
six years but did not purchase the house until approximately a year and a half prior
to their separation. They purchased the house less than a year after Meagan
received the balance of the inheritance. Meagan provided evidence, both in her
testimony and in the form of checks and deposits, that the house was purchased
solely with her inheritance.
Tyler appears to make the argument that he should get some credit for
improvements to the home. He might have been correct, had he provided any
evidence that he contributed to the improvements or that the improvements
increased the value of the home. The parties both testified the improvements to the
home included a new HVAC unit, a dishwasher, and a shed. Meagan testified that
the HVAC unit was paid for by a loan from her sister, and the dishwasher was
purchased with funds from her inheritance. Tyler provided no evidence or
testimony to the contrary.
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According to the parties’ testimony, the shed was purchased with tax
refund and stimulus money. They testified the cost of the shed was $3,500, and
Tyler testified they paid another $500 for gravel and concrete underneath the shed.
This would arguably be marital property, but no testimony or evidence was
provided to show it increased the value of the home in any way.
“When the property acquired during the marriage includes an increase
in the value of an asset containing both marital and nonmarital components, trial
courts must determine from the evidence ‘why the increase in value occurred’
because ‘where the value of [nonmarital] property increases after marriage due to
general economic conditions, such increase is not marital property, but the opposite
is true when the increase in value is a result of the joint efforts of the parties.’”
Travis v. Travis, 59 S.W.3d 904, 910 (Ky. 2001). Thus, if Tyler had shown the
family court that the shed increased the value of the home, he would have been
entitled to a portion of the increase. Again, Tyler provided no evidence of the
value of the home at all, with or without the added shed. We conclude the family
court’s findings and award of the marital residence to Meagan as her nonmarital
property was not an abuse of discretion.
Tyler also disputes the family court’s order that Meagan should
receive all the furniture and home furnishings as nonmarital property. Meagan
testified everything in the home was either purchased with her inheritance funds or
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was given to them by her family members, either as a gift or second-hand. Tyler
disagreed with this testimony and stated that some of the furniture was purchased
prior to the purchase of the home with marital funds. Tyler did not specify what
items of furniture or furnishings should be considered marital. He provided little
testimony as to the household furnishings at all. Tyler’s testimony on personal
property mainly revolved around collectibles that had been accumulated
throughout the marriage.
The family court found Meagan and Tyler had very little marital
property. “A trial court is to divide marital property in just proportions considering
all relevant factors.” Croft v. Croft, 240 S.W.3d 651, 655 (Ky. App. 2007).
“However, just proportions does not necessarily mean equal proportions.” Id. The
family court here granted each party the vehicle (and associated debt) in their
possessions, as well as their individual bank accounts and personal belongings in
their possession. Tyler argues the family court erred in this because no evidence
was given as to value, but Tyler failed to offer any evidence or testimony of his
own regarding value of these items. Tyler asks this Court to disturb the family
court’s findings, but he makes no specific requests as to what exactly he should
have been awarded.
KRS 403.190 sets out several factors in considering the division of
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marital property, including: a) Contribution of each spouse to acquisition of the
marital property, including contribution of a spouse as homemaker; b) Value of the
property set apart to each spouse; c) Duration of the marriage; and d) Economic
circumstances of each spouse when the division of property is to become effective,
including the desirability of awarding the family home or the right to living therein
for reasonable periods to the spouse having custody of the children. KRS
403.190(1)(a)-(d). The family court has wide discretion in dividing marital
property based upon a proper consideration of these factors, and an appellate court
should not disturb the family court’s ruling on property division issues unless it
finds the family court abused its discretion. Davis v. Davis, 777 S.W.2d 230, 233
(Ky. 1989).
Tyler additionally disputes the family court’s division of debt of the
parties. He specifically takes issue with the family court’s finding that $10,000 of
Meagan’s student loan debt was not used for her personal education, but for
marital living expenses. Meagan testified at least $10,000 of her $40,000 student
loan debt was taken out to be used for living expenses, at Tyler’s encouragement.
He does not dispute that there was some amount taken out, and he does not deny
encouraging Meagan to take out more than necessary for school expenses. He did
dispute the amount. Tyler believed it did not reach the level of $10,000, but he
was unwilling or unable to advise the court the amount he believed was correct.
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Unlike assets, there is no presumption that debts incurred during the
marriage are marital. Maclean v. Middleton, 419 S.W.3d 755, 773 (Ky. App.
2014). The party claiming that a debt is marital in nature has the burden of proof.
Id. In making this determination, the family court should consider several factors,
such as receipt of benefits, extent of participation, whether the debt was incurred to
purchase marital assets, whether the debt was necessary to provide for the family,
and the parties’ economic circumstances. Id.It is true a professional degree cannot be considered marital property.
Inman v. Inman, 648 S.W.2d 847 (Ky. 1982). This Court has further ruled that the
debt associated with the acquisition of a nonmarital asset should be borne by the
party who will benefit from it. Van Bussum v. Van Bussum, 728 S.W.2d 538, 539
(Ky. App. 1987). However, the family court did not divide the entirety of
Meagan’s student loans. The family court found that $10,000 of Meagan’s
$40,000 student loan was for marital purposes and spent on marital expenses.
Because that portion of the debt benefitted both parties equally, it was assigned
equally. The family court did not abuse its discretion in assigning half of that
amount to Tyler.
In his brief, Tyler claims the trial court’s decisions were unreasonable
because “[t]he nonmarital nature of the items were not agreed upon by Tyler,
Tyler’s testimony regarding the marital nature of marital residence was ignored”
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and “[t]his matter is a clear and obvious case of favoritism being executed by the
Trial Court[.]”5 These arguments are not supported by evidence.
“A family court operating as finder of fact has extremely broad
discretion with respect to testimony presented, and may choose to believe or
disbelieve any part of it. A family court is entitled to make its own decisions
regarding the demeanor and truthfulness of witnesses, and a reviewing court is not
permitted to substitute its judgment for that of the family court, unless its findings
are clearly erroneous.” Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007).
Despite Tyler’s protests, none of the findings of the family court were clearly
erroneous. Tyler failed to dispute much of Meagan’s testimony, and when he did,
his testimony was unclear and at times hard to follow.
CONCLUSION
Having reviewed the record in its entirety, we conclude the Fayette
Family Court’s findings of fact are supported by the evidence and thus not
erroneous. The family court committed no error of law and properly acted within
its discretion. The Fayette Family Court is AFFIRMED.
JONES, JUDGE, CONCURS.
ENTERED: _______________
JUDGE, COURT OF APPEALS
5
Appellant’s brief, pages 4 and 5.
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ACREE, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND
FILES SEPARATE OPINION.
ACREE, JUDGE, CONCURRING IN PART, AND DISSENTING IN PART: I
concur in the well-reasoned Opinion.
However, I write separately to record my dissent from the order
denying this appellee’s motion to strike the appellant’s brief, allowing the Court to
consider it as if it substantially complied with the appellate rules. It does not. I
also write for a correlative, but more important reason – to criticize this Court’s
practice of passing to the merits panel motions to strike briefs.
For years this Court and the appeals process itself has been plagued by
appellate advocates who fail to follow rules. Noncompliance with these rules is a
significant reason the wheels of justice grind so slowly. As the majority Opinion
notes, appellant’s counsel violated several of our rules. He thus gambled his
client’s right to appellate review on the magnanimity of this Court.
Since rendition of Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010),
the trend of appellate advocates disregarding rules – and thus disrespecting the
appellate courts themselves – has drawn more and more attention. A decade after
Hallis, this Court documented the alarming increase in the number of appellate
opinions in which “an attorney’s carelessness made appellate rule violations an
issue in his or her client’s case.” Clark v. Workman, 604 S.W.3d 616, 616 (Ky.
App. 2020); see also id. at 616-18 nn.1-4. We said then that “[i]f this is not a crisis
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yet, it soon will be if trends do not reverse.” Id. at 618; see Koester v. Koester, 569
S.W.3d 412, 414 (Ky. App. 2019) (“we cannot tolerate his total disregard of . . .
appellate procedure”).
The Supreme Court took the reins of this problem in Commonwealth
v. Roth, 567 S.W.3d 591 (Ky. 2019). The Commonwealth’s rules violations in that
case, similar to those in this case, led to the Court’s exercise of “discretion to strike
the Commonwealth’s brief, which necessarily requires that we also dismiss the
Commonwealth’s appeal.” Id. at 593 (emphasis added) (footnote omitted). But
the opinion is significant also for its advice – or warning – to appellate jurists. The
Supreme Court said, “It is a dangerous precedent to permit appellate advocates to
ignore procedural rules.” Id. (emphasis added). I still fear that permitting
appellate advocates to ignore procedural rules is becoming that dangerous
precedent.
Soon after Roth, the Supreme Court again warned practitioners that
“failure to comply with rules governing appellate briefs is a habit to avoid. Failure
to comply with these rules misplaces those ‘lights and buoys to mark the channels
of safe passage,’ . . . and in the future may well warrant dismissal of an appeal.”
Commonwealth v. Hensley, 655 S.W.3d 122, 127-28 (Ky. 2022) (quoting Roth,
567 S.W.3d at 596).
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The Supreme Court also warned this Court against applying manifest
injustice review to cure every case infected with rules violations. Under
appropriate circumstances, manifest injustice review might be granted. That has
been so since adoption of the civil rules. Collins v. Sparks, 310 S.W.2d 45, 48
(Ky. 1958) (citing CR6 61.02). However, our Supreme Court made it clear in Ford
v. Commonwealth “that the manifest injustice standard of review is reserved only
for errors in appellate briefing related to the statement of preservation.” 628
S.W.3d 147, 155 (Ky. 2021) (citing CR 76.12(4)(c)(iv), now RAP7 32(A)(4)).
This is a stand-alone discretionary cure for a stand-alone violation expressly
applicable when a trial court commits a palpable error, CR 61.02 and RCr8 10.26,
not when an advocate violates other appellate rules.
Those other appellate rules violations are subject to different, often
harsher, sanctions than manifest injustice review. Compelling appellate rule
compliance is the purpose of these sanctions. They should be applied liberally to
assure it. The current rule, RAP 10, reflecting its predecessor CR 73.02(2), says:
the failure of a party to substantially comply with the rules
is ground for such action as the appellate court deems
appropriate, which may include:
6
Kentucky Rules of Civil Procedure.
7
Kentucky Rules of Appellate Procedure.
8
Kentucky Rules of Criminal Procedure.
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(1) A deficiency notice or order directing a party to take
specific action,
(2) A show cause order,
(3) Striking of filings, briefs, record or portions thereof,
(4) Imposition of fines on counsel for failing to comply
with these rules of not more than $1,000,
(5) A dismissal of the appeal or denial of the motion for
discretionary review, and
(6) Such further remedies as are specified in any
applicable rule.
RAP 10(B). The enhancement of penalties from the former sanctions rule to the
current one, adopted by the Supreme Court, is further indication of the sharper
focus on the appellate courts’ expectations of attorney competence.
That brings me to the appellee’s motion in this case to strike the brief.
When the appellee filed her motion to strike the appellant’s brief, and
when a different panel of this Court considered the motion, the appellee’s brief was
not yet due. Clearly, this is the appropriate and efficient time to file such a motion.
If this Court had granted the motion then,9 the appellant would have had the
opportunity to correct the deficiencies with little disruption. Had the deficiencies
9
An order denying the motion would have been interlocutory, subject to the merits panel’s
revisiting the motion, and ruling as it effectively did that the brief was not substantially
compliant. There is no virtue or benefit to the Court or to the parties in the motions panel’s
passing the motion; rather, as discussed, doing so deprives the merits panel of the opportunity to
consider independently the motion to strike and motion to dismiss.
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gone uncorrected, dismissal could have been revisited as an appropriate additional
sanction, saving the movant a waste of time and money defending the judgment by
briefing the case, and preserving this Court’s limited resources. If the motion was
granted and the deficiencies corrected, then the wheels of justice would have been
properly greased, resulting in less taxation of those judicial resources.
In this case, the appellee sought both to strike appellant’s brief and to
dismiss the appeal, claiming the violations were “the exact same errors in briefing”
as in Miller v. Armstrong, 622 S.W.3d 661 (Ky. App. 2021). Indeed, appellee’s
claim is hard to refute. However, “dismissal for failure to comply with the
[appellate rules] is discretionary rather than mandatory.” Sanderson v.
Commonwealth, 291 S.W.3d 610, 612 (Ky. 2009) (quoting Simmons v.
Commonwealth, 232 S.W.3d 531, 533 (Ky. App. 2007)). In both the instant case
and Miller, the motion panel passed both the motion to strike and the motion to
dismiss to the merits panel. Passing the motions delayed their consideration until
briefing was complete. It effectively relinquished the Court’s ability to consider
the motion to strike without also dismissing the appeal as Roth requires post-
briefing. 567 S.W.3d at 593 (when case is ripe to consider the merits, striking brief
necessarily requires dismissal).
Allowing the appellant, at the post-briefing stage, to amend his brief
without dismissing would necessarily require the Court to grant the appellee the
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same privilege of amending appellee’s brief. Roth disallows that course,
appropriately so. Therefore, I cannot criticize the majority for declining, at this
stage, to strike the brief for it would necessarily require dismissing the appeal.
When the motion panel passed appellee’s motion to the merits panel,
it raised the stakes for everyone.
This Court’s motions panels need not consider striking a brief with the
same caution as that required when dismissing an appeal. Even when both
sanctions are sought together, as here, a motion panel is not prohibited from
considering these sanctions disjunctively, for obvious reasons. Dismissing ends an
appeal and prompts a new set of appellate rights. But consider the benefits of
striking a brief with leave to amend.
First, the inexperienced counsel will be given yet another opportunity
to learn proper appellate advocacy, a skill which he or she may be practicing for
the first time since law school. Second, it will flush out appeals that, while not
determinatively frivolous, are pursued and minimally briefed to secure a bargain or
maintain a status quo, rather than to correct the trial court by revealing or
advancing our jurisprudence in a way that favors a worthy appellate advocate’s
client. Third, the opinions of this Court will improve, either in quality or
expedition, when the briefs designed to inform and persuade us are optimized by
compliance with the rules the Supreme Court mandates.
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For these reasons, I concur in the Opinion and dissent from the order.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Alexander A. Ferrara Ann D’Ambruoso
Lexington, Kentucky Lexington, Kentucky
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