Marquez v. Marquez
| Decision Date | 22 June 2004 |
| Docket Number | No. 25521.,25521. |
| Citation | 136 S.W.3d 574 |
| Parties | Jennifer Leann MARQUEZ, now Cookson, Appellant, v. W. Omar MARQUEZ, Respondent. |
| Court | Missouri Court of Appeals |
Jennifer Leann Marquez, pro se.
James R. Sharp, Sharp & Bredesen, Springfield, for respondent.
Appellant Jennifer Leann Marquez, now Cookson, ("Wife") appeals from the Judgment and Decree of Dissolution of Marriage entered March 11, 2003, which dissolved her marriage to Respondent W. Omar Marquez ("Husband"). The judgment incorporated the parties' oral child custody and child support settlement agreement that granted Husband sole legal and physical custody of the parties' minor children, ordered Wife's visitation with the children be supervised, and ordered Wife to pay $350.00 per month to Husband as child support.
Husband and Wife were married on December 19, 1997, and separated on March 9, 2000. Two children—Kesley Marquez, born December 27, 1997, and Gabriella Marquez, born January 21, 1999—were born of the marriage. On April 28, 2000, Wife filed a petition for dissolution of marriage in the Circuit Court of Greene County. In her petition, Wife requested joint legal custody of the children with her being designated as the "primary physical custodian." In his answer, Husband requested he be awarded "primary physical custody" of the children.
On April 25, 2002, the family court judge entered an Interlocutory Judgment and Decree of Dissolution of Marriage, which dissolved the marriage of Husband and Wife and divided the marital property and debts between the parties. That day, a temporary parenting plan was entered, which provided that Wife serve as the "residential parent" and granted Husband certain periods of visitation including alternate weekends, alternate holidays, and three two-week periods during the summer. The court also entered a temporary child support order that Husband pay Wife $250.00 per month. The interlocutory judgment specifically recited that the court was retaining jurisdiction to enter further orders concerning child custody, child support, and attorney fees.
On May 1, 2002, the guardian ad litem for the children filed a motion for emergency temporary custody. In the motion, the guardian ad litem stated that he had interviewed the parties and the children; that the children both reported that Wife hurt Kesley's ear when Wife became angered; and that during one interview, Gabriella asked the guardian ad litem, "Why does Mommy call me a fucker?" The guardian ad litem also attached, as support for the motion, several letters from Wife indicating alcohol usage on Wife's part. The guardian ad litem concluded that, "until the source of the children's problems [could] be determined," the children should immediately be placed in the temporary physical custody of Husband, grandparents, or Juvenile Services for foster care placement.
On the same date, a hearing was held before the family court commissioner on the guardian ad litem's motion. The hearing was attended by the guardian ad litem and Husband's counsel, while Wife's counsel appeared later that day and objected to the entry of a temporary order. The family court commissioner entered a temporary order granting Husband temporary physical custody of the children.1 Wife filed a motion to amend the temporary order of child custody together with an emergency motion for an order to return the children to her home. These motions were denied on November 6, 2002.
A subsequent hearing was held on January 14, 2003. At the hearing, Wife called the children's therapist, Leslie Brown, as a witness. Ms. Brown testified that the children informed her that Wife called them "fucker" and "bitch;" that Wife was going to put Husband in jail; that Wife hurt Kesley because Wife was mad at her; and that they saw a man at Wife's house masturbating. Ms. Brown recommended Wife enter individual therapy and stated that it would be helpful for Wife to receive alcohol and drug treatment. Ms. Brown also testified that the children appeared to be properly cared for while in Husband's care and were very happy to live with Husband. Ms. Brown felt that, at that time, Wife's visitation with the children should be supervised.
Following a recess taken after Ms. Brown's testimony, the court was informed that the parties had reached a settlement concerning all outstanding issues regarding child support and custody. The guardian ad litem indicated the parties agreed that Husband would have "sole custody" of the children, that Wife would pay Husband $350.00 per month for child support, and that Wife would have one supervised visit with the children per month—one month in Chicago, Illinois, where Husband resides, and the next month in Springfield, Missouri, where Wife resides. According to the record, both parties and their counsel were present when the guardian ad litem explained the agreement, and no one voiced any objections.2 Wife's attorney agreed to draft the findings and judgment, although he specifically noted that Wife denied all of the allegations made against her. Findings and Recommendations for Judgment from Wife's attorney were tendered on March 5, 2003, and the judgment was entered on March 11, 2003. This appeal follows.
Wife appears before this Court pro se and raises eight points on appeal. Husband, in turn, has filed a motion to dismiss for failure to comply with Rule 84.04.3 We note that Wife "is bound by the same rules of procedure as a party represented by a licensed attorney." Perkel v. Stringfellow, 19 S.W.3d 141, 145 (Mo.App.2000). "`While this court recognizes the problems faced by pro se litigants, we cannot relax our standards for non lawyers.'" Kline v. Casey's General Stores, Inc., 998 S.W.2d 140, 141 (Mo.App.1999) (quoting Sutton v. Goldenberg, 862 S.W.2d 515, 517 (Mo.App. 1993)). "`It is not for lack of sympathy but rather it is necessitated by the requirement of judicial impartiality, judicial economy and fairness to all parties.'" Id. (quoting Sutton, 862 S.W.2d at 517).
We initially acknowledge that Wife's brief fails to comply with Rule 84.04. Wife's statement of facts is not "a fair and concise statement of the facts relevant to the questions presented for determination" in violation of Rule 84.04(c), as it includes numerous inflammatory, argumentative, and prejudicial statements. Furthermore, the majority of Wife's statement of facts lacks any reference to the legal file or transcript as required by Rule 84.04(i). Wife's Points Relied On also fail to comply with Rule 84.04(d)(1) in that they do not "state concisely the legal reasons for [her] claim of reversible error" or "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Rule 84.04(d)(1)(B)-(C). Furthermore, Wife fails to include the applicable standard of review for each claim of error in violation of Rule 84.04(e).
Strictly speaking, a failure to comply with the dictates of the rule preserves nothing for appellate review. Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo.App.2000). However, we are "`more tolerant regarding technical requirements [of Rule 84.04] when the questions presented relate to the welfare of children.'" Capehart v. Capehart, 110 S.W.3d 920, 923 (Mo.App.2003) (alteration in original) (quoting Rinehart v. Rinehart, 877 S.W.2d 205, 206 (Mo.App. 1994)). Thus, "we will review the issues presented on their merits, provided `the argument is sufficient in conjunction with the points relied on to ascertain the issues being raised.'" Stangeland v. Stangeland, 33 S.W.3d 696, 703 (Mo.App.2000) (quoting Landry v. Miller, 998 S.W.2d 837, 841 (Mo.App.1999)). After reviewing Wife's points on appeal and arguments, we determine that we are able to discern her claims of error and will review those claims ex gratia.4 See Capehart, 110 S.W.3d at 923.
"Provisions in a divorce decree will be affirmed unless: 1) there is no substantial evidence to support it; 2) it is against the weight of the evidence; 3) it erroneously declares the law; or, 4) it erroneously applies the law." Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo. App.1996). "The party challenging a divorce decree bears the burden of demonstrating error." Id.
For the sake of clarity, we will review Wife's points out of order. Wife argues in Point Four that the court erred in ordering Wife's visitation with children be supervised and in Point Eight that the court erred in allowing Husband to move the children to his home in Chicago, Illinois.
We need not review these points on appeal. In Missouri, the right to appeal is statutory. Segar v. Segar, 50 S.W.3d 844, 846 (Mo.App.2001). For most civil actions, the right to appeal to is granted to "[a]ny party to a suit aggrieved by any judgment of any trial court ...." § 512.0205 (emphasis added). "A party is not aggrieved by a judgment entered pursuant to a voluntary settlement agreement." Segar, 50 S.W.3d at 847. "`Parties are estopped or waive their right to appeal under section 512.020 when a judgment is entered at their request.'" In re Marriage of Echessa, 74 S.W.3d 802, 805 (Mo.App.2002) (quoting In Interest of A.H., 963 S.W.2d 374, 377 (Mo.App.1998)). "`This follows because a judgment entered pursuant to an agreement of the parties is not a judicial determination of rights.'" Id. (quoting A.H., 963 S.W.2d at 377).
In this case, Husband and Wife entered into an agreement after the testimony of Ms. Brown. That agreement included that Wife's visitation with the children be supervised and that Husband could move the children to Chicago, Illinois.
While it would be preferable for the court to place the parties under oath and question them directly about their understanding of and agreement with the stated settlement,6 such was not necessary given the circumstances of this case. When the guardian ad litem explained the agreement to the court, he also added that "of course, the counsel can...
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