Rawlings v. Taylor, 25560

• Decision Date: 25 February 1972
• Docket Number: No. 25560,25560
• Citation: 477 S.W.2d 737
• Parties: Clara Jean RAWLINGS (Taylor), Appellant, v. Raymond Lee TAYLOR, Respondent.
• Court: Missouri Court of Appeals

Page 737

477 S.W.2d 737

Clara Jean RAWLINGS (Taylor), Appellant, v. Raymond Lee TAYLOR, Respondent.

No. 25560.

Missouri Court of Appeals, Kansas City District.

Feb. 25, 1972.

Graham, Paden, Welch & Martin, Michael J. Albano, Independence, for appellant.

Jones & McDaniel, Robert C. Jones, Kansas City, for respondent.

SHANGLER, Chief Judge.

This appeal is the culmination of a sequence of proceedings and judgments by which appellant mother was first relieved, and then denied restoration, of the custody of her infant daughter Sabrina Jean Taylor. On June 11, 1970, the mother's motion to restore the child to her custody was denied. The effect of that determination of rights, from which she now appeals, was to perpetuate the last custody order extant, believed by appellant to have been the judgment of March 27, 1969, which found neither parent a fit custodian and adjudged the custody of the child in the Juvenile Officer of Clay County for placement in a foster home.

The assignment of error initially briefed by appellant in effect charged that the uncontradicted evidence so decisively marks the changed circumstance of her recovery of fitness as custodian of the child as to require, in the best interest of the child, a modification of the custody order of March 27, 1969, and that the trial court's failure to do so was clearly erroneous.

During the pendency of this appeal, however, appellant learned for the first time that the foster home in which Sabrina had been placed (and where she remains) by order of the Court--without notice to appellant mother--was that of the father, respondent Raymond Lee Taylor (who by then had remarried a former wife), although he as well as appellant had been adjudicated by that Court 'not fit and proper persons to have (Sabrina's) custody', which adjudication had been neither modified nor otherwise superseded. Appellant became aware of this custodial placement when a box of clothing she had left with the Juvenile Officer for Sabrina was returned with a letter explaining that Mrs. Raymond Taylor, with whom the child was staying, found the nylon clothing unuseable by Sabrina who was allergic to that fabric. This much is conceded by respondent in his brief and oral argument.

This conceded state of facts is the basis for an additional assignment of error appellant raises in her reply brief. Appellant there also asserts that the placement of the child with the father, without notice to her and without evidence that he had regained his fitness and in open contradiction of the court's own subsisting adjudication of March 27, 1969 that respondent was unfit and, further, the court's failure to disclose this state of affairs to appellant during the hearing to modify the March 27, 1969 decree when even then the child was in respondent's custody, bespeaks such a judicial disingenuousness and prejudice as appellant could not have dispelled no matter how cogent her evidence.

As approved by counsel and thereafter filed, the transcript on appeal is insufficient for a determination of either of the points of error raised. Civil Rules 82.12(b) and 82.14(a) V.A.M.R. provide that the transcript shall contain 'all of the record, recitals, proceedings, and evidence necessary to the determination of all questions presented to the appellate court for decision'. The questions presented, of course, are whether the court erred in denying appellant's motion to regain custody of her child and whether, in doing so, the court acted fairly, without prejudice or prejudgment. Nowhere, however, does the transcript recite the actual terms or legal effect of the judgment of March 27, 1969, by which appellant and respondent were found unfit as custodians of the child, and by which appellant was deprived of custody and which she now seeks to modify. Nor does the transcript evidence show the conditions of unfitness initially adjudicated, so that the basis for appellate determination of change of condition is lacking. We found it necessary to a full decision of the questions presented to direct the circuit clerk to send up the full judgment entry of March 27, 1969, and, as also authorized by Civil Rule 82.12(c), V.A.M.R., ordered appellant to prepare and file a supplemental transcript of the evidence given in that proceeding. We concluded as well that appellant's failure to include in her transcript the record entries relating to the transfer of the child to respondent after the judgment of March 27, 1969, which conceded fact came to her knowledge only after the commencement of appeal, was a material omission 'by error or accident' correctible under Civil Rule 82.12(c). Accordingly, our order was certified to the circuit clerk, this time directing him to send up the original file as well as all judgments whatsoever entered in this cause.

Our conclusion that the entries relating to the transfer of custody to respondent, without hearing or notice to appellant, are properly a part of this record on appeal, comports with the rule that a reviewing court must take the record as it comes, and that statements in briefs of counsel of facts not shown in evidence, whatever the probability of their truth, may not be a basis for review of error, unless such facts have been conceded by opposing counsel. Baker v. Missouri National Life Insurance Company, Mo.App., 372 S.W.2d 147, 155(11--13); Pretti v. Herre, Mo., 403 S.W.2d 568, 569(3); State v. Muir, 136 Mo.App. 118, 117 S.W. 620, 621(1). Moreover, to refuse review of appellant's claim of judicial prejudice because not reflected in the trial record is, in the circumstances, to foreclose the possibility of...