Foley v. Foley , 2013 Ark. App. 538 ( 2013 )

Cite as 2013 Ark. App. 538
ARKANSAS COURT OF APPEALS
Susan Williams
2019.01.03 DIVISION III
No.CV-12-1102
12:39:23 -06'00'
Opinion Delivered September 25, 2013
REGINA FOLEY APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
FOURTEENTH DIVISION
V. [NO. 60DR-06-299]
SEAN FOLEY HONORABLE VANN SMITH, JUDGE
APPELLEE
SUPPLEMENTAL RECORD AND
REBRIEFING ORDERED
WAYMOND M. BROWN, Judge
Appellant Regina Foley appeals from the trial court’s order granting appellee Sean
Foley’s motion to modify visitation and to relocate with the parties’ two minor daughters.
Appellant argues on appeal that this court should overrule Hollandsworth v. Knyzewski1 and that
the Hollandsworth presumption prevented a true best-interest analysis. Alternatively, appellant
argues that the trial court misapplied the Hollandsworth presumption and should be reversed.
We do not reach the merits of appellant’s arguments due to deficiencies in the record,
abstract, and addendum. Therefore, we remand for supplementation of the record and
rebriefing.
1
353 Ark. 470, 109 S.W.3d 653 (2003).
Cite as 2013 Ark. App. 538
If anything material to either party is omitted from the record, by error or accident,
we may direct that the omission or misstatement be corrected, and, if necessary, that a
supplemental record be certified and transmitted.2 The parties were divorced by decree on
January 30, 2007, and the initial custody award was contained in that decree. Motions were
subsequently filed for modification of the custody award, and appellee was granted temporary
physical and legal custody of the children. On October 29, 2007, the parties entered into a
modified custody order, granting appellee custody of the children. In February 2009,
appellant filed a motion to modify custody, which was denied. Because these documents are
not contained in the record, we remand this case to supplement the record. Appellant has
thirty days from the date of this opinion to file a supplemental record.
Arkansas Supreme Court Rule 4-2(a)(5)(A)3 provides that all material parts of a
transcript must be abstracted. Here, appellant has failed to abstract the attorney ad litem’s
recommendations, although they were mentioned in the order. We cannot review this case
without a brief that outlines all of the evidence considered by the trial court. Additionally,
because material documents were not contained in the record, they were likewise not
included in the addendum. Arkansas Supreme Court Rule 4-2(a)(8)4 requires an appellant
to submit a brief including an addendum that contains “true and legible copies of the non-
2
Ark. R. App. P.–Civ. 6(e) (2012); Jenkins v. APS Ins., LLC, 2012 Ark. App. 368.
3
(2012).
4
(2012).
2
Cite as 2013 Ark. App. 538
transcript documents in the record on appeal that are essential for the appellate court to
confirm its jurisdiction, to understand the case, and to decide the issues on appeal.”
Due to the deficiencies in appellant’s abstract, brief, and addendum, we order appellant
to file a substituted brief that complies with our rules.5 The substituted brief, abstract, and
addendum shall be due fifteen days after the record is supplemented.6 We remind counsel that
the examples we have noted are not to be taken as an exhaustive list of deficiencies.7 Counsel
should carefully review the rules to ensure that no other deficiencies exist. Failure to file a
compliant brief within fifteen days could result in the trial court’s decision being summarily
affirmed for noncompliance with our rules.8
Supplemental record and rebriefing ordered.
HARRISON and WYNNE, JJ., agree.
Dodds, Kidd & Ryan, by: David W. Kamps and Adrienne Griffis, for appellant.
Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Traci LaCerra and Mary
Claire McLaurin, for appellee.
5
Ark. Sup. Ct. R. 4-2(b)(3).
6
Id.
7
For example, appellant’s abstract does not include references to the addendum pages
where the exhibits referred to appear as required by Ark. Sup. Ct. R. 4-2(a)(5)(A).
8
Ark. Sup. Ct. R. 4-2(c)(2).
3