Roberts v. Roberts

PER CURIAM.

| Appellant Christopher W. Roberts appeals from the divorce decree that ended his marriage to appellee Robin Yanyan Roberts. Roberts appealed the decree to the court of appeals, which affirmed without an order to rebrief, see Roberts v. Yang, 102 Ark.App. 384, 285 S.W.3d 689 (2008),1 and Roberts then petitioned this court for review, which we granted. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Duke v. Shinpaugh, 375 Ark. 358, 290 S.W.3d 591 (2009). Because our review of Roberts’s brief reveals that it fails to comply with our rules, we order rebriefing.

| ;>Our abstracting rule provides, in pertinent part:

(5) Abstract. The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision.... Not more than one page of the transcript shall in any instance be abstracted without a page reference to the transcript. In the abstracting of testimony, the first person (i.e., “I”) rather than the third person (i.e., “He, She”) shall be used. The Clerk will refuse to accept a brief if the testimony is not abstracted in the first person or if the abstract does not contain the required references to the record. Whenever a map, plat, photograph, or other similar exhibit must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and include it in the Addendum with a reference in the abstract to the page in the Addendum where the exhibit appears unless this requirement is shown to be impracticable and is waived by the Court upon motion.

Ark. Sup.Ct. R. 4-2(a)(5). Rule 4-2(b)(3) sets forth the procedure to be followed when an appellant has failed to supply this court with an adequate brief:

(3) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4 — 2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fads to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may |3be affirmed for noncompliance -with the Rule.

Ark. Sup.Ct. R. 4 — 2(b)(3).

Roberts raises two points on appeal, the first of which challenges the circuit court’s jurisdiction to enter the divorce decree. Specifically, Roberts argues that Robin failed to prove the requisite residency requirements set forth in Arkansas Code Annotated § 9 — 12—307(a)(1)(A) (Repl.2008), which are required to be corroborated pursuant to Arkansas Code Annotated § 9-12-306(c)(l). A review of the record reveals that a hearing was held at which Robin presented testimony regarding the residency requirements. Here, despite abstracting the testimony of Robin’s corroborating witness, Roberts failed to abstract the testimony of Robin herself and even deems it “immaterial to this appeal.” However, pursuant to the statutes, proof of residency must be made and that proof must be corroborated. Accordingly, where Robin’s testimony is the “proof,” it is essential for this court to have the testimony for its review and determination of whether the circuit court’s finding of residency was erroneous.2

^Because Roberts has failed to comply with our rules, we order him to file a substituted brief, which complies with our rules, within fifteen days from the date of entry of this order. We further encourage appellate counsel, prior to filing the substituted brief, to review our rules and the appellant’s substituted brief to ensure that no additional deficiencies are present.

Rebriefing ordered.

CORBIN and IMBER, JJ., concur. BROWN, J., dissents.

. While the court of appeals’ opinion is styled Roberts v. Yang, the record, as well as the notice of appeal, designate the matter as Roberts v. Roberts. Accordingly, we will style the matter Roberts v. Roberts.

. While the dissent would not order rebrief-ing, but would rely solely on the testimony of the corroborating witness and the circuit court's finding of residency as proof of Robin’s residency, its reliance is misplaced. Here, the circuit court’s finding of residency is the precise finding being challenged on appeal. Therefore, it cannot and should not be used in any way as support for this court’s disposition of whether that finding was erroneous.

The dissent makes clear its belief that our rules must only be followed in certain instances and that, where the "essential facts cannot be gleaned from the brief as filed,” only then may this court order rebriefing. That is not what our rules require. As set forth above, ”[i]f the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies.” Ark. Sup.Ct. R. 4 — 2(b)(3) (emphasis added).

Rules are rules for a reason, and they have a purpose. Our abstract and addendum rules exist so that this court can work efficiently to issue learned and informed opinions. We changed our rules in 2001 in an effort to decide more cases on the merits and to do away with the "affirmance rule.” See In re Modification of the Abstracting System— Amendments to Supreme Court Rules 2-3, 4 — 2, 4-3, and 4-4, 345 Ark. App'x 626, 627 (2001). In doing so, we specifically rejected the notion that abstracting was "behind the times and wasteful of attorney’s time and client’s money,” and we said:

it is essential for the appellate court to know the facts underlying the legal arguments in a brief. The appellate bench feels strongly that abstracting of testimony is beneficial to the judges’ having confidence of their grasp of the record to facilitate a prompt and fair decision.... We know the judges benefit from it, and we believe that the time expended by attorneys is rewarded when writing the argument portion of the brief.

Id.

While it may cause additional delay and expense to the appellant, this court does not order rebriefing either thoughtlessly or needlessly. To the contrary, we do so only after considered thought, analysis, and examination of both the briefs and record on appeal. We do so, not to waste the time of counsel or the money of litigants, but to ensure that we can achieve the utmost of judicial economy and efficiency in deciding the appeals and, more importantly, to ensure that every litigant before this court receives the justice he or she seeks and deserves. For that reason, this court, as well as the court of appeals, should, and must, be consistent in our application of our rules to every case and every litigant, and both courts must enforce those rules in a consistent fashion to achieve the order and predictability that the appellate process requires.