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More on the Incompleteness of a Record on Appeal

Recently we blogged about how the completeness, or lack thereof, of the record on appeal can be a deciding factor in the outcome of an appeal.  See here, discussing State v. Cobb.

On Tuesday the Court of Appeals drove that point home even further, dismissing an appeal on the basis of an incomplete record.  In Columbus County Department of Social Services v. Norton, a father, proceeding pro se, appealed two orders: one that denied him the appointment of a guardian ad litem on the basis of an alleged mental disorder and one that denied his motion for modification of child support.

Each of the orders from which the father appealed were dependent on materials that were not included in the record.  The order denying the appointment of a guardian ad litem referenced several pieces of evidence in its determination that the father was competent, including a pro se complaint he filed in another litigation in federal court and two videotapes.  Yet none of this was included in the record on appeal.  The order denying modification of child support necessarily involved prior orders setting the father’s child support obligations, yet none of those orders were in the record.

As a result, the Court dismissed the appeals, noting that in order to determine whether the trial court erred in its rulings, the Court would have to review the evidence upon which those rulings were based.  Lacking that evidence in the record, the appellant had “not met his burden of providing a complete record on appeal in proper form” and the Court was compelled to dismiss his appeal.

While the result in Norton seems patently correct, it is interesting to juxtapose the result and analysis in this case with the debate about the completeness of the record on appeal that occurred between judges in the Cobb opinions.  The trial court’s order in Cobb referenced the “evidence” that had been presented at the hearing that resulted in the order being appealed from.  The Cobb majority assumed that the entirety of the evidence upon which the trial court’s ruling was based was a single document attached to the motion at issue and present in the record on appeal.  Based on this, the majority reversed the trial court’s ruling.

The dissenting opinion in Cobb disagreed that the record on appeal justified the majority’s assumption.  Absent a clear presentation of what was before the trial court, the dissent instead assumed that the trial court acted appropriately in assessing whatever unknown evidence was before it.

Aside from the disagreement in Cobb as to whether the record was incomplete, these cases also present a question as to what to do when presented with an incomplete record.  Both the Norton Court and Judge Zachary in Cobb opined that the record on appeal seemed incomplete.  But while the Norton Court dismissed the appeal on the basis of an incomplete record, Judge Zachary would have affirmed the trial court’s order in Cobb due to the apparent incompleteness of the record.

This raises the question of the appropriate procedure for the Court to follow when presented with an incomplete record on appeal.  Does it dismiss the appeal or affirm?  Or is it inconsequential because the end result is the same?  Can you think of a situation where the difference in disposition would make a difference?  Weigh in below.

–Patrick Kane

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3 Responses to "More on the Incompleteness of a Record on Appeal"

  • Leslie Rawls
    July 21, 2017 - 3:26 pm Reply

    It strikes me a related question is how an appellee should respond to a proposed record that appears inadequate. Ignoring it might render the appeal subject to dismissal under Norton. Is it less than candid to the tribunal, or just zealous representation to allow an appellate to file an inadequate record?

    • Beth Scherer
      July 25, 2017 - 10:58 am Reply

      Good point Leslie. The highway to One and Two Morgan Street is littered with appeals that were dismissed for incomplete records, with warning statements that it is the appellant’s responsibility to ensure that the record is complete.

  • Patrick Kane
    July 27, 2017 - 8:03 pm Reply

    This issue came to mind as I was reading Cobb-perhaps the appellee there had made a calculated decision that the appellant had not put sufficient material in the proposed record to show that the trial court had erred and decided to roll the dice rather than point out the potential incompleteness. Of course in that instance, if that had been the case, it backfired because the majority reversed the trial court. But I could certainly imagine a scenario in which allowing an incomplete record to be presented would benefit appellee.

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