Tonya Sherrie Hall v. Paul Brady Hall ( 2023 )

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NOT TO BE PUBLISHED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.
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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
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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.
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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).
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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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