Modes v. Modes, 24274
| Decision Date | 04 April 1966 |
| Docket Number | No. 24274,24274 |
| Citation | 402 S.W.2d 14 |
| Parties | Virginia L. MODES, Appellant, v. William F. MODES, Jr., Respondent. |
| Court | Missouri Court of Appeals |
Arthur H. Stoup, Kansas City, for appellant.
William B. Waters, Liberty, for respondent, Hale, Coleberd, Kincaid & Waters, Liberty, of counsel.
This is a suit for divorce. The parties were married in 1959 and separated in June 1964. Each party had been married previously. The defendant husband had two children by a previous marriage; the plaintiff wife had no children prior to this marriage. One child was born of this marriage, who was slightly over three years old at the time of the trial.
Petition for divorce was filed by the wife and cross-petition for divorce was filed by the husband. After a trial in which voluminous testimony was given by both parties, the trial court granted a divorce to the husband on his cross-petition, granted the wife custody of the minor son of the parties, and awarded $250.00 per month child support. The parties will be referred to as they appeared below.
The sole allegation of error contained in plaintiff's brief on appeal is that 'The judgment of the trial court is against the evidence and the greater weight of the credible evidence in this case'. We are met at the outset with defendant's motion to dismiss the appeal because this point is not sufficient under Civil Rule 83.05(e), V.A.M.R., to preserve anything for review and because plaintiff's statement of facts does not comply with the requirements of Civil Rule 83.05(c) for failure to provide a concise statement of the facts relevant to the question presented for determination.
The statement of facts does leave something to be desired, but we do not believe that in this case it is so erroneous and deficient as to justify a dismissal of the appeal. As to the assignment of error in the point quoted above, it does advise the court that plaintiff contends that the evidence was insufficient to support the judgment. Therefore, while this point may not be technically sufficient, it does not result in any added burden to the court, because from the very nature of things, when the question of the sufficiency of the evidence is raised, the court must, itself, carefully study the transcript as a whole. For these reasons, we will not dismiss the appeal, but will consider the matter on its merits.
In this case tried to the court without a jury it is our duty to review the whole record and reach our own conclusions, both on the facts and the law. However, there was a direct conflict between the testimony of the husband and wife on each and every point in issue. Thus the decision of this case depends almost entirely on a determination of the credibility of the witnesses. Under such circumstances we give due deference to the conclusions of the trial judge who saw and heard these witnesses. Unless we can conclude from the record alone that the trial court erred in his conclusions as to credibility, we must affirm the judgment. This, of course, presupposes that the evidence, which was apparently believed by the trial court, is sufficient to sustain the judgment. Among the many cases setting forth the foregoing rule, see Grant v. Grant, Mo.App., 324 S.W.2d 382; Elgin v. Elgin, Mo.App., 301 S.W.2d 869; Thomas v. Thomas, Mo.App., 288 S.W.2d 689 and Noll v. Noll, Mo.App., 277 S.W.2d 853.
The testimony of the plaintiff wife, if believed, would reveal a course of physical abuse on the part of the husband amply sufficient to justify a divorce.
On the other hand, defendant husband denied such...
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...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 II, it is no more nor less than assignment I--which all told leaves us with the single qu......