Peter J. Readnour v. Jennifer Readnour

RENDERED: JULY 28, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0446-MR
PETER J. READNOUR APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 14-CI-01978
JENNIFER READNOUR APPELLEE
OPINION & ORDER
DISMISSING
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BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: This appeal involves the entry of an order assessing a
judgment against the father in favor of the mother for delinquent child support in
the amount of $34,500. We dismiss the appeal, having stricken the brief as not
complying with the Kentucky Rules of Appellate Procedure (“RAP”).
The parties were divorced in 2015 with the entry of a decree of
dissolution in the Kenton Circuit Court. The settlement agreement between the
parties was incorporated into and made a part of the decree. Per the terms of the
negotiated settlement agreement, Peter Readnour (“Peter”), was to pay child
support to his former wife, Jennifer Readnour (“Jennifer”), in the amount of $1,700
per month.
In 2022, a hearing was held concerning arrears Peter owed Jennifer as
Jennifer was alleging Peter had not consistently paid support in the intervening
years, particularly since 2019. Following the hearing, the Kenton Circuit Court
entered an order upholding an arrearage amount of $34,500 as testified to by
Jennifer. Peter was ordered to have $1,700 per month withheld from his wages for
ongoing child support, plus $100 monthly towards the arrears. No motion for
modification was before the court or had ever been previously filed.
Peter filed a notice of appeal in this Court. After the Appellant’s brief
was filed, a motion to strike the brief and to dismiss the appeal was filed by an
Assistant Kenton County Attorney. The motion alleged that the brief filed on
Peter’s behalf failed to comport with the Rules of Appellate Procedure. A motion
panel of this Court passed the motion to the panel assigned to determine the matter
on the merits. Having reviewed the motion to strike and dismiss, we grant the
motion and this appeal is hereby dismissed.
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The motion alleged that the brief does not conform to RAP 32(A)(3)1
in that the statement of the case does not provide an adequate summary of the
procedural events of the matter before the Court and does not provide ample
citations to the record for any factual allegations contained in the statement of the
case. It is also alleged that the brief fails to cite where in the record preservation of
the issues raised in the brief could be found, pursuant to RAP 32(A)(4).2
We agree that the statement of the case contained in the brief is not
sufficient in that it does not provide a procedural and factual timeline of the facts
of the case, nor does it provide sufficient citations to the record for any fleeting
factual or procedural inclusions. Instead of providing this Court with an overview
of the facts of the case and the procedural history of the matter, Peter’s brief
engages in argument and slings baseless allegations of malfeasance and sexism
against an Assistant County Attorney charged with representing the office in
matters concerning child support enforcement. The only citations provided
correspond to statements of the trial judge, and none of the citations corresponds to
any of the evidence adduced at the hearing. Peter, appearing pro se, failed to
1
The motion cited the former rule, Kentucky Rule of Civil Procedure (“CR”) 76.12(4)(c). The
new Rules of Appellate Procedure went into effect on January 1, 2023, after the motion was
filed, but before the issuance of this Opinion. The new Rules of Appellate Procedure will be
cited herein.
2
The former CR 76.12(4)(c)(v).
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present any evidence whatsoever at the hearing and all evidence presented was,
therefore, against his interests.
We agree that the brief also fails to provide preservation citations to
assist this Court in determining where Peter lodged objections below to the entry of
evidence that he now complains about in his brief. Peter argues in the brief that the
spreadsheets his former wife created and referred to during her testimony were not
proper evidence and complains that they were not authenticated or entered in
evidence but provides no citations to these objections made to the trial court. Quite
simply, upon reviewing the hearing, Peter did not make such objections at the
hearing, and should have admitted to such in the brief and asked for palpable error
review in the face of failure to object. Frankly, the dishonesty in alleging
preservation is troubling.
Peter also raises arguments not contained within the mandatory
prehearing statement. The only issue contained in the prehearing statement,
required now by RAP 22, was “PETITIONER WAS PRESENT FOR HEARING
APPEARING PRO SE AND DOES NOT BELIEVE HE RECEIVED
CREDIT FOR ALL CHILD SUPPORT PAYMENTS MADE TO OR ON
BEHALF OF HIS MINOR CHILDREN TO THE RESPONDENT (APPELLEE).”
RAP 22(C)(1)(h), the former CR 76.03(4)(h). We will not entertain issues not
appearing in the required prehearing statement.
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CR 76.03(4)(h) provides that within twenty days of
filing a notice of appeal, an appellant must file a
prehearing statement setting out a “brief statement of the
facts and issues proposed to be raised on appeal,
including jurisdictional challenges[.]” CR 76.03(8)
specifically provides that a “party shall be limited on
appeal to issues in the prehearing statement except that
when good cause is shown the appellate court may permit
additional issues to be submitted upon timely motion.”
...
Since [this] issue was not raised either in the
prehearing statement or by timely motion seeking
permission to submit the issue for “good cause shown,”
CR 76.03(8),[3] this matter is not properly before this
court for review.
Sallee v. Sallee, 142 S.W.3d 697, 698 (Ky. App. 2004).
Having found that the brief is non-conforming as to the only issue
listed in the required prehearing statement, and that the failure to include the other
issues appearing in the brief in the prehearing statement precludes our review of
those issues, we strike the brief.
[F]ailing to comply with the appellate rules “is ground
for such action as the appellate court deems appropriate,
which may include: (a) A dismissal of the appeal . . ., (b)
Striking of . . . briefs, . . . (c) Imposition of fines on
counsel for failing to comply with these rules of not more
than $500, and (d) Such further remedies as are specified
in any applicable Rule.” CR 73.02(2).
3
RAP 22(C)(2): “A party shall be limited on appeal to issues identified in the prehearing
statement, except that upon a timely motion demonstrating good cause, the Court of Appeals
may permit additional issues to be raised.”
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We expect a greater degree of competency from appellate
advocates than has been shown in this case. As we have
said too often, rules of appellate procedure exist for a
reason. They are not mere decorations but “lights and
buoys to mark the channels of safe passage and assure an
expeditious voyage to the right destination. Their
importance simply cannot be disdained or denigrated.”
Martin v. Wallace, 651 S.W.3d 753, 756 (Ky. Aug. 18,
2022) (quoting Hallis v. Hallis, 328 S.W.3d 694, 696
(Ky. App. 2010) (quoting Louisville & Jefferson Cnty.
Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky.
2007) (quoting Brown v. Commonwealth, 551 S.W.2d
557, 559 (Ky. 1977)))).
Hamburger v. Plemmons, 654 S.W.3d 99, 102 (Ky. App. 2022).
Although the standards governing appellate briefs are now found in
the Kentucky Rules of Appellate Procedure, and not the Rules of Civil Procedure
referred to in the motion, the basic underpinnings of the rules have not changed.
The basic standards requiring preservation statements and ample citations to the
record have not been meaningfully changed. Appellant’s brief repeatedly fails to
meet those baseline standards. Thus, for the foregoing reasons, we exercise our
discretion and order the Appellant’s brief to be stricken. Consequently, this appeal
is DISMISSED.
ALL CONCUR.
07/28/2023
ENTERED: _____________ ____________________________
JUDGE, COURT OF APPEALS
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BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Darrell Cox
Covington, Kentucky
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