STEVEN ANDREW SCHAEFFER,                       )
                                               )
       Petitioner-Respondent,                  )
                                               )
v.                                             )       No. SD33377
                                               )
JASMINE RENEE SCHAEFFER,                       )       Filed: Aug. 10, 2015
                                               )
       Respondent-Appellant.                   )


             APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                   Honorable Mark Fitzsimmons, Associate Circuit Judge

AFFIRMED

       Jasmine Renee Schaeffer ("Wife") appeals from the judgment dissolving her

marriage to Steven Andrew Schaeffer ("Husband"). Because Wife's only preserved error

claim was waived by her failure to timely assert it to the trial court, we affirm.

                                         Background

       When Husband and Wife separated in February 2012, Wife was pregnant with the

parties' only child ("Child"). Sometime during the course of her pregnancy, Wife relocated

from Springfield, Missouri to Florida.

       On July 12, 2012, Husband filed a petition to dissolve the marriage in the Circuit

Court of Greene County, Missouri that alleged Wife's pregnancy and sought a custody

determination. The following month, Husband filed a motion seeking an immediate contact



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schedule that would authorize Husband to be present at Child's birth. That same day, Wife

filed an answer to Husband's Greene County petition that admitted she was pregnant and

included a counter-petition for dissolution. At a hearing held the following day, the parties

appeared by counsel, and there is no suggestion in the resulting docket entry that Wife's

counsel objected to the trial court's authority to proceed. The trial court granted Husband's

motion in part, but it also awarded Wife "residential custody" of Child. Child was born a

few days later in Florida.

        Thereafter, Wife's original attorney withdrew, and Husband moved for temporary

custody or visitation. Wife did not appear at the hearing on this motion, and the trial court

entered a temporary visitation order to be in effect until a court hearing on November 15,

2012. The trial court sent copies of the order to counsel and "any unrepresented party[.]"

After new counsel entered an appearance for Wife, Husband filed a motion for contempt on

October 29, 2012, alleging that Wife failed to comply with the temporary visitation order.

The trial court issued a show cause order on October 30, 2012 regarding the contempt

motion, and it set the matter for hearing on November 15, 2012.

        In early November 2012, Wife moved to Galveston, Texas. On November 8, 2012,

she filed a motion to dismiss the Missouri case on the ground that Florida was the home

state of Child under the Uniform Child Custody Jurisdiction and Enforcement Act

("UCCJEA"). See section 452.700 et. seq.1

        Wife appeared personally with counsel at the hearing on Husband's contempt motion

on November 15, 2012. The docket does not reflect a ruling on the contempt motion, but

the trial court denied Wife's motion to dismiss. The trial court also granted Wife's motion


1
 All statutory references are to RSMo Cum. Supp. 2013 and all rule references are to Missouri Court Rules
(2015).


                                                     2
for the appointment of a guardian ad litem, and it announced a temporary parenting

schedule.

       After this hearing, Wife filed suit in Texas ("the Texas petition"), seeking, among

other things, an order that Wife be appointed the sole "conservator" of Child. Among other

allegations in the Texas petition, Wife averred that "[C]hild is three months of age and is not

subject to the jurisdiction requirements of any Court at this time." The petition disclosed the

existence of the Missouri case and stated that "it appears the [trial c]ourt has recognized the

birth of [Child] and may have entered a temporary provision for [Husband] to see [Child]."

The Texas petition asked the court "to contact the presiding judge of the Circuit Court of

Greene County, Missouri, and request the release of any potential jurisdiction that [the trial

c]ourt may have regarding [Child]."

       Husband responded with a Texas habeas corpus action to require Wife to produce

Child in the Texas court. After a hearing on that action in Texas, Wife (who did not have

Child with her) was ordered by the Texas court to relinquish custody of Child to Husband.

Thereafter, the Texas court issued an order finding that because "Missouri has retained

jurisdiction of the suit affecting the parent-child relationship, the State of Texas lacks

jurisdiction to make an initial child custody determination pursuant to [Texas law]."

       After these events, Wife moved back to Springfield, Missouri. A trial on the parties'

competing petitions for dissolution was held before the trial court on March 3, 2014. The

resulting judgment dissolved the marriage, divided the parties' property and debts, granted

Husband sole legal custody of Child, and awarded the parties joint physical custody of

Child. This appeal timely followed.




                                                3
                                   Wife's Points on Appeal

       Wife raises five points, which we quote:

  I.   The trial court erred in entering a judgment regarding the child custody when
       it lacked statutory authority to assert jurisdiction because Missouri is not the
       home state of [Child].

 II.   The trial court erred when it awarded joint physical custody of [Child] to the
       parties, but failed to provide [Wife] with [a] significant and meaningful
       period of time with [Child].

III.   The trial court erred when it awarded sole legal custody to [Husband] when
       he has made unilateral decisions bearing on legal custody without [Wife]'s
       input.

IV.    The trial court erred when it carried out the division of property in an
       unreasonable and unfair ma[nn]er.

 V.    The trial court erred when it awarded unreasonable and unjust child support
       and attorney's fees against [Wife].

                             Rules Governing Appellate Briefs

       Rule 84.04(d)(1) requires a point relied on to "(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 appellate process

requires that points on appeal be properly stated to: (1) give the respondent notice of "the

precise matters which must be contended with and answered"; (2) give notice to the court to

allow "for clarification by meaningful questions to the issues" raised and to prevent a waste

of judicial resources which may occur "[i]f the appellate court is left to search the argument

portion of the brief (or even worse, to search the record on appeal)"; and (3) avoid

misinterpretation of the appellant's argument. Thummel v. King, 570 S.W.2d 679, 686 (Mo.

banc 1978).




                                                4
         "A point that claims error but then fails to allege why the ruling was erroneous or

fails to refer to testimony or other evidence that supports the appellant's contention preserves

nothing for appellate review[.]" In re Marriage of House, 292 S.W.3d 478, 482 (Mo. App.

S.D. 2009). "Failure to include in the statement of facts the facts upon which an appellant's

claim of error is based fails to preserve the contention for appellate review." Angle v.

Grant, 997 S.W.2d 133, 133 (Mo. App. S.D. 1999); see also Rule 84.04(c).

                                                  Analysis

         We begin our analysis with points II–V, all of which are fatally defective. Each

point, although arguably identifying the challenged court ruling or action, fails to comply

with the remaining provisions of Rule 84.04(d)(1). The legal reasons provided in support of

Wife's claims of error are abstract, and no explanation is provided as to why, in the context

of this particular case, those legal reasons support a claim of reversible error. See In re

Marriage of Weinshenker, 177 S.W.3d 859, 863 (Mo. App. E.D. 2005). Compounding the

problem, Wife's statement of facts violates Rule 84.04(c) by not including facts that are

relevant to the issues presented in her points,2 and the arguments that follow her points fail

to cure the deficiency. The few relevant facts provided are either: (1) not later referenced in

connection with any relevant argument and legal authority; (2) unsupported by any citations

to the record; or (3) consist entirely of Wife's own self-serving testimony (which the trial

court was not required to believe) and are devoid of any references to evidence favorable to

the judgment.

         To illustrate the inscrutable nature of Wife's error claims, the following barriers

thwart any attempt to analyze her second point on any merit it might have. In the argument


2
  Wife's statement of facts, which spans approximately three-and-a-half pages, is mostly a lengthy recitation of
the procedural posture of this case; it does, however, contain a few facts pertinent to Wife's first point.


                                                       5
section supporting Point II, Wife states that she was awarded the following parenting time:

Tuesday and Thursday from 5:30 p.m. to 8:00 p.m. and alternate weekends from Friday at

6:00 p.m. until Sunday at 6:00 p.m. Wife argues that this parenting schedule "does not

provide a realistic opportunity for visitation." In support, Wife makes two allegations. First,

she cites a single excerpt from her testimony that she works 9:00 a.m. to 5:00 p.m. and that

her work hours "vary," but she does not demonstrate the legal relevance of this information.

Wife then asserts that her parenting time will be diminished because of the amount of time

necessary to transport Child to and from daycare and Husband's residence, but she provides

no "specific page references to the relevant portion of the record" as required by Rule

84.04(e) supporting the amount of time it will actually take to transport Child for that

parenting time.

       Wife makes no further attempt to explain the relevance of these facts under any

applicable standard of review or governing legal authority, let alone explain how they might

support a claim of reversible error. In any event, Wife's reliance solely on her own

evidence, whatever its desired significance might be, is analytically useless. Our standard of

review requires this court to disregard all evidence and inferences that are contrary to the

judgment, Redlinger v. Redlinger, 111 S.W.3d 413, 415 (Mo. App. E.D. 2003), and we

must defer all credibility determinations to the trial court. Mehra v. Mehra, 819 S.W.2d

351, 353 (Mo. banc 1991). Points III–V are riddled with similar deficiencies, the details of

which we will not recount.

       Thus, to evaluate Wife's points would require us to seine the record for evidence that

might support the trial court's rulings about which Wife now complains. We would then

need to recast Wife's contentions in accordance with the applicable standard of review and




                                               6
seek the legal authority applicable to each error claim. This exercise would impermissibly

cast us in the role of Wife's advocate and remove us from our appropriate position of

impartiality. See In re Marriage of Spears, 995 S.W.2d 500, 503 (Mo. App. S.D. 1999)

("An appellate court is not to become an advocate for a party to an appeal").

         Points II–V are denied on the ground that they preserve nothing for appellate review.

              Point I – Missouri Court's Statutory Authority to Determine Custody3

         Wife's first point claims the trial court lacked "statutory authority to assert

jurisdiction because Missouri is not the home state of [Child]." Wife cites the UCCJEA,

specifically sections 452.740.1 and 452.705(8), which address when a Missouri court is

statutorily authorized to make a child custody determination.4 Husband rightly responds by

contending that Wife has waived this claim.


3
  Although Wife's first point also violates Rule 84.04, we exercise our discretion to review it ex gratia because,
unlike her other points, the violations here are not such that they render us unable to discern the nature of her
complaint. See Atkins v. McPhetridge, 213 S.W.3d 116, 120 (Mo. App. S.D. 2006) ("Notwithstanding non-
compliance with Rule 84.04, appellate courts may exercise discretion and attempt to resolve issues on their
merits unless the defective point impedes disposition of the case on its merits").
4
  Section 452.740.1 provides:

         Except as otherwise provided in section 452.755, a court of this state has jurisdiction to make
         an initial child custody determination only if:

                  (1) This state is the home state of the child on the date of the commencement of the
                      proceeding, or was the home state of the child within six months prior to the
                      commencement of the proceeding and the child is absent from this state but a
                      parent or person acting as a parent continues to live in this state;

                  (2) A court of another state does not have jurisdiction under subdivision (1) of this
                      subsection, or a court of the home state of the child has declined to exercise
                      jurisdiction on the ground that this state is the more appropriate forum under
                      section 452.770 or 452.775, and:

                  (a) The child and the child's parents, or the child and at least one parent or
                      person acting as a parent have a significant connection with this state
                      other than mere physical presence; and

                  (b) Substantial evidence is available in this state concerning the child's
                      care, protection, training and personal relationships;

                  (3) All courts having jurisdiction under subdivisions (1) and (2) of this subsection


                                                         7
        An objection to a court's statutory authority to decide a case is waived if not properly

asserted. See Hightower v. Myers, 304 S.W.3d 727, 733 (Mo. banc 2010) (construing now

repealed provisions of the Uniform Child Custody Jurisdiction Act). Indeed, even personal

jurisdiction is waived when a party acts inconsistently with a claim that the court lacks

personal jurisdiction, Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 679 (Mo. App. S.D.

2002), and waiver happens in that context when "a party affirmatively seeks relief," acts

inconsistently with a claim of no personal jurisdiction, or otherwise obtains something of

benefit to herself by participating in the proceeding. Id.

        Here, Wife filed an answer to Husband's Missouri petition for dissolution, filed her

own counter-petition seeking affirmative relief, and appeared by counsel at a hearing, the

results of which provided Wife with the benefit of a preliminary grant of "residential

custody" of Child, all of which was done without asserting any challenge to the trial court's

authority to decide the question of Child's custody. Then, after Husband moved for Wife to

be found in contempt, Wife raised for the first time in her motion to dismiss the issue of

whether the trial court had such authority under the provisions of the UCCJEA.

        Moreover, Wife's own conduct belies the assertion in the argument section of her

brief that Florida is Child's "home state." After leaving Florida, Wife attempted to secure

                    have declined to exercise jurisdiction on the ground that a court of this state is
                    the more appropriate forum to determine the custody of the child under section
                    452.770 or 452.775; or

                 (4) No state would have jurisdiction under subdivision (1), (2) or (3) of this
                     subsection.

"Home state" is defined by section 452.705(8) as follows:

        "Home state" means the state in which a child has lived with a parent or a person acting as a
        parent for at least six consecutive months immediately prior to the commencement of a child
        custody proceeding. In the case of a child less than six months of age, the term means the
        state in which the child has lived from birth with any of the persons mentioned. A period of
        temporary absence of any of the mentioned persons is part of such period[.]



                                                       8
custody of Child by filing the Texas petition. In doing so, Wife alleged that Child was "not

subject to the jurisdiction requirements of any Court at this time" (emphasis added), and she

made no mention of Florida being Child's "home state."

        By participating in the Missouri dissolution case without raising any objection to the

trial court's authority to determine child custody until there was an allegation that she had

not complied with one of the trial court's rulings, Wife waived any right she might have had

to contest the trial court's authority to resolve the issue of child custody.

        Point I is also denied, and the judgment of the trial court is affirmed.



DON E. BURRELL, J. - OPINION AUTHOR

MARY W. SHEFFIELD, P.J. - CONCURS

NANCY STEFFEN RAHMEYER, J. - CONCURS




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