McGehee v. McGehee, No. 8882

CourtCourt of Appeal of Missouri (US)
Writing for the CourtTITUS; HOGAN, P.J., and STONE
Citation448 S.W.2d 300
PartiesJoseph J. McGEHEE, Plaintiff-Respondent, v. Myrtle M. McGEHEE, Defendant-Appellant.
Decision Date20 October 1969
Docket NumberNo. 8882

Page 300

448 S.W.2d 300
Joseph J. McGEHEE, Plaintiff-Respondent,
v.
Myrtle M. McGEHEE, Defendant-Appellant.
No. 8882.
Springfield Court of Appeals, Missouri.
Oct. 20, 1969.

Page 301

Esco V. Kell, West Plains, for defendant-appellant.

Harold L. Henry, West Plains, for plaintiff-respondent.

TITUS, Judge.

The second marriage for both the 82 year old plaintiff-husband and the 74 year old defendant-wife, according to the accounts of each, survived for much of its 37 years amidst circumstances foreign to the connubial bliss enjoyed ever after by the heroes and heroines of storybook fame. Concluding that 'I just don't want to be bothered the rest of my life' with the indignities allegedly offered by the wife to render his condition intolerable (§ 452.010, V.A.M.S.), the husband sued for divorce and the Circuit Court of Howell County answered his prayer. The wife, who asseverates she does not want the bonds of matrimony put asunder, has appealed.

As they appear in her brief, defendant's 'Points Relied On' present studies in abstraction penned heedless of Civil Rules 83.05(a)(3) and (e), witness: 'I. That the court erred in entering judgment for the plaintiff, because plaintiff's evidence is insufficient to justify a decree of divorce for plaintiff on the ground of general indignities. II. That the court erred in entering judgment for plaintiff, because the judgment is against the evidence and the greater weight of the evidence. III. The rule is that in a divorce case, the Appellate Court will exercise its duty to try the case de novo and enter such judgment in the case as the trial court should have entered from a review of the evidence.'

We perceive Point III as the assertion of an abstract principle of law that preserves nothing for review (Bowers v. Spinaio, Mo.App., 421 S.W.2d 790, 792--793(5)) because there is no effort made to show how the axiom relates to the action of the court as required by the rule. Yates v. White River Valley Electric Co-Operative, Mo.App., 414 S.W.2d 808, 811(3).

It has been repeatedly held that assignment II, supra, presents nothing for review on appeal (School Services of Missouri, Inc. v. Caton, Mo.App., 419 S.W.2d 954, 956(1)), yet this abstraction, through total abandonment to tolerance, has been interpolated into an advisement to 'the court that (defendant) contends that the evidence was insufficient to support the judgment.' Modes v. Modes, Mo.App., 402 S.W.2d 14, 15(2). If we, too, so consider assignment

Page 302

II, it is no more nor less than assignment I--which all told leaves us with the single question of the sufficiency of the evidence to support the judgment. Civil Rule 73.01(d), V.A.M.R. Although the last cited rule provides, inter alia, that in court tried cases 'the appellate court shall review the case upon both the law and the evidence,' it need perform this function 'only in respect to the specific matters urged by appellant as constituting error. It does not review the whole case on its own initiative to determine what result it would have reached if it were sitting as the trial judge.' Schlanger v. Simon, Mo., 339 S.W.2d 825, 828(1).

One reason for the rule requiring the 'Points Relied On' to state specifically wherein and why an appellant contends the trial court was wrong, is to facilitate a recitation in the opinion of only those facts necessary to decide the issues presented on appeal. We have not been favored with such a guide, but rather than execute a summary disposition of the appeal because of this deficiency in the brief, we seek out defendant's argument in an effort to ascertain the exact issues involved to permit disposition of the case on its merits. Civil Rule 83.24, V.A.M.R. According to our understanding, defendant urges in her argument that plaintiff's evidence did not 'measure up' to the proof necessary to establish defendant's guilt of indignities, principally because the proffered testimony was illustrative of only infrequent acts or words of misconduct. This is premised upon the oft repeated declarations that to constitute indignities sufficient to warrant the granting of a divorce, the episodes complained of must amount to an intolerable continuous course of conduct that...

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6 practice notes
  • Frederick v. Frederick, No. 9024
    • United States
    • Court of Appeal of Missouri (US)
    • January 14, 1971
    ...intolerable, they would have constituted indignities within the contemplation and meaning of § 452.010. McGehee v. McGehee, Mo.App., 448 S.W.2d 300, 302(2). But it would not have followed necessarily and as a matter of course that plaintiff was entitled to a decree of divorce, for the burde......
  • Nutz v. Shepherd, No. 9212
    • United States
    • Missouri Court of Appeals
    • January 22, 1973
    ...Rule 84.04(d), V.A.M.R.; Del Monte Corp. v. Stark and Son Wholesale, Inc., Mo.App.,474 S.W.2d 854; McGehee v. McGehee, Mo.App., 448 S.W.2d 300. We therefore decline any invitation to consider the same but would (a) direct defendant's attention to Ragan v. Ragan, Mo., 445 S.W.2d 825, and Haf......
  • C--- C--- v. J--- A--- C---, No. KCD26252
    • United States
    • Missouri Court of Appeals
    • September 4, 1973
    ...as in the case before us there is direct and irreconcilable conflict in the evidence on nearly every point in issue. McGehee v. McGehee, 448 S.W.2d 300, 303 Of course, both the trial court and this court are bound by the one '* * * inflexible and unyielding principle * * * that the welfare ......
  • Wheeler v. Wheeler, No. 9217
    • United States
    • Missouri Court of Appeals
    • April 6, 1972
    ...rule.' We perceive the points in defendant's brief as abstract statements that preserve nothing for review. McGehee v. McGehee, Mo.App., 448 S.W.2d 300, 301(1). Since, however, this case concerns the welfare of a child, we cannot bring ourselves to dispatch the appeal for rule violation. Ra......
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6 cases
  • Frederick v. Frederick, No. 9024
    • United States
    • Court of Appeal of Missouri (US)
    • January 14, 1971
    ...intolerable, they would have constituted indignities within the contemplation and meaning of § 452.010. McGehee v. McGehee, Mo.App., 448 S.W.2d 300, 302(2). But it would not have followed necessarily and as a matter of course that plaintiff was entitled to a decree of divorce, for the burde......
  • Nutz v. Shepherd, No. 9212
    • United States
    • Missouri Court of Appeals
    • January 22, 1973
    ...Rule 84.04(d), V.A.M.R.; Del Monte Corp. v. Stark and Son Wholesale, Inc., Mo.App.,474 S.W.2d 854; McGehee v. McGehee, Mo.App., 448 S.W.2d 300. We therefore decline any invitation to consider the same but would (a) direct defendant's attention to Ragan v. Ragan, Mo., 445 S.W.2d 825, and Haf......
  • C--- C--- v. J--- A--- C---, No. KCD26252
    • United States
    • Missouri Court of Appeals
    • September 4, 1973
    ...as in the case before us there is direct and irreconcilable conflict in the evidence on nearly every point in issue. McGehee v. McGehee, 448 S.W.2d 300, 303 Of course, both the trial court and this court are bound by the one '* * * inflexible and unyielding principle * * * that the welfare ......
  • Wheeler v. Wheeler, No. 9217
    • United States
    • Missouri Court of Appeals
    • April 6, 1972
    ...rule.' We perceive the points in defendant's brief as abstract statements that preserve nothing for review. McGehee v. McGehee, Mo.App., 448 S.W.2d 300, 301(1). Since, however, this case concerns the welfare of a child, we cannot bring ourselves to dispatch the appeal for rule violation. Ra......
  • Request a trial to view additional results

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