Willard v. Doyle, 11816

• Decision Date: 23 February 1981
• Docket Number: No. 11816,11816
• Citation: 612 S.W.2d 884
• Parties: Elbert Lee WILLARD and Wilma Ellouise Willard, Petitioners-Respondents, v. Brenda Willard DOYLE, Appellant.
• Court: Missouri Court of Appeals

Page 884

612 S.W.2d 884

Elbert Lee WILLARD and Wilma Ellouise Willard, Petitioners-Respondents, v. Brenda Willard DOYLE, Appellant.

No. 11816.

Missouri Court of Appeals, Southern District, Division One.

Feb. 23, 1981.

Richard D. Moore, Moore & Brill, P. C., West Plains, for petitioners-respondents.

Esco V. Kell, West Plains, for appellant.

TITUS, Judge.

Petitioners Elbert and Wilma Willard, husband and wife, jointly sought adoption, inter alia, of four minor children. Elbert and Brenda Willard Doyle, formerly husband and wife, are the natural parents of three of the children. Brenda is the natural mother of the fourth child which she and Elbert adopted following their marriage. Brenda answered opposing the adoption and affirmatively prayed for modification of the decree which divorced Elbert from her so that she should be allotted specific times each month to visit with her four children. The procedures prescribed by Ch. 453, RSMo 1978, were faithfully followed by the trial court and are not questioned upon appeal. After due hearing, the court nisi decreed the four children to be legally adopted by petitioners and denied Brenda's entreaties for modification of the divorce decree. Brenda appealed.

Brenda's three points relied on read: "I. The court erred in terminating the parental rights of Brenda Willard Doyle, natural mother of her four minor children on the grounds that the natural mother had willfully abandoned and or willfully neglected said children for a period of a year before the filing of petition for adoption, because said decree terminating the parental rights and decreeing adoption of said minors was not supported by the evidence, particularly by clear, cogent and convincing evidence as required by the statute. II. The court erred in refusing and failing to modify original decree to award and order specific visitation rights to Brenda Willard Doyle, natural mother of said minor children. III. In review of this non-jury case, it is the duty of the appellate court to make its own finding of facts and conclusion of law."

We are initially confronted with the motion of Elbert and Wilma to dismiss Brenda's points relied on II and III for failure to comply with the requirements of Rule 84.04(d). The requirements of this rule are mandatory and applicable to court-tried cases. Simpson v. Island View Sales Corp., 540 S.W.2d 624, 625(1) (Mo.App.1976). The motion is well taken and rightfully should be extended to include point relied on I. As to point I, merely stating that the decree "was not supported by the evidence, particularly by clear, cogent and convincing evidence", is violative of the rule because the point does not undertake to illustrate "wherein and why" the decree was not supported by the evidence. Carolyn v. Stahl, 601 S.W.2d 636-637(1) (Mo.App.1980); International Harvester Credit Corporation v. Formento, 593 S.W.2d 576, 578(1) (Mo.App.1979). Point II merely asserts the trial court erred in failing to modify the original divorce decree but nowhere does it attempt to enlighten as to why such failure was error. Dowlin v. Western Cas. & Sur. Co., 592 S.W.2d 486, 487(2) (Mo.App.1979); Snow v. Fikes, 570 S.W.2d 815, 816(2) (Mo.App.1978). Claiming, as done in point III, that we should make our own finding of facts and conclusions of law, suggests no erroneous act, ruling or order by the trial court. At most, this point is an abstract statement of law which does not attempt to relate itself to the trial court's actions and, therefore, preserves nothing for appellate review. Egan v. St. Louis-S. F. Ry. Co., 581 S.W.2d 939, 940(1) (Mo.App.1979). Nevertheless, because of the nature of the matter involved, we are constrained to abstain from dismissing the appeal for failure to comply with Rule 84.04(d) and, reluctantly, overrule the motion of Elbert and Wilma, as augmented by our own observations, to do so. Wykle v. Colombo, 457 S.W.2d 695, 698(1) (Mo.1970).

Elbert Willard, an over-the-road truck driver for 15 years before the date of the May 1980 trial herein and whose age was not revealed, married Brenda Willard Doyle on a date undisclosed by the record. However, the oldest of the three children resulting from that union was born October 20, 1969. As previously mentioned, after Elbert and Brenda were married they adopted a child born to Brenda by a previous marriage. During this coverture, Elbert and Brenda lived in or near West Plains. For reasons not revealed, Elbert and Brenda separated December 31, 1974, and were divorced February 21, 1975. Elbert was awarded custody of the four children and Brenda was given "reasonable visitation privileges and ... the right to have temporary visitation for an extended and continuous period not to exceed two (2) weeks during her vacation," whatever that may mean. Shortly after separating from Brenda, Elbert met Edna Roberts who cared for the four children in Elbert's home. Edna and Elbert were married in the summer of 1975 and were divorced in December of the same year. Elbert married Wilma, his present wife and a joint petitioner herein, September 9, 1977. Wilma had two children by Carl Collins whom she divorced in May 1970. She and Elbert undertook to also adopt these children in the instant proceeding. However, one of Wilma's children died before the decree of adoption was entered.

After her separation from Elbert in December 1974 and before the February 1975 divorce, Brenda (30 years old at the time of the May 1980 trial herein) left West Plains and moved to Illinois and then Louisiana leaving the four children in Elbert's care. In the latter part of February 1975, Bill Henry went "down to Louisiana and got" Brenda. Together Brenda and Bill returned to West Plains where they resided together for about a year. After that, Brenda and Bill lived in Kansas City for another year until they "broke up" in February 1978. Brenda then moved to Ft. Smith, Arkansas, where she has resided ever since. A week or two after moving to Arkansas, Brenda met a Mr. Doyle. Two months thereafter Brenda and Doyle began living together but they "didn't get married until after" their baby was born or "about a year" after the cohabitation commenced.

Because of the extended period involved id est, December 1974 to May 1980, the memories of the various witnesses, unsurprisingly enough, tended to be fuzzy and sometimes inconsistent when recounting details and dates. Elbert recalled that between December 1974 and until Edna moved in to care for the children in early 1975, and again after his separation from Edna in late 1975 until he married Wilma in September 1977, the children were mostly being cared for by babysitters in their homes. This was necessary because Elbert, an over-the-road truck driver, was home and off work only about a day and a half following an absence of approximately six days. Shortly after divorcing Brenda, Elbert said he tried "several times" to get Brenda "to come stay with the children at the home," including "one time when the kids were sick," but that she refused the invitations. Elbert recounted that Brenda, the children's mother, visited the children once or twice after their initial separation, but that Brenda had not again seen the children until near Christmas 1976 and that he received only one letter from Brenda during that year. It was Elbert's recollection that Brenda did not see the children in 1977 and 1978, and had not seen them since except for one...