North Carolina Divorce Lawyers Blog
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Appellate Practice Clarification

By

AMAN V. NICHOLSON, 2023-NCCOA-________ (2023). 

  1. Facts:  Plaintiff and Defendant are parents of a minor child. They separated in fall of 2019. Plaintiff filed for custody, and a temporary order was entered. The temporary order granted joint legal custody (decision making) and primary physical custody to Plaintiff, visitation to Defendant. It further required each party to obtain and exchange psychological evaluations and to attend counseling. Eventually, the custody matter was set for trial in spring of 2021. On the first day of trial, Defendant provided a list to Plaintiff containing three expert witnesses that he planned on calling to testify. Defendant also provided the witnesses’ CVs and the written reports of two of the witnesses.  Plaintiff objected and wanted to exclude the expert testimony. The trial court agreed, and entered an Order that excluded Defendant’s three expert witnesses from testifying. When trying to settle the record on appeal, Defendant wanted the CVs and written reports of the experts included, while Plaintiff objected to their inclusion. In judicial settlement of the record, the trial court ordered that the reports and CVs not be included. Defendant appealed. 

 

  1. Issue:  Did the trial court err in excluding Defendant’s expert witness reports and CVs from the Record on Appeal? 

 

  1. Holding: Yes. 

 

  1. Rationale:  Plaintiff essentially argued that Rule 11(c) of the Rules of Appellate Procedure only allows for three categories of materials that ought to be in the Record on Appeal: (1) evidence filed, served, and submitted for consideration, (2) evidence admitted, or (3) evidence made the subject of an offer of proof. Defendant argued that it is five categories—the first part of the sentence is broken into three categories: evidence (1) filed, (2) served, and (3) submitted for consideration. To be clear, Plaintiff argued that in order to be included in the Record, the evidence must filed AND served AND submitted. Plaintiff’s reading of the Rule is wrong. Furthermore, the CVs and reports were served on Plaintiff, albeit on the day of trial. Service is completed upon handing a copy to the attorney of record. While that happened on the day of trial, it nonetheless happened. 

 

  1. Notes:  It is always entertaining to see a court expound upon an appellate rule. I always appreciate when the Court clarifies the rules or further explains their purpose. But note that just because a document or material can be included in the Record, it does not mean that it must or that it should. Keep in mind that Rule 9(b) can set out penalties for including unnecessary items in the Record.