Appellate Law

Court Reaches Merits of Cert Petition though Brief Non-Compliant

Although the petitioner’s brief did not contain all of the sections that ARAP 28 mandates, the Alabama Supreme Court entertained the petitioner’s request for a writ of certiorari to the Alabama Court of Civil Appeals.  Ex parte Cleghorne,  No. 1061014 (Ala. Feb. 8, 2008)  The brief that the petitioner filed in the Alabama Supreme Court in this child custody matter did not contain a statement of jurisdiction or a statement of the standard of review. 

The Court held that a statement of jurisdiction is not mandatory in a brief in support of a petition for a writ of certiorari; however, a statement of the standard of review is necessary, and the petitioner’s discussion of the standard of review in the argument section of the brief was incomplete. The Court had the option of dismissing the appeal, but it decided to reach the merits of the petition because the petitioner described some of the relevant aspects of the standard of review in the argument section of the brief, and the Court generally dismisses an appeal for failure to comply with Rule 28 when the Appellant’s brief contains few or no citations of legal authority for the arguments that he presents. Here, the petitioner provided adequate legal authority for his arguments, and the statements in the argument regarding the standard of review were sufficient. The Court ultimately held that in custody disputes, the party seeking a change in custody must demonstrate that the change in custody will benefit the child, and he must overcome the presumption that a change of custody will adversely affect the child.

Full post as published by Alabama Appellate Watch on February 11, 2008 (boomark / email).