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Tatum v. Tatum

Court of Appeals of Missouri, Eastern District, Third Division

May 21, 2019

DAMON TATUM, Petitioner/Respondent,
MERCEDEAS TATUM, Respondent/Appellant.

          Appeal from the Circuit Court of St. Charles County, Honorable John P. Banas

          SHERRI B. SULLIVAN, P.J.


         Mercedeas Tatum (Mother) appeals from the judgment of the trial court granting Damon Tatum's (Father) Motion to Modify Judgment of Dissolution of Marriage. We affirm.

         Statement of Facts

         The marriage between Father and Mother was dissolved in Tennessee in 2011. At that time, Father was awarded sole legal and physical custody of the parties' three minor children.

         Thereafter, Father relocated to St. Charles County, Missouri, while Mother remained in Tennessee. In August 2013, the Thirteenth Judicial District at Memphis in the Circuit Court of Shelby County, Tennessee issued an amended parenting plan granting Mother visitation with the children every second weekend of each month during the school year, some holidays and school breaks, and half the summer. Exchanges of the children were to occur in Cape Girardeau, Missouri.

         In October 2014, Father filed a Motion to Modify Judgment of Dissolution of Marriage (Motion to Modify), alleging substantial and continuing changes in circumstances that made the parenting plan unreasonable. In response, Mother filed her own Amended Cross-Motion to Modify Judgment of Dissolution of Marriage (Cross-Motion to Modify), alleging other continuing changes in circumstances. In June 2017, Mother filed ten motions for contempt, alleging denial of visitation on dates in 2016 and 2017. Mother also filed a Family Access Motion, alleging Father denied her visitation at times in 2014 through 2017. A hearing was held on the Family Access Motion. The trial court found Father did not willfully, intentionally, and without good cause withhold visitation, and the motion was denied. Thereafter, Mother's motions for contempt were dismissed for res judicata based upon the Family Access Motion's dismissal.

         A hearing on Father's Motion to Modify and Mother's Cross-Motion to Modify was held on April 12-13 and April 20, 2018. Father appeared personally and with his attorney all three days. Mother attended the first two days of the hearing but did not appear on the third, although her attorney was present.

         After taking the matter under submission, the trial court entered judgment in favor of Father. The trial court's judgment contained findings of fact and conclusions of law. Based on the credible testimony of the children, Father, and the Guardian Ad Litem (GAL), the trial court found numerous instances of Mother acting contrary to the children's best interests, including a pattern of behavior intended to alienate them from Father, to withhold his visitation time, and to restrict the children's contact with Father during Mother's custody time. The trial court also found Mother had interfered with the children's education, withheld necessary medical care, and generally subjected the children to a toxic and unsafe environment. The trial court noted the children themselves had testified about Mother's behavior, and all had expressed their wishes to have no further contact with Mother. After considering all the statutory factors under Section 452.375.2, [1] the trial court ordered Father be granted sole physical and legal custody of the children, with the exception of the eldest who had just turned 18 years of age, and whom the trial court exempted from the new Parenting Plan. The trial court ordered Mother should have no physical visitation with the children, and limited communication. Mother appeals.

         Father's Motion to Dismiss Due to Briefing Deficiencies

         Mother brings eleven points on appeal. Before we review the merits of Mother's points, we address the Motion to Dismiss filed with this Court by Father. In lieu of a responsive brief, Father moves to dismiss Mother's appeal for her failure to comply with the requirements of the Missouri Supreme Court Rules governing appellate briefs. Father complains Mother's points are narratives of various court proceedings she felt were unfair, without reference to specific rulings or the legal basis for reversal. Father claims Mother's brief is so deficient he is unable to decipher it adequately to address Mother's arguments in a responsive brief. On Mother's Points II through XI, we agree that Mother has not complied with the Missouri Supreme Court Rules so substantially that those points are not reviewable by this Court. We do not agree with Father entirely, and we find Mother's Point I complies sufficiently for review.

         We note both Father and Mother are before this Court pro se. We are aware of the difficulties faced by pro se litigants navigating an unfamiliar process. However, impartiality and fairness require we do not give pro se litigants any preferential treatment, and hold them to the same standard as other litigants. Shelter Mutual Ins. Co. v. Mitchell, 413 S.W.3d 348, 351 (Mo. App. S.D. 2013), citing Carlisle v. Rainbow Connection, Inc., 300 S.W.3d 583, 584-85 (Mo. App. E.D. 2009). "Pro se appellants are held to the same standard as attorneys and must comply with Supreme Court rules, including Rule 84.04, which sets out the requirements for appellate briefs." Davis v. Coleman, 93 S.W.3d 742 (Mo. App. E.D. 2002).

         "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." Bridges v. American Family Mut. Ins. Co., 146 S.W.3d 456, 458 (Mo. App. W.D. 2004). Compliance with Rule 84.04[2] also serves "the threshold function of giving notice to the party opponent of the precise matters which must be contended with and answered." Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). "A party's failure to substantially comply with Rule 84.04 preserves nothing for appellate review and is insufficient to invoke our authority to hear the case." FIA Card Servs., NA. v. Hayes, 339 S.W.3d 515, 517 (Mo. App. E.D. 2011). "The failure to comply with Rule 84.04(d) warrants dismissal of the appeal." Bridges, 146 S.W.3d at 458.

         Mother's Statement of Facts

         The majority of Mother's brief is so deficient this Court would have no choice but to speculate what rulings Mother challenges and why. We ...

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