LAWS MOTIONSLINKS
APPELLANT’S BRIEF
ON THE MERITS
Comes now the appellant, __________________, Pro se and presents the following brief on the merits pursuant to Mo. Supreme Court Rule 84.04.
JURISDICTIONAL STATEMENT
This appeal is an appeal
from a final judgment entered in case #CV-DR of the
29 Th Judicial Circuit, State of Missouri, Jasper County, Division IV,
Honorable Judge Joseph Schoeburl presiding, resulting in this appeal #__________.
The appellant appeals the decision of the trial court concerning trial
court order dated 11-15-96, Plaintiff’s Motion to Modify Decree of Dissolution
as to Child Support (page 251 of the Legal File), modifying the original
custody agreement set down by the trial court on 4-5-96, Corrected Judgment
and Order (page 294 of the Legal File), in this divorce proceeding
initiated 8-1-95. Appellant did file a Motion
to set aside Modification Judgment and Order Dated 11-15-96, page 226
Legal File, on 11-22-96 and said motion was overruled at hearing dated
12-27-96, ruling at page 14 of the Legal File.. On 5-21-97 Appellant did
file, page 187 of the legal file, Motion to Disqualify . This motion
was taken up in open court on 6-5-97 and Court Order notifying Appellant
to file Writ of Prohibition with the Southern District Court of
Appeals was issued, Page 10 of the Legal File. Appellant’s attorney did
file Motion to Withdraw, page 174 of the Legal File, on 6-12-97,
and on 6-16-97, page 9 of the Legal File, appellant’s attorney was allowed
to withdraw. Appellant’s request to file an appeal out of time was filed
6-13-97, see appellant’s file in Court of Appeals, and this Court of Appeals
did grant such motion on 7-17-97, page 160 of the Legal File. To which,
Notice
of Appeal , page 146 of the Legal File, was filed with the Court of
Appeals, Southern District, State of Missouri on 7-25-97. Therefore, this
honorable court has jurisdiction to hear said cause, and none of the issues
to be raised on appeal are within the exclusive jurisdiction of the Missouri
Supreme Court. Accordingly, this court has jurisdiction of the appeal,
pursuant to its general appellate jurisdiction, as more particularly set
forth in Article V, Section 3 of the Missouri Constitution,
as amended.
STATEMENT OF FACTS
This is an appeal from a modification in a dissolution of marriage action filed 1 August 1995 initiated by Respondent, referred to as respondent in appeal # ________-. Trial Court issued , 1 August 199, an order stating a timely schedule to complete discovery as well as other court orders, see legal file page 388. Appellant’s attorney, filed application to withdraw as attorney of record on the 28 December 199, see legal file page 352. Appellant, heavy equipment operator, during the marriage suffered knee injury, page 3 lines 14,15, page 15 line 6 through page 18 line 6, page 38 lines 18 through 24 of transcript dated 9 February 1996. Appellant was retraining at the time of the original divorce proceedings in court, dated 9 February 1996, page 27 through 32 by attending Missouri Southern State College, page 38 line 14,15, page 45 lines 15,16,17, of transcript dated 9 February 1996. During hearing held dated 9 February 1996 Court Ordered Summary of Marital and Non-Marital Properties and Liabilities, page 326 legal file, and made allowances for the Guardian ad Litem as reflected, page 331 legal file. Judgment and Order, 18 March 1996, page 308 through 315 of the legal file. The Trial Court in its corrected JUDGMENT AND ORDER, dated 5 April 1996, page 294-300, 26 of the legal file, awarded full custody of _________________ and ___________________ to appellant without any interference on the part of the wife except the wife shall have the right of reasonable visitation. Wife was awarded full custody of _____________________, date of birth 9 March 1984, without any interference on the part of appellant except the appellant shall have the right to reasonable visitation. The court noted evidence of abuse of drug usage by both wife and husband throughout marriage with overwhelming evidence that wife is in constant danger of relapse, page 295 of the legal file. The Court further noted ____________________ is in danger when in unsupervised presence of ____________, p. 295 of the legal file; and further noted relapse potential of wife was increased when in presence of _________________. page 295-296 of the legal file. The Trial Court further finds continuing emotional trauma in any present visitation of appellant with _________________and therefore advised parties that reasonable visitation as to appellant with ________________may take a period of time before which such visitation would adversely effect her emotional well being, page 296 of the legal file. The Trial Court further noted wife was ordered to provide counseling through a licensed psychologist for minor child____________________, page 296 of the legal file, and appellant’s visitation only as then advised by such psychologist. The Trial Court further ordered wife to have no contact with ____________________ while ____________________ remains in her legal custody nor to allow any unsupervised contact with ____________________ and ____________________, page 296 of the legal file. The Trial Court further ordered no child support at this time, based upon income, age of children, relocation of wife and appellant’s earning capacity, page 296 of the legal file, and said amount is a deviation from Rule 88 and form 14 guidelines with the express finding that it would be unjust and inappropriate to follow said guidelines in this case, page 296 of the legal file. On 12 April 1996 respondent’s attorney filled Notice of Appeal, dated 17 April on document, however, file stamp date indicates filed, 12 April 1996, see legal file page 291. On 16 April 1996 respondent filed letter requesting for transcripts be prepared, page 286 legal file. On 18 April 1996 hearing was held on Motion to Intervene, page 280 legal file; Motion to Vacate Judgement as to Custody of Amanda Morton; page 289 legal file, Motion to Vacate Judgement as to Property Settlement; page 287 legal file, and Recording logs for hearing are incorrect; page 282,283,284, legal file; and Order was issued on 26 April 1996, legal file page 277, 278, 279. Stipulation filed, 3 May 1996, page 274,275, legal file. Order to Show Cause filed 21 May 1996, page 262 legal file. Conditional Order of Release signed 15 July 1996, page 255 legal file. Respondent’s attorney filed Motion to Modify Decree of Dissolution of Marriage on 19 July 1996, page 251, 252, 253, legal file. Order issued dated 25 July 1996, page 250 legal file. Respondent’s attorney filed Letter to Judge, page 247 legal file. Respondent’s attorney filed Letter to Judge on 25 September 1996, page 245 legal file. Temporary Order filed 11 October 1996, page 239 legal file. Docket entry reflecting Temporary Order of 11 October 1996, page 16,17,18, legal file. Appellant on 10 October 1996 removed minor child ____________________ from the state of Missouri in search of medical treatment, page 90 of the legal file, and presented to the trial court on 27 December 1996 page 14 line 16 of the transcript for this date, to seek treatment and counseling for flashbacks of being thrown into a wood stove by wife prior to separation dated 25 April 1995. Appellant had previously sought treatment of aforementioned flashbacks through Ozark Center, see legal file pages 93,94,95,96,97,98,99, but was not satisfied with counselor assigned to minor child ____________________. Appellant sought treatment of aforementioned flashbacks with ____________________, Psy. D., PA. LIC. PY0004176 Cape Royal Bldg., Suite 422 ____________________, Cocoa Beach, Florida 32931, evaluation dates 11 November 1996 and 13 November 1996, page 90 of the legal file. Temporary Order filed 11 October 1996 from evidence presented, page 239 legal file. Docket entry reflecting Temporary Order of 11 October 1996, page 16,17,18, legal file. Appellant’s attorney filed Letter to Judge, page 238 legal file. Appellant sought and obtained medical evidence in Florida for presentation to Trial Court, see legal file pages 90,91,92, . Fax was transmitted 12 November 1996 at 5:20 p.m. . see page 7 line 9 of transcript dated 13 November 1996. Appellant transmitted the aforementioned fax to appellant’s attorney requesting persons to be subpoenaed to testify and documents obtained that the appellant requested appellant’s attorney to present as evidence, see page 4 lines 22, 23,24,25, page 5 lines 1,2,3,4,5, page 6 lines 9 through 25, page 7 lines 1,2,3 of transcript dated 13 November 1996. Hearing held on 13 November 1996, page 16 legal file docket entry dated 13 November 1996. Trial Court was informed by appellant’s attorney during hearing dated 13 November 1996, that evidence would be obtained for presentation, see pages 4,5 of transcript dated 13 November 1996 and more specifically addressed on page 5 lines 20,21,22,23,24. Appellant’s attorney did not file written request for continuance, see page 23 lines 24 and 25 of transcript dated 13 November 1996. Trial Court denied oral request for continuance, see page 24 lines 3 and 4 of transcript dated 13 November 1996. Appellant’s attorney objected to ex-wife submitting tape, (plaintiff’s exhibit 1) page 33 lines 18-25, pager 34 lines 1-5 for transcript 13 November 1996, of telephone conversations between appellant, ____________________, appellant’s minor child, and ____________________, appellant oldest minor child as evidence on basis of improper foundation presented, and that the foundation does not comply with the Federal Wire Tap Act, see page 33 lines 18 through 25 and page 34 lines 1 through 5 of the transcript for 13 November 1996. Objection to aforementioned tapes was overruled with stipulation that foundation be established, see page 34 lines 14 and 15 of transcript dated 13 November 1996. Ex-wife acknowledged she taped the telephone conversations during direct examination by ex-wife’s attorney, see page 35 lines 8 through 10 transcript 13 November 1996. Ex-wife acknowledged ____________________, appellant’s minor daughter, had taped aforementioned telephone conversation, see page 35 lines 21 through 25 and page 36 lines 1 through 3 of transcript dated 13 November 1996. Tape recording, (plaintiff’s exhibit 1) made part of Trial Court’s record, and appellant’s attorney’s objection was overruled, see page 43 lines 15 through 20, 13 November 1996 transcript. Tape recording, (plaintiff’s exhibit 2) 13 November 1996 transcript page 44 line 3 and 4, was made part of Trial Court’s record. This tape was a reproduction of plaintiff’s exhibit 1, see page 43 lines 22 through 25 and page 44 lines 1 through 4 13 November 1996 transcript, to which the trial court failed to note in the docket sheets.. The aforementioned tapes, plaintiff’s exhibit 1 and 2, were tape recordings of appellant and ____________________ with ____________________. These conversations were made between the State of Missouri and the State of Florida. Appellant’s ex-wife failed to establish any change of circumstance to the effect that appellant’s income earning capacity had changed since the Corrected Judgement and Order, original divorce decree, dated 5 April 1996, see entire transcript dated 13 November 1996.
Appellant’s ex-wife admitted to violating
Trial Court’s original decree dated 5 April 1996 in that minor child ____________________
was no longer in psychiatric counseling as set forth in aforementioned
decree, see page 45 lines 8 and 9 of transcript dated 13 November 1996
and page 296 legal file. . Appellant cooperated with special prosecutor,
Dan ____________________, appointed 18 October 1996 by presiding Judge
William C. ____________________ of the 29th Judicial Circuit, and returned
minor child ____________________ per agreement with Dan to ex-wife, ____________________,
on 18 November, 1996, see exhibit # 1 filed with Court of Appeals Clerk,
prior to date requested during hearing of 13 November 1996 for resetting
of hearing if continuance was granted argued orally in Court hearing 13
November 1996 by appellants attorney, see page 4 lines 11,12,13,14,15,
page 5 lines 6,7,8, 9,10,11,12,13,14, and page 6 lines 2,3,4,5,6 of transcript
dated 13 November 1996. Appellant’s attorney filed Motion to Set Aside
Judgement and Order of November 15 on 22 November 1996, and failed
to sustain objection, in the aforementioned, motion to admission of tape
recording listed as plaintiff’s exhibit 1 and 2 during hearing dated 13
November 1996, page 226 legal file. Appellant’s attorney filed Subpoena’s
on 25 December 1996, page 222,223,224,225 legal file. Hearing was held
on Motion to Set Aside Judgement and Order of November 15 on 27
December 1996, page 14 legal file docket entry dated 27 December 1996.
Appellant’s attorney called only one witness the appellant and appellant’s
attorney subpoenas were never served, legal file page 222 ,223, 224, 225.
Appellant’s attorney failed to introduce into evidence medical report of
Doctor ____________________, Sports Medicine Specialist, on appellant’s
knee injury labeled exhibit B for hearing dated 27 December 1996. page
17, 18, 19, and 20 of transcript dated 27 December 1996, exhibit # 2, for
Appellate Court. Trial Court Judge refused to admit into evidence psychological
evaluation on minor child ____________________ by ____________________,
specialist in child psychology, page 74 lines 1 through 10 of transcript
dated 27 November 1996 and pages 90, 91, and 92 of legal file. Appellant’s
parent’s attorney on 3 February 1997 filed Motion to Modify Decree of
Dissolution Regarding Grandparents Rights, page 205 legal file. Document
filed on 18 February 1997, page 201 legal file. Appellant’s attorney filed
Letter to Judge, page 238 legal file. Missouri Department of Social Services
Division of Child Support Enforcement Notification to Clerk filed on 30
December 1996, page 204 legal file. Document filed on 18 February 1997,
page 201 legal file. Appellant’s attorney on 7 April 1997 filed Motion
for Modification of Judgement and Order dated November 15, 1996, see
legal file page 196. Appellant’s attorney on 7 April filed Motion for
Change of Judge, see legal file page 195. Application for Change
of Judge denied 18 April 1997, see legal file page 13 docket entry
dated 4 April 1997. Appellant’s attorney on 21 May 1997 filed Motion
for Temporary Visitation, see legal file page 188,189. Respondent’s
attorney filed Motion to Compel on 5 June 1996, page 179 legal file.
Appellant’s attorney filed Motion to Disqualify ____________________,
page 187 legal file. Appellant filed
Motion to Disqualify ____________________,
page 183 legal file. Appellant filed Motion to Disqualify ____________________,
page 180 legal file. Oral motion to disqualify Judge denied, page 9 legal
file docket entry dated 5 June 1997. Hearing held by Trial Court
dated 5 June 1996,
Motion for Temporary Visitation
not heard by
Trial Court, page 9,10 docket entry dated 5 June 1996. Hearing of 5 June
1996 recording log produced, page 176 legal file and the certified tape
for this hearing present to the Court of Appeals as Appellants exhibits
#3 and 4. Appellant’s attorney given until 23 June 1996 to perfect Writ
of Prohibition with Court of Appeals, see legal file page 10 docket
entry dated 5 June 1997. Appellant received letter dated 6 June 1997 from
appellant’s attorney regarding Writ of Prohibition Trial Court Judge
verbally instructed appellant’s attorney to represent appellant in regards
to Writ, appellant’s attorney requested in the letter that financial arrangements
must be discussed prior to filing of said Writ, appellant’s exhibit #5.
Appellant’s attorney filed Motion to Withdraw as Attorney of Record
for Respondent, page 9 legal file docket entry dated 12 June 1997.
Appellant filled Motion to Dismiss attorney ____________________,
page 173 legal file. Appellant filed Motion For Special Order of Appeal,
filed with Southern District Court of Appeals dated 13 June 1997. Trial
Court makes docket entry as page 31, docket sheet was submitted by the
Trial Court’s Clerk to the appellant as part of the body of the legal file,
and not part of the docket sheets. Court should note that Trial Court’s
Clerk’s, page number 31, page 168 of the legal file, in no way represents
page 7 of the legal file, trial court page number 31. Trial Court hearing
dated 23 June 1997 Motion for continuance denied, filed by appellant,
Motion
to Compel and Sanctions passed, filed by respondent’s attorney, ____________________
testified, and appellant left courtroom, page 8 legal file. Trial Court
Judge refers to appellant’s behavior as erratic; clothing and hair in disarray;
bailiff advised trial court appellant setting outside; had security called;
based on previous confrontations, actions, verbal threats, and concern
for Mrs. ____________________, G.A.L, and Mrs. ____________________; appellant
checked O. K. as to weapons; Motion for Countenance again taken
up; Mr. ____________________, appellant, not present; see history on file;
Mr. ____________________’s actions consistent with pre-hearing activity
elsewhere present on numerous occasions; including terminating attorney
and requesting continuances;
Motion to continue again denied; Motion
for temporary Visitation denied for failure to prosecute; this is without
prejudice and can be refilled if upon new counsel being employed,
page 7 legal file, account of trial proceedings listed in docket entry
is not consistent with recording log for that date. Recording Log for hearing
dated 23 June 1997, page 169 legal file. Appellant filed Motion for
Modification of Child Custody and Child Support, page 163,164 legal
file. Appellant filed Letter to Court of Appeals Attention Sandra L. Skinner,
Clerk Of The Missouri Court Of Appeals, page 162 legal file. Order Appointing
Guardian at Litem, docket entry made dated 17 July 1997 by Trial Court
Judge appointing ____________________ G.A.L., page 6, and 161 legal file.
Appellate Court sustained
Motion for Special Order of Appeal granted
appellant 10 days from Trial Courts Clerk’s receiving Appellate Court’s
Order, dated 16 July 1997, to file
Notice of Appeal, page 160 legal
file. Letter form Sandra Skinner to Kathleen McGuire filed, page 159 legal
file. Order from Court of Appeals requesting Trial Court take up matter
of appellant proceeding as a poor person, page 157 legal file. Form of
Southern District Court of Appeals,
Verified Motion to Proceed as a
Poor Person, filed, page 152,153,154 legal file. Notice of Docket entry
reflecting Trial Court granting appellant to proceed as a poor person dated
24 July 1997, page 155 legal file. Notice of Appeal filed, page
146, 147, 148,149,150,151 legal file. Appellant’s request for transcripts
filed, page 145 legal file. Missouri Court of Appeals sent letter to Trial
Court Clerk acknowledging receipt of notice of Appeal, a copy of
the order granting appellant to appeal as a poor person, and stated the
aforementioned documents were filed with the Appellate Court, dated 1 August
1997, see Appellate Court file. Appellant filed Motion for Temporary
Custody and Child Support, page 140 legal file. Appellant filled Motion
for Temporary Custody and Child Support, page 139 legal file. Docket
entry made reflected Trial Court Order to allow appellant transcript
of 13 November 1996 only, under Pauper’s provision for which appellant
was seeking appeal, page 5 legal file. Appellant filed
Motion to Proceed
as a Poor Person, page 138 legal file. Appellant filed Affidavit, page
131,132,133,134,135,136,137 legal file. Respondent’s attorney filed Motion
to Dismiss, page 128,129 legal file. Appellant requests transcripts
again, page 126 legal file. Appellant requests legal file documents, page
125 legal file. Appellant filed Motion to Proceed as a Poor Person,
page 124 legal file. Appellant filed Motion For Good Cause Shown,
page 123 legal file. Appellant filed Motion to Admit New Evidence,
First, page 76 through 122. Appellant filed Affidavit of ____________________,
page 73 legal file. Appellant filed Affidavit of I____________________,
page 72 legal file. Appellant filed Affidavit of ____________________,
page 69 legal file. Appellant filed
Request for Legal File Certification,
page 68 legal file. Letter from Kathleen McGuire to Appellant, page 67
legal file. Notice of Docket Entry filed, page 66 legal file. Deposit
for transcripts and tapes, docket entry dated 10 September, page 3 and
65 legal file. Appellant’s letter to Kathleen McGuire, page 64,65 legal
file. Letter from Office of Court Administrator filed, page 63 legal file.
Appellant filed Motion to Modify Decree of Dissolution of Marriage as
to Child Custody and Child Support, pursuant Trial Court Judge’s Order
reflected in docket entry dated 4 September 1997, page 59, 60,61,62, and
3, 66 legal file. Appellant filed Answer to Petitioner’s Interrogatories
and Request for Production of Documents Directed to Respondent, page
52 through 58.
Notice of Docket Entry filed, page 51 legal file.
Appellant’s Letter to Kathleen McGuire filed, page 50 legal file. Kathleen
McGuire’s Letter to Appellant filed, page 49 legal file. Letter from Appellant
to Trial Court Judge filed, page 48 legal file. Letter from Appellant to
Kathleen McGuire filed, page 47 legal file. Motion for Interrogatories
filed, page 44 legal file. Appellant’s
Request for Legal File Certification
filed, page 43 legal file. Appellant filed
Motion Hearing For Reasonable
Visitation, page 42 legal file. Appellant filed Request for Legal
File Certification, page 38,39,40, 41 legal file. Office of the Court
Administrator failed to send copies of transcript to trial court clerk
pursuant Missouri Rules of Court Administrative Rule 5.08 a. Appellant’s
brother, ____________________
, attempted to file transcripts produced
by Office of the Court Administrator in trial court within five day requirement
pursuant RSMo statute 512.110, on or about 29 October 1997, however, trial
court clerk refused to accept filing, affidavits for this attempt labeled
appellant’s exhibit #6. Record on Appeal filed with leave of Court
28 October 1997 with Court of Appeals. Appellant filed Motion to Dismiss
Without Prejudice pursuant to
Motion to Modify filed 3 July
1997 and
Motion to Modify filled 23 September 1997 to comply with
Court Order issued 4 September 1997, with Trial Court on 3 November
1997 via faxed transmission, Appellant’s exhibit #8. Motion For Nunc
Pro Tunc Order To Correct and Certify Record on Appeal, filed 5 November
1997 with Trial Court and received in Appellate Court file on 5 November
1997. Rule 30.04(h), 81.12(e) Motion to Supplement the Record on Appeal,
filed with appellate Court 10 November 1997 and sustained 20 November 1997.
Objection to Trial Court Clerk Failure to Provide Timely and Accurate
Notification, filed 25 November 1997 with Appellate Court. Motion
to Correct Trial Court’s Error In Not Issuing An Order to The Court Administrators
Office Declaring Appellant Indigent Status, filed with Appellate Court
on 31 December 1997. Docket entries by Trial Court’s Clerks, pages 2 through
37 reflect that no exhibit’s displayed in court were filed with Trial Court
Clerk. Appellant is currently retraining by attending Drury College. Appellant
is harmed both psychologically, suffered from depression, and physically,
deterioration of right knee from early degenerative bone disease, page
38 lines 18-25 of transcript dated 9 February 1996. Appellant is retraining
through Vocational Rehabilitation and thanks the State of Missouri, see
exhibit 8. The issues on appeal are: 1) The trial Court did fail to maintain
a record that does import absolute verity, and further, does a trial court
which fails to meet the statute and rule of a court of record have jurisdiction
in this proceeding. 2) The trial court did err by allowing the appellant’s
attorney to withdraw as counsel after being ordered by the same trial court
to produce a Writ of Prohibition. 3) The trial court did err by
allowing two assistant prosecuting attorneys to participate in this case
without prior notification. 4) The trial court did err by not granting
appellant an opportunity to have a full and complete transcript as ordered
25 July 1997, page 145 of the legal file, under pauper’s provision, page
5 legal file.
POINTS RELIED ON
ISSUE I
The trial court erred and abused its discretion by not maintaining accurate records. The Circuit Court is not a court of record and jurisdiction may not be given to a court if it is not a court of record:
RSMo sec. 476.010
RSMo sec. 483.075
RSMo sec. 483.140
Missouri Supreme Court Rule 4
Barrett v Farris Mo., 264 SW 363,366 [2]. "The courts clerk has a duty to see proper entries are made."
State of Missouri v West 270 SW 279. "Clerk may not alter the record"
State ex rel Caldwell v Cockrell 217 SW 524.
Corpus Juris Secundum, Vol. 21, Courts, Sec 5, page 20, footnote 89, speaks directly to the issue of courts not of record
State of Ohio v Allen 159 NE 591, 592 . "... one of the tests applied in determining whether or not a tribunal is a court of record is ‘whether or not the record of the court imports absolute verity.’"
Krummenacher v Western Auto Supply Co 206 SW 2nd 991 [1]. Missouri Courts have recognized the import of a full and complete record on appeal in the forming of the appellant’s brief.
Jackson v. State of Missouri 514 SW 2nd 532.
Home Insurance Co. of New York v Missouri Power and Light Co. 39 SW 2nd 1039. "Procedural rules governing trial court and Supreme Court must be enforced to obtain orderly authentic records."
Court Clerk’s Handbook, page 38. specifically states "an order of indigence should be sent to the Court Administrator’s office."
Court Administrator’s Manual on Sound Recording Procedures
State, ex rel. National Outdoor Advertising Company et al. vs. Seehorn,
Judge. 188 SW 2d 657, 354 MO 170.
POINTS RELIED ON
ISSUE II
Trial Court erred in allowing Mr. ____________________ to withdraw as attorney of record before completion of the trial court ordered Writ of Prohibition to be filed with the Court of Appeals, page 10 of the legal file.
Missouri Supreme Court Rule 4, Rules of Professional Conduct, Rule 6.1: "A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means ."
Missouri Supreme Court Rule 4, "rule" 1.1 and "rule" 6.1.
(B) Mr. ____________________
erred in not preserving objection to tapes, plaintiff’s exhibit 1 and 2
admitted into evidence during hearing dated 13 November 1997, in Motion
to Set Aside Modification Judgement and Order of November 15.
POINTS RELIED ON
ISSUE III
Trial Court did err in denying the appellant due process of law in that the trial court allowed two prosecuting attorneys to practice in the same case without prior notification; the trial court allowed the presence of impropriety by allowing these two prosecuting attorneys to practice in this case; and, the trial court erred in allowing the telephone conversations to be used in the proceedings.
A) The Trial Court erred by allowing an assistant prosecuting attorney to serve as respondent’s attorney and an assistant prosecuting attorney to serve as Guardian at Litem for the children in civil case CV295-367DR.
Missouri Supreme Court Rule 1.7, 1.10, and 1.11
State v. Ross 829 SW 2d. 949,950. " The Supreme Court, Benton, J. held that appearance of impropriety, arising from fact that two members of law firm which represented defendant being sued in tort by assault victim were working part time as county prosecutors, necessitated disqualification of entire prosecuting attorney’s office, even without showing of actual prejudice."
State v. Boyd, 560 S.W. 2d 296, 297.
State v. Burns, 322 S.W. 2d 736, 742.
Title 18 Chapter 119 Sec. 2515.
B) The Trial Court erred by allowing the presence of impropriety, . State v. Ross 829 SW 2d. 949,950.
Missouri Supreme Court Rule #4, Rules of Professional Conduct
State of Missouri v Boyd, 560 SW 2d 296, 297
State of Missouri v Burns, 322 SW 2d 736, 742
Title 18 Chapter 119 Sec. 2515 of the United States Codes
C) Trial Court erred on 13 November, 1996 when the trial court allowed the unauthorized recording of telephone conversations be admitted as exhibits, page ii of the certified transcript for 13 November 1996, and played in open court by the respondents attorney, Ms Wyman, who is also an assistant prosecuting attorney in the same trial court.
Title 18 section 119 statute 2515. According to the Federal statutes these tapes shall not be used as evidence in any judicial or administrative hearings or trials as evidence.
Gerald v. United States, 408 U.S. 41. 92 S. Ct 2357
POINTS RELIED ON
ISSUE IV
The Trial Court erred in not granting appellant an opportunity to have full and complete transcripts as ordered 25 July 1997, page 145 legal file, under pauper’s provision, page 5 legal file, State of Missouri ex rel. National Outdoor Advertising Co. et al. v Seehorn, Judge.
State of Missouri ex rel. National Outdoor Advertising Co. et al. v Seehorn, Missouri Supreme Court Rule 57.03 b
Missouri Statute 490.692
Langdon v Wright 821 SW 2d.
California v Farretta 95 S.Ct. 2525 (1975).
ARGUMENT I
The trial court erred and abused its discretion by not maintaining accurate records. The Circuit Court is not a court of record and jurisdiction may not be given to a court if it is not a court of record:
RSMo sec. 476.010 bestows court of record by statute, and said court shall keep just and faithful records.
RSMo sec. 483.075 sets the duties of the court clerk in the official duty to maintain courts records.
RSMo sec. 483.140 enlists the judge’s supervision in the official duty to maintain the court’s record.
Missouri Supreme Court Rule 4 defines clerk’s duty.
"The maintenance of the court’s record is justly protected by statute and rule because a Court of Record can only speak through its record." Barrett v Farris Mo., 264 SW 363,366 [2]. "The courts clerk has a duty to see proper entries are made." State of Missouri v West 270 SW 279. "Clerk may not alter the record" State ex rel Caldwell v Cockrell 217 SW 524. Further, Corpus Juris Secundum, Vol. 21, Courts, Sec 5, page 20, footnote 89, speaks directly to the issue of courts not of record and cites " one of the tests applied in determining whether or not a tribunal is a court of record is ‘whether or not the record of the court imports absolute verity.’" State of Ohio v Allen 159 NE 591, 592 . The Missouri Courts have also noted the import of the jurisdiction of a court to the point that the jurisdiction is a argument that can be raised at anytime in the process, and should be the first issue that the court should take up. Krummenacher v Western Auto Supply Co 206 SW 2nd 991 [1]. Further, Missouri Courts have recognized the import of a full and complete record on appeal in the forming of the appellant’s brief. Jackson v. State of Missouri 514 SW 2nd 532.
Therefore, appellant must note that whether by negligence, equipment malfunction, or malice if the record of the court does not import absolute verity there is no record for the appellant court to rule on and should remand the case at hand back to the trial court to create a record that does import absolute verity. The Missouri Courts have said, "Procedural rules governing trial court and Supreme Court must be enforced to obtain orderly authentic records." Home Insurance Co. of New York v Missouri Power and Light Co. 39 SW 2nd 1039.
The appellant has incorporated in the appellant file:
1) Motion for Nunc Pro Tunc Order To Correct and Certify the Record on Appeal, received 11-5-97.
2) Motion to Supplement the Record on Appeal, filed 11-10-97.
3) Objection to Trial Court’s Clerk Failure to Provide Timely and Accurate Notification, filed 11-25-97.
4) Motion to Correct Trial Court’s Error in Not Issuing an Order to the Office of State Court Administrator Declaring Appellant Indigent Status, filed 12-31-97.
All four of these documents cite negligence on the part of the trial court in the keeping and maintaining of the official record. Issues presented in the Appellant’s Motion for Nunc Pro Tunc Order to correct and Certify the Record on Appeal stamped received 5 November 1997, which the appellants brings to the attention of the Court of Appeals are as follows:
1)Letter, page 47 of the legal file, filed stamped 1 October 1997 has no docket entry in the docket sheets.
2)Letter, p. 48 of the legal file, filed stamped 1 October 1997 has no docket entry in the docket sheets.
3)Letter, page 50 of the legal file, filed stamped 29 September 1997 does not have a corresponding docket entry.
4)Letter from the trial court’s clerk to Appellant, page 67 of the legal file, has no file stamp. This letter was used to inform the appellant to pick the available documents for certification from the docket sheets; however, appellant notes that not all documents filed in this case are present in the docket sheets.
5)Affidavit, page 72 of the legal file, dated 28 August 1997 is incomplete.
6)MOTION TO PROCEED AS A POOR PERSON, page 138 of the legal file, dated 6 August 1997 is not complete. 7)MOTION FOR TEMPORARY CUSTODY AND CHILD SUPPORT, page 139 of the legal file, has two file stamps on it 5 August 1997 and 6 August 1997 as was as incomplete.
8)Letter requesting Legal File, page 141 of the legal file, has no docket entry and appellant questions weather this document has been properly filed stamped.
9)JUDGMENT ENTRY, page 166 of the legal file, filed stamped 26 June 1997 has no corresponding docket entry.
10)DOCKET SHEET, page 168 of the legal file, is not an original and appellant questions this documents authenticity. This entry on this docket sheet is not reflected in the official docket sheets and in the specific entry dated 23 June 1997.
11)RECORDING LOG, page 176 of the legal file, for 5 June 1997 is incorrectly dated a 4 June 1997. Appellant notes that this error may be negligent or mistake, but in light of the numerous other errors in the legal file and specifically the recording logs the Court Administrator Office is not proper in certifying the transcript for this date.
12)MOTION TO COMPEL, page 179 of the legal file, filed stamped 5 June 1997 is incomplete.
13)DOCUMENT, page 201 of the legal file, has two file stamps 18 February 1997 and 12 March 1997 the documents signed has dated signature 13 February 1997 and notes indicate that it was mailed 20 February 1997. There are no docket entries for any of these dates in the docket sheets maintained in the legal file and certified as true and complete.
14)DOCUMENT, p. 204 of the legal file, has two file stamps 11 February 1997 and 30 December 1996 and has no corresponding docket entry.
15)SUBPOENA, page 206 of the legal file, contains no return file stamp.
16)LETTER, page 229 of the legal file, has no file stamp and no docket entry. This document appears to be stamped received however one cannot read said stamp to identify that information.
17)MODIFICATION JUDGMENT AND ORDER, page 231 of the legal file, file stamped 15 November 1996 has no corresponding docket entry.
18)LETTER, page 238 of the legal file, has no file stamp.
19)TEMPORARY ORDER, page 239 of the legal file, file stamped 11 October 1996 does not match the written order maintained in the docket sheets for the same court date.
20)LETTER, page 245 of the legal file, stamped 25 September 1996 is stamped by the Associate Court and does not have the appropriate circuit court stamp, and there is no docket entry.
21)LETTER, page 247 of the legal file, dated 27 August 1996 has no file stamp and there is no docket entry.
22)ORDER, page 250 of the legal file, dated 25 July 1996 has no file stamp and no docket entry.
23)CONDITIONAL ORDER OF RELEASE, page 255 of the legal file, dated 15 July 1996 has no file stamp.
24)ORDER TO SHOW CAUSE, page 262 of the legal file, filed stamped 21 May 1996, is entered in the docket sheets on 28 May 1996.
25)STIPULATION, page 274 of the legal file, filed stamped 3 May 1996 has no docket entry.
26)RECORDING LOG, page 282 through 283 of the legal file, are improperly numbered. Appellant maintains that these recording log sheets are not copied from the original document.
27)PETITIONER’S REQUEST FOR TRANSCRIPTSfor record on appeal, page 286 of the legal file, dated 10 April 1996 and filed stamped 16 April 1996 has no docket entry.
28)JUDGMENT AND ORDER, page 308 of the legal file, filed stamped 18 March 1996 has no docket entry.
29)SUMMARY OF MARITAL AND NON MARITAL AND NON MARITAL PROPERTY AND LIABILITIES, page 326 of the legal file, filed stamped 14 February 1996 has no docket entry.
30)GUARDIAN AD LITEM BILL, page 331 of the legal file, filed stamped 13 February 1996 has no docket entry.
31)APPLICATION TO WITHDRAW, page 352 of the legal file, dated 28 December has no file stamp and is noted in the docket sheets on 2 January 1996.
32)ORDER, page 388 of the legal file, dated 1 August 1995 has no file stamp or docket entry.
Concerning the legal file it should also be noted that the appellant did file Rule 30.04 (h), 81.12 (e) Motion to Supplement the Record on Appeal, filed stamped with the court of appeal 10 November 1997, in which the following problems were manifested:
33) PSYCHOLOGICAL EVALUATION ON DIANA MORTON, Ordered by the trial on 18 October 1995, page 371 of the legal file, is not present in the legal file; although, on page 369 of the legal file a cover letter for said document is preserved with 2 file stamps 10 November 1995, received, and 13 November 1995, filed. This document was requested numerous times in the legal file request pages 1, 43, 47, 68, 125 of the legal file.
34) QUIT CLAIM DEED , discussed and ruled on in open court on 18 April 1996, page 277 of the legal file, and so ordered to be included in the trial court’s file. This deed was never submitted as ordered and is not a part of the record.
35] RESPONDENT’S EXHIBITS A AND B , as marked 27 December 1996,
as presented in open court on said date and are noted page ii of the transcript for 27 December 1996. No record of said exhibits were maintained or preserved in the docket sheets.
36] LAFEYETTE HOUSE’S PSYCHOLOGICAL EVALUATION OF AMANDA J. MORTON, which was handed to the Respondent in open court and during trial 9 February 1996 as was requested on page 1 of the legal file
and was ordered by the court was not made available to the appellant in the legal file.
The 32 points noted in appellant’s Motion for Nunc Pro Tunc Order to Correct the Record on Appeal as is maintained in the appellant court file and so listed here are discrepancies in the keeping of the official record of the trial court. The remaining four (4) issues presented in the motion to supplement the record on appeal as maintained in the official appellant court file is also duplicated here and reflect similar problems in the maintenance of the official record of the court. The Circuit Court Clerk’s Handbook specifically notes the importance of proper entries being made into the Court record and the acceptance of motions which are incomplete or the loss of pages from motions which have been filed with the Court is surely negligence on the part of the Clerk and staff in the maintenance of the trial court record. Further, documents that have not been properly file stamped and documents which have been properly file stamped and not entered into the official docket sheets of the Court are contrary to the rules set down by the Court Administrator’s Office in the Circuit Court’s Clerk’s Handbook AND, for the Trial Court not to have noted on its docket sheet that an order had been issued by the Trial Court and even failed to file stamp said order, is unconscionable. Page 250 of the legal file, point 22 of this argument. However, the problems with the record on appeal are not limited to the legal file. The absolute verity of this Trial Court’s records is also brought into question in the preparation and presentation of the transcripts to the appellant and thusly filed with the appellant court. Appellant contends that the transcripts and the certified tapes which was prepared by a private contractor for the Court Administrator’s Office, are not in fact a factual representation of the proceedings before the Trial Court on said dates. For the Appellant to undertake accusations that would only rely on the memory of himself and bystanders would only serve to dilute the issue of absolute verity of a Trial Court’s transcript. Appellant therefore puts forth these following issues concerning the transcripts that are filed with the Appellant Court.
1] On 5 June 1997 abbreviated transcript provided for the Appellant Court, the Appellant, ____________________, was called to the stand. Upon being called to the stand he was sworn and began testimony which is noted on page 2 of the certified transcript for 5 June 1997. What has been left out before Appellant’s attorney began questioning, the Trial Court ordered witness to speak into the microphone because recording equipment was malfunctioning. This statement has been deleted from the Court Administrator’s certified transcript. Appellant believes to leave out a statement material to the credibility of an official court record is in violation of the rules governing the Court Administrator’s office. It should further be noted on page four (4) of this transcript the Court further apologized at line eleven (11) with some regard to recording instruments. If the verity of the Court’s record can be challenged through negligence, equipment malfunction, or malice; if any of this appears, the verity of the record is not absolute.
2] Recording logs for 18 April 1996 page numbers are in improper order which should be apparent to anyone reading the index numbers. Appellant contends that the recording logs maintained on pages 282, 283 and 284 of the legal file are not the originals. But in the very least, have to be recognized as out of order. Appellant believes that the recording logs for said date were not prepared according to the Court Administrator’s Manual on Sound Recording Procedures in that they are impossible to follow and in some cases leave out relevant court instructions. The Court Administrator’s office should never have certified these transcripts according to the Court Clerk’s Handbook.
3] Transcripts for 13 November 1996 contain Petitioner’s Exhibits #1 and #2, marked received, pages 43 and 44 of the certified transcript, however; when these exhibits were played in open court no transcript was made of the recording and said exhibits are not entered in the docket sheets. The certified transcript for this date was not stipulated to being abbreviated and the transcript should be a full and complete record of the proceedings on said date. To fail to transcribe these audio exhibits challenges the absolute verity of the Trial Court’s record for this date.
Concerning Objection to Trial Court’s Clerk Failure to Provide Timely and Accurate Notification, filed 11-25-97, it should be further noted that the Trial Court’s Clerk was incapable of providing accurate and timely notifications of Trial Court’s rulings and requirements. Trial Court had proper address of Appellant at all times throughout these proceedings.
Concerning Motion to Correct Trial
Court’s Error in Not Issuing an Order to the Office of State Court Administrator
Declaring Appellant Indigent Status, filed 12-31-97, it should be noted
that the Court Clerk’s Handbook, page 38. specifically states "an
order of indigence should be sent to the Court Administrator’s office,
said order is maintained in the legal file at page 5, docket entry for
6 August 1997. This entry also notes "no other transcript shall be ordered
under pauper’s provision." This Trial Court’s remark flies in the face
of State, ex rel. National Outdoor Advertising Company et al. vs. Seehorn,
Judge. 188 SW 2d 657, 354 MO 170. The Appellant filed with this Appellant
Court on 31 December 1997 Motion of Correct Trial Court’s Error in Not
Issuing an Order to the Office of State Court Administrator Declaring Appellant
Indigent Status. Contained in this motion is a letter dated 17 December
1997 from Kathleen McGuire, Jasper County Circuit Court Clerk, demanding
$1330.00 to comply with Appellant’s request for transcript which does in
no way complies with the Circuit Clerks Handbook, page 38. Therefore,
the Appellant must request of this honorable Court of Appeals that the
case at hand be reversed and remanded back to the Trial Court to make a
record that does speak absolute verity. Appellant further requests that
the divorce decree issued on 9 February 1996 be reinstated and the modification
the Trial Court granted 13 November 1996 be set aside.
ARGUMENT II
The Trial Court Erred in allowing appellants attorney to withdraw after the trial court had ordered that Mr. ____________________ file a Writ of Prohibition with the Court of Appeals, Southern District, State of Missouri.
Mr. ____________________ should not have been allowed to withdraw as attorney of record before completion of the trial court ordered Writ of Prohibition to be filed with the Court of Appeals, page 10 of the legal file, and in not preserving objection to tapes, plaintiff’s exhibit 1 and 2 admitted into evidence during hearing dated 13 November 1997, in Motion to Set Aside Modification Judgement and Order of November 15.
Missouri Supreme Court Rule 4, Rules of Professional Conduct, Rule 6.1 Trial Court erred in allowing appellant’s attorney, Mr. ____________________, to withdraw as attorney when the trial court had ordered that a Writ of Prohibition be filed with the Court of Appeals, page 10 of the legal file. Mr. ____________________ failure to file said writ did deny the appellant a substantial right of review by the superior courts. Further, Mr. ____________________s failure to file said writ was solely based on the grounds that appellant could not afford said expenses. Missouri Supreme Court Rule 4, Rules of Professional Conduct, Rule 6.1:
ARGUMENT III
Trial Court did err in denying the appellant due process of law in that the trial court allowed two prosecuting attorneys to practice in the same case without prior notification; the trial court allowed the presence of impropriety by allowing these two prosecuting attorneys to practice in this case; and, the trial court erred in allowing the telephone conversations to be used in the proceedings.
A) The Trial Court erred by allowing an assistant prosecuting attorney to serve as respondent’s attorney and an assistant prosecuting attorney to serve as Guardian at Litem for the children in civil case CV295-367DR. Both assistant prosecutors served in every hearing from 9 February 1996 through 23 June 1997, except 18 April 1996. ____________________ is an assistant prosecuting attorney. page 13 transcript dated 5 June 1996 lines 13,14,15,16,17, and also page 12 lines 8,9,10,11,12,13. ____________________, Guardian ad Litem, is an assistant prosecuting attorney, page 14 lines 5 and 6. The record fails to reflect that either ____________________or ____________________ gave written notice stating they were assistant prosecuting attorneys, or that appellant waived conflict of interest per written agreement, Assistant prosecuting attorney’s have access to confidential information through the files of the prosecuting attorney office’s pursuant 610.100.2 and 610.100.3 RSMo. Missouri Supreme Court Rule 1.7, 1.10, and 1.11; State v. Ross 829 S.W. 2d 949,950; State v. Boyd, 560 S.W. 2d 296,297; State v. Burns, 322 S.W. 2d 736, 742.
B) The Trial Court erred by allowing the presence of impropriety, . State v. Ross 829 SW 2d. 949,950. The Missouri Courts have spoke directly to the point of impropriety and the appearance of such in the administering of justice;
In the case at hand the trial court has allowed, above the objection of the Appellant, two assistant prosecuting attorneys to act as counsel for the involved parties. Numerous accusations were noted in the court record, transcript for 13 November 1996, these unfounded and misleading accusations made by and in front of the court by attorneys that practice before the sitting trial judge as prosecuting attorneys does and did sway and bias the said trial judge. These accusations made by the assistant prosecuting attorneys, Mr. ____________________, and Ms. ____________________, were of a criminal nature and spoken to as fact, transcript for 13 November 1996. It should be noted no charges were filed and the appellant did cooperate with the appropriate officials to the point that no charges have ever been filed or pending. The accusations made in the transcript on 13 November 1996 and the resulting admittance of illegally obtained recordings of interstate telephone conversation in the face of appellants attorney’s objection, page 33 lines 18 -15 page 34 lines 1-5, that these exhibits did not have the proper foundation to be admitted, Title 18 Chapter 119 Sec. 2515. Which states that no interstate telephone conversation may be used as evidence in any hearing and/or trial. The appellant believes the presumption is that the trial court know the rules and statutes governing. Therefore, the appellant must request that this court of appeals reverse and remand this case back to the trial court and reinstate the provisions of the divorce decree of 5 April 1996.
C) Trial Court erred on 13 November, 1996 when the trial court allowed the unauthorized recording of telephone conversations be admitted as exhibits, page ii of the certified transcript for 13 November 1996, and played in open court by the respondents attorney, Ms ____________________, who is also an assistant prosecuting attorney in the same trial court.
Tape recordings of telephone conversations between appellant, appellant’s minor son, ____________________, to Appellant’s minor daughter, ____________________, were recorded conversations between Missouri and Florida and were played in Court, page 39 lines 22,23, page 40 lines 10,11, page 42 lines 3,4,11,12, during hearing dated 13 November 1996. Appellant’s attorney objected to Respondent’s exhibit 1 and Court overruled said objection, page 43 lines 15,16,17,18 during. Docket entries do not reflect any of Respondent’s, Petitioner in Trial Court, exhibits being filed with Trial Court’s Clerk. According to the Federal statutes these tapes shall not be used as evidence in any judicial or administrative hearings or trials as evidence, Title 18 section 119 statute 2515, Gerald v United States 92 S. Ct. 2357.
Therefore, the appellant must request that the Court of Appeals reverse the decision of the trial court for 13 November 1996, and reinstate the original decree of 5 April 1996, and provide whatever relief that this honorable court may deem appropriate.
ARGUMENT 1V
The Trial Court erred in not granting appellant an opportunity to have full and complete transcripts as ordered 25 July 1997, page 145 legal file, under pauper’s provision, page 5 legal file, State of Missouri ex rel. National Outdoor Advertising Co. et al. v Seehorn, Judge. Further, the Trial Court erred in not allowing the psychological evaluation into evidence stating,
Therefore, the appellant must request
that the honorable Court of Appeals see the error and denial of substantial
rights and reverse the said decision of the trial court and reinstate the
original Judgment and Decree of 5 April 1996.
CONCLUSION
The appellant must request that the Court of Appeals see the trial court is not a court of record on the basis of argument #1 and further that since the trial court’s record does not import absolute verity then it is not a court of record and therefore cannot render a judicial decision. The appellant further states according to argument #2 that attorney, Mr. Whitworth, failed to perform his obligation as an attorney to the appellant by not completing the Writ of Prohibition as ordered by the Trial Court, and failed to sustain his objection as to the foundation of tapes admitted into evidence during hearing dated 13 November 1996, plaintiff’s exhibit 1 and 2, in his Motion to Set Aside Judgement and Order Dated November 15, 1996. The appellant further states in argument 3 that the appearance of impropriety is obvious in that Mr. Dankelson and Ms. Wyman are both assistant prosecuting attorney for Jasper County and this trial structure should not have been allowed.
Therefore, the appellant,____________________, requests this honorable Court of Appeals reverse and remand the Modification Judgement and Order dated November 15, 1996 and reinstate the original decree of April 5, 1996. Thank you for your time.
Respectfully Submitted
____________________
Index of appellant’s exhibits
Exhibit #1 Document of ____________________
Exhibit #2 Report of Dr. ____________________
Exhibit #3 Tape of hearing 5 June 1996
Exhibit #4 Certification of tape for 5 June 1996
Exhibit #5 Mr. ____________________ Letter to appellant
Exhibit #6 ____________________ Affidavit
Exhibit #7 Motion to Dismiss without Prejudice
Exhibit #8 Vocational
Rehabilitation Document
Self Help Law Library
Case Law $7/Month 50 States + Fed
I use this service.
We push the limits on discount hosting!