In re Marriage of House

• Decision Date: 14 August 2009
• Docket Number: No. SD 29295.,SD 29295.
• Citation: 292 S.W.3d 478
• Parties: In re: The MARRIAGE OF Carol Leigh HOUSE and Larry Joe House. Carol Leigh House, Petitioner-Respondent, v. Larry Joe House, Respondent-Appellant.
• Court: Missouri Court of Appeals

292 S.W.3d 478

In re: The MARRIAGE OF Carol Leigh HOUSE and Larry Joe House Carol Leigh House, Petitioner-Respondent, v.Larry Joe House, Respondent-Appellant.

No. SD 29295.

Missouri Court of Appeals, Southern District, Division Two.

August 14, 2009.

Joanne M. McCracken, of Garfield, AR, for Appellant.

W. Henry Johnson, of Neosho, MO, for Respondent.

DON BURRELL, Presiding Judge.

Larry Joe House("Husband") appeals the judgment dissolving his marriage to Carol Leigh House("Wife").Husband claims the trial court erred in: 1) denying his request to continue the trial setting; 2) overvaluing a particular piece of marital property; 3) awarding Wife maintenance; and 4) depriving him of continuing and meaningful contact with his children.Wife filed a motion to dismiss the appeal, alleging all of Husband's points relied on failed to follow the requirements of Rule 84.04(d).¹Finding all of Husband's points on appeal deficient in some respect, and no trial court error in those that are capable of being reviewed in spite of the rule violations, we affirm the judgment.

Viewed in the light most favorable to the judgment, Ludwig v. Ludwig,126 S.W.3d 466, 474(Mo.App. W.D.2004), the facts are as follows.The parties have six minor children who, at the time this action was commenced, ranged in age from four months to nine-and-a-half years old.About forty-five days after filing her petition for dissolution, Wife filed a motion requesting pendente lite relief.Two months later, the trial court issued a pendente lite order setting child support and a child contact schedule in accordance with the parties' stipulation.This order designated Wife as the residential custodian for mailing and education purposes and awarded Husband the same contact schedule (less a week during the summer that was added in the final judgment) that Husband now says constitutes an abuse of the trial court's discretion.

The trial court's final dissolution judgment awarded Wife and Husband "joint custody of the minor children."Wife was "designated as the residential custodian of the children for purposes of education and mailing," and Husband was awarded "specific visitation" as follows:

a. Once the children are three (3) years of age, alternating weekends from 6:00 p.m. Friday to 6:00 p.m. the following Sunday;

b. With regard to the children, under the age of three (3), [Husband] shall have visitation on alternating weekends from 9:00 a.m. Saturday until 6:00 p.m. Saturday and from 9:00 a.m. Sunday until 6:00 p.m. Sunday;

...

h. [Husband] shall be entitled to one (1) week of summer visitation each summer.Said visitation shall not include overnight for the children under three (3).[Husband] shall provide [Wife] with 30-day's [sic] prior written notice of his intention to exercise summer visitation;

i. [Husband] shall be the party responsible to pick up the children at the commencement of each visitation period and return the children at the termination of each visitation period.

Other facts relevant to the disposition of this appeal will be set forth in our discussion of the point to which they relate.

We will begin our analysis with a recitation of the rules that govern the drafting of an appellant's points relied on.From there, we will set forth each of Husband's points and determine whether they are in compliance with those rules.If a particular point is deficient, we will then determine whether the deficiency is so serious as to prevent review.If, in spite of the rule violation(s), we believe we are able to review the allegation of error on its merits, we will then do so.

Rules Governing Points Relied On

Rule 84.04(d)(1) provides that a point relied on in an appellant's brief shall "(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."Although its wording has changed, the purpose of the rule remains as described in Thummel v. King,570 S.W.2d 679, 685(Mo. banc 1978):

[C]ompliance with these requirements is a matter of common sense if counsel bear in mind the informational purpose of the brief.After stating the ruling the trial court actually made, it stands to reason that the point should then specify Why the ruling was erroneous.This requirement essentially contemplates a statement which ordinarily will closely approximate what appellant believes should have been the trial court's conclusion of law on the point being addressed.After stating why the ruling was erroneous, the court then must be informed Wherein the testimony or evidence gives rise to the ruling for which appellant contends.

A point that claims error but then fails to allege why the ruling was erroneous or fails to refer to testimony or other evidence that supports the appellant's contention preserves nothing for appellate review and constitutes grounds for dismissing the appeal.Midwest Arbitration & Mediation, Inc. v. Condry,17 S.W.3d 147, 148-49(Mo.App. S.D.2000)(citingMurphy v. Aetna Cas. & Sur. Co.,955 S.W.2d 949, 950(Mo.App. S.D.1997)andSkalecki v. Small,976 S.W.2d 566, 568(Mo.App. S.D.1998)).

"Deficient points relied on force the appellate court to search the argument portion of the brief or record itself to determine an appellant's assertions, thereby wasting judicial resources, and, worse yet, creating the danger that the appellate court will interpret the appellant's contention differently than appellant intended or his opponent understood."Condry,17 S.W.3d at 149.However, "[n]otwithstanding non-compliance with Rule 84.04, appellate courts may exercise discretion and attempt to resolve issues on their merits unless the defective point impedes disposition of the case on its merits."Atkins v. McPhetridge,213 S.W.3d 116, 120(Mo. App. S.D.2006).

Point I: Motion for Continuance

Husband's first point reads as follows:

The Trial Court erred in denying the motion for a continuance by the attorney who agreed to represent [Husband] because said ruling was an abuse of discretion, and inconsistent with Mo. Court R. 65 in that the Trial Court allowed [Husband's] attorney to withdraw less than three weeks before trial, there had been no other continuances and no prejudice to the parties would have resulted because temporary orders were in place mandating payment of marital financial obligations, child support and regulating visitation.

While Husband's point fails to allege how the trial court's ruling was inconsistent with the requirements of Rule 65, the deficiency is not so serious as to impede our ability to review the merits (or lack thereof) of his claim of error.

Husband hired counsel after Wife filed her petition, and that attorney represented him throughout the preliminary stages of the case.On January 23, 2008, a pre-trial conference was held and a trial date of May 23, 2008, was set.On April 24, 2008, Husband's attorney filed a motion to withdraw.The trial court allowed Husband's attorney to withdraw on May 5, 2008.Over two weeks later — a few days before trial was scheduled to begin — a local attorney appeared and said he would be willing to represent Husband if the court would reschedule the pending trial to a later date.The trial court refused to continue the trial setting, and Husband was not represented by counsel at trial.

The decision to grant or deny a continuance "is within the discretion of the trial court."Bydalek v. Brines,29 S.W.3d 848, 855(Mo.App. S.D.2000).In addition, we will find the trial court abused its discretion only if the record clearly shows that the movant was "free of any dereliction."Chapman v. St. Louis County Bank,649 S.W.2d 920, 924(Mo.App. E.D.1983)(stating"[o]nly in extreme cases where it clearly appears that the moving party ... is free of any dereliction will this court disturb the trial court's decision").

The procedure for requesting a continuance is governed by Rule 65.03, which states:

An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based, unless the adverse party consents that the application for continuance may be made orally.In any application for continuance made within thirty days of the date the matter is scheduled to be heard, the lawyer shall certify that the party for whose benefit the motion is filed has been consulted, that the party is aware of the contents of the motion, and the party's position with respect to the motion.

Although Husband complains the trial court's denial of a continuance was inconsistent with the requirements of Rule 65, the record does not show that a written motion for continuance in compliance with that rule was ever filed or that Wife consented to an oral application.A statement by an attorney who does not represent either party to the effect that he will enter his appearance if a pending trial setting is continued does not remotely constitute a motion for continuance made pursuant to Rule 65.03.Though Husband points out that the trial court stated on the morning of trial that it did not continue the trial setting because Wife "did not consent to the continuance," no such explanation was necessary."When a moving party ignores the affidavit or verification requirements of Rule 65.03, no abuse can result in denying the continuance."Bydalek,29 S.W.3d at 856.Here, Husband followed none of the requirements of Rule 65.03, and the same result follows.Point I is denied.

Point II: Marital Property Division

Husband's second point states:

The Trial Court erred in its division of marital property, because said ruling was against the weight of the evidence, an abuse of discretion, and inconsistent with Mo.Rev.Stat.[section] 452.330, in that the division of...