In re Marriage of Smith

Decision Date24 March 2009
Docket NumberNo. ED 90998.,ED 90998.
Citation283 S.W.3d 271
PartiesIn re MARRIAGE OF John J. SMITH and Lora J. Smith. John J. Smith, Petitioner/Appellant, v. Lora J. Smith, Respondent/Respondent.
CourtMissouri Court of Appeals
283 S.W.3d 271
In re MARRIAGE OF John J. SMITH and Lora J. Smith.
John J. Smith, Petitioner/Appellant,
v.
Lora J. Smith, Respondent/Respondent.
No. ED 90998.
Missouri Court of Appeals, Eastern District, Division Four.
March 24, 2009.

[283 S.W.3d 273]

John J. Smith, Saint Charles, MO, pro se.

Michael C. Todt, David J. Howard, Todt, Ryan & McCulloch, L.L.C., St. Charles, MO, for respondent.

Before NANNETTE A. BAKER, C.J., KATHIANNE KNAUP CRANE, J., and MARY K. HOFF, J.

PER CURIAM.


Husband, John J. Smith, an attorney acting pro se, appeals from a decree of dissolution of marriage. On appeal, he challenges the trial court's findings, the maintenance award, and the attorney's fee award. Wife, Lora J. Smith, has moved to dismiss husband's appeal on the ground that husband's brief fails to comply with the requirements of Rule 84.04. Husband's brief fails to comply with Rule 84.04 so substantially that we cannot review this appeal. In addition, his legal file fails to comply with Rule 81.12. The appeal is dismissed.

Statement of Facts—Rule 84.04(c)

The statement of facts in an appellant's brief must be a fair and concise recitation of the facts relevant to the questions presented for determination, and the statement of facts may not contain argument. Rule 84.04(c); In re Marriage of Weinshenker, 177 S.W.3d 859, 862 (Mo. App.2005). "`The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case.'" Id. (quoting Kent v. Charlie Chicken, II, Inc., 972 S.W.2d 513, 515 (Mo.App.1998)). Here, the statement of facts fails to satisfy this standard for several reasons.

First, the statement of facts is not concise. It contains an extensive discussion of matters not relevant to the issues raised on appeal, including a lengthy description of settlement negotiations, a dispute over a settlement agreement, and wife's conduct in pretrial litigation. Second, the statement is argumentative. It criticizes the findings of the trial court and sets out contradictory evidence. Third, it fails to support many factual statements with citations to the record, in violation of Rule 84.04(i), and it refers to matters not in the record. Finally, the statement of facts omits, minimizes, or mischaracterizes relevant facts supporting the trial court's findings.

An appellant may not simply recount his or her version of the events, but is required to provide a statement of the evidence in the light most favorable to the judgment. Weinshenker, 177 S.W.3d at 862. An appellant's task on appeal is to

283 S.W.3d 274

explain why, even when the evidence is viewed in the light most favorable to the respondent, the law requires that the judgment of the trial court be reversed. Evans v. Groves Iron Works, 982 S.W.2d 760, 762 (Mo.App.1998). Failure to provide a fair and concise statement of the facts that complies with Rule 84.04(c) is a basis for dismissal of the appeal. Weinshenker, 177 S.W.3d at 863; In re Marriage of Shumpert, 144 S.W.3d 317, 320 (Mo.App.2004); Lemay v. Hardin, 108 S.W.3d 705, 709 (Mo.App.2003).

Points Relied On—Rule 84.04(d)

We reproduce the points relied on verbatim:

A. The Standard of Review.

B. The Findings, Conclusions and Judgment of Dissolution entered by the trial judge are vague, ambiguous and conflicting to such a degree as to require reversal.

C. The Trial Court's Findings Regarding the Award of Maintenance and Attorney Fees Are Not Supported By Substantial Evidence, Are Against The Weight Of The Evidence And Erroneously Declares And Misapplies The Law.

D. The Trial Court's Award of Maintenance and Attorney's Fees to Respondent Is An Abuse of Discretion.

Each of these points violates Rule 84.04(d). The first point is merely a title, "The Standard of Review," and not a point relied on. Accordingly, we do not consider it further.

Each of the three remaining points fails to state concisely legal reasons for the claims of reversible error and fails to explain in summary fashion why, in the context of the case, those legal reasons support the claims of reversible error, in violation of Rule 84.04(d)(1)(B) and (C). See In re Marriage of Fritz, 243 S.W.3d 484, 486 (Mo.App.2007); Weinshenker, 177 S.W.3d at 863; Shumpert, 144 S.W.3d at 320. Specifically, the second point makes a blanket challenge to the whole judgment; it does not identify which findings and conclusions are ambiguous or conflicting, see Finnical v. Finnical, 81 S.W.3d 554, 560 (Mo.App.2002), and it does not explain why the ambiguity or conflict requires reversal. See Roberson v. KMR Const., LLC, 208 S.W.3d 320, 322 (Mo.App.2006); Loumiet v. Loumiet, 103 S.W.3d 332, 344-45 (Mo. App.2003). The third point likewise fails to specify which findings are erroneous. Further, its legal reason for the error complained of is an abstract statement that recites the standard of review from Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). This does not comply with Rule 84.04(d)(1). Fritz, 243 S.W.3d at 486 (citing Paull v. Paull, 819 S.W.2d 68, 72 (Mo.App.1991)). The fourth point is also an abstract statement and does not explain why either the award of maintenance or the award of attorney's fees was an abuse of discretion. In addition, the third and fourth points each encompass two errors, which should have been stated in separate points. See Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 283 n. 2 (Mo.App.1999).

A point relied on that cannot be understood without resorting to the record or the argument portion of the brief preserves nothing for appellate review. Fritz, 243 S.W.3d at 487. "`The requirement that the point relied on clearly state the contention on appeal is not simply a judicial word game or a matter of hypertechnicality on the part of appellate courts.'" Weinshenker, 177 S.W.3d at 863 (quoting Thummel v. King, 570 S.W.2d 679, 686 (Mo....

To continue reading

Request your trial
27 cases
  • Herschend v. Herschend
    • United States
    • Missouri Court of Appeals
    • September 30, 2015
  • Smith v. Smith
    • United States
    • Missouri Court of Appeals
    • March 28, 2017
    ...the dissolution judgment. We dismissed the appeal for failure to comply with Rule 84.04 and Rule 81.12. Smith v. Smith (In re Marriage of Smith), 283 S.W.3d 271, 273 (Mo. App. E.D. 2009).While that appeal was pending, Lora filed a motion seeking appellate attorney's fees with the trial cour......
  • Tatum v. Tatum
    • United States
    • Missouri Court of Appeals
    • May 21, 2019
    ...of events, but is required to provide a statement of the evidence in the light most favorable to the judgment." In re Marriage of Smith, 283 S.W.3d 271, 273 (Mo. App. E.D. 2009) (citation omitted). "An appellant’s task on appeal is to explain why, even when the evidence is viewed in the lig......
  • Yates v. Briggs & Stratton
    • United States
    • Missouri Court of Appeals
    • February 2, 2010
    ...an appellant's allegations without doing his work for him, in which case we effectively act as his advocate." In re Marriage of Smith, 283 S.W.3d 271, 275 The violations of Rule 84.04 in Yates' brief are so serious as to impede appellate review. State ex rel. Greene County v. Barnett, 231 S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT