Marriage of Haugh, In re

Decision Date28 October 1998
Docket NumberNo. 21875,21875
Citation978 S.W.2d 80
PartiesIn re the MARRIAGE OF Debra Lynn HAUGH and Michael Vernon Haugh, Sr. Debra Lynn HAUGH, Respondent, v. Michael Vernon HAUGH, Sr., Appellant.
CourtMissouri Court of Appeals

John T. McMullan, Pelts, McMullan & Edgington, Kennett, for Appellant.

Charles S. Williams, Kennett, W. Edward Reeves, Caruthersville, for Respondent.

Before PREWITT, P.J., and CROW and BARNEY, JJ.

PER CURIAM.

Debra Lynn Haugh ("Debbie") 1 brought this action to dissolve her marriage to Michael Vernon Haugh, Sr. ("Mike"). 2 Mike, in an amended answer, denied the marriage was irretrievably broken. The trial court, after hearing evidence, found otherwise.

The trial court entered judgment which, inter alia: (a) dissolved the marriage; (b) granted Debbie "general care, custody and control" of the parties' six children; 3 (c) awarded Mike "reasonable rights of visitation" with the children "under the supervision of [Debbie]"; (d) ordered Mike to pay child support of $150 per month per child; (e) divided the marital property; (f) awarded Debbie a $7,500 "judgment" against Mike "to equalize the division of marital property."

Mike appeals, averring the trial court erred in (1) finding the marriage irretrievably broken, (2) granting Debbie "general care, custody and control" of the children, and (3) classifying a parcel of real estate as marital property.

Appellate review of a judge-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). There, the court construed the predecessor of Rule 73.01(c) 4 to mean that the judgment will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. at 32. In Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991), the court held the Murphy standard applies to appellate review of decrees of dissolution of marriage. In applying that standard, an appellate court defers to the trial court's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree and disregarding all contrary evidence and inferences. Mehra, 819 S.W.2d at 353. That is because credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of the testimony of any witness. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988).

The parties married November 10, 1981. It is unnecessary to set forth the names of their children; however, the children's birth dates are relevant in that the factors considered by the trial court in determining custody included a report by the children's guardian ad litem regarding his interviews with the three eldest children. The birth dates were October 10, 1982, September 15, 1984, April 27, 1986, January 11, 1990, October 17, 1991, and June 1, 1993. The parties separated July 26, 1995.

In addressing Mike's claims of error, this court begins with his second point. As reported earlier, it assails the trial court's custody determination. The point reads:

"The [trial court] erred in awarding the general care, custody and control of the unemancipated minor children of the marriage to [Debbie], subject to supervised visitation awarded to [Mike] in that such an order is contrary to the weight and sufficiency of the evidence presented to the Court at trial."

Rule 84.04(d) reads, in pertinent part:

"The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...."

The purpose of Rule 84.04(d) and the necessity of obeying it are extensively discussed in Thummel v. King, 570 S.W.2d 679, 684-88 (Mo. banc 1978), one of the most frequently cited cases in Missouri jurisprudence.

In J.A.D. v. F.J. D., III, 978 S.W.2d 336 (Mo. banc 1998), the Supreme Court of Missouri found an appellant's points relied on defective under Rule 84.04(d). The court explained that 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. 978 S.W.2d at 338.

One of the points relied on in J.A.D. read:

"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."

978 S.W.2d at 338-339.

The Supreme Court held the point defective for two reasons, one of which was that it failed to state what was before the trial court that supported the ruling the appellant contended should have been made. 978 S.W.2d at 339. The Supreme Court reviewed the point for plain error only. 978 S.W.2d at 339.

Mike's second point is afflicted with the same defect as the above-quoted point from J.A.D. Mike's second point fails to set forth what was before the trial court that supports the ruling Mike contends should have been made. Mike's second point presents only the unadorned assertion that the trial court's custody determination "is contrary to the weight and sufficiency of the evidence." The point yields no clue as to wherein or why that is so, and supplies no hint as to what evidence supported an award of "general care, custody and control" of the children to Mike.

Missouri cases have consistently held points relied on such as Mike's second point present nothing for review. Gibson v. Gibson-Cato, 941 S.W.2d 868, 870-71 (Mo.App. S.D.1997); Porter v. Emerson Electric Co., 895 S.W.2d 155, 160-61 (Mo.App. S.D.1995); Brown v. Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 339 (Mo.App. S.D.1991); Best v. Culhane, 677 S.W.2d 390, 394 (Mo.App. E.D.1984); Tripp v. Harryman, 613 S.W.2d 943, 950 (Mo.App. S.D.1981).

This court holds Mike's second point presents nothing for review. However, consistent with the Supreme Court's treatment of the defective point in J.A. D., this court will review Mike's second point for plain error per Rule 84.13(c). That rule grants an appellate court discretion to consider unpreserved errors if the court finds manifest injustice or miscarriage of justice resulted therefrom.

In making its custody determination, the trial court found:

"[Mike] has used excessive force by frequent corporal punishment of the children as reported by the guardian ad litem and therefore visitation with said children by [Mike] under the supervision of [Debbie] is necessary because unrestricted visitation by [Mike] would endanger the children's physical health or impair their emotional development and such visitation is in the best interest of said children and will protect their interest as victims of domestic violence[.]"

Having assiduously studied the evidence, including the guardian ad litem's report of his interviews with the three eldest children, and mindful that credibility of the witnesses was for the trial court's evaluation, this court holds the trial court committed no error, plain or otherwise, in its custody determination. 5 This court finds the trial court's custody determination is supported by substantial evidence and is not against the weight of the evidence, that no error of law appears therein, and that an opinion recounting the evidence on the custody issue would have no precedential value. Accordingly, the trial court's custody determination is affirmed in compliance with Rule 84.16(b)(1) and (5).

This court next addresses Mike's first point; it reads:

"The [trial court] erred in finding that [Mike] had behaved in such a way that [Debbie] cannot be reasonably be expected to live with [him] and therefore, the marriage between the parties cannot be preserved and therefore, the marriage is irretrievably broken in that clear, cogent and convincing evidence was presented at trial which establishes that [Debbie] and [Mike] behaved very predictably toward one another and lived in an alternative lifestyle by mutual choice for an extended number of years, thereby establishing that [Debbie] could reasonably be expected to live with [Mike]."

Mike's first point is plagued by the same flaw that afflicts his second. The first point avers there was "clear, cogent and convincing evidence" that Debbie could reasonably be expected to live with Mike, hence the trial court erred in finding the marriage irretrievably broken. However, the point surrenders no inkling as to what that evidence was, and leaves this court to wonder wherein and why such evidence established that Debbie could reasonably be expected to live with Mike.

The only intimation about such evidence is the bare averment that the parties "lived in an alternative lifestyle by mutual choice for an extended number of years." The nature of the lifestyle, and how it demonstrated Debbie could reasonably be expected to continue living with Mike, are consigned to speculation.

For the reasons set forth in this opinion's discussion of Mike's second point, this court holds his first point presents nothing for review. Nonetheless, this court has examined all of the evidence pertinent to the issue of whether the marriage is irretrievably broken.

Viewed favorably to the trial court's finding on that issue, the evidence is sufficient to establish that Mike's behavior toward Debbie and the children became increasingly dictatorial and repressive, ultimately becoming so intolerable that Debbie fled with the children. In the words of Debbie's brief: "[C]redible evidence [demonstrated] that Mike placed unreasonable demands upon [Debbie] and the parties' children and behaved in an abusive and dictatorial manner...

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