Karen Leigh Wheeles, n/k/a Karen Leigh Isaak v. Barry Wheeles ( 2019 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
KAREN LEIGH WHEELES, ) No. ED106644
N/K/A KAREN LEIGH ISAAK, )
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis County
vs. ) 12SL-DR08159-01
)
BARRY WHEELES, ) Honorable Bruce F. Hilton
)
Appellant. ) Filed: June 11, 2019
Barry Wheeles (“Husband”), acting pro se, appeals the judgment in favor of Karen Leigh
Wheeles, now known as Karen Leigh Isaak (“Wife”), on Wife’s motion for contempt. Wife filed
a motion to dismiss Husband’s appeal, which was taken with the case. Because the record on
appeal is insufficient to allow for meaningful appellate review, 1 we dismiss Husband’s appeal. 2
I. BACKGROUND
On March 22, 2012, Husband and Wife were divorced pursuant to a dissolution judgment
entered by a Kansas trial court. To facilitate and effectuate their divorce, Husband and Wife
entered into a separation agreement, which, among other things, imposed on Husband an
obligation to pay: (1) a flat amount of child support; and (2) an additional amount of child
1
All further references to Rule 81.12 are to Missouri Supreme Court Rules (2018), which was the version of the
Rule in effect at the time Husband filed his notice of appeal with this Court in June 2018.
2
We deny the portion of Wife’s motion taken with the case that requests our Court to find Husband’s appeal is
frivolous and to award Wife damages based on Husband filing a frivolous appeal.
support to be based on his annual gross income. The separation agreement and its terms were
incorporated into the dissolution judgment, which was subsequently registered in Missouri as a
foreign judgment.
On July 19, 2017, Wife filed a verified motion for contempt and order to show cause
asserting Husband was in violation of, inter alia, the additional child support obligation in the
dissolution judgment. The trial court held a bench trial on Wife’s motion and subsequently
entered a judgment in favor of Wife.
Husband then filed this appeal and Wife filed a motion to dismiss Husband’s appeal,
which this Court took with the case. Wife’s motion contends Husband’s appeal should be
dismissed because Husband failed to file a complete record on appeal in that he filed only a
partial transcript of the trial court proceedings. Husband’s appeal was submitted to this Court on
June 4, 2019.
II. DISCUSSION
Husband raises four points on appeal. Husband’s first point on appeal alleges the trial
court erred by improperly modifying the parties’ dissolution judgment and separation agreement.
Husband’s second point on appeal argues the trial court denied him due process by failing to
consider his previously filed motion to modify the dissolution judgment and separation
agreement. 3 Husband’s third point on appeal contends the trial court erred in calculating the
amounts he owed to Wife as additional child support. Finally, Husband’s fourth point on appeal
maintains the trial court erred in ordering additional child support awards to be paid to Wife
quarterly.
3
Although not clear from Husband’s brief, the docket sheets filed as part of the record on appeal indicate Husband
filed a motion to modify in March 2013, which was stricken by the trial court in July 2014.
2
Prior to considering the merits of Husband’s appeal, however, we must determine
whether Wife’s motion taken with the case is dispositive. Wife requests our Court to dismiss
Husband’s appeal because Husband violated Rule 81.12(a) and (c)(1)-(2) by failing to file a
complete record on appeal. Due to Husband’s action of filing a partial transcript including only
his testimony before the trial court, Wife argues we are without sufficient information to
determine the issues on appeal. We agree.
Under section 472.210 RSMo 2000, 4 “appeals shall be taken in accordance with the rules
of civil procedure relating to appeals.” Independent Taxi Drivers Association, LLC v.
Metropolitan Taxicab Commission, 524 S.W.3d 157, 160 (Mo. App. E.D. 2017) (quoting section
472.210). As relevant to this appeal, Rule 81.12(a) requires the appellant to file a record on
appeal containing all of the record, proceedings, and evidence necessary for us to determine all
the issues presented to us by the appeal. Metropolitan Taxicab Commission, 524 S.W.3d at 160;
Rule 81.12(a); see also Rule 81.12(b) and (c)(1). The appellant alone has the duty to furnish a
sufficient record on appeal, which shall contain a legal file and transcript. Id.; Dale v. Director,
Missouri Dept. of Social Services, Family Support and Children’s Div., 285 S.W.3d 770, 772
(Mo. App. S.D. 2009). 5 Where an appellant fails to provide this Court with everything necessary
to determine all of the questions presented by his appeal, dismissal is required. State ex rel.
Koster v. Whispering Oaks Residential Care Facility, LLC, 479 S.W.3d 689, 691 (Mo. App. E.D.
2015); Dale, 285 S.W.3d at 772; Bishop v. Heartland Chevrolet, Inc., 152 S.W.3d 893, 897 (Mo.
App. W.D. 2005).
4
All statutory references to section 472.210 are to RSMo 2000, which is the latest version of the statute.
5
Although a respondent may supplement the record on appeal under the Missouri Supreme Court Rules, the rules do
not require a respondent to do so nor do they shift the burden of providing a complete record on appeal to the
respondent. See Citibank (South Dakota) N.A. v. Edwards, 147 S.W.3d 810, 811 n.2 (Mo. App. W.D. 2004). As
such, Wife’s decision not to file the missing portions of the transcript or legal file does not affect our decision. See
id. (similarly finding).
3
Here, it is Husband’s duty, as the appellant, to file a complete transcript and legal file to
ensure the record contains all of the evidence necessary for this Court to determine the questions
presented by his appeal. See Metropolitan Taxicab Commission, 524 S.W.3d at 160; Koster, 479
S.W.3d at 691; see also Rule 81.12(a), (b), and (c)(1)-(2). While Husband admits he filed only a
partial transcript due to financial limitations, he argues this failure should be excused as the trial
testimony and exhibits are not at issue in this appeal. Instead, Husband maintains we only need
to look at the terms of the original Kansas dissolution judgment to determine whether it was
violated. Curiously, Husband has failed to include the dissolution judgment and separation
agreement as part of the legal file. Although these documents were included in Husband’s
appendix, “[t]he mere inclusion of documents in an appendix to a brief does not make them part
of the record on appeal.” U.S. Bank, N.A. v. Coverdell, 483 S.W.3d 390, 400 (Mo. App. S.D.
2015) (quoting J & M Securities, LLC v. Brown, 388 S.W.3d 566, 570-71 (Mo. App. E.D.
2012)). Because the Kansas dissolution judgment and the parties’ incorporated separation
agreement were not made a part of the record on appeal, we are unable to consider them. See
Coverdell, 483 S.W.3d at 400-01.
Furthermore, a look at Husband’s particular claims reveals he has failed to file a
sufficient record from which we can determine all of the issues presented to us by his appeal.
See Metropolitan Taxicab Commission, 524 S.W.3d at 160; Dale, 285 S.W.3d at 772; Rule
81.12(a). In Husband’s first point on appeal, he argues the trial court improperly modified the
parties’ dissolution judgment and separation agreement. But as previously stated, these
documents were not made a part of the record on appeal; thus, we are unable to review them to
determine whether the trial court did in fact modify them or whether such modification was
proper. See Coverdell, 483 S.W.3d at 400-01; see also Brown, 388 S.W.3d at 570-71.
4
Therefore, Husband has failed to present us with all of the records necessary to determine his
first point on appeal. See Metropolitan Taxicab Commission, 524 S.W.3d at 160; Dale, 285
S.W.3d at 772; Rule 81.12(a).
In Husband’s second point on appeal, he argues the trial court denied him due process by
failing to consider his previously filed motion to modify the dissolution judgment and separation
agreement. However, the legal file contains no pleadings relating to this motion to modify.
Accordingly, Husband has failed to present us with all of the records necessary to determine his
second point on appeal. See id.
Lastly, Husband’s third and fourth points on appeal contend the trial court erred in its
rulings with respect to the additional child support Husband is required to pay under the
dissolution judgment and separation agreement. Nevertheless, Husband has failed to provide us
with Wife’s motion for contempt giving rise to the court’s rulings, any other relevant pleadings,
the transcript of Wife’s evidence to support her motion, or the dissolution judgment and
separation agreement which contain the additional child support obligations. In the absence of
the foregoing, we cannot determine whether the trial court’s rulings are supported by substantial
evidence, against the weight of the evidence, erroneously declare the law, or erroneously apply
the law. See Krastanoff v. Williams, 231 S.W.3d 205, 206-07 (Mo. Ap. E.D. 2007) and Pierson
v. Laut, 113 S.W.3d 298, 300 (Mo. App. E.D. 2003) (similarly finding); see also Metropolitan
Taxicab Commission, 524 S.W.3d at 160 (we cannot review the appellant’s claims without
consulting the entire record to determine if the trial court’s conclusion was correct, even if the
reasoning was erroneous). Moreover, without the complete transcript, we have no information
relating to what evidence was considered by the court in reaching its decision, and we cannot
convict the trial court of error when we have not reviewed all the evidence before it. See Koster,
5
479 S.W.3d at 691 and Dale, 285 S.W.3d at 772 (similarly finding). As such, Husband has
failed to present us with all of the records necessary to determine his third and fourth points on
appeal. See Metropolitan Taxicab Commission, 524 S.W.3d at 160; Dale, 285 S.W.3d at 772;
Rule 81.12(a).
The fact that Husband is acting pro se in this matter does not change the outcome of our
decision, as pro se litigants are held to the same procedural rules as represented parties. See
Washington v. Blackburn, 286 S.W.3d 818, 823 (Mo. App. E.D. 2009). “While this [C]ourt
recognizes the problems faced by pro se litigants, we cannot relax our standards for non-lawyers.
It is not for lack of sympathy but rather it is necessitated by the requirement of judicial
impartiality, judicial economy and fairness to all parties.” Id. (quotations and emphasis omitted).
The deficiencies in the legal file and transcript would require us to become an advocate for
Husband’s appeal, which is something we cannot do. See id.
In sum, Husband’s failure to file a complete legal file and transcript “is more than a
procedural deficiency.” See In re T.C.T., 165 S.W.3d 529, 533 (Mo. App. W.D. 2005). Because
Husband has failed to provide this Court with the necessary record to determine all of the
questions presented by his appeal, it is impossible for us to review his claims. See Koster, 479
S.W.3d at 691; Dale, 285 S.W.3d at 772; Bishop, 152 S.W.3d at 897. Accordingly, we must
partially grant Wife’s motion taken with the case and dismiss Husband’s appeal because the
record is insufficient to allow for meaningful appellate review. See id. (similarly finding).
6
III. CONCLUSION
Based on the foregoing, Husband’s appeal is dismissed.
ROBERT M. CLAYTON III, Judge
Roy L. Richter, P.J., and
Angela T. Quigless, J., concur.
7