The Appellate Blog



Court of Appeals Cannot Decide Weight-of-the-Evidence Challenge Without Fair Rendition of The Evidence

(Posted June 21, 2017)

The Missouri Court of Appeals has been trying to teach litigants how to mount an against-the-weight-of-the-evidence challenge to judgments in judge tried cases. Its work continues in McKinney v. Smith, No. SD34491 (Mo. Ct. App. S.D. June 15, 2017) in which a father was appealing from the trial court's custody decree. McKinney sets out the Southern District's analytical framework like this:


(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment; (2) identify all of the favorable evidence in the record supporting the existence of that proposition; (3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court’s credibility determinations, whether explicit or implicit; and, (4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.

In McKinney, Father’s appeal fell short on each step. First, he mistakenly described the order being appealed from as awarding Mother “primary residential custody” – a formulation that doesn’t exist in Missouri dissolution law. That was enough, the Court said, to find the points on appeal “preserve nothing for review.”

But the court soldiered on to address the second and third steps of its analysis. It’s here that McKinney has its broadest reach. Father failed to state – much less address – any of the evidence in the record that favored the trial court’s decision. He ignored, for example, Mother’s 144-pages of trial testimony and the evidence showing Father’s job required substantial time commitments of him. Since that evidence was not identified, the Court could not possibly determine whether the parenting plan it adopted was against the weight of the evidence without turning itself into an advocate.

And as for step three, Father tried to cite evidence in his favor, but in doing so he forgot that conflicted evidence (which this certainly was) can't help him. At bottom, the Court noted, Father’s argument was based on hotly contested testimony on both sides. Because the court on appeal must defer to the trial court’s factual rulings and credibility determinations, Father needed to argue that even crediting the court with that deference, his evidence was so strong that it destroyed the probative value of whatever evidence might be in the record to support the judgment. This he couldn't do so the judgment was affirmed.

Practice Tip. Evidence cited in an appellate brief’s Argument section should always be noted and cited in the brief’s preceding Statement of Facts. In doing this, careful practitioners should double check the standard of review governing their points relied on and draft statements of fact accordingly. As cases like McKinney teach, if the standard of review requires deference to the trial court’s factual findings or that the court view the record in the light most favorable to the judgment (or other party's claims), an appellant who fails to fairly state evidence in support of the judgment risks effectively waiving its point on appeal.