Harbaugh v. Harbaugh
| Decision Date | 13 October 1971 |
| Docket Number | No. 9094,9094 |
| Citation | 472 S.W.2d 449 |
| Parties | William Edward HARBAUGH, Plaintiff-Respondent, v. Patsy Rae HARBAUGH (Tachett), Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Max H. Glover, Webb City, for defendant-appellant.
F. Jack Burress, Joplin, for plaintiff-respondent.
This is an action to modify the custody provisions of a decree of divorce. Plaintiff was granted a divorce from defendant by the Circuit Court of Jasper County on April 13, 1969. The parties are the parents of three children, two small boys and a little girl, Sherrie, who at trial time was about two and one-half years old. The original decree provided that the plaintiff was to have custody of the two boys and defendant was to have custody of the little girl. After a hearing on this motion to modify the decree, the trial court granted custody of all three children to the plaintiff, subject to defendant's right to visit the children at reasonable times. The defendant appeals.
We observe at the outset that the defendant's brief--the only brief filed here--is seriously deficient, so seriously deficient, in fact, as to justify a dismissal of the appeal. Rule 83.05, V.A.M.R., requires that an appellant, as a preliminary to the consideration of an appeal, set forth the facts disclosed by the evidence and make a fair and concise statement of the facts relevant to the questions presented for determination. Rule 83.05(c), V.A.M.R.; Gorman v. Kauffman, Mo.App., 188 S.W.2d 70, 71(1, 2). Rule 83.05 further requires that the appellant state briefly and concisely what actions or rulings of the trial court are claimed to be erroneous, and briefly and concisely state why it is contended the court was wrong in any action or ruling sought to be reviewed. Perfection is not required, but Rule 83.05(a)(3) and (c) contemplate some particularization of the question or defect presented. In re Estate of James, Mo.App., 459 S.W.2d 536, 538(1). Mere abstract statements do not satisfy this requirement, Yates v. White River Valley Electric Co-operative, Mo.App., 414 S.W.2d 808, 811(3), and as this court pointed out there, even in a court-tried case the burden is still on the appellant to demonstrate specific error, and we are required to review the case only in respect to those specific matters urged by the appealing party. Schlanger v. Simon, Mo., 339 S.W.2d 825, 828, 831(1) (8); Yates v. White River Valley Electric Co-operative, supra, 414 S.W.2d at 811(4); and see Pfotenhauer v. Ridgway, 307 Mo. 529, 534, 271 S.W. 50, 51(5). The purpose of these provisions, we may again note, is not simply to facilitate the work of this court, though that is one purpose of the rules of appellate practice. DeCharia v. Fuhrmeister, Mo.App., 440 S.W.2d 182, 184(3). As noted by the Supreme Court in Schlanger v. Simon, supra, 339 S.W.2d at 828(3), and by this court in Yates v. White River Valley Electric Co-operative, supra, 414 S.W.2d at 812, we cannot in fairness become an advocate for the appellant and search the evidence in an effort to find some theory, and facts in support thereof, to establish a general assertion that the trial court reached the wrong result.
The brief filed by the appellant on this appeal is not quite as deficient in the statement of facts as the brief considered in Walker v. Thompson, Mo., 338 S.W.2d 114, 117(8), where the appellant's 'Statement of Facts' did not contain a single sentence concerning the facts or evidence in the case relevant to the issues on appeal; nevertheless, appellant has limited herself to 21 printed lines which very sketchily show, chronologically, the pleadings filed and the orders entered in the case. The appellant's statement of points relied on has the same vices as that noted in the Yates case; no effort has been made to correlate the statements of principle made with the facts of the case. We would be fully justified in dismissing the appeal because of the inadequacy of the brief filed. Walker v. Thompson, supra, 338 S.W.2d at 118(10); DeCharia v. Fuhrmeister, supra, 440 S.W.2d at 184(3); Gorman v. Kauffman, supra, 188 S.W.2d at 71--72(1, 2) (3) (4, 5).
Because this case involves the custody and welfare of a small child, we decline to dismiss the appeal without consideration on the merits, and we have carefully reviewed the 51-page record filed on both the law and the evidence, as prescribed by Rule 73.01(d), V.A.M.R. Nevertheless, neither...
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...may not classify such utterances other than mere abstractions which short the commandments of Rule 84.04(d). Harbaugh v. Harbaugh, 472 S.W.2d 449, 450(1) (Mo.App.1971). They do not purport to explain 'why' there was no contract. Neither does defendant undertake to enlighten us as to 'why' s......
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...however, not to do so because issues of child custody exist. See In re Reeder, 946 S.W.2d 1, 6 (Mo.App. 1997); Harbaugh v. Harbaugh, 472 S.W.2d 449, 451 (Mo.App. 1971). Mother's sole point and argument on appeal maintains the trial court erred when it treated this paternity case as an initi......
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...custody are at issue, we are even more cautious. See, e.g., R.W.D. v. L.J.D., 567 S.W.2d 376, 376 (Mo.App. 1978); Harbaugh v. Harbaugh, 472 S.W.2d 449, 451 (Mo.App.1971). Ultimately, our determination hinges on whether the of Rule 84.04 impedes disposition of the merits by failing to make t......
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