Glick v. Glick
| Decision Date | 18 September 1962 |
| Docket Number | No. 31085,31085 |
| Parties | Stanley N. GLICK (Plaintiff) Respondent, v. Judith GLICK (Defendant) Appellant. |
| Court | Missouri Court of Appeals |
Moss H. Silverforb, Kansas City, and Robert A. McIlrath, Flat River, for appellant.
J. Richard Roberts, and Roberts & Roberts, Farmington, for respondent.
This is the second appeal by defendant wife in this case. She previously appealed from the trial court's interlocutory judgment on allowances pendente lite. See Glick v. Glick, Mo.App., 336 S.W.2d 528, in which this court upheld the adequacy of those allowances.
In the subsequent trial on the merits, the plaintiff sought a divorce, and the defendant sought separate maintenance. The trial court granted the plaintiff a divorce, gave defendant custody of the parties' child, and ordered plaintiff to pay defendant $175.00 monthly for child support and an additional attorney fee of $750.00 for the trial of the case. Defendant appeals. She here challenges (1) the validity of the decree because it did not specifically rule on her cross-petition for separate maintenance, (2) the sufficiency of credible evidence to support the decree, and (3) the adequacy of allowances.
At the portal of our consideration of the defendant's appeal we are met with plaintiff's motion to dismiss the appeal for defendant's failure to comply with Supreme Court Rule 83.05(a)(2), and (c) V.A.M.R. Defendant did not respond to the motion to dismiss her appeal by seeking a continuance or asking leave to amend her brief. The motion was taken with the case. Rule 83.05(a)(2) requires that a brief shall contain: 'A fair and concise statement of the facts without argument;' (c) provides: 'The fair and concise statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination. * * *'
In her statement of facts the defendant used more than two printed pages of her brief to relate her own testimony as to the plaintiff's alleged misconduct. By contrast, in reference to plaintiff's testimony as to defendant's alleged misconduct, she has only this to say: '* * * they were constantly fighting and bickering and that she had used physical violence on him.' In fact, the plaintiff had testified that defendant (a) struck him on frequent occasions, raked her nails across his face, threw ash trays and other objects at him, broke his glasses and threatened to stab him, (b) wanted him to change his place of residence and practice, over his protest, (c) told him that he was useless, not fit to live with her and was more or less just a country hick, (d) told him on numerous occasions that she hated him, (e) did not keep a clean house, (f) frequently accused him of being unfaithful, (g) told other persons that plaintiff tried to kill her, (h) made numerous and harassing telephone calls to him at his place of employment, (i) ordered him out of the house on several occasions, (j) used profanity, (k) that their son was present on most of these occasions, and (l) defendant would tell their son that plaintiff was no good, was useless, and not a good husband or a good father. This omitted evidence was of the essence of the case, and vital to the questions presented here for determination. Further, the defendant's statement of facts is interspersed with references to other parts of plaintiff's evidence as being 'confusing', 'vague', 'uncertain', 'a jumble of unexplained reasoning' and 'razzle dazzle.' In sum, the defendant's statement of facts was unfair and argumentative; and it did not state the evidence which was relevant to the issues presented on appeal. It clearly violated the cited rule. See the case of Kleinhammer v. Kleinhammer, Mo.App., 225 S.W.2d 377, l. c. 378, holding that even under a liberal interpretation of the new rules concerning appeals such an omission is fatal to the appeal, and quoting from the case of Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282, l. c. 283: '* * * And a statement which omits the essential facts on which an appellant's adversary relies cannot be deemed a substantial compliance with said rule. * * * ' (Now Mo.Sup.Ct. Rule 83). See also Jacob Dold Packing Co. v. General Box Co., Mo.App., 186 S.W.2d 216, 217; and Turner v. Calvert, Mo., 315 S.W.2d 118.
The purpose of Rule 83.05(a)(2) and (c) is tersely stated in Wipfler v. Basler, Mo., 250 S.W.2d 982(3):
'The statement of facts...
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