Pittman v. Reynolds
| Citation | 679 S.W.2d 892 |
| Decision Date | 16 October 1984 |
| Docket Number | No. WD,WD |
| Parties | Barbara L. (Reynolds) PITTMAN, Respondent, v. Franklin E. REYNOLDS, Appellant. 35172. |
| Court | Missouri Court of Appeals |
Lamar Dye, Kansas City, for appellant.
John Kurtz, Popham, Conway, Sweeny, Fremont & Bundschu, P.C., Kansas City, for respondent.
Before CLARK, P.J., and DIXON and LOWENSTEIN, JJ.
This is a proceeding for modification of a divorce decree in which respondent, the former wife, sought and was granted an increase in child support payments from appellant and attorney fees. After the order was entered setting the amount of child support and allowing the fees, appellant filed successive motions seeking rehearing by the trial court. Those motions were overruled and, on this appeal, the appellant contends the trial court erred in failing to grant the relief requested in the motions. The appeal is dismissed for want of jurisdiction to consider the subject matter presented in the appeal.
The case originates in a decree of divorce entered August 8, 1969. In that judgment, appellant was ordered to pay support of $25.00 per week for each of three children born of the marriage. No change was sought or ordered in the amount of support until 1983 when respondent moved to increase the allowance. The motion was contested by appellant and, after a hearing, the court ordered payments increased to $50.00 per week per child. The date of the order was July 13, 1983.
On July 23, 1983, appellant filed a motion "To Set Aside Order Of Child Support And Grant Rehearing." The motion contended that appellant could supply added evidence demonstrating his inability to pay the increased amount of child support and suggested that the evidence had not been offered at the motion hearing through inadvertence. Before that motion was ruled, appellant filed a supplementary motion for rehearing on the ground of "newly discovered" evidence. According to the motion, the evidence consisted of proof that subsequent to entry of the order on July 13, 1983, appellant had been discharged from his employment and was without income. Both motions were overruled on August 8, 1983 and a notice of appeal to this court was filed August 18, 1983.
The notice of appeal indicated the judgment or order appealed to be the order overruling the motions for rehearing described above. Respondent has moved to dismiss the appeal on the ground that an order overruling a motion for rehearing is not an appealable order.
It has long been the settled law that the denial of an after trial motion is not an appealable order but that appeal must be taken from the judgment to which the motion was directed. Haywood v. Haywood, 527 S.W.2d 36 (Mo.App.1975). A notice of appeal which seeks review on the basis of a denial of a motion for new trial or other after judgment motion overruled or denied is completely ineffectual to bring anything before the appellate court. Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882, 884 (Mo.App.1974). Considering only the content of the notice of appeal as presented in this case, the appeal is subject to dismissal on the grounds announced in the above cited cases.
We are aware that inadequacy in the content of the notice of appeal has frequently been waived by the appellate courts of this state where the interests of justice were perceived by the court to warrant consideration of the merits of the appeal as briefed and argued. City of Joplin v. Joplin Water Works Co., 386 S.W.2d 369 (Mo.1965); State ex rel. State Highway Commission v. Kendrick, 383 S.W.2d 740 (Mo.1964); Moore v. Rollmo Corp., 575 S.W.2d 859 (Mo.App.1978). The doctrine of leniency, however has apparently been extended ex gratia and without discernable uniformity. LaBarge v. LaBarge, 627 S.W.2d 647 (Mo.App.1981); Lucky v. Avon Products, Inc., 589 S.W.2d 364 (Mo.App.1979). Where violation of the appeal requirements of Rule 81.08(a) has not resulted in dismissal of the...
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...to appeal from the unspecified order and that the opposing party had not been misled to his detriment. See further, Pittman v. Reynolds, 679 S.W.2d 892, 893 (Mo.App.1984); Anthony v. Morrow, 306 S.W.2d 581, 583 (Mo.App.1957). It is true that Weller and its progeny, except for Williams, supr......
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...or absence of a good faith attempt to present issue cognizable for appeal and discernable from the briefs and record. Pittman v. Reynolds, 679 S.W.2d 892 (Mo.App.1984). In the instant case, the conditions warrant leniency and, in the interests of disposing of the controversy, the appeal is ......
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