IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 01-151
IN R THE MARRIAGE OF
E 1
1
SCOTT TOAVS, )
1
Petitioner and Respondent, 1
1
and 1 ORDER
1
KIMBERLY TOAVS, 1
1
Respondent and Appellant. 1
Before the Court is Respondent Scott Toavs' motion to strike affidavits that Appellant
Kimberly Toavs appended to her appellant's opening brief, a motion for extension of time
and a motion for sanctions.
This is an appeal from the April 5,2000, findings of fact and conclusions of law and
decree of dissolution of marriage. Appellant filed her opening brief on April 9, 2001.
Appended to that brief, and referenced therein, are three affidavits: those of Brad Buls, Steye
Fetveit and Kimberly Buls (Toavs). Each of these affidavits is dated April 7,2001, over one
year after the court entered its decree of dissolution.
Respondent contends that these affidavits are not part of the record before the District
Court and should be stricken. We agree. In State v. McKinnon (1998), 288 Mont. 329,957
P.2d23,26, we stated: "We continue to condemn this practice and again remind counsel that
parties on appeal are bound by the record and may not add additional matter in briefs or
appendices. . . . We will not tolerate an attempt to introduce extraneous information into the
proceedings." [Citations omitted.]
Appellant's counsel has attempted to circumvent the above rule by appending three
affidavits to his opening brief-all of which were signed over a year after the District Court's
final decree. These affidavits are not part of the record on appeal and are thus extraneous
material not properly before the Court.
1
The respondent's brief was filed herein on May 3, 2001. Thus, the respondent's
motion for an extension of time is now moot. Therefore, instead of striking appellant's initial
brief and requiring appellant to file a new brief, which would in turn require the refiling of
respondent's brief as well,
IT IS HEREBY ORDERED that the affidavits of Brad Buls, Steve Fetveit and
Kimberly Buls (Toavs) dated April 7,2001, and appended to the appellant's brief as Exhibits
8, 10 and 1 lare hereby stricken and shall be removed ,from the appellant's appendix.
IT IS FURTHER ORDERED that all references to the affidavits delineated as
Exhibits 8,lO and 11 and all discussion pertaining thereto shall be stricken from appellant's
brief.
IT IS FURTHER ORDERED that respondent's motion for sanctions is denied.
The Clerk is directed to mail copies hereof to counsel of record for the respective
parties.
fu
DATED this $'
7 day of May, 2b0 1.
Chief Justice
Justices
Marriage of Toavs
Combined Opinion