February 13, 2007

Leave To Supplement Appellate Record Denied By Second District Illinois Appellate; Reply Brief Stricken For Lack Of Service

Steven Sharp was held in contempt for failure to pay maintenance and child support. He appealed the contempt ruling, and also requested review of the underlying support order. The appellate court affirmed.

Steven’s income was primarily from a trust. He argued that it was a spendthrift trust, and that the trustees refused to distribute assets to him for payment of his maintenance and child support obligations. But Steven did not originally make the trust a part of the appellate record, although it was in the trial court record.

After the appeal was fully briefed, Steven moved to supplement the appellate record with the trust. The appellate court denied the motion, ruling that supplementing the record would unduly prejudice his former wife, Laurie. Laurie was “precluded from citing to the trust provisions in her brief because the trust agreement had not been made part of the record on appeal. Therefore, petitioner [Laurie] was precluded from fully briefing any issue regarding the terms of the trust agreement.”

Laurie moved to strike Steven’s reply brief because he never served it on her. That motion was granted because Laurie was prejudiced by not having the opportunity to assess Steven’s arguments. “[P]etitioner has been prejudiced by respondent's failure to serve her with a copy of the reply brief, as she did not have an opportunity to review respondent's argument or contest any inaccuracies or misstatements in the reply brief. Moreover, it would be improper for this court to consider material that has never been presented to or considered by the opposing party.”

The whole case, IRMO Sharp, No. 2-05-1233 (12/14/06), is available here.

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