Opinion
Case No. 95-13940-AM, Adversary Proceeding No. 95-1506
August 23, 1996
Ms. Christina Joligard, Meadowbrook, PA, for Plaintiff, pro se
Mr. Pierre Joligard, Arlington, Va, for Defendant, pro se
MEMORANDUM OPINION AND ORDER
Before the court is a letter from the plaintiff to the clerk dated August 6, 1996, and filed August 14, 1996, requesting that certain documents included in the defendant's designation of record on appeal be stricken, or, in the alternative, segregated from the rest of the record on appeal when it is transmitted to the District Court.
Factual and Procedural Background
The defendant, Pierre Joligard, filed a voluntary petition under chapter 7 of the Bankruptcy Code in this court on September 7, 1996. Christina Joligard, the debtor's former wife, then brought this adversary proceeding to determine the dischargeability of certain obligations the debtor was ordered by pay by a Virginia court in connection with child custody and support litigation involving their minor son, Mischa Joligard. On July 16, 1996, this court entered an order granting summary judgment in favor of Ms. Joligard and determining that $10,038.10 owed by the debtor to Ms. Joligard was nondischargeable under § 523(a)(5), Bankruptcy Code, as being in the nature of child support.
The debtor filed a timely notice of appeal to the United States District Court for the Eastern District of Virginia on July 22, 1996. With the notice of appeal, he filed a designation of record on appeal as required by F.R.Bankr.P. 8006. The designation broadly embraced "[a]ll pleadings, motions, answers, opinions, orders, and other filings made in this case," as well as a 9 transcript of the June 18th 1996 hearing on the summary judgment motion. He did not, however, furnish the clerk with any copies or make arrangements for copies to be made. On July 31, 1996, the debtor filed with the clerk a set of exhibits entitled "Copies of Records for Record on Appeal," consisting of copies of six documents, five of which were not part of the record in this adversary proceeding but were apparently used in the state court litigation. On August 1, 1996, the debtor filed an additional pleading entitled "Supplementary Copies of Records for Record on Appeal" designating (and supplying copies of) six specific items, all of which were either formally part of the record in this adversary proceeding or were otherwise considered by the court. On August 14, 1996, Ms. Joligard, having apparently become aware that the debtor, despite having formally included in his original designation of record "all" pleadings in the adversary proceeding, had furnished the clerk only with certain items, filed a precautionary designation of record that included the pleadings omitted by the debtor.
"Within 10 days after filing the notice of appeal . . ., the appellant shall file with the clerk and serve on the appellee a designation of the items to be included in the record on appeal and a statement of the issues to be presented. Within 10 days after the service of the appellant's statement the appellee may file and serve on the appellant a designation of additional items to be included in the record on appeal. . . . The record on appeal shall include the items so designated by the parties, the notice of appeal, the judgment, order, or decree appealed from, and any opinion, findings of fact, and conclusions of law of the court. Any party filing a designation of items to be included in the record shall provide to the clerk a copy of the items designated or, if the party fails to provide the copy, the clerk shall prepare the copy at the party's expense." The debtor has never filed a statement of issues on appeal. However, under F.R.Bankr.P. 8001, the failure to file the statement of issues on appeal "does not affect the validity of the appeal, but is ground only for such action as the district court . . . deems appropriate, which may include dismissal of the appeal."
The hearing was actually on June 18, 1996, but the court reporter incorrectly noted the hearing date on the transcript as July 18, 1996. That transcript has been prepared and has been filed with the clerk.
Local Rule 410 ("Record on Appeal") provides:
(C) Copies of Record: The party filing a designation of items to be included in the record on appeal shall file with the designation either:
(1) a complete and correct copy of all items designated, or
(2) a copy request form with check payable to the Court's authorized outside copy service. . . .
(emphasis added).
Ms. Joligard's letter to the clerk transmitting the designation stated that it was filed "[o]ut of an abundance of caution" in the event "the clerk does not interpret the appellant's designation to include the items on the attached list." No copies were furnished, but Ms. Joligard stated that she was prepared to supply copies to the extent that the items were not already part of the record on appeal. The debtor has not in fact furnished copies of any of the items, nor has the debtor made arrangements for their copying. Accordingly, the court will direct Ms. Joligard to furnish those copies.
Discussion
Part VIII of the Federal Rules of Bankruptcy Procedure, governs appeals from judgments, orders or decrees of a bankruptcy judge to a district court or bankruptcy appellate panel. Unfortunately, those rules do not contain an express counterpart to Federal Rule of Appellate Procedure 10(e), which provides a mechanism for a trial court to "settle" any controversy between the parties as to the contents of the record on appeal. This issue was considered in Berge v. Sweet (In the matter of Berge), 37 B.R. 705 (Bankr. W.D. Wis. 1983), which concluded, after reviewing the authorities, that under the express language of F.R.Bankr.P. 8006 ("The record on appeal shall include the items so designated by the parties. . . .") (emphasis added), that a bankruptcy court had no inherent power to modify the record on appeal to exclude items designated by a party, but that the bankruptcy court could properly direct that those designated items that were not formally part of the record in the adversary proceeding be transmitted to the district court in a separate packet.
No bankruptcy appellate panel (see 28 U.S.C. § 158(b)) has been established for the Fourth Circuit. Therefore, all appeals from a judgment, order or decree of a bankruptcy judge in this circuit must be taken "to the district court for the judicial district in which the bankruptcy judge is serving." 28 U.S.C. § 158(a).
Rule 10. The Record on Appeal.
(a) Composition of the Record on Appeal. The record on appeal consists of the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court.
* * *
(e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.
As the court noted in Berge, bankruptcy cases frequently involve a large number of more-or-less independent sub-controversies (contested matters and adversary proceedings). Although each of these sub-controversies creates its own record, the court, in ruling on the specific contested matter or adversary proceeding before it, is frequently aware of matters contained in the main case. Where such matters are formally relied upon (say, for example, the date the debtor's bankruptcy petition was filed in a preference avoidance proceeding), the better practice would be for the court to take judicial notice under Fed.R.Evid. 201. In practice, however, it is not uncommon for litigants in a contested matter or adversary proceeding to simply refer to matters in the main case as though they were part of the overall record. This reality is reflected in the Berge opinion:
The record in an adversary proceeding in bankruptcy presumes and in large measure relies upon, the file in the underlying case. The record on appeal, for completeness and fair presentation of the issues to the appellate body, should therefore include those items from the record of the whole case which the parties agree upon.
37 B.R. at 708 (emphasis added).
This court will adopt the procedure suggested by Berge. The items included on the "Supplementary" designation filed August 1, 1996 were either formally part of the record in the adversary proceeding (items 1, 3, 4, 5, and 6) or were known to the court as part of the main case (item 2). Of the items filed as "Copies of Records for Record on Appeal" on July 31, 1996, only item 5 was part of the record in the adversary proceeding (having been attached as an exhibit to the debtor's affidavit in opposition to the motion for summary judgment). The remaining items were neither part of the record in the adversary proceeding proper nor in the main case, nor were they offered to or considered by the court in ruling on the motion for summary judgment. Accordingly, these items will be segregated and transmitted to the District Court in a separate packet.
These consist of (1) Christina Joligard's responses to interrogatories in the state court action; (2) Fairfax Hospital medical records concerning Mischa Joligard; (3) a letter of Carolyn T. Hogans to Leslie A. Earll, M.D. dated January 19, 1995; (4) the debtor's income tax returns for 1994 and 1995; and (6) letters from P. M. Palumbo, Jr., M.D. and Yannick Cam dated June 11, 1996 and July 16, 1996, respectively.
ORDER
For the foregoing reasons, it is
ORDERED:
1. The letter of Christina Joligard to the clerk dated August 6, 1996, which the court treats as a motion to exclude from the record on appeal certain items designated by the debtor, or, in the alternative, to segregate such items when they are transmitted to the District Court, is GRANTED in part and DENIED in part.
2. The clerk will transmit to the United States District Court, as part of the record on appeal, all items designated by the debtor as to which copies have been supplied or arrangements made for their copying pursuant to Local Rule 410(C), but shall segregate items numbered 1, 2, 3, 4, and 6 on the pleading entitled "Copies of Records for Record on Appeal" filed July 31, 1996.
3. Christina Joligard shall have ten days from the date of the entry of this order to furnish the clerk, or to make appropriate arrangements with the clerk for copying, the items on the designation of record filed by her on August 14, 1996. If she fails to do so, the clerk shall promptly transmit the record on appeal to the United States District Court but shall in any event include, pursuant to F.R.Bankr.P. 8006 regardless of whether copies have been furnished by the parties (a) the notice of appeal, (b) the memorandum opinion of July 16, 1996, (c) the order of July 16, 1996, granting summary judgment, and (d) a certified copy of the docket entries. The clerk shall also transmit to the District Court a copy of this order.
4. The clerk shall mail a copy of this memorandum opinion and order to the plaintiff and the defendant.