Trail v. Trail, 34121

• Citation: 476 S.W.2d 156
• Decision Date: 25 January 1972
• Docket Number: No. 34121,34121
• Parties: Mary Helen TRAIL, Plaintiff-Respondent, v. Edward Lee TRAIL, Defendant-Appellant. . Louis District
• Court: Court of Appeal of Missouri (US)

Page 156

476 S.W.2d 156

Mary Helen TRAIL, Plaintiff-Respondent, v. Edward Lee TRAIL, Defendant-Appellant.

No. 34121.

Missouri Court of Appeals, St. Louis District.

Jan. 25, 1972.

Arnold T. Phillips, Jr., Thomas P. Clarke, St. Louis, for plaintiff-respondent.

Tenney, Dahman & Mathewson by John A. Mathewson, St. Louis, for defendant-appellant.

CLEMENS, Commissioner.

The trial court granted plaintiff-wife's motion for temporary custody of the parties' six-year-old son and temporary allowances for child support, alimony and attorney's fee. Simultaneously the court denied the defendant-father's cross motion for custody. He has appealed. We conclude that the appeal should be dismissed for defendant's failure to file an appellant's brief complying with Civil Rule 83.05, V.A.M.R., (now Civil Rule 84.05, effective January 1, 1972).

At the trial court hearing plaintiff offered her own testimony and that of six witnesses as to her parental care of the son. Defendant offered four witnesses concerning parental care but did not testify himself.

Civil Rule 83.05(a) declared an appellant's brief shall contain 'a fair and concise statement of the facts without argument.' By paragraph (c) of that rule an appellant must set forth 'the facts relevant to the questions presented for determination' and 'mere formal matters should not be included.' By paragraph (d) the statement 'shall have specific page references to the transcript.'

We summarize the defendant's Statement of Facts. It recited: the wife's previous marriages and divorces; her marriage and remarriage to defendant; the filing of plaintiff's petition and motion for temporary custody and allowances; defendant's apprehensions for the boy's welfare and 'appropriating the boy's exclusive custody unto himself'; the filing of defendant's cross motion for custody; and the trial court's order in favor of plaintiff. There is only one transcript reference, and that vaguely to 'TR 86--94.' Such a bare recital of procedural steps does not comply with the rule and warrants dismissal of an appeal. Page v. Laclede Gas Light Co., Mo., 245 S.W.2d 23; Beckham v. Eggleston, Mo.App., 341 S.W.2d 337(1).

In the Argument section of defendant's brief he does refer to trial testimony, but only to testimony favorable to himself and unfavorable to plaintiff. Even if we consider this testimony as a part of defendant's Statement of Facts it is not a fair statement since testimony favorable to a respondent is 'relevant to the questions presented for determination.' In his brief defendant ignores plaintiff's testimony that upon leaving plaintiff the defendant lived with another woman; that thereafter lived failed to adequately support plaintiff and their child; that defendant took custody of the parties son after three men had forcibly abducted the boy from plaintiff. Similarly, defendant's brief ignores testimony of plaintiff's witnesses that she kept the boy clean and well clothed in a neat home and that the boy was happy, well behaved and affectionate with his mother. In Wipfler v. Basler, Mo., 250 S.W.2d 982(2, 3) the court said: 'The statement is primarily to afford an immediate,...