Boyd v. Boyd

• Decision Date: 28 May 2004
• Docket Number: No. WD 62881.,WD 62881.
• Parties: Diana BOYD, Respondent, v. Clarence BOYD, Appellant.
• Court: Missouri Court of Appeals

134 S.W.3d 820

Diana BOYD, Respondent, v. Clarence BOYD, Appellant.

No. WD 62881.

Missouri Court of Appeals, Western District.

May 28, 2004.

Lloyd Koelker, Kansas City, MO, for Appellant.

Catherine A. Donnelly, Kansas City, MO, for Respondent.

Before: LOWENSTEIN, P.J., and EDWIN H. SMITH and HOWARD, JJ.

EDWIN H. SMITH, Judge.

Clarence Boyd appeals the judgment of the Circuit Court of Jackson County dissolving his marriage to the respondent, Diana Boyd, with respect to its award to her of modifiable maintenance, under § 452.335.¹

The appellant raises one point on appeal. We dismiss the appeal for failure to substantially comply with the briefing requirements of Rule 84.04.²

Facts

The parties were married on July 2, 1988, in Kansas City, Missouri. No children were born of the marriage.

On September 6, 2002, the respondent filed a petition for dissolution of marriage in the Circuit Court of Jackson County, Missouri. In her petition, the respondent prayed, inter alia, for an award of spousal maintenance. On November 20, 2002, the appellant filed an answer and cross-petition for dissolution.

On April 22, 2003, the parties' petitions were taken up and heard. The parties were the only witnesses to testify. With respect to maintenance, the appellant testified that, for the past three years, he had worked as a truck driver for Midway Ford, where he earned $13.00-13.50 per hour. He further testified that he retired from Midway Ford in 2002 and was receiving $907 per month in Social Security benefits. However, he presented no evidence regarding his monthly needs. The respondent testified that her total monthly income was $1,260: $780 from Social Security disability benefits and $480 from part-time employment. She testified that she was limited to part-time work because she suffered from several medical conditions, including polymyositis, diabetes, asthma, and high blood pressure. She testified that her monthly needs totaled $2,157.

On April 30, 2003, the trial court entered its judgment dissolving the parties' marriage and awarding the respondent $200 per month in modifiable maintenance. The judgment included the following findings:

7. [Respondent] works two days per week for My House. She earns $480 per month. Her social security number is [ ].[She] receives disability benefits of $780.00 per month. [She] is not able to work full time because of her medical conditions.

[Her] earnings do not cover her monthly expenses.

8. [Appellant] retired from Midway Ford in 2002. He was a truck driver earning $13.00 per hour. He receives $907 per month in social security benefits. He is capable of reemployment with Midway Ford and or earning $13.00 an hour. He is capable of meeting his own needs and of paying [respondent] $200 per month in maintenance.

This appeal followed.

I.

In his sole point on appeal, the appellant claims:

THE TRIAL COURT ERRED IN ORDERING HUSBAND TO PAY MAINTENANCE TO WIFE BECAUSE (A) THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT AN ORDER OF MAINTENANCE, AND (B) HUSBAND IS FINANCIALLY UNABLE TO MEET HIS OWN NEEDS IF HE ALSO PAYS MAINTENANCE, IN THAT WIFE HAS HIGHER INCOME THAN HUSBAND, HUSBAND IS AGE 65 AND ON SOCIAL SECURITY, WIFE PRESENTED NO MEDICAL OR OCCUPATIONAL EVIDENCE, WIFE IS AGE 54, AND THE COURT HAD NO EVIDENCE BESIDE [sic] WIFE'S TESTIMONY TO SUPPORT IT'S [sic] FINDINGS [sic] THAT HUSBAND COULD EARN $13 PER HOUR.

Before attempting to address the merits of the appellant's sole point on appeal, we must first address the obvious deficiencies of his brief to determine if we have jurisdiction to proceed. See Finnical v. Finnical, 81 S.W.3d 554, 557-58 (Mo.App.2002) (stating that substantial briefing deficiencies deprive appellate courts of jurisdiction).

Rule 84.04(d), governing proper points relied on, requires that each point:

(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.

The point shall be in substantially the following form: `The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].'

"`Thus, the rule requires that each point relied on: (1) identify the trial court's ruling or action that the appellant is challenging on appeal; (2) state the legal reasons for the appellant's claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.'" Wilson v. Carnahan, 25 S.W.3d 664, 666 (Mo.App.2000) (quoting Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 543 (Mo.App.1999)). "`The function of this rule is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review.'" Id.

From the appellant's point relied on, we can ascertain that the ruling of the trial court being attacked is its award of maintenance to the respondent. As to the legal basis for his attack, it appears that the appellant is attacking the award on what he denominates as two legal bases: (A) "THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT AN ORDER OF MAINTENANCE, AND (B) HUSBAND IS FINANCIALLY UNABLE TO MEET HIS OWN NEEDS IF HE ALSO PAYS MAINTENANCE." The first basis, of course, is nothing more than a broad, general legal conclusion that does not focus our attention on any specific issue of maintenance that he claims was not supported by the record. It simply leaves it to our imagination as to what aspect of maintenance is not supported by the record. As to the second apparent legal basis for reversal of the maintenance award, it is nothing more than a conclusion by the appellant that he could not pay the amount of maintenance ordered. He does not tell us how the trial court erred with respect to his assertion as to his inability to pay. And, not surprisingly, without any specification as to his legal justification for reversal, the factual circumstances of his case recited in his point relied on do little, if anything, to enlighten us as to why, in the context of the case, the legal reasons given, whatever they may be, support his claim of reversible error. What we are left with are mere conclusions and abstract statements of the law that are not sufficient to meet the requirements of Rule 84.04(d) that a point relied on set out the legal bases for reversal and explain in summary fashion why, in the context of the case, reversal is mandated on the legal grounds asserted. Rule 84.04(d)(4); see also Lemay v. Hardin, 108 S.W.3d 705, 709 (Mo.App.2003).

The failure of the appellant to satisfy Rule 84.04(d), with respect to a proper point relied on, is a sufficient basis for us to dismiss his sole point on appeal. State ex rel. Greene v. Greene, 51 S.W.3d 537, 541 (Mo.App.2001). It is not proper for the appellate court to speculate as to the point being raised by the appellant and the supporting legal justification and circumstances. Stickley v. Auto Credit, Inc., 53 S.W.3d 560, 563 (Mo.App.2001). To do so would cast the court in the role of an advocate for the appellant, which we cannot be. Id. Nonetheless, in keeping with our policy that we would prefer to rule on the merits, if possible, rather than dismiss for briefing deficiencies, Cade v. State, 990 S.W.2d 32, 36 n. 2 (Mo.App.1999), in an attempt to understand the appellant's claim, here, we will view it in light of his argument thereon, see Lemay, 108 S.W.3d at 709 (stating that, in attempting to ascertain the issue being raised by a deficient point relied on, the court would look to other portions of the appellant's brief).

Reading the appellant's point in conjunction with his argument thereon, it would appear that he is arguing that the evidence is insufficient from which the trial court could find, as required, that the respondent was in "need" of maintenance and that the appellant had the ability to pay the maintenance award. Assuming that this is indeed the argument being made, and we are not absolutely certain of that, given the lack of specificity of the point relied on and the argument, the appellant's point still must be dismissed as failing to substantially comply with mandatory briefing requirements in that he fails to cite to the factual circumstances that support his argument and fails to fully develop his argument in his brief.

Rule 84.04(i) requires citations to the record. "[C]ompliance with this Rule allows us to verify the evidence upon which a party relies in support of its argument; without such compliance, this court would effectively act as an advocate of the non-complying party[.]" Lombardo v. Lombardo, 120 S.W.3d 232, 247 (Mo.App. 2003). It is not the function of the appellate court to search the record to discover the facts that substantiate a point on appeal. Wilson, 25 S.W.3d at 667. Rule 84.04(e) also requires that an appellant's brief include an argument section that discusses the appellant's point on appeal. Jenkins v. Manpower on Site at Proctor & Gamble, 106 S.W.3d 620, 624 (Mo.App. 2003). We cannot act as an advocate for the appellant by...