Sanctions for Bad Appeals

Shebalin v. Shebalin, 2022-NCCOA-410.

Facts:

This appeal arose from the appointment of a parenting coordinator. Parenting coordinators are often appointed to child custody cases when the parents absolutely cannot get along. Plaintiff and Defendant had a minor child together who was at the center of their custody dispute. The trial court’s finding was that the case had become “high conflict” and thus a parenting coordinator was appointed for a term of years. In 2019, Defendant filed a motion to appoint again and was met with a motion to dismiss. At the hearing on these motions in 2020, the trial court again labeled the case high conflict, denied the motion to dismiss, and then set out a future date for the appointment of a coordinator.

Plaintiff appealed to the Court of Appeals. In 2021, the trial court held more hearings for the actual appointment. Prior to these hearings, Plaintiff contended that his pending appeal deprived the trial court of jurisdiction. However, at the hearing, Plaintiff then admitted that the appeal was impermissibly interlocutory and that the trial court had jurisdiction to appoint. Curiously, Plaintiff then filed his appellate brief for the appeal of the 2020 Order in later 2021, after the appointment of a parenting coordinator.

Issue:

Was Plaintiff’s appeal frivolous and sanctionable?

Holding: Yes.

Rationale:

In an odd turn of events, Plaintiff decided to argue that the 2020 Order was a final order; this despite his admitting that the appeal was interlocutory during an in camera discussion held with the trial court. The 2020 Order was held to be patently interlocutory, as it only set out that the case was high conflict and would set a future date for the appointment of a parenting coordinator. Because it left further action to the trial court, it was deemed interlocutory. At the heart of the sanctions issue was that Plaintiff was made aware of the interlocutory nature of the 2020 Order that he appealed from on multiple occasions.

Sanctions are allowed in frivolous appeals if (1) they are not well-grounded in fact or warranted by existing law, (2) they are needless and increase litigation costs, harass, or delay proceedings, and/or (3) they grossly violate appellate rules or grossly disregard the requirement to fairly present an issue to the appellate court. Since Plaintiff continued to assert that the 2020 Order was final, despite its interlocutory nature, it was held that Plaintiff violated all three provisions of the sanctions rule, and therefore he was taxed with double costs, attorneys’ fees, and dismissal of his appeal.

Lessons:

This is an odd case that the court of appeals may have published to warn other attorneys what the consequences of a bad appeal could be. This may be a lesson in patience; it was clear that there was some basis for appeal for the appointment of a parenting coordinator, but when you appeal is just as important as why. I can understand that perhaps Plaintiff wanted to challenge the conclusion that the case continued to be high conflict, but to wait until the actual appointment would have been important—not only because it finalizes the issue in the case, but also in the event that there were more appealable issues that would arise from the Order for actual appointment. It certainly also seemed like the trial court made further findings of fact in their 2021 Order that would have presented the full and final issues to the Court of Appeals. Appeals are technical and complex. Speak to a specialist if you think there are appealable issues in your case.