S.K.B. v. J.C.B.

• Decision Date: 01 December 1993
• Docket Number: No. WD,WD
• Citation: 867 S.W.2d 651
• Parties: In re the Marriage of S.K.B., Appellant, v. J.C.B., Respondent. 47391.
• Court: Missouri Court of Appeals

Page 651

867 S.W.2d 651

In re the Marriage of S.K.B., Appellant, v. J.C.B., Respondent.

No. WD 47391.

Missouri Court of Appeals Western District.

Dec. 1, 1993.

Rehearing Denied Feb. 1, 1994.

Sharlie Pender, Independence, for appellant.

M. Sperry Hickman, Independence, for respondent.

Before HANNA, P.J., and LOWENSTEIN and FENNER, JJ.

LOWENSTEIN, Judge.

This appeal involves a dispute by two parents over their daughter J.B. (child), who ranks in the top one percent in intelligence performance with exemplary grades and also has artistic talents. After a December 1990, motion by the father J.C.B. (Father), to modify the previous decree awarding custody to S.B. (Mother) the court entered an Order in December 1992 changing custody, and Mother appeals. When the motion was filed in 1990, the child was ten years old. When the case was decided in 1992, she was twelve. She is now 13 years old. If this were a case involving a suit between two well-heeled landowners over a boundary dispute, the time, cost, and acrimony generated in obtaining final disposition by the judicial system would be marginally tolerable, here it was inexcusable.

Along the course of this action: 1) the Mother's attorney, who had been romantically involved with her prior to Father's motion, submitted fees in excess of $25,000; 2) neither side could agree to a special setting for the trial on the motion; 3) the domestic relations docket in Independence was, and continues to be, so backlogged this case was not reached after being on numerous regular settings; 4) the trial court, sua sponte, appointed a Master, a practicing attorney, to hear the motion in order to expedite resolution; 5) the Master turned down a joint request to appoint a guardian ad litem for the child; 6) the Master heard five days of testimony; however, only two days of the testimony are in the record; 7) only after a joint motion to speed up a report, did the Master submit a report recommending a change in custody--over seven months after the hearing.

The following chronology of events precede a recitation of the facts:

                1/16/90   The most recent order on this child's custody in favor of the mother
                            is entered by agreement.  Father is given weekend and extensive
                            summer visitation
                12/26/90  The motion for modification of custody, which is the basis of this
                            suit, is filed by Father, alleging Mother left child alone for long
                            periods of time and that Mother virtually lives away from home
                            Father further alleges he is in better situation to supervise
                2/1/91    Mother counters with request for increased child support, and to
                            limit visitation due to Father's "mental, emotional and
                            psychological abuse" of the child.
                2/15/91   Father, in an unverified amended motion, attempts to add the fact
                            that Mother "abandons the child nearly all evening to spend time
                            with a male friend ... child feels deserted and is denied parental
                            supervision."
                5/1/91    Mother moves for summary judgment.  It is later overruled.
                11/1/91   Mother again moves for a summary judgment with some 38 pages of
                            suggestions, receiving the same fate as the previous motion.
                2/28/92   Court refers matter to a Master.  This order is amended on 3/9, 3/13
                            and 3/24.  Hearing is limited to 5 days.
                3/30"4/2  Master holds hearings.
                8/19/92   Parties file "joint motion for Master's Report."
                8/27/92   Court sends fax to Master to submit report as soon as possible.
                11/9/92   Master's report is filed recommending change of custody.  Not all the
                            evidence has been transcribed.  Due to cost constraints, only first
                            two days testimony evidence is reduced to a transcript.
                11/23/92  Mother objects to report.
                12/3/92   Mother's attorney writes to Chief Disciplinary Counsel for approval
                            to represent mother.
                12/15/92  Attorney gets letter approving representation.
                12/21/92  Court hears Mother's objections to report and elicits any changes
                            since April hearing.
                12/28/92  Court accepts Master's Report and orders joint legal and physical
                            custody with primary residential custody to be with Father.  Child
                            support to mother stopped and Mother ordered to pay $100 per month.
                            No award of attorney fees (Mother's attorney's fees exceed $25,000.
                            Father's attorney's fees exceed $10,000.  Total bill of Master of
                            $4,956.40 divided equally.
                 *   *   *   *   *   *
                

On appeal, some two months after the January 29, 1993 filing of the Notice of Appeal, the Mother presented a 500 page transcript which does not even include her own testimony. The transcript was limited to the day-long interview and interrogation of the child, with attorneys present, by the Master, testimony of the Father, and the deposition of a third witness. The testimony of approximately twenty witnesses is absent. Approximately two months later, after receiving a dismissal notice, the Mother filed a 99 page brief covering eight points for appeal with numerous subpoints. The Father filed a motion to dismiss because of rule violations in Mother's brief, plus her failure to provide a complete transcript. The Father then, out of time, filed his brief.

Oral argument was held in this court on Friday, November 12, 1993.

As a prelude to the facts and disposition of the case, the Father's motion to dismiss is taken up. The Mother's brief is verbose and the statement of facts presented is argumentative. However, a determination of what is in the best interests of the child, § 452.375.2., RSMo.1986, should not be thwarted by a defective appellate brief. Even more troubling is the fact that 3/5ths of the testimony (including that of the only psychologist to examine the child) is not available. Under Rule 81.12(a) all the "record, proceedings and evidence necessary to the determination of all questions presented," must be presented to the appellate court. Nolfo v. Dubin, 861 S.W.2d 136, 138 (Mo.App.1993). It was the Mother's duty as appellant to submit a complete and proper record. Id. It would be unfair to the child, and may result in an injustice, to rigidly enforce the Rules and dismiss the appeal. Therefore, the motion is denied.

As can be readily ascertained by the reader from the preceding chronology, the important facts involved in Father's motion to modify to gain custody have been clouded or lost in the legal and procedural wrangling of counsel. Based on the standard of review, and in light of the disposition of this appeal, a brief recitation about those salient facts involved is in order.

The child is extremely bright and has shown talents both artistically and musically. She turned thirteen just before this case was argued before this court. At the time the motion was filed, she lived with her mother who worked several jobs and was attempting to further her education. The Mother makes approximately $16,000 a year working several jobs, including working as a receptionist in a law office.

The child has two older brothers. One of her brothers was emancipated and had voluntarily moved from the mother's home following the 1984 dissolution. The other brother is seventeen years old, lives with the father, and has learning and emotional problems. He is in high school and has been in special programs for his problems since the third grade. There is some indication he may have mistreated the child during her weekend visitation with her father. This brother sired a child, out of wedlock, prior to the hearing before the Master. He recently returned to regular school.

The father remarried in 1991. He now lives in an area in a different school district than the one the child was attending prior to the trial court's action. He has a responsible job making approximately $60,000. There is some question of whether he has a drinking problem.

Prior to the filing of this action, Father's visitation had been liberal, even going beyond that required by the modified decree of 1987. Almost immediately upon Father's filing of this action, the child's Mother sent him a letter unilaterally limiting his weekend visitation to only daytime visits (i.e. from nine a.m. to six p.m.), requiring the child to be returned to her mother each evening. During this time, the father had not yet remarried. Additional evidence of the acrimony between the parties is evidenced by the fact that ex parte orders were entered against Father which restricted his access to Mother's home, and delineated payment of his support. Additionally, Father claimed that since the hearing he took police officers with him to pick up the child for visitation.

Approximately one month after he filed for modification of custody, the father encouraged the child to keep notes about her mother, particularly noting the times Mother was gone late at night, or all night, at her lawyer's (with whom she was previously romantically involved), including days which she was home alone sick. These notes were kept by the little girl for more than a year. It was admitted that some of the notes were made by her while at Father's house and with either his or his wife's help. Some of these exhibits also appear to have been written, in part, by an adult.

The focus of Father's motion was Mother's time away from the house (both out late at night as well as all night), the child's preparing her own meals, doing her lessons, and getting ready for school alone, and becoming scared upon hearing sounds in and around the house at night. Upon receiving notice of the filing of this motion, Mother made new arrangements. Her brother, the child's uncle, who had been living with them moved out. During the time the uncle lived with them, he provided some babysitting services; however, more often he was a recluse obsessed with television and church activities. On one occasion, the uncle told the child her "Barbie" dolls were tools...