Lacy Anne Craig v. Cory Wayne Craig

• Court: Missouri Court of Appeals
• Decided: May 3, 2022
• Docket: WD84571
• Status: Published

Opinion

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT

LACY ANNE CRAIG, ) ) Respondent, ) WD84571 v. ) ) OPINION FILED: ) May 3, 2022 CORY WAYNE CRAIG, ) ) Appellant. )

Appeal from the Circuit Court of Macon County, Missouri The Honorable Mike Greenwell, Judge

Before Division Two: Karen King Mitchell, Presiding Judge, and Edward R. Ardini, Jr., and Thomas N. Chapman, Judges

Cory Craig (Husband) appeals from the trial court’s dissolution judgment. Husband raises

six points on appeal, arguing that the trial court erred in: (1) ordering child support for two children

because the oldest child failed to comply with § 452.340.5;1 (2) ordering support for the oldest

child because she failed to comply with § 452.340.5; (3) failing to appoint a guardian ad litem

(GAL); (4) ordering retroactive child support for extraordinary expenses and back support because

the oldest child failed to comply with § 452.340.5; (5) offsetting Lacy Craig’s (Wife) assets with

1 All statutory references are to the Revised Statutes of Missouri (Cum. Supp. 2019). credit card debt; and (6) dividing the property in a manner that was neither equitable nor fair.

Finding no error, we affirm.

Background

Husband and Wife were married on June 1, 1996, and had two children born of the

marriage: M.C. (born 3/16/2000) and C.C. (born 6/16/2003). The parties separated on January 9,

2019. At the time, M.C. was 18 years old and had been enrolled as a student at the University of

Missouri since August of 2018. Wife filed a petition for dissolution on June 5, 2019. In the

petition, Wife sought sole legal and physical custody of C.C. (the only child under the age of 18)

with visitation to Husband at C.C.’s discretion, given her mature age (nearly 16 at the time of

filing). Wife also sought child support, extraordinary expenses, and post-secondary educational

expenses for the children.

On November 18, 2019, Wife filed a motion for temporary child support and other costs.

The court granted her motion on July 10, 2020, ordering Husband to pay temporary child support

in the amount of $1,149.00 per month. Thereafter, Husband filed a motion to reconsider the award

of temporary child support payments, arguing that, in calculating the amount, the trial court

disregarded contributions made by Husband for the financial support of the children; he raised no

other claims of error.

The court held a bifurcated trial, deciding on dissolution, the parenting plan, child support

and expenses in the first phase and dividing assets and debts in the second phase. The court

awarded sole legal and physical custody of C.C. to Wife and ordered Husband to pay $1,149.00

per month in child support going forward and $14,937.00 in retroactive support for June 2019

through June 2020. The court noted that, when M.C. was either emancipated or reached the age

of 21 (whichever came first), Husband’s monthly child support obligation would drop to $824.00.

2 The court further ordered Husband to pay $6,784.25 to Wife for extraordinary expenses for the

children, after crediting Husband for payments he made on car loans and insurance. After dividing

the personal property and real estate, the court ordered Husband to make an equalization payment

to Wife in the amount of $48,327.72. Husband appeals.

Standard of Review

“On review of a court-tried case, [we will] affirm the circuit court’s judgment unless there

is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously

declares or applies the law.” Aldrich v. Aldrich, 637 S.W.3d 485, 489 (Mo. App. W.D. 2021)

(quoting ADB Cos. v. Socket Telecom, LLC, 618 S.W.3d 237, 244 (Mo. App. W.D. 2021)). “[T]he

trial court’s judgment is presumed valid and the burden is on the appellant to demonstrate its

incorrectness.” Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App. S.D. 2010) (quoting Bowles

v. All Cntys. Inv. Corp., 46 S.W.3d 636, 638 (Mo. App. S.D. 2001)).

Preservation

Rule 84.04(d)(1)2 provides that,

[w]here the appellate court reviews the decision of a trial court, each point shall:

(A) Identify the trial court ruling or action that the appellant challenges;

(B) State concisely the legal reasons for the appellant’s claim of reversible error; and

(C) Explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

(Emphasis added.) “Rule 84.04’s requirements are mandatory.” Lexow v. Boeing Co., SC99199,

2022 WL 791953, *2 (Mo. banc Mar. 15, 2022) (quoting Fowler v. Mo. Sheriffs’ Ret. Sys., 623

S.W.3d 578, 583 (Mo. banc 2021)).

2 All rule references are to the Missouri Supreme Court Rules (2021).

3 Because “[w]e can reverse [a] court-tried judgment only if no substantial evidence supports

it, or it is against the weight of the evidence, or it erroneously declares or applies the law,” Kim v.

Mercy Clinic Springfield Cmtys., 556 S.W.3d 613, 617 (Mo. App. S.D. 2018) (quoting Hagan v.

Hagan, 530 S.W.3d 608, 610 (Mo. App. S.D. 2017)) (emphasis in original), to comply with

Rule 84.04(d)(1)(B), the appellant must specify one of these bases of error within the point relied

on, itself. Id.; Ebert v. Ebert, 627 S.W.3d 571, 580 (Mo. App. E.D. 2021); Smith v. Great Am.

Assur. Co., 436 S.W.3d 700, 703-04 (Mo. App. S.D. 2014). At best, a point relied on that fails to

do so “preserves nothing for appellate review.” In re Swearingen, 42 S.W.3d 741, 747 (Mo. App.

W.D. 2001) (quoting Smith v. Indep. Tax Increment Fin. Comm’n, 919 S.W.2d 292, 294 (Mo. App.

W.D. 1996)). And, in fact, “[a] party’s failure to comply with the requirements set forth in

Rule 84.04(d) constitutes grounds for our dismissal of the appeal.” In re Estate of Tuckness, 403

S.W.3d 597, 598 (Mo. App. S.D. 2011).

Nevertheless, where a point has not been properly preserved, we have discretion to review

it for plain error under Rule 84.13. In re Swearingen, 42 S.W.3d at 746. But “[p]lain error review

is proper in civil cases only if we find that ‘the error has affected the parties’ rights so substantially

that a miscarriage of justice or manifest injustice would occur if the error were left uncorrected.’”

Id. (quoting Peterson v. Nat’l Carriers, Inc., 972 S.W.2d 349, 357 (Mo. App. W.D. 1998)).

Here, Husband’s Point III is the only point relied on that raises one of the bases for

reversing alleged error in a court-tried case. Though Points I and VI assert within the argument

that the court misapplied the law, the points themselves do not contain similar assertions.

“Arguments advanced in the brief but not raised in the point relied on are not preserved, and will

not be addressed by this court.” Ziade v. Quality Bus. Sols., Inc., 618 S.W.3d 537, 544 (Mo. App.

W.D. 2021) (quoting Burg v. Dampier, 346 S.W.3d 343, 354 (Mo. App. W.D. 2011)) (point relied

4 on argued erroneous application of law but argument claimed lack of substantial evidence to

support the judgment).

We recognize the challenges Husband faces as a pro se litigant on appeal. But

“[s]elf-represented litigants are held to the same standards as attorneys; thus, self-represented

litigants must comply with Missouri Court Rules, including Rule 84.04.” In re Estate of Tuckness,

403 S.W.3d at 598. And “we cannot give preferential treatment to non-lawyers.” Id. “It is not for

lack of sympathy, but rather is necessitated by the requirement of judicial impartiality, judicial

economy, and fairness to all parties.” Id. (quoting Duncan v. Duncan, 320 S.W.3d 725, 726 (Mo.

App. E.D. 2010)).

Even beyond the deficiencies in the points relied on, Husband’s Points I, II, IV, and VI

suffer from additional preservation problems. Points I, II, and IV all argue essentially the same

issue—to receive support payments, M.C. was required by § 452.340.5 to provide Husband with

certain information; she failed to do so; and, therefore, the court erred in ordering Husband to pay

any support for M.C. Though Husband is correct that § 452.340.5 requires a child enrolled in

higher education to furnish certain documentation to the parent providing support in order to

continue receiving support after the age of 18, a “claim that [a c]hild failed to comply with

section 452.340.5 . . . is an affirmative defense to the pleading.” Brown v. Brown, 370 S.W.3d

684, 688 (Mo. App. W.D. 2012) (quoting Scott v. Clanton, 113 S.W.3d 207, 212 (Mo. App. S.D.

2003)). “Affirmative defenses must be pled, or they will generally be waived.” Poger v. Mo.

Dep’t of Transp., 501 S.W.3d 37, 43 (Mo. App. E.D. 2016). And Husband, “as the party seeking

to abate his child support obligation, bears the burden of raising this defense.” Brown, 370 S.W.3d

at 688 (quoting Scott, 113 S.W.3d at 212). It was neither Wife’s nor M.C.’s burden to “first have

asserted that [M.C.] had complied with the reporting requirements set forth in section 452.340.5.”

5 Scott, 113 S.W.3d at 211. Husband never pled noncompliance with the notification requirement

of § 452.340.5 as an affirmative defense to a support obligation for M.C. Therefore, any claims

based on the alleged noncompliance are waived.

In Point VI, Husband argues that the trial court failed to consider certain payments he made

during the parties’ separation when the court divided the property and liabilities between the

parties, thereby violating § 452.330. The allegation that the court failed to consider certain facts

is tantamount to a claim that the court failed to make any findings about those facts. In re K.S.,

561 S.W.3d 399, 408 (Mo. App. W.D. 2018). But, to preserve a claim of insufficient findings, a

complaining party must file a post-judgment motion to amend under Rule 78.07(c).3 Husband

filed no such motion. Thus his challenge to the court’s findings is not preserved.

Therefore, as a result of both briefing deficiencies and omissions below, none of Husband’s

Points I, II, IV, V, or VI are preserved for review. And, because there appears to be no manifest

injustice or miscarriage of justice resulting from any of the alleged errors, we decline to engage in

plain error review.

Points I, II, IV, V, and VI are denied.

Analysis

In Point III, Husband argues that the trial court misapplied the law in failing to appoint a

guardian ad litem (GAL) insofar as it was required to do so by § 452.423.2. We disagree.

Section 452.423.2 provides that “[t]he court shall appoint a guardian ad litem in any

proceeding in which child abuse or neglect is alleged.” This mandatory appointment “is triggered

only by an allegation of child abuse expressly stated in a pleading and not by the mere introduction

3 Rule 78.07(c) provides, “In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.”

6 of evidence at trial.” Rombach v. Rombach, 867 S.W.2d 500, 503 (Mo. banc 1993). Here, though

no abuse was alleged in any pleading, Husband did request appointment of a GAL after claiming

that there were allegations of abuse in Wife’s discovery responses. Husband’s request did not

elaborate as to the nature of the allegations, but the evidence at trial suggested, generally, that

Husband was very controlling and verbally abusive to Wife and both children and that he continued

seeking contact with the children after they both made it clear they did not wish to have contact

with him, leading one child to seek an order of protection against Husband.

“Mandatory appointment of a guardian ad litem is not intended to benefit either of the

parties in a dissolution proceeding.” Id. at 502. And “section 452.423.2 is not designed ‘to provide

grounds for disappointed parents to seek retrial.’” Abernathy v. Collins, 524 S.W.3d 173, 179

(Mo. App. W.D. 2017) (quoting Soehlke v. Soehlke, 398 S.W.3d 10, 18 (Mo. banc 2013)).

Accordingly, “a parent may not protest the non-appointment of a guardian under § 452.423.[2] on

the basis that the parent’s interests were harmed, when no harm to the child is shown.” Van Pelt

v. Van Pelt, 824 S.W.2d 135, 139 (Mo. App. W.D. 1992). “Section 452.423, even when combined

with Rule 55.33 [allowing pleadings to conform to the evidence], does not require the appointment

of a guardian ad litem merely to advance the litigation tactics of a [spouse].” Rombach, 867

S.W.2d at 504. “As long as the result reached by the trial court is supported by the evidence as

being in the best interests of the child[ren], the paramount concern of Missouri’s child custody

provisions, the alleged abuser has no complaint for non-appointment.” Van Pelt, 824 S.W.2d at

139 (internal citation omitted).

Here, to the extent there were allegations of abuse of any kind, 4 they were against only

Husband. And his sole claim of harm on appeal is that he was “denied any reasonable or

4 It is not clear that Husband’s behavior, though less than stellar, amounted to the kind of conduct that would trigger the mandatory appointment of a GAL under § 452.423.2. See, e.g., Rombach v. Rombach, 867 S.W.2d 500,

7 meaningful relationship with his children.” He did not allege any resulting harm to the children

from the absence of a GAL. As the court granted sole legal and physical custody of the parties’

only minor child to Wife, Husband has no room to complain about the failure to appoint a GAL,

as the court’s ultimate custody determination was plainly in the best interests of the parties’ minor

child.

Point III is denied.

Conclusion

Due to Husband’s failure to preserve his claims in Points I, II, IV, V, and VI, we decline

to review them. His remaining claim that the court erred in failing to appoint a GAL is without

merit. The trial court’s judgment is affirmed.

Karen King Mitchell, Presiding Judge

Edward R. Ardini, Jr., and Thomas N. Chapman, Judges, concur.

502, 504 (Mo. banc 1993) (holding that allegations that the husband used profanity; called child a “fat little pig”; poured water on a child during a tantrum; failed to seek prompt medical attention for children’s injuries; grabbed, pushed, shoved, and spoke harshly to children to get them into the car; and aimed his car at a child to give the impression that he would run the child over if the child failed to get into the car “was not sufficient to raise the issues of child abuse or neglect”).