Mayes v. Mayes

941 S.W.2d 37, 1997 Mo. App. LEXIS 551, 1997 WL 142364
CourtMissouri Court of Appeals
DecidedMarch 28, 1997
DocketNo. 20477
StatusPublished
Cited by6 cases

This text of 941 S.W.2d 37 (Mayes v. Mayes) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mayes v. Mayes, 941 S.W.2d 37, 1997 Mo. App. LEXIS 551, 1997 WL 142364 (Mo. Ct. App. 1997).

Opinions

MONTGOMERY, Chief Judge.

This is a dissolution of marriage case in which Sandra Kay Mayes (Appellant) presents three points relied on. Those points read as follows:

I. The trial court’s failure to order supervised visitation to father was not in the best interest of the partiest’] minor children and as such, should be reversed and remanded to the trial court as the decree is not supported by substantial evidence, is against the weight of the evidence presented that unsupervised visitation would endanger the children’s emotional development, and is not in accordance with applicable principles of law.
II. The trial court erred in the exclusion of competent, material and relevant evidence offered by mother of incidents of inappropriate sexual behavior and criminal activity by father which were relevant to the determination of father’s visitation rights in accordance with the best interests of the minor children.
III.The trial court erred in failing to appoint a guardian ad litem for the parties[’] minor children to ensure the best interests of the minor children would be advanced by allowing father unsupervised visitation.

Respondent asserts that each point fails to comply with Rule 84.04 and suggests that the appeal should be dismissed. He relies on Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978), and Stroup v. Facet Automotive Filter Co., 919 S.W.2d 273 (Mo.App.1996). Respondent correctly observes that Appellant’s points fail “to state briefly and precisely what actions or rulings of the Court are sought to be reviewed and, more importantly, wherein and why the rulings are claimed to be erroneous.”

Rule 84.04(d),1 governing an appellant’s points relied on, provides, in pertinent part:

The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder....
Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule.

In Jones v. Wolff, 887 S.W.2d 806 (Mo.App.1994), the court explained the Rule 84.04(d) briefing requirements.

The three components of a point relied on are: a concise statement of the challenged ruling of the trial court; the rule of law the court should have applied; and the eviden-tiary basis upon which the asserted rule is applicable. Points which do not state what ruling of the trial court is challenged nor provide a proper evidentiary basis, but instead set out abstract statements of law, preserve nothing for appeal.

Id. at 808 (citation omitted.)

Moreover, “allegations of error ... not properly briefed shall not be considered in any civil appeal_” Rule 84.13(a). Com[39]*39pliance with Rule 84.04 briefing requirements is mandatory, partly to ensure that appellate courts do not become advocates by speculating on facts and arguments which have not been made. Cook v. Wadlington, 821 S.W.2d 864, 866 (Mo.App.1991). We should not be asked or expected to assume such role. Id.

At the very least, Appellant’s points fail to fulfill the wherein and why requirements of Rule 84.04(d). Point I is an abstract assertion that fails to set forth a concise statement of the challenged ruling of the trial court and fails to identify any evidence giving rise to the ruling which Appellant contends the trial court should have made.

Point II is abstract assertion that fails to set forth the rule of law Appellant believes the trial court should have applied, and it does not identify any evidence giving rise to the ruling which Appellant contends the trial court should have made.

Point III contains the same deficiencies as Point II and is merely an abstract assertion of what the trial court should have done.

As Respondent has suggested, violations of Rule 84.04 constitute grounds for dismissal of an appeal. Jones, 887 S.W.2d at 808. Nevertheless, because children are involved, we have gratuitously reviewed the record for plain error pursuant to Rule 84.18(c) which reads:

Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

Thus, our review will be limited to examining the argument portion of the brief for the purpose of determining whether there has been plain error. Hoffman v. Koehler, 757 S.W.2d 289, 292 (Mo.App.1988).

Appellant’s argument under Point I begins by calling our attention to § 452.400, RSMo Supp.1995,2 the statute addressing visitation rights of a noncustodial parent. Pertinent provisions of this statute provide:

1. A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child’s physical health or impair his emotional development.... If the court finds that domestic violence has occurred, the court may find that granting visitation to the abusive party is in the best interests of the child. The court shall not grant visitation to the parent not granted custody if such parent has been found guilty of or pled guilty to a felony violation of chapter 566, RSMo, when the child was the victim or a violation of section 568.020, RSMo, when the child was a victim....
2. ... “Supervised visitation”, as used in this section, is visitation which takes place in the presence of a responsible adult appointed by the court for the protection of the child.

Appellant argues that supervised visitation was required under this section because of Respondent’s extensive criminal record, his lack of interest in the children, his emotional abuse of the oldest daughter along with her fear of him, and Respondent’s drinking which resulted in violence in the children’s presence.

While Respondent freely admitted his criminal record,3 he denied most of the remaining complaints against him. In spite of his criminal record, the trial court apparently believed Respondent rather than Appellant and her witnesses.

‘We do not substitute our judgment for that of the trial court on credibility issues.” Zweemer v. Cantrell, 823 S.W.2d 531, 534 (Mo.App.1992). Furthermore, in a corut-tried case, we accept as true the evidence and inferences favorable to the judgment and disregard contrary evidence. P.L.W. v. T.R.W, 890 S.W.2d 688, 690 (Mo.App.1994). In this case, Appellant has emphasized the evidence favorable to her and downplayed [40]*40evidence favorable to the judgment.

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Related

In Re Marriage of Pahlow
39 S.W.3d 87 (Missouri Court of Appeals, 2001)
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988 S.W.2d 545 (Missouri Court of Appeals, 1999)
Myrick v. Eastern Broadcasting, Inc.
970 S.W.2d 885 (Missouri Court of Appeals, 1998)
State v. Henderson
954 S.W.2d 581 (Missouri Court of Appeals, 1997)

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Bluebook (online)
941 S.W.2d 37, 1997 Mo. App. LEXIS 551, 1997 WL 142364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayes-v-mayes-moctapp-1997.