Schmidt v. Schmidt

Intermediate Court of Appeals of the State of Hawaiʻi · 2020 · Family Law

Family LawAppellate Procedureappeal dismissalfailure to file opening brieffailure to file statement of jurisdictionfailure to prosecuteHRAP 12.1(e)HRAP 30

Facts

Thomas Schmidt filed a notice of appeal on November 6, 2019. After the record on appeal was filed, the appellate clerk notified the parties that the statement of jurisdiction and opening brief were due on January 16, 2020, and February 18, 2020, respectively. Schmidt filed neither document and did not request an extension of time. After the clerk warned that the case could be dismissed under Hawaiʻi Rules of Appellate Procedure Rules 12.1(e) and 30 and that Schmidt could seek relief from default by motion, Schmidt took no further action.

Issue

Whether the appellate court should dismiss the appeal when the appellant fails to file the required statement of jurisdiction and opening brief, does not seek an extension, and does not seek relief from default after notice that dismissal may result.

Rule

An appeal may be dismissed under Hawaiʻi Rules of Appellate Procedure Rules 12.1(e) and 30 when an appellant fails to file required appellate documents within the prescribed time, does not request an extension, and takes no further action after notice of default and the possibility of dismissal.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a divorce appeal from a family court in Honolulu, Lena Morita filed a notice of appeal. After the record was filed, the appellate clerk set deadlines for Lena's statement of jurisdiction and opening brief, but Lena filed neither, sought no extension, received a default notice warning that dismissal could follow, and then did nothing.

What is the most likely result?

Explanation. Under the majority opinion, dismissal is warranted when the appellant fails to file required appellate documents, does not request an extension, receives notice that dismissal may occur, and then takes no further action. Filing the notice of appeal alone does not prevent dismissal under the appellate rules cited.