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Hiner v. Hiner

Court of Appeals of Missouri, Western District, Fourth Division

April 30, 2019

CARLA K. HINER, Respondent,
v.
JOHN W. HINER, Appellant.

          Appeal from the Circuit Court of Clay County, Missouri The Honorable David P. Chamberlain, Judge

          Before: Karen King Mitchell, Chief Judge, and Alok Ahuja and Cynthia L. Martin, Judges

          OPINION

          Karen King Mitchell, Chief Judge

         John Hiner (Father), who appears pro se, appeals from the trial court's judgment and decree dissolving his marriage to Carla Hiner (Mother), approving Mother's proposed custody arrangement and parenting plan for the couple's two minor children, and awarding child support, maintenance, and attorneys' fees to Mother. Father raises four points on appeal. He maintains that the trial court erred in: (1) awarding custody pursuant to Mother's parenting plan without considering his plan; (2) calculating child support; (3) dividing the marital assets and awarding maintenance and attorneys' fees to Mother; and (4) failing to consider Father's motion for a new trial. Because of significant deficiencies in Father's appellate brief, which prevent us from conducting a meaningful review of his claims, we dismiss his appeal.

         Analysis

         Rule 84.04[1] sets forth the required contents of a brief on appeal.[2] "Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made." Wallace v. Frazier, 546 S.W.3d 624, 626 (Mo. App. W.D. 2018) (quoting Summers v. Mo. Dep't of Corr., 459 S.W.3d 922, 923 (Mo. App. W.D. 2015)). "An appellant's failure to substantially comply with Rule 84.04 'preserves nothing for our review' and constitutes grounds for dismissal of the appeal." Id. (quoting Summers, 459 S.W.3d at 923). This is especially true where, as here, "we cannot competently rule on the merits of [Father's] argument without first reconstructing the facts . . . and then refining and supplementing [his] points and legal argument." Id. (quoting Kim v. Kim, 431 S.W.3d 524, 525 (Mo. App. W.D. 2014)).

         We struck Father's initial appellate brief for numerous violations of Rule 84.04, and we gave Father fifteen days to file an amended brief correcting those violations. Yet his amended brief also fails to substantially comply with Rule 84.04.

         First, Father's statement of facts is deficient. Rule 84.04(c) requires the statement of facts to be "a fair and concise statement of the facts relevant to the questions presented for determination without argument." "The primary purpose of the statement of facts is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case." Id. (quoting Nicol v. Nicol, 491 S.W.3d 266, 268 (Mo. App. W.D. 2016)). Additionally, "[a]ll statements of facts shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits. . . . If the portion cited is contained in the appendix, a page reference to the appendix shall also be included." Rule 84.04(c).

         Most of Father's factual statements are taken verbatim from the trial court's judgment and decree in Mother's favor and, thus, do not present the facts relevant to the issues Father purportedly attempts to raise on appeal.[3] Moreover, although Father's amended brief refers to specific pages of the judgment and decree, to the extent those references are accurate, they are not to relevant portions of the record for purposes of the issues Father attempts to raise, leaving Mother and this court to "first reconstruct[] the facts," if any, that would support his claims. Wallace, 546 S.W.3d at 626 (quoting Kim, 431 S.W.3d at 525). Thus, Father's statement of facts does not comply with Rule 84.04(c).

         Second, Father's points relied on are deficient. Where, as here, an appellate court is asked to review the decision of a trial court, "each point shall (A) [i]dentify the trial court ruling or action that the appellant challenges; (B) [s]tate concisely the legal reasons for the appellant's claim of reversible error; and (C) [e]xplain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Rule 84.04(d)(1). "The point shall be in substantially the following form: 'The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].'" Id.

         Father's points do not conform to Rule 84.04(d).[4] Although each point identifies the trial court ruling challenged, each point fails to cite legal reasons supporting Father's claims of reversible error. In addition, the points are not substantially in the form required by Rule 84.04(d)(1). "The purpose of the points relied on is 'to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review.'" Wallace, 546 S.W.3d at 627 (quoting Treaster v. Betts, 297 S.W.3d 94, 95 (Mo. App. W.D. 2009)). As this court has explained:

Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made. Deficient points relied on force the appellate court to search the argument portion of the brief or the record itself to determine and clarify the appellant's assertions, thereby wasting judicial resources, and, worse yet, creating the danger that the appellate court will interpret the appellant's contention differently than the appellant intended or his opponent understood.

Id. at 627-28 (quoting Treaster, 297 S.W.3d at 95).

         Because Father did not articulate the legal reasons for the alleged errors or explain how those legal reasons support his claims, he failed to give Mother notice of the "precise matters which must be contended with and to inform the court of the issues presented for review." Id. (quoting Treaster, 297 S.W.3d at 95). Thus, to address Father's alleged errors we would have to search the argument section of his brief and the record to "refin[e] and supplement[] [his] points." Id. at 626 (quoting Kim, 431 S.W.3d at 525). "It is improper for us 'to speculate as to the point being raised by the appellant and the supporting legal justification and circumstances.'" Id. at 628 (quoting Summers, 459 S.W.3d at 923). And doing so would create "the danger that [we] will interpret [Father's] ...


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