Tyler Steven Berwanger v. Meagan Elizabeth Berwanger

RENDERED: APRIL 7, 2023; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2022-CA-0419-MR

TYLER STEVEN BERWANGER APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KATHY STEIN, JUDGE1
ACTION NO. 20-CI-02953

MEAGAN ELIZABETH
BERWANGER APPELLEE

OPINION AND ORDER
AFFIRMING

** ** ** ** **

BEFORE: ACREE, EASTON, AND JONES, JUDGES.

EASTON, JUDGE: The Appellant, Tyler Steven Berwanger (“Tyler”), seeks

review of two decisions of the Fayette Family Court regarding division of marital

1
Judge Kathy Stein retired and was replaced by Judge Carl Devine. The current judge of the
originating division of the Fayette Circuit Court for this case is Judge Tiffany Yahr.
property and debt. First, Tyler argues the family court erred in awarding the

Appellee, Meagan Elizabeth Berwanger (“Meagan”), the entirety of the marital

residence and the furnishings therein. Second, he argues the family court abused

its discretion in its division of a portion of Meagan’s student loan debt. Finding no

error, we affirm.

We will first address Meagan’s motion to strike appellant’s brief and

to dismiss appeal based upon the deficiencies of Tyler’s brief pursuant to RAP2

32(A)(3), (4), and 32(E). An Appellant’s brief must contain “[a] statement of the

case consisting of a summary of the facts and procedural events relevant and

necessary to an understanding of the issues presented by the appeal, with ample

references to the specific location in the record supporting each of the statements

contained in the summary.” RAP 32(A)(3) (emphasis added). Tyler’s brief

contains no specific references to the record at all. Additionally, the brief contains

no statement of preservation as required by RAP 32(A)(4). The brief also lacks an

appendix containing the items required by RAP 32(E).

It would be well within our discretion to strike Tyler’s brief and

dismiss this appeal based on failure to comply with procedural requirements.

Commonwealth v. Roth, 567 S.W.3d 591, 593 (Ky. 2019). Meagan is correct in

that it is not our responsibility to search the record for errors. When an appellant

2
Kentucky Rules of Appellate Procedure.

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fails to adhere to the procedural rules, our options are 1) to ignore the deficiency

and proceed with the review, 2) strike the brief or its offending portions, or 3) to

review the issues raised in the brief for manifest injustice only. Hallis v. Hallis,

328 S.W.3d 694, 696 (Ky. App. 2010).

Because the issues are essentially resolved from review of a single

evidentiary hearing, the record is not particularly voluminous. While we choose to

proceed with review, we do not condone the failure to comply with the briefing

requirements. The brief filed by Tyler’s counsel has earned the well-reasoned

dissent in this case. The dissent should serve as a warning not to rely on the

discretion of this Court to permit consideration of appeals despite deficient briefs.

With hesitance, we hereby DENY Meagan’s motion to strike, but this decision

should not be viewed as precedential.

FACTUAL AND PROCEDURAL HISTORY

Tyler and Meagan were married in 2014. They have one minor child,

R.B., who was born in 2019. Throughout the marriage, they lived in Fayette

County. The parties purchased their marital home in late 2018 using funds

Meagan received from an inheritance from her grandfather’s estate.

The parties separated in August 2020. The event precipitating this

separation led to issuance of a domestic violence order against Tyler. At the

hearing about this event, the family court heard testimony that Tyler had a firearm

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and was threatening suicide while he was alone in the home with R.B. Tyler was

required to vacate the parties’ marital home. Meagan was granted temporary sole

custody of R.B. The later permanent custody determination was not appealed by

Tyler.

The family court conducted a final hearing on June 8, 2021. The

parties were the only witnesses to testify. Meagan testified she was the primary

wage earner during the marriage. There were periods of time when Tyler was

unemployed or only working part-time. Meagan said when she was working,

Tyler would care for the child, although she had serious concerns over the quality

of that care.

Meagan confirmed she received a sizeable inheritance from her

grandfather’s estate during the marriage. The total inheritance was $342,283.07,

which was given to her in two payments. The first check was written to her on

November 11, 2017, for $100,000, with the balance being distributed to her on

May 17, 2018. These payments were deposited into a new joint account Meagan

opened. Meagan testified very little else went into that account. According to

Meagan, Tyler made two deposits into the account, one for $100 and another for

$250. Tyler’s testimony was consistent with Meagan’s regarding this account.

On December 12, 2018, a check for $120,000 was written from that

account to purchase the parties’ marital residence. The $120,000 was the full

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purchase price of the home, and the parties did not execute a mortgage or any other

type of loan. There were no liens on the house.

Meagan testified the house required a new HVAC unit, which cost

approximately $7,000. Meagan obtained a loan from her sister for this expense,

which has yet to be repaid. A dishwasher was installed, for which Meagan used

money from her inheritance. Meagan and Tyler purchased a shed for the yard, at a

cost of approximately $3,500. Meagan testified they used tax refund and stimulus

money to pay for the shed.

Meagan remembered that within weeks after she received the first

installment of the inheritance, Tyler quit his job. Tyler explained he could not

keep the jobs and go on all the trips they were planning to be financed with the

inheritance money. Tyler did not seek reemployment for several months. Tyler

did not get another job until March 2018. Meagan said Tyler was unemployed

again from fall 2019 until March 2020, when he began driving for Grubhub,3

making approximately $100 per week. Tyler obtained another job a few months

later.

Meagan observed Tyler did not seem concerned about employment,

because he thought they could just use her inheritance money. She testified he

often wanted to use this money for unnecessary expenses. Meagan testified that

3
A food delivery service.

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even when Tyler wasn’t working, he would not contribute much to household

duties. This was a source of contention between them because Meagan would ask

Tyler to do the chores around the house he agreed to do, but she would end up

doing most of them.

Meagan additionally testified about the debts of the parties. They had

debt on both of their vehicles, as well as some credit card debt, medical debt from

when their son was born, and Meagan had about $40,000 in student loans. Meagan

testified that the credit card debt was all incurred by Tyler. Meagan stated they

only opened the card to get some credit established. Meagan charged about $300

on it right after they opened the card, but she paid it off in full and never used it

again. After the parties separated, Meagan received notification the card was

“maxed out.” Meagan theorized Tyler began using the credit card when she kept

him from using her inheritance money.

Meagan testified they owed about $12,300 in medical debt from her

hospital stay and their son’s NICU stay when he was born. She stated she had

insurance, which paid for most of the cost. Meagan testified Tyler told her that he

also had insurance, but that turned out to be incorrect. Tyler disputed that he

intentionally misrepresented his health insurance status to Meagan. He testified he

did not know if he had health insurance or not, and he did not find out for sure until

the hospital attempted to run his information.

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 Meagan owed approximately $40,000 in student loan debt. She said

that about $10,000 of the loan was not used for educational expenses, but for living

expenses for the parties during the marriage. According to Meagan, Tyler had

encouraged her to take out the maximum amount of loans she could so that they

would have extra funds.

Tyler did not dispute that some of Meagan’s student loans went to pay

for marital expenses. He stated he does not believe it was as much as $10,000, but

he was unable to give an amount that he thought was more accurate. He also

testified he never coerced Meagan in any way to take out extra loans, but he did

agree that he encouraged it.

Tyler testified he has very few assets. When he had to leave the

marital residence, he began staying with a friend in a garage, which is where he

was still residing at the time of the hearing. He stated it has been difficult for him

to save money, due to the child support and other bills he must pay. Tyler asked

the family court to grant him maintenance, because he was unable to meet his daily

living expenses.

The family court issued its findings of fact, conclusions of law, and

decree of dissolution of marriage on March 21, 2022. The family court found the

marital residence was purchased with nonmarital funds, and it found no marital

equity in the home. It granted the entirety of the home to Meagan, along with the

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furnishings in the home. The family court found that marital funds were only used

on the purchase of the shed, but no evidence was presented that the shed increased

the value of the property.

The family court granted each party the vehicle in their respective

possession at the time of the hearing, as well as their individual bank accounts and

any personal property in their possession. The family court divided the medical

debt between the parties. The family court reiterated its previous order that

required Tyler to be responsible for the credit card debt. The family court denied

Tyler’s request for maintenance and found his income to be substantially like

Meagan’s. Finally, the family court found that $10,000 of Meagan’s student loan

debt was used to pay marital expenses. It ordered Tyler to be responsible for

$5,000 of that debt, while Meagan was responsible for the remainder of the

$35,000 debt.

STANDARD OF REVIEW

Property distribution awards in dissolution of marriage actions are

reviewed for abuse of discretion. McGregor v. McGregor, 334 S.W.3d 113, 118-

19 (Ky. App. 2011). “The test for an abuse of discretion is whether the trial

judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound

reasonable principles.” Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky. App.

2013). Appellate review of a trial court’s factual findings is governed by the

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clearly erroneous standard; factual determinations supported by substantial

evidence will not be disturbed. Truman v. Lillard, 404 S.W.3d 863, 868 (Ky. App.

2012). In evaluating abuse of discretion, this Court reviews legal conclusions

applied by the trial court de novo. Ehret v. Ehret, 601 S.W.3d 508, 511 (Ky. App.

2020).

ANALYSIS

Tyler’s first contention of error is that the family court abused its

discretion in its division of the parties’ marital and nonmarital property. Tyler

specifically takes issue with the family court’s award of the entirety of the marital

home to Meagan. The marital residence in question is a house located in

Lexington, which was purchased in 2018. The parties had been married for a little

over four years when this residence was purchased. Prior to purchasing the home,

the parties rented an apartment as their residence. The home was purchased

outright with funds from an inheritance Meagan received from her grandfather’s

estate.

KRS4 403.190 controls the disposition of property in a dissolution of

marriage action. It states: “(2) For the purpose of this chapter, ‘marital property’

means all property acquired by either spouse subsequent to the marriage except:

(a) Property acquired by gift, bequest, devise, or descent during the marriage and

4
Kentucky Revised Statutes.

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the income derived therefrom unless there are significant activities of either spouse

which contributed to the increase in value of said property and the income earned

therefrom[.]” There is a presumption that all property acquired during a marriage

is marital unless the property can be shown to have originated in one of the

exceptions of KRS 403.190(2). Terwilliger v. Terwilliger, 64 S.W.3d 816, 820

(Ky. 2002). A party claiming that property acquired during the marriage is

nonmarital property has the burden of proof. Id. The burden of proof is that of

clear and convincing evidence. Browning v. Browning, 551 S.W.2d 823, 825 (Ky.

App. 1977). The family court found the funds Meagan inherited from her

grandfather clearly fall into the exception of KRS 403.190(2)(a).

Tyler does not dispute that the house was purchased with these funds.

Meagan provided copies of the checks she received from the estate, where they

were deposited, and that the check written for the house came from that account.

The parties were able to purchase the house outright, without a mortgage, due to

these funds. Despite this, Tyler claims Meagan failed to provide adequate

“tracing” evidence that the property was nonmarital.

In Turley v. Turley, 562 S.W.2d 665, 668 (Ky. App. 1978), this Court

ruled it was error to grant property to a party as nonmarital when that party was

unable to show that the property currently owned was acquired by use of his

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inheritance. Tyler contends this case is controlling, and Meagan is unable to trace

the house and the items inside to her nonmarital assets. We disagree.

In Turley, the parties were married for twenty-three years, and they

used the inheritance money throughout the long marriage. It could not be

determined by the time of dissolution what specific assets were purchased with

said inheritance. Id. That is not the case here. Meagan and Tyler were married for

six years but did not purchase the house until approximately a year and a half prior

to their separation. They purchased the house less than a year after Meagan

received the balance of the inheritance. Meagan provided evidence, both in her

testimony and in the form of checks and deposits, that the house was purchased

solely with her inheritance.

Tyler appears to make the argument that he should get some credit for

improvements to the home. He might have been correct, had he provided any

evidence that he contributed to the improvements or that the improvements

increased the value of the home. The parties both testified the improvements to the

home included a new HVAC unit, a dishwasher, and a shed. Meagan testified that

the HVAC unit was paid for by a loan from her sister, and the dishwasher was

purchased with funds from her inheritance. Tyler provided no evidence or

testimony to the contrary.

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 According to the parties’ testimony, the shed was purchased with tax

refund and stimulus money. They testified the cost of the shed was $3,500, and

Tyler testified they paid another $500 for gravel and concrete underneath the shed.

This would arguably be marital property, but no testimony or evidence was

provided to show it increased the value of the home in any way.

“When the property acquired during the marriage includes an increase

in the value of an asset containing both marital and nonmarital components, trial

courts must determine from the evidence ‘why the increase in value occurred’

because ‘where the value of [nonmarital] property increases after marriage due to

general economic conditions, such increase is not marital property, but the opposite

is true when the increase in value is a result of the joint efforts of the parties.’”

Travis v. Travis, 59 S.W.3d 904, 910 (Ky. 2001). Thus, if Tyler had shown the

family court that the shed increased the value of the home, he would have been

entitled to a portion of the increase. Again, Tyler provided no evidence of the

value of the home at all, with or without the added shed. We conclude the family

court’s findings and award of the marital residence to Meagan as her nonmarital

property was not an abuse of discretion.

Tyler also disputes the family court’s order that Meagan should

receive all the furniture and home furnishings as nonmarital property. Meagan

testified everything in the home was either purchased with her inheritance funds or

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was given to them by her family members, either as a gift or second-hand. Tyler

disagreed with this testimony and stated that some of the furniture was purchased

prior to the purchase of the home with marital funds. Tyler did not specify what

items of furniture or furnishings should be considered marital. He provided little

testimony as to the household furnishings at all. Tyler’s testimony on personal

property mainly revolved around collectibles that had been accumulated

throughout the marriage.

The family court found Meagan and Tyler had very little marital

property. “A trial court is to divide marital property in just proportions considering

all relevant factors.” Croft v. Croft, 240 S.W.3d 651, 655 (Ky. App. 2007).

“However, just proportions does not necessarily mean equal proportions.” Id. The

family court here granted each party the vehicle (and associated debt) in their

possessions, as well as their individual bank accounts and personal belongings in

their possession. Tyler argues the family court erred in this because no evidence

was given as to value, but Tyler failed to offer any evidence or testimony of his

own regarding value of these items. Tyler asks this Court to disturb the family

court’s findings, but he makes no specific requests as to what exactly he should

have been awarded.

KRS 403.190 sets out several factors in considering the division of

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marital property, including: a) Contribution of each spouse to acquisition of the

marital property, including contribution of a spouse as homemaker; b) Value of the

property set apart to each spouse; c) Duration of the marriage; and d) Economic

circumstances of each spouse when the division of property is to become effective,

including the desirability of awarding the family home or the right to living therein

for reasonable periods to the spouse having custody of the children. KRS

403.190(1)(a)-(d). The family court has wide discretion in dividing marital

property based upon a proper consideration of these factors, and an appellate court

should not disturb the family court’s ruling on property division issues unless it

finds the family court abused its discretion. Davis v. Davis, 777 S.W.2d 230, 233

(Ky. 1989).

Tyler additionally disputes the family court’s division of debt of the

parties. He specifically takes issue with the family court’s finding that $10,000 of

Meagan’s student loan debt was not used for her personal education, but for

marital living expenses. Meagan testified at least $10,000 of her $40,000 student

loan debt was taken out to be used for living expenses, at Tyler’s encouragement.

He does not dispute that there was some amount taken out, and he does not deny

encouraging Meagan to take out more than necessary for school expenses. He did

dispute the amount. Tyler believed it did not reach the level of $10,000, but he

was unwilling or unable to advise the court the amount he believed was correct.

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 Unlike assets, there is no presumption that debts incurred during the

marriage are marital. Maclean v. Middleton, 419 S.W.3d 755, 773 (Ky. App.

2014). The party claiming that a debt is marital in nature has the burden of proof.

Id. In making this determination, the family court should consider several factors,

such as receipt of benefits, extent of participation, whether the debt was incurred to

purchase marital assets, whether the debt was necessary to provide for the family,

and the parties’ economic circumstances. Id.

It is true a professional degree cannot be considered marital property.

Inman v. Inman, 648 S.W.2d 847 (Ky. 1982). This Court has further ruled that the

debt associated with the acquisition of a nonmarital asset should be borne by the

party who will benefit from it. Van Bussum v. Van Bussum, 728 S.W.2d 538, 539

(Ky. App. 1987). However, the family court did not divide the entirety of

Meagan’s student loans. The family court found that $10,000 of Meagan’s

$40,000 student loan was for marital purposes and spent on marital expenses.

Because that portion of the debt benefitted both parties equally, it was assigned

equally. The family court did not abuse its discretion in assigning half of that

amount to Tyler.

In his brief, Tyler claims the trial court’s decisions were unreasonable

because “[t]he nonmarital nature of the items were not agreed upon by Tyler,

Tyler’s testimony regarding the marital nature of marital residence was ignored”

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and “[t]his matter is a clear and obvious case of favoritism being executed by the

Trial Court[.]”5 These arguments are not supported by evidence.

“A family court operating as finder of fact has extremely broad

discretion with respect to testimony presented, and may choose to believe or

disbelieve any part of it. A family court is entitled to make its own decisions

regarding the demeanor and truthfulness of witnesses, and a reviewing court is not

permitted to substitute its judgment for that of the family court, unless its findings

are clearly erroneous.” Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007).

Despite Tyler’s protests, none of the findings of the family court were clearly

erroneous. Tyler failed to dispute much of Meagan’s testimony, and when he did,

his testimony was unclear and at times hard to follow.

CONCLUSION

Having reviewed the record in its entirety, we conclude the Fayette

Family Court’s findings of fact are supported by the evidence and thus not

erroneous. The family court committed no error of law and properly acted within

its discretion. The Fayette Family Court is AFFIRMED.

JONES, JUDGE, CONCURS.

ENTERED: _______________
JUDGE, COURT OF APPEALS

5
Appellant’s brief, pages 4 and 5.

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 ACREE, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND
FILES SEPARATE OPINION.

ACREE, JUDGE, CONCURRING IN PART, AND DISSENTING IN PART: I

concur in the well-reasoned Opinion.

However, I write separately to record my dissent from the order

denying this appellee’s motion to strike the appellant’s brief, allowing the Court to

consider it as if it substantially complied with the appellate rules. It does not. I

also write for a correlative, but more important reason – to criticize this Court’s

practice of passing to the merits panel motions to strike briefs.

For years this Court and the appeals process itself has been plagued by

appellate advocates who fail to follow rules. Noncompliance with these rules is a

significant reason the wheels of justice grind so slowly. As the majority Opinion

notes, appellant’s counsel violated several of our rules. He thus gambled his

client’s right to appellate review on the magnanimity of this Court.

Since rendition of Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010),

the trend of appellate advocates disregarding rules – and thus disrespecting the

appellate courts themselves – has drawn more and more attention. A decade after

Hallis, this Court documented the alarming increase in the number of appellate

opinions in which “an attorney’s carelessness made appellate rule violations an

issue in his or her client’s case.” Clark v. Workman, 604 S.W.3d 616, 616 (Ky.

App. 2020); see also id. at 616-18 nn.1-4. We said then that “[i]f this is not a crisis

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yet, it soon will be if trends do not reverse.” Id. at 618; see Koester v. Koester, 569

S.W.3d 412, 414 (Ky. App. 2019) (“we cannot tolerate his total disregard of . . .

appellate procedure”).

The Supreme Court took the reins of this problem in Commonwealth

v. Roth, 567 S.W.3d 591 (Ky. 2019). The Commonwealth’s rules violations in that

case, similar to those in this case, led to the Court’s exercise of “discretion to strike

the Commonwealth’s brief, which necessarily requires that we also dismiss the

Commonwealth’s appeal.” Id. at 593 (emphasis added) (footnote omitted). But

the opinion is significant also for its advice – or warning – to appellate jurists. The

Supreme Court said, “It is a dangerous precedent to permit appellate advocates to

ignore procedural rules.” Id. (emphasis added). I still fear that permitting

appellate advocates to ignore procedural rules is becoming that dangerous

precedent.

Soon after Roth, the Supreme Court again warned practitioners that

“failure to comply with rules governing appellate briefs is a habit to avoid. Failure

to comply with these rules misplaces those ‘lights and buoys to mark the channels

of safe passage,’ . . . and in the future may well warrant dismissal of an appeal.”

Commonwealth v. Hensley, 655 S.W.3d 122, 127-28 (Ky. 2022) (quoting Roth,

567 S.W.3d at 596).

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 The Supreme Court also warned this Court against applying manifest

injustice review to cure every case infected with rules violations. Under

appropriate circumstances, manifest injustice review might be granted. That has

been so since adoption of the civil rules. Collins v. Sparks, 310 S.W.2d 45, 48

(Ky. 1958) (citing CR6 61.02). However, our Supreme Court made it clear in Ford

v. Commonwealth “that the manifest injustice standard of review is reserved only

for errors in appellate briefing related to the statement of preservation.” 628

S.W.3d 147, 155 (Ky. 2021) (citing CR 76.12(4)(c)(iv), now RAP7 32(A)(4)).

This is a stand-alone discretionary cure for a stand-alone violation expressly

applicable when a trial court commits a palpable error, CR 61.02 and RCr8 10.26,

not when an advocate violates other appellate rules.

Those other appellate rules violations are subject to different, often

harsher, sanctions than manifest injustice review. Compelling appellate rule

compliance is the purpose of these sanctions. They should be applied liberally to

assure it. The current rule, RAP 10, reflecting its predecessor CR 73.02(2), says:

the failure of a party to substantially comply with the rules
is ground for such action as the appellate court deems
appropriate, which may include:

6
Kentucky Rules of Civil Procedure.
7
Kentucky Rules of Appellate Procedure.
8
Kentucky Rules of Criminal Procedure.

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 (1) A deficiency notice or order directing a party to take
specific action,

(2) A show cause order,

(3) Striking of filings, briefs, record or portions thereof,

(4) Imposition of fines on counsel for failing to comply
with these rules of not more than $1,000,

(5) A dismissal of the appeal or denial of the motion for
discretionary review, and

(6) Such further remedies as are specified in any
applicable rule.

RAP 10(B). The enhancement of penalties from the former sanctions rule to the

current one, adopted by the Supreme Court, is further indication of the sharper

focus on the appellate courts’ expectations of attorney competence.

That brings me to the appellee’s motion in this case to strike the brief.

When the appellee filed her motion to strike the appellant’s brief, and

when a different panel of this Court considered the motion, the appellee’s brief was

not yet due. Clearly, this is the appropriate and efficient time to file such a motion.

If this Court had granted the motion then,9 the appellant would have had the

opportunity to correct the deficiencies with little disruption. Had the deficiencies

9
An order denying the motion would have been interlocutory, subject to the merits panel’s
revisiting the motion, and ruling as it effectively did that the brief was not substantially
compliant. There is no virtue or benefit to the Court or to the parties in the motions panel’s
passing the motion; rather, as discussed, doing so deprives the merits panel of the opportunity to
consider independently the motion to strike and motion to dismiss.

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gone uncorrected, dismissal could have been revisited as an appropriate additional

sanction, saving the movant a waste of time and money defending the judgment by

briefing the case, and preserving this Court’s limited resources. If the motion was

granted and the deficiencies corrected, then the wheels of justice would have been

properly greased, resulting in less taxation of those judicial resources.

In this case, the appellee sought both to strike appellant’s brief and to

dismiss the appeal, claiming the violations were “the exact same errors in briefing”

as in Miller v. Armstrong, 622 S.W.3d 661 (Ky. App. 2021). Indeed, appellee’s

claim is hard to refute. However, “dismissal for failure to comply with the

[appellate rules] is discretionary rather than mandatory.” Sanderson v.

Commonwealth, 291 S.W.3d 610, 612 (Ky. 2009) (quoting Simmons v.

Commonwealth, 232 S.W.3d 531, 533 (Ky. App. 2007)). In both the instant case

and Miller, the motion panel passed both the motion to strike and the motion to

dismiss to the merits panel. Passing the motions delayed their consideration until

briefing was complete. It effectively relinquished the Court’s ability to consider

the motion to strike without also dismissing the appeal as Roth requires post-

briefing. 567 S.W.3d at 593 (when case is ripe to consider the merits, striking brief

necessarily requires dismissal).

Allowing the appellant, at the post-briefing stage, to amend his brief

without dismissing would necessarily require the Court to grant the appellee the

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same privilege of amending appellee’s brief. Roth disallows that course,

appropriately so. Therefore, I cannot criticize the majority for declining, at this

stage, to strike the brief for it would necessarily require dismissing the appeal.

When the motion panel passed appellee’s motion to the merits panel,

it raised the stakes for everyone.

This Court’s motions panels need not consider striking a brief with the

same caution as that required when dismissing an appeal. Even when both

sanctions are sought together, as here, a motion panel is not prohibited from

considering these sanctions disjunctively, for obvious reasons. Dismissing ends an

appeal and prompts a new set of appellate rights. But consider the benefits of

striking a brief with leave to amend.

First, the inexperienced counsel will be given yet another opportunity

to learn proper appellate advocacy, a skill which he or she may be practicing for

the first time since law school. Second, it will flush out appeals that, while not

determinatively frivolous, are pursued and minimally briefed to secure a bargain or

maintain a status quo, rather than to correct the trial court by revealing or

advancing our jurisprudence in a way that favors a worthy appellate advocate’s

client. Third, the opinions of this Court will improve, either in quality or

expedition, when the briefs designed to inform and persuade us are optimized by

compliance with the rules the Supreme Court mandates.

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 For these reasons, I concur in the Opinion and dissent from the order.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Alexander A. Ferrara Ann D’Ambruoso
Lexington, Kentucky Lexington, Kentucky

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