MAXWELL BIGGS, By His Next Friend DERRICK BIGGS, and DERRICK BIGGS, Individually v. ANGELIA BRINNEMAN

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