In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-1075

In the Matter of:

CHARLES T. DORNER,

Debtor-Appellant.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-CV-694—Rudolph T. Randa, Chief Judge.

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ARGUED AUGUST 5, 2003—DECIDED SEPTEMBER 11, 2003

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Before EASTERBROOK, ROVNER, and DIANE P. WOOD,

Circuit Judges.

EASTERBROOK, Circuit Judge. Obligations to pay alimony

and child support may not be discharged in bankruptcy.

11 U.S.C. §523(a)(5). A separate provision addresses debts

“incurred . . . in the course of a divorce or separation or in

connection with a separation agreement, divorce decree or

other order of a court of record”, which may be discharged

if

(A) the debtor does not have the ability to pay such

debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the

debtor and, if the debtor is engaged in a business,

for the payment of expenditures necessary for the

continuation, preservation, and operation of such

business; or (B) discharging such debt would result
2 No. 03-1075

in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or

child of the debtor[.]

11 U.S.C. §523(a)(15). In this bankruptcy proceeding, Charles Dorner seeks to discharge indebtedness to, or

in connection with, three family businesses that a state

divorce court had apportioned between Charles and his

former spouse Ruth A. Dorner. Charles conceded that the

debts had been incurred “in the course of a divorce or separation” and contended that the conditions for their discharge are satisfied. Bankruptcy Judge Eisenberg concluded

otherwise after an evidentiary hearing. He found not only

that Charles could pay but also that discharge would harm

Ruth more than it would help Charles.

Charles appealed to a district judge under 28 U.S.C.

§158(a). He filed a designation of items to be included in the

record. See Fed. R. Bankr. P. 8006. Although Rule 8006

says that the “record on appeal shall include the items so

designated by the parties” (emphasis added), and Rule

8007(b) adds that the bankruptcy clerk “shall transmit a

copy thereof forthwith to the clerk of the district court” (emphasis added), that is not what happened. The lawyer representing Charles learned from the clerk that only the

notice of appeal, the bankruptcy judge’s opinion, and the

docket sheet would be transmitted. The clerk relied on a

standing order of the district court dated June 25, 1991, and

reading:

IT IS ORDERED that all bankruptcy appeals transmitted to the United States District Court filed

pursuant to the jurisdiction conferred by 28 U.S.C.

§ 158 shall be limited to the following documents:

1) Notice of Appeal;

2) A copy of the Order being appealed; and

3) A copy of the docket sheet.
No. 03-1075 3

IT IS FURTHER ORDERED that other documents from

the main file may be requested on an as needed

basis.

The trailing paragraph, written in the passive, does not say

who must do the requesting. Counsel evidently thought that

the duty rests on the judge, while the district judge must

have believed that the duty rests on counsel. After the

appeal had been briefed, the judge entered this curt order:

Appellant Charles T. Dorner asks the Court via this

appeal to reverse the decision of the Bankruptcy

Court Judge. Based upon the limited submission of

the appellant and the current record, this Court is

unable to conclude, pursuant to the standard of

review that it must apply, that the Bankruptcy

Judge was in “clear error” in his factual findings or

that erroneous legal conclusions were reached.

Therefore, IT IS HEREBY ORDERED that the appeal is

DISMISSED.

Reference to “the limited submission of the appellant

and the current record” alerted counsel to the possibility

that the district judge had not requested or looked at the

evidentiary materials. So counsel asked the clerk to ensure

that all materials that had been designated under Rule

8006 are in the record for this court’s review. (Our jurisdiction rests on §158(d). See In re Riggsby, 745 F.2d 1153,

1154 (7th Cir. 1984); In re Marchiando, 13 F.3d 1111, 1113-

14 (7th Cir. 1994).) His answer came, not from the clerk,

but from the judge, who wrote (emphasis in original):

By his letter, Dorner’s counsel asks that certain

portions of the record which pertain to proceedings

before the Bankruptcy Court be included in the record on appeal from the District Court’s dismissal.

The only portion of the record which may be included in an appeal from a judgment, order, or
4 No. 03-1075

decree of a District Court are submissions filed

or offered into evidence in the District Court. See

Circuit Rule 10; see also Fed. R. App. P. 6(b). This

court has no jurisdiction over filings in the Bankruptcy Court and counsel’s request must be denied.

Charles has received the runaround. First, in response

to an order issued by the district court, the bankruptcy

clerk failed to transmit the record designated under Rule

8006. Then the district judge dismissed the appeal because

Charles’s arguments were not supported by evidence in the

bobtailed record. Finally, the district judge denied that he

had any authority to ensure that the record conforms to the

Rule 8006 designations.

None of these steps was proper. Start with the refusal

to include the documents designated under Rule 8006. The

bankruptcy clerk must transmit the documents specified

by counsel. No local rule or standing order can supersede

the Federal Rules of Bankruptcy Procedure. If the district

court had promulgated a local rule to the same effect as

its 1991 order, that rule would have been invalid under Fed.

R. Bankr. P. 8018(a)(1), which says that all local rules must

be “consistent with” the national rules. See also 28 U.S.C.

§2071(a); Fed. R. Civ. P. 83(a)(1). A local rule that countermands a national rule is not consistent with it. Orders with

the effect of rules likewise must satisfy the consistency

requirement.

Adopting local rules through the device of standing orders

contravenes the Rules Enabling Act in several ways beyond

the vice of inconsistency. First, rules must be reviewed by

an advisory committee. See 28 U.S.C. §2077(b). Second,

rules may be adopted only after public notice and opportunity for comment. 28 U.S.C. §2071(b). Third, rules adopted

by district courts must be submitted to the judicial council

of the circuit for review. 28 U.S.C. §2071(c). Finally, all local rules must be sent to the Director of the Administrative
No. 03-1075 5

Office, who ensures their public availability. 28 U.S.C.

§2071(d). The Eastern District of Wisconsin violated all of

these requirements when it used a nonpublic standing order

to contradict Rules 8006 and 8007, which like all other

national rules have the force of statutes. See 28 U.S.C.

§2072(b).

The standing order of June 1991 is invalid. But while the

court was still implementing it, district judges should have

recognized that they were the right persons to request materials under its last paragraph. It would make little sense

to say that counsel should have done the requesting; the

designation under Rule 8006 already served that purpose.

An order such as this could be useful only to the extent that

it led the district judge to peruse the designation and secure

all documents essential to resolve the appeal. That was not

done here.

As for the final step in the runaround—the district judge’s

declaration that he had no authority to order the bankruptcy court to add material to the record—this reflects a

misunderstanding of the relation between district and

bankruptcy judges. Bankruptcy judges and district judges

serve on a unified court. “In each judicial district, the

bankruptcy judges . . . shall constitute a unit of the district

court”. 28 U.S.C. §151 (emphasis added). District judges

may refer matters to bankruptcy judges but also may

withdraw them and render decisions themselves. 28 U.S.C.

§157. It is the district judges, not the bankruptcy judges,

who make the rules of procedure for all bankruptcy issues

not covered by the national rules. Fed. R. Bankr. P.

8018(a)(1). So the district judge had all the authority

needed to ensure that the bankruptcy clerk completed this

record in accord with the Rule 8006 designation, and the

judge should have done this before the record was transmitted to the court of appeals.
6 No. 03-1075

What happened after that, however, can’t be pinned on

the district court. If Charles wanted to supplement the contents of the record as transmitted, he had to file a motion in

this court under Fed. R. App. P. 10(e). He did not do so.

Alternatively, Charles might have filed a brief contending

that the decision should be vacated and the appeal redetermined in the district court on the proper record. His lawyer

did not do that either. Instead he elected to proceed as

if there were no problem. Charles’s brief contends that

the bankruptcy judge made clearly erroneous findings of

fact, and this line of argument depends on documents that

are not in the record. Charles’s appellate brief does not

contain even an allusion to the contretemps in the district

court about the record; he pretends that the district court

included everything he asked for. Pretense is no substitute

for a record. The brief reads as if the district judge had no

role in the case and that we are directly reviewing the

bankruptcy judge’s decision. Despite Circuit Rule 30(a),

which requires every appellant to include with the brief a

copy of the opinion and judgment in the district court, this

brief includes only the bankruptcy judge’s opinion and judgment; counsel also filed a statement under Circuit Rule

30(d) falsely certifying that all materials required by Rule

30(a) had been included.

So here we are, with the issues on appeal limited to factual contentions that, on a skeletal record, cannot be resolved

in Charles’s favor. This is the same problem the district

judge encountered—and though the district judge could

and should have overcome it by a request under the last

paragraph of the standing order, we have no such authority.

A litigant whose position in the court of appeals depends on

extra-record evidence loses forthwith. The situation is

covered in Circuit Rule 10(g), which is designed to handle

problems such as this:

When a party’s argument is countered by a contention of waiver for failure to raise the point in the

trial court or before an agency, the party opposing
No. 03-1075 7

the waiver contention must give the record cite

where the point was asserted and also ensure that

the record before the court of appeals contains the

relevant document or transcript.

Not until oral argument, however, did counsel suggest that

the record be fleshed out—and by then it was too late. Lawyers must get these things straight before the briefing is

complete; otherwise the opposing party and the appellate

judges must traverse the same ground twice. Charles’s

lawyer effectively forfeited the appeal when he filed a brief

pretending that he had prevailed in the district court on the

question whether the appellate record should be expanded.

Omission of the district court’s opinion was the coup de

grâce, for that can be enough by itself to yield summary

affirmance. See Mortell v. Mortell Co., 887 F.2d 1322, 1326-

27 (7th Cir. 1989); Urso v. United States, 72 F.3d 59, 61-62

(7th Cir. 1995).

From the little we can see, there is no reason to think

that the bankruptcy judge committed a clear error or

abused his discretion. We have not been given a properly

supported reason to set aside the order on the merits; and,

as Charles has not asked for any relief with respect to the

contents of the record, the judgment of the district court is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-11-03