Spivey v. Harris

BISHOP, Judge. In Nisos v. Nisos, 60 Md.App. 368, 376 , 483 A.2d 97, 101 (1984) (opinion issued November 8, 1984), and in Harmon v. Harmon, 61 Md.App. 554, 558 , 487 A.2d 689, 691 (1985) (opinion issued February 8, 1985), this Court warned the bar that serious violations of the Rules could result in summary dismissal. The cases sub judice were consolidated on June 7, 1985, for briefing and argument. Appellant was on adequate notice that failure to comply with the Rules could be fatal.

We stated in Kemp-Pontiac-Cadillac v. S & M Constr., 33 Md.App. 516, 521 , 365 A.2d 1021, 1024 (1976): ⁶²¹ These rules are to promote the orderly and effective administration of justice. They are to be read and carefully followed by appellate counsel. Whether to dismiss the appeal or not in the event of violation of the above rules, rests in the discretion of this Court. As previously indicated, the court may act sua sponte____ Although resolution of each of the seven issues raised by appellant requires review of the testimony produced at the hearings, appellant submitted a record extract which contained not one word of the testimony.

With no authority whatsoever in the Rules, and without permission from this Court, on August 28,1985, sixteen calendar days before the scheduled oral argument and after appellee had filed her brief, appellant attempted to supplement the deficient extract. This Court initially refused to accept the proffered supplement, not only because it was untimely and not authorized by the Rules, but, in addition, its form and content violated Rules 1028 a. and b.l. One week before the date set for oral argument, this Court granted appellant’s Motion for Reconsideration and permitted appellant to file the supplemental record extract along with what purported to be the missing table of contents. This case originated when appellee, Andrea B. Harris, filed in the Circuit Court for Prince George’s County, a Petition to Establish Paternity in which she prayed that appellant, John W. Spivey, be found to be the father of three female babies born to her on October 27, 1983.

He was ordered to pay child support, medical and other expenses incident to the births. The circuit court held a bifurcated hearing, proceeding first on the issue of paternity and then on the support issue. After the paternity hearing on November 30, 1984, the court “found as a fact” that appellant is the father of the three female children and, on December 7, 1984, issued an order to that effect. The December 7 th order was entered on the docket on December 12, 1984.

On December 28, 1984, before the hearing on or the disposition of the support ⁶²² issue, appellant filed an appeal to this Court from the paternity order. The hearing on the support issue was held on January 2, 1985, and although the court made oral disposition of that issue on that date, the order was filed on January 24, 1985. By that order the appellant was directed to pay $2,000.00 per month to appellee as child support, $1,250.00 per month to the Department of Social Services to be applied to the medical bills and after care of her triplets, as well as additional amounts for the costs of HLA blood tests, expert testimony, and attorney’s fees. We have considered the briefs, appellant’s original record extract and the supplemental extract with the table of contents.

Not only are we unable to answer the seven issues raised by appellant, we are unable to set out a verified statement of facts. Appellee’s brief was filed before the supplemental record extract was proffered and ultimately received by this Court. In her brief appellee refers to testimony not contained in the record extract. This is not surprising since not only was the record extract unavailable to appellee at the time of the preparation of her brief, but appellant placed in the supplemental record extract only that testimony which supported his version of the facts and his arguments, having failed to consult with opposing counsel and comply with the Rules as to the content of the record extract.

Because of the foregoing and his failure to include the complete opinion of the trial court, appellant has violated every subsection of Rule 1028 b. 1 which provides what is to be included in the record extract: