J.A.D. v. F.J.D.

Decision Date24 September 1998
Docket NumberNo. 80637,80637
Citation978 S.W.2d 336
PartiesJ.A.D., Appellant, v. F.J.D. III, and Guardian Ad Litem, Respondents.
CourtMissouri Supreme Court

William D. Rotts, Columbia, for Appellant.

Roger P. Krumm, Fulton, Chris Nelson, Hallsville, for Respondents.

Cathleen Connealy, Kathleen Matthews, Kansas City, Nory Miller, Washington, DC, for Amicus Curiae.

PER CURIAM.

J.A.D. and F.J.D. entered into a premarital agreement prior to their marriage, which occurred in 1985. Three children were born to the marriage. The parties separated in March 1994, and this dissolution action was filed the day following the separation. After eight days of hearing, the trial court ordered the marriage dissolved, awarded custody, ordered payment as required by the premarital agreement, divided the marital property, established child support, set out a visitation schedule with conditions, ordered a "telling" session, and awarded guardian ad litem and attorney fees. The case was originally appealed to the court of appeals. It was transferred to this Court after opinion, and this Court has jurisdiction. Mo. Const. art. V, sec. 10. Affirmed in part and reversed and remanded in part.

I.

The trial court's order and decree contained the following provisions:

* * *

11.a. The premarital agreement of December 10, 1984 was entered into by the parties freely, fairly, knowingly, understandingly and in good faith with full disclosure and constitutes a valid and enforceable contract made by the parties.

* * *

19. The best interests of the minor children will be met by their custody being placed with [F.J.D.] because: (a) [F.J.D.'s] greater stability; (b) [J.A.D.'s] negativism toward [F.J.D.] and it's [sic] negative impact on the children; (c) [J.A.D.'s] immaturity in seeking after repeated new love relationships and enmeshing her children's lives in her lover's lives; (d)

[F.J.D.'s] nearby close extended family; and (e) [F.J.D.'s] greater likelihood of promoting a good relationship between the children and the other parent.

* * *

26. It is in the best interests of the minor children that the Guardian ad Litem monitor a "telling" session wherein which [sic] the two daughters are told by their mother of her lesbianism. The Court recognizes the benefit to the daughters of their mother telling them herself so that they will have first hand knowledge rather than learning this from others....

These conclusions were supported by additional specific findings set out in the court's order and decree.

An appeal of the trial court's judgment was originally filed in the court of appeals. Following an opinion by that court, this Court sustained an application for transfer. The appellant did not file a substitute brief as permitted by Rule 83.08. The respondent subsequently filed a motion to strike the brief the appellant had filed in the court of appeals and to dismiss the appeal. The motion alleged violations of Rule 84.04(c), which requires a fair and concise statement of the facts, and Rule 84.04(h), which requires page references to the legal file or transcript with respect to all statements of fact and argument. This Court overruled the motion to strike except as to the statement of facts and granted appellant leave to file a new brief. Appellant's substitute brief was filed. Respondent subsequently filed a motion to strike appellant's substitute brief for violation of Rule 84.04(c) and Rule 84.04(d), which requires appropriate points relied on to be included in the brief. This motion has been taken with the case.

II.

Appellant's brief fails to meet the requirements of Rule 84.04(d). As stated previously:

Ordinarily, an appellate court sits as a court of review. Its function is not to hear evidence and, based thereon, to make an original determination. Instead, it provides an opportunity to examine asserted error in the trial court which is of such a nature that the complaining party is entitled to a new trial or outright reversal or some modification of the judgment entered. It is not the function of the appellate court to serve as advocate for any party to an appeal.... When counsel fail in their duty by filing briefs which are not in conformity with the applicable rules and do not sufficiently advise the court of the contentions asserted and the merit thereof, the court is left with the dilemma of deciding the case (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency. Courts should not be asked or expected to assume such a role....

Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978).

This Court's policy is to decide a case on its merits rather than on technical deficiencies in the brief. Generally, this Court will not exercise discretion to disregard a defective point unless the deficiency impeded disposition on the merits. A brief impedes disposition on the merits where it is so deficient that it fails to give notice to this Court and to the other parties as to the issue presented on appeal. If the defective brief fails to meet that standard, the point will be disregarded, reviewed only for plain error, or the appeal dismissed. Wilkerson v. Prelutsky, 943 S.W.2d 643 (Mo. banc 1997).

A point relied on must meet three requirements: (1) it must state the trial court's action or ruling about which the appellant complains; (2) it must state why the ruling was erroneous; and (3) it must state what was before the trial court that supports the ruling appellant contends should have been made. Murphy v. Aetna Cas. & Sur. Co., 955 S.W.2d 949 (Mo.App.1997).

III.

Appellant's first point relied on reads:

THE TRIAL COURT ERRED IN AWARDING SOLE CUSTODY OF THE CHILDREN TO FATHER BECAUSE THE CUSTODY DETERMINATION WAS NOT IN THE BEST INTERESTS OF THE CHILDREN AS REQUIRED BY MISSOURI LAW IN THAT THE EVIDENCE CLEARLY SHOWED MOTHER WAS THE BETTER CHOICE AS

CUSTODIAN AND MOTHER SHOULD HAVE BEEN GIVEN AT LEAST JOINT CUSTODY RIGHTS.

The point is defective for two reasons. The point fails to state what was before the trial court that supports the ruling appellant contends should have been made. Although it asserts evidence exists, the point fails to identify the evidence. The argument portion relating to this point is of little assistance in focusing the issue. It consists of a review of the non-exclusive statutory factors considered in awarding custody and a review of the evidence in a light favorable to J.A.D., explaining why she is the best choice and should have been given joint custody rights. An objective reading of the point and argument reveal only a broad plea that this Court substitute its custody decision for the decision of the trial court. That, of course, is not this Court's function. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

A second, and perhaps less obvious, defect is that the point relied on is so nebulous that it is impossible to identify which of several possible claims appellant is attempting to raise. These possible claims include: (1) that no substantial and credible evidence supports some unspecified factual findings of the trial court with respect to its custody decision; (2) that some unspecified evidentiary factor or factors were improperly considered; or (3) that the trial court failed to consider some essential but unspecified evidentiary factor or factors. Inadequate points create a root problem: this Court may interpret a contention differently than does the opponent or differently than was intended by the party asserting the contention. Doe v. Roman Catholic Diocese, 862 S.W.2d 338 (Mo. banc 1993)(Benton, J., dissenting). Thus, review is limited to plain error.

Plain errors affecting substantial rights may be considered when the Court finds that manifest injustice or miscarriage of justice has resulted therefrom. Rule 84.13(c). Considering the entire record in this case, considering the evidentiary factors recited by the trial court, and taking into account the non-exclusive statutory factors considered in the award of child custody, there is no plain error.

IV.

Appellant's second point relied on reads:

THE TRIAL COURT ERRED IN DENYING MOTHER CUSTODIAL RIGHTS, CONDITIONING AND RESTRICTING HER VISITATION, AND MANDATING MOTHER INFORM HER CHILDREN SHE WAS HOMOSEXUAL BECAUSE THE STATE CANNOT DISCRIMINATE AGAINST A PARENT AND VIOLATE A PARENT'S CONSTITUTIONAL RIGHTS ON THE BASIS OF HOMOSEXUALITY IN THAT THE COURT'S DENIAL OF CUSTODY AND ITS RULING WAS [sic] MADE WITHOUT JUSTIFICATION SOLELY ON THE BASIS OF MOTHER'S SEXUAL ORIENTATION.

This point relied on also fails to...

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