Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

10/05/93 GABRIEL A. AMPARAN v. SHERREE MARTINEZ

October 5, 1993

GABRIEL A. AMPARAN, PETITIONER-RESPONDENT,
v.
SHERREE MARTINEZ, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the City of St. Louis. Hon. Thomas J. Frawley, Judge.

Albert J. Stephan, Jr., Judge, Gaertner, Gary, C.j., Smith, Gerald, J., concur.

The opinion of the court was delivered by: Stephan

Sherree Martinez, mother, appeals the granting of a motion to modify a child custody order filed by Gabriel Amparan, father. On October 3, 1983, mother and father were divorced in the District Court of Bexar County, Texas. Under the divorce decree mother was awarded the primary care, custody and control of the parents' minor child. On May 12, 1992, the Circuit Court of the City of St. Louis found Missouri to be the home state of the parents' minor child and on July 13, 1992, the trial court entered its order modifying the original custody order. The modified order awards primary care, custody and control of the child to father. Mother appeals. We affirm the judgment.

Father has filed two motions which have been taken with the case on appeal. The first motion is a Motion to Dismiss Mother's Brief. Father seeks such relief because mother's brief violates Rule 84.04 (c) and (d). (All rule references are to Missouri Rules of Court (1993).) Father cites numerous violations of the rule in mother's statement of facts and in her points relied on. Because mother's brief clearly fails to comply with the requirements of Rule 84.04 (c) and (d), father's motion is well taken and must be sustained.

Rule 84.04 (c) states, in part:

(c) Statement of Facts. The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument....

The purpose of the statement of facts is "to afford an immediate, accurate, complete and unbiased understanding of the facts of the case...." White v. White, 846 S.W.2d 212, 213 (Mo.App. 1993), citing Wipfler v. Basler, 250 S.W.2d 982, 984-985 (Mo. 1952). If the court is to adjudicate the appeal without becoming an advocate for the appellant, the appellant must define the scope of the controversy by stating the relevant facts fairly and concisely. White, (supra) , citing Thompson v. Thompson, 786 S.W.2d 891, 892 (Mo.App. 1990). Violations of Rule 84.04 (c) constitute grounds for dismissal of an appeal. White, (supra) .

Here, mother's statement of facts fails to give us an immediate, accurate, complete or unbiased understanding of the facts of the case. It is difficult to ascertain from mother's statement of facts the procedural history of the case and the facts leading up to this appeal. Her statement of facts is argumentative and she has omitted evidence favorable to father. She quarrels with the findings of fact and Conclusions of law of the trial Judge. She challenges the testimony of witnesses and attempts to explain why such witnesses' testimony should be refuted or is biased.

Mother's failure to provide a fair and concise statement of the facts warrants dismissal. Federbush v. Federbush, 667 S.W.2d 457, 458 (Mo.App. 1984), citing Robinson v. Laclede Gas Co., 553 S.W.2d 495, 496 (Mo.App. 1977) and Thummel v. King, 570 S.W.2d 679 (Mo.banc 1978).

Furthermore, father contends that all of mother's points relied on violate Rule 84.04 (d). Once again, we agree. None of mother's five points relied on comply with that rule. Rule 84.04 (d) states, in part:

(d) Points Relied On. The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder....

Setting out abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule.

Also, Rule 84.13 (a) states, "allegations of error not briefed or not properly briefed shall not be considered in any civil appeal...."

The three components of a point relied on are (1) a concise statement of the challenged ruling of the trial court, (2) the rule of law which the court should have applied, and (3) the evidentiary basis upon which the asserted rule is applicable. Hoffman v. Koehler, 757 S.W.2d 289, 292 (Mo.App. 1988), citing Thummel, 570 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.