MAXWELL BIGGS,                                                )
By His Next Friend                                            )
DERRICK BIGGS,                                                )
and DERRICK BIGGS, Individually,                              )
                                                              )
                    Respondent,                               )
                                                              )
vs.                                                           )   No. SD36178
                                                              )   Filed: April 16, 2020
ANGELIA BRINNEMAN,                                            )
                                                              )
                     Appellant.                               )


                    APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

                                     Honorable Michael V. Headrick, Judge

APPEAL DISMISSED

           Angelia Brinneman (“Brinneman”) appeals from the trial court’s “Judgment and Order of

Paternity, Custody and Support” whereby the trial court awarded joint legal and joint physical

custody of the minor child (“Child”) to the parties, and designated Derrick Biggs’ (“Biggs”)

residence as the residence of Child for educational and mailing purposes. Brinneman’s brief

materially fails to comply with Rule 84.04, 1 and her appeal is accordingly dismissed.


1
    All rule references are to Missouri Court Rules (2019).
           Child was born to the parties in March 2015. The parties have never been married. On

August 28, 2017, Biggs filed a “Petition for Declaration of Paternity, Custody, Visitation and

Support.” 2 At the time the petition was filed, Child resided with Brinneman in Pulaski County. In

his petition, Biggs asserted it was in the best interest of Child that the parties be awarded joint legal

and joint physical custody, with his address for mailing and educational purposes, and that no child

support be paid by either party. Brinneman filed an answer and counter petition on September 29,

2017. In her answer and counter petition, Brinneman sought sole physical custody and joint legal

custody, as well as child support and attorney fees. Both parties submitted parenting plans with

recommendations for parenting time.

           In September 2018, Brinneman relocated with Child to the state of Kansas without the

permission of the trial court, and in violation of section 452.450. 3

           A hearing was held on the relevant pleadings on February 6, 2019. The trial court entered

its “Judgment and Order of Paternity, Custody and Support” on February 26, 2019. The trial court

considered the factors set forth in sections 452.375 and 452.377, and found that Brinneman was

less likely to allow contact between Child and Biggs, based upon her conduct during the pendency

of the case, including her relocation to Kansas without the Court’s permission and in violation of

prior custody orders in place, and for the sole purpose of furthering the career of her paramour to

the detriment of Biggs’ custodial time. The trial court ordered the parties to have joint custody of

Child, with the residence of Child for educational and mailing purpose with Biggs. The trial court

also set forth specific terms of parenting time for each party. This appeal followed.




2
    DNA testing concluded Biggs was Child’s biological father.
3
    All references to statutes are to RSMo 2000, unless otherwise indicated.


                                                            2
          In one point, Brinneman argues:

               THE COURT ERRED IN FINDING APELLANT [SIC] ACTED IN BAD
          FAITH, HOWEVER THE RECORD OFFERS AMPLE EVIDENCE THAT THE
          CHILD’S BEST INTEREST IS SERVED BY RESIDING PRIMARILY WITH
          APPELLANT; THE RECORD DEMANDS THE INCONSISTENT FINDINGS
          REQUIRED YET NEITHER MISSOURI CASE LAW NOR THE REVISED
          STATUTES OFFER ANY GUIDANCE AS HOW TO RECONCILE THE
          INCONSISTENT FINDINGS.[4]

                              Governing Principles of Review and Rule 84.04

          Brinneman’s brief is not in substantial compliance with Rule 84.04, or the principles

governing appellate review. We note only the most serious deficiencies.

                                                  Statement of Facts

          Rule 84.04(c) directs that an appellant provide the reviewing court with a “fair and concise

statement of the facts relevant to the questions presented for determination without argument.”

This requirement reflects the controlling principle of review that “[a]n appellant may not simply

recount his or her version of the events, but is required to provide a statement of the evidence in

the light most favorable to the judgment.” In re Marriage of Smith, 283 S.W.3d 271, 273

(Mo.App. E.D. 2009). 5 Rather, “[t]he function of the appellant’s brief is to explain to the court

why, despite the evidence seemingly favorable to the respondent, the law requires that appellant

must prevail.” Hoer v. Small, 1 S.W.3d 569, 571 (Mo.App. E.D. 1999).



4
  We observe that in the argument section of Branneman’s brief, she adds the phrase “SUCH RESULTS ARE NOT
CONTEMPLATED” to the end of Point I. We do not discern this difference to be substantive for purposes of our
treatment and simply utilize the point as it appears for the first time in the brief, i.e., the section titled “POINT
RELIED UPON.”
5
    See Evans v. Groves Iron Works, 982 S.W.2d 760, 762 (Mo.App. E.D. 1998):

          [F]aithful compliance with the rule also serves another salutary purpose. It should assist appellant’s
          counsel in evaluating whether the appeal should be pursued at all. . . . If counsel will objectively
          prepare a statement reciting only those facts that tend to support [the decision below], it will often
          be obvious that the appellate court will have no choice but to affirm . . . and that there is no point in
          pursuing the appeal further.


                                                             3
         Brinneman’s statement of facts is not “fair” in that it includes evidence not credited by the

trial court, and excludes credited evidence relied on by the trial court in reaching its judgment.

The statement is not “concise” as it includes materials not relevant to her challenge or our

disposition. As we have previously indicated, “the statement of facts are to include (at least) all

those facts utilized in the argument section of a brief[.]” Interest of R.J.M., 571 S.W.3d 219, 222

(Mo.App. S.D. 2019) (internal quotation and citation omitted). Numerous “facts” 6 in Brinneman’s

argument section are not present in her statement of facts section.

                                                  Points Relied On

         Rule 84.04(d)(1) sets out the requirements for an appellant’s points relied on— it is explicit

and demonstrative:

                 (1)        Where the appellate court reviews the decision of a trial court, each
         point shall:

                         (A) Identify the trial court ruling or action that the appellant
                  challenges;

                          (B) State concisely the legal reasons for the appellant’s claim of
                  reversible error; and

                          (C) Explain in summary fashion why, in the context of the case,
                  those legal reasons support the claim of reversible error.

         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].’

6
  We are doubtful that gratuity may properly afford such classification in numerous instances. For example,
Brinneman’s argument section presents the following supporting “facts”: (1) “Such efforts are not reflected to be
made on the part of Respondent, whom [sic] ultimately . . . demonstrated disingenuous motives;” (2) “Respondent, by
offering his proposed parenting plan is disingenuous at best regarding his opinion of Appellant, her ability to parent
and saddest of all, the importance of her place in the minor child’s life[]”; and (3) “Respondent is not making his child
his first priority and that rather he is prioritizing his own agenda above the priority of honoring the child’s rights and
needs.” We make no effort at an exhaustive recitation—there are numerous instances of such “facts” in Appellant’s
argument section. At one point, Brinneman’s brief even admits that a factual assertion on which she relies “does not
exist on the record[,]” and attempts to claim that “an inference ought to then be made that the silence of the record
indicates no issue exists[,]” and that such should be interpreted in Brinneman’s favor. This does not reflect analysis
in accord with our standard of review, or the rules governing appellate briefing.

                                                            4
       As Rule 84.04(e) indicates, an appellant’s argument “shall be limited to those errors

included in the ‘Points Relied On.’” Id. “Abstract statements of law, standing alone, do not

comply with this rule.” Rule 84.04(d)(4).

       Here, Brinneman’s sole point relied on, supra, fails to comply with Rule 84.04(d)(1)’s

“mandatory ‘erred in/because/in that’ formula.” See Interest of R.J.M., 571 S.W.3d at 223.

“Given that a template is specifically provided for in Rule 84.04(d)(1), appellants simply have no

excuse for failing to submit adequate points relied on.” Scott v. King, 510 S.W.3d 887, 892

(Mo.App. E.D. 2017). Moreover, this point fails to “[s]tate concisely the legal reasons for the

appellant’s claim of reversible error,” and to “[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)(B)-(C). This

defect is fatal to Brinneman’s appeal, as “[a] point relied on that fails to comply with Rule 84.04(d)

preserves nothing for appeal.” Fifth Third Bank v. Estate of Shaw-Schneller, 586 S.W.3d 887,

888 (Mo.App. S.D. 2019).

                                        Standard of Review

       Brinneman’s standard of review section correctly recites that our standard of review is

controlled by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Directly thereafter (in the

same section), Brinneman disregards the same controlling principles espoused in Murphy with the

following digression:

       The specific issue addressed arises from RSMo 452.337.10 (2019). In the present
       case, the court erred in its parenting plan awarding Respondent primary physical
       custody because Appellant’s move was not made in bad faith and it was in the best
       interest of the minor child for myriad significant reasons that the primary caretaker
       of the child remain Appellant, and not change to Respondent.




                                                  5
                 Further, even if the finder of fact was correct in finding that the relocation
         was made in bad faith, the record makes it apparent that the best interest of the
         parties’ minor child was to primarily reside with Appellant, not Respondent; in fact
         upon examination of the record it is apparent that Respondent has persistent
         parenting problems in that he repeatedly makes poor choices that detrimentally
         impact the child, stubbornly refuses to make effort to change behaviors that
         negatively impact the child, and a multitude of other problematic behaviors too
         numerous to describe now prohibit the best interest of the child from being served
         by him being the primary physical custodian of the child. The record is replete with
         strong evidence of Appellant’s parenting skills as well as her efforts to create
         meaningful contact between the minor child and Respondent. The Abernathy court
         finds same to carry significant weight in the application of the relocation statute,
         “The record is replete with strong evidence of mother’s parenting skills as well as
         her efforts to create meaningful contact between [child] and his father.” Abernathy
         v. Meier[,] 45 S.W.3d 917, 920 (2001). In this case, unlike the Abernathy court,
         the record regarding Appellant’s parenting skills is rife with disapproval and
         judgment because she offers her education and abilities to care for small children
         as strengths that do speak to her parenting skills in fact being superior to
         Respondent’s. Her honesty regarding her strengths were met with reprisal and
         construed as examples, somehow, of her weaknesses.

                 While the record also provides evidence affirming the parenting abilities of
         Respondent, again it is clear that the best interest of the child requires primary
         custody with Appellant, the record demonstrates that Respondent, while well
         intentioned, fails at even basic parenting skills, for example he did not know the
         name of his child’s doctor, he requested and was awarded the address for
         educational and mailing purposes yet he was utterly clueless as to when his son
         would commence his education by attending kindergarten.

         Where (as here) appellant elects to bifurcate “Argument” and “Standard of Review” into

separate sections, argument is best reserved for the “Argument” section. To the extent this

discussion can be construed as authorized “argument” pursuant to Rule 84.04(d), we observe that

the factual matters presented are not in accord with our standard of review. 7 Additionally,

Brinneman fails to provide citations to the record as required by Rule 84.04(e) (“All factual




7
 Where “argument masquerades as fact” in an appellant’s brief, “this manner of failure is often viewed as an admission
that if all (and only) the relevant facts were before the reviewing court, the appellant would surely lose.” See Interest
of R.J.M., 571 S.W.3d at 222 (internal quotation and citation omitted).


                                                           6
assertions in the argument shall have specific page references to the relevant portion of the record

on appeal, i.e., legal file, transcript, or exhibits.”).

                                                    Argument

         While Brinneman accurately recounts that Murphy governs our review, her argument is

silent as to any of the three authorized Murphy challenges. 536 S.W.2d at 32 (in a court-tried civil

case, the “judgment of the trial court will be sustained by the appellate court unless there is no

substantial evidence to support it, unless it is against the weight of the evidence, unless it

erroneously declares the law, or unless it erroneously applies the law.”) (emphasis added). “[T]he

trial court’s judgment is presumed valid, and the burden is on the appellant to demonstrate that it

is incorrect.” Interest of R.R.S., 573 S.W.3d 717, 730 (Mo.App. S.D. 2019). Brinneman fails to

so demonstrate. Compliance with Murphy’s requirements is a prerequisite to success on appeal;

without such compliance (as here), an appellant’s argument simply cannot succeed. 8

         As indicated, supra, Rule 84.04(e) requires that “[a]ll factual assertions in the argument

shall have specific page references to the relevant portion of the record on appeal, i.e., legal file,

transcript, or exhibits.” While Brinneman makes sporadic attempts at compliance with this

requirement in her argument section, a significant portion of the material relied upon therein lacks

appropriate citations to the record—to a significant extent, this seems to be due to reliance on

argument or speculation as though such were facts proper for our consideration (to be clear, they

are not).

         Our preference to resolve matters on the merits is not a license for non-compliance
         with Rule 84.04. We wield our discretion to overlook briefing violations with
         caution because each time we review a noncompliant brief ex gratia, we send an
         implicit message that substandard briefing is acceptable. It is not.

8
  Brinneman does not succeed at (or attempt) the mandatory analytical sequences for no substantial evidence or
against-the-weight-of-the-evidence challenges, as set forth in Houston v. Crider, 317 S.W.3d 178, 187 (Mo.App. S.D.
2010). That said, it is not entirely clear from Brinneman’s point or argument whether she intended to raise one, both,
or neither such evidentiary challenge in the instant appeal.

                                                          7
Marck Indus., Inc. v. Lowe, 587 S.W.3d 737, 743 (Mo.App. S.D. 2019) (internal quotation and

citation omitted). The briefing deficiencies in Brinneman’s brief doom her challenge, and impede

our review. Brinneman’s appeal is accordingly dismissed.


WILLIAM W. FRANCIS, JR., J. – OPINION AUTHOR

GARY W. LYNCH, P.J. – CONCURS

NANCY STEFFEN RAHMEYER, J. – CONCURS




                                               8
