In Re the Marriage of: Elke Gonzales-Flaharty vs. Mathew Flaharty

IN RE THE MARRIAGE OF: ) ELKE GONZALES-FLAHARTY, ) WD87625 ) Appellant, ) OPINION FILED: v. ) ) November 25, 2025 MATTHEW FLAHARTY, ) ) Respondent. ) ) Appeal from the Circuit Court of Lafayette County, Missouri Honorable Dennis A. Rolf, Judge Before Division One: Janet Sutton, Presiding Judge, Gary D. Witt, Judge, and W. Douglas Thomson, Judge Elke Gonzales-Flaharty (Mother) appeals from a judgment of the Circuit Court of Lafayette County that dissolved her marriage to Matthew Flaharty (Father), 1 divided the parties' marital and non-marital property, and determined child custody and child support. Mother brings three points on appeal. First, Mother challenges the trial court's award of joint legal and joint physical custody of the minor children, despite Mother having entered into a stipulation providing for this custody agreement. Next, Mother argues the trial court erred when it reviewed an exhibit in camera, but did not provide her access to view the exhibit, rendering her unable to advocate for an equitable distribution of assets. In her third point, Mother argues the trial court

1 Father did not file a brief.

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erred when it failed to order Father to pay retroactive child support from June 1, 2023, to the time of trial in May 2024. We dismiss the appeal due to serious briefing deficiencies and failure to comply with Rules 81.12 and 81.16. 2

Factual and Procedural Background Mother and Father married in November 2009. There were three children born or adopted by Mother and Father during the marriage: K.G.-F., emancipated at the time of trial, and D.G.-F., and T.F., six and five years old, respectively, at the time of trial. Mother and Father separated in March 2022. Mother filed her petition for dissolution of marriage in March 2022, and Father filed his answer and counter-petition for dissolution of marriage in April 2022. Mother and Father appeared in person and with their attorneys for trial over two days in May 2023. After evidence was presented, Mother and Father announced they had reached a partial settlement on some of the issues and the trial court took the matter under advisement, pending submission of a proposed judgment. In September 2023, however, the parties advised the trial court that they could not agree on a proposed judgment. The trial court granted Mother's motion to reopen the evidence and to appoint a Guardian ad Litem (GAL). On May 2, 2024, Mother, Father, their attorneys, and the GAL appeared for trial and presentation of further evidence. At trial, the parties discussed a confidential settlement that Father had entered into with his employer for injuries that he sustained while on the job, but which occurred after the parties had separated. Mother and Father agreed that Mother was to receive fifty percent of any lost wages component of the settlement covering the nine-month period from the date of injury to the date of the first trial proceedings. The confidential

2 Rule references are to the Missouri Supreme Court Rules (2025).

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settlement was shared with the trial court under seal, but not provided to Mother or her counsel. Mother did not object. After evidence was presented, Mother and Father announced that they had reached a stipulation regarding custody of the minor children and it was marked as an exhibit. The stipulation, signed by both Mother and Father, was presented to the trial court and was eventually incorporated into the trial court's judgment. Mother and Father agreed that they would share joint legal and joint physical custody of the children pursuant to an agreed-upon parenting plan. Mother's attorney affirmed to the trial court that, "We stand by every word. [Mother] understands it, we acknowledge it," and, when questioned by the trial court whether she agreed, Mother stated that she did. The GAL stated that she agreed with Mother and Father's custody agreement. The trial court stated that it would still determine whether Mother was entitled to retroactive child support when Father was admittedly not paying child support f rom June 1, 2023, to May 2024, as well as child support going forward. On July 5, 2024, the trial court issued its judgment of dissolution of marriage. As relevant to this appeal, the trial court granted Mother and Father joint legal and joint physical custody pursuant to their agreement. The trial court specifically found that Mother and Father's "stipulation and agreement as to the legal and physical custody of the minor children is in the minor children's best interest," and the trial court adopted Mother and Father's parenting plan. The trial court calculated the presumed child support amount to be $56 per month, but determined the amount to be unjust and inappropriate due to the joint physical custody arrangement, and, accordingly, the trial court ordered no child support. Father was ordered to continue providing health, dental, and vision insurance for the minor children. The parties

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stipulated to an agreement regarding the division of marital assets and debts and non-marital assets and debts. The trial court awarded Mother $12,500 of Father's settlement agreement with his employer and set aside the balance of the settlement to Father as his sole and separate property. Finally, the trial court concluded that there was no retroactive child support owed by either Mother or Father. Mother appeals. Standard of Review Our review of a court-tried civil case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Accordingly, the trial court's judgment will be affirmed by the appellate court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Whitton v. Whitton, 707 S.W.3d 42, 46 (Mo. App. W.D. 2025). "Under the Murphy v. Carron standard of review, '[w]e review the evidence and its reasonable inferences in the light most favorable to the judgment and disregard any evidence and inferences to the contrary.'" Ebert v. Ebert, 627 S.W.3d 571, 579 (Mo. App. E.D. 2021) (quoting Parkway Constr. Servs., Inc. v. Blackline LLC, 573 S.W.3d 652, 664 (Mo. App. E.D. 2019)). "We presume the trial c ourt's judgment is valid and an appellant has the burden to demonstrate that it is incorrect." Interest of S.M.W., 658 S.W.3d 202, 212 (Mo. App. W.D. 2022). Discussion Rule 84.04

sets forth the requirements for appellate briefing, and compliance with those requirements is mandatory to ensure that appellate courts do "not become advocates by speculating on facts and on arguments that have not been made." Hoover v. Hoover, 581 S.W.3d 638, 640 (Mo. App. W.D. 2019) (citation omitted). "The failure to substantially comply with

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Rule 84.04's requirements preserves nothing for our review and is grounds for dismissing the appeal." R.M. v. King, 671 S.W.3d 394, 397 (Mo. App. W.D. 2023). First, we address Mother's failure to supply a complete and fair statement of facts. Rule 84.04(c) requires that the statement of facts in the appellant's brief "be a fair and concise statement of the facts relevant to the questions presented for determination without argument." Rule 84.04(c). "To present a fair statement of facts, an appellant is required to provide a statement of the evidence in the light most favorable to the verdict, not simply recount [appellant's] version of the events." Lavery v. Lavery, 699 S.W.3d 575, 578 (Mo. App. W.D. 2024) ( internal quotation marks and citation omitted). Here, Mother chose to omit "considerable evidence favorable to the . . . judgment which [Mother] unilaterally deemed irrelevant to the issues on appeal[.] " McKenna v. McKenna, 717 S.W.3d 634, 641 (Mo. App. W.D. 2025). By only recounting her version of the evidence, Mother has violated Rule 84.04(c). See id. Aside from violating Rule 84.04(c), failure to acknowledge adverse evidence is simply not good appellate advocacy. Indeed, it is often viewed as an admission that if the Court was familiar with all of the facts, the appellant would surely lose. The 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. Id. (quoting Prather v. City of Carl Junction, Mo., 345 S.W.3d 261, 263 (Mo. App. S.D. 2011)). For example, Mother omits any discussion or acknowledgement of her shortcomings as a co-parent and her actions that have alienated Father from the children. These shortcomings and actions include, but are not limited to, Mother's unilateral decision to enroll the children in daycare and private school without notifying Father or listing him as a parent on contact forms, taking the children out of school for a week-long out-of-state trip and not notifying Father, keeping important information about the children from Father including when one of the children had to go to the emergency room and other medical and mental health treatment information, her

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unilateral decision to disallow overnight visits, and her residing with her parents who smoke in the house and in the car around the minor children, who have respiratory issues and have been hospitalized for such health issues. Mother also fails to acknowledge that Father testified that he has been to therapy, he agreed that therapy would be beneficial for the children and has agreed to pay for his portion of it, he reduced his alcohol consumption, and he voluntarily downloaded and uses the BACtrack app, an app-based remote alcohol monitoring system and shares the results with Mother. These omitted facts are favorable to the judgment and relevant to Mother's first and third points on appeal. By itself, a violation of Rule 84.04(c) constitutes grounds to dismiss an appeal. R.M., 671 S.W.3d at 398. Next, we turn to Mother's points on appeal. Mother acknowledges that Murphy v. Carron governs our review in this case. To comply with Rule 84.04, a point on appeal must proceed under one of the Murphy v. Carron grounds. S.M.W., 658 S.W.3d at 212; Ebert, 627 S.W.3d at 580. This is because each Murphy ground requires a distinct analytical framework. S.M.W., 658 S.W.3d at 212. See Rule 84.04(d)(1) (requiring a point relied on state concisely the legal reasons for the claim of reversible error). That is, an "against-the-weight-of-the-evidence" analysis which is distinctly different than a claim that a judgment is not supported by substantial evidence obviously differs also from claims that the trial court erroneously declared or applied the law. In turn, this means each Murphy ground is proved differently from the others and is subject to different principles and procedures of appellate review. Smith v. Great Am. Assur. Co., 436 S.W.3d 700, 703-04 (Mo. App. S.D. 2014) (internal quotation marks and citation omitted). Rule 84.04 directs us to dismiss the point if it fails to identify which one of the Murphy v. Carron grounds applies. See Biggs by Next Friend Biggs v. Brinneman, 598 S.W.3d 697, 702 (Mo. App. S.D. 2020).

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Mother fails to articulate which Murphy ground she relies upon in seeking reversal of the trial court's judgment in her first and third points, either in the points themselves or in the argument portions thereunder. For points one and three, at times, Mother seems to challenge the application of the law, while at other times she appears to challenge the sufficiency and the weight of the evidence. A single point that implicates more than one Murphy standard is multifarious and preserves nothing for review. Kurz v. Kurz, 674 S.W.3d 533, 537 (Mo. App. S.D. 2023). Additionally, Mother's arguments do not employ either necessary rubric for a no- substantial -evidence nor an against-the-weight-of-the evidence challenge. This Court cannot speculate and craft Mother's allegations of error for her. S.M.W., 658 S.W.3d at 212. A prerequisite to success on appeal is complying with Murphy's requirements, and, "without such compliance (as here), an appellant's argument simply cannot succeed." Biggs, 598 S.W.3d at 702. Accordingly, because Mother's first and third points fail to identify which one of the Murphy v. Carron grounds applies, we dismiss points one and three. See S.M.W., 658 S.W.3d at 212. We note, ex gratia, as to Mother's first point, that the trial court did not "abdicate[] its statutory duty to independently evaluate whether the parties' custody agreement" served the children's welfare, as Mother contends. Section 452.375.6 3 requires that the trial court include a written finding based on the public policy in section 452.375.4 and the factors listed in section 452.375.2(1) to (8) when the parties have not agreed to a custodial arrangement. See Speer v. Colon, 155 S.W.3d 60, 61-62 (Mo. banc 2005); Buchanan v. Buchanan, 167 S.W.3d 698, 702 (Mo. banc 2005). Here, Mother and Father agreed to share joint legal and joint physical custody, and the trial court made a specific finding in its judgment that this arrangement was in the

3 Revised Statutes of Missouri (2016) as supplemented.

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children's best interest. The trial court did not err or otherwise "abdicate" its duty relating to Mother and Father's custody agreement and the children's best interest. As to Mother's third point, we note ex gratia that "it is the trial court's function to balance the equities in determining if a party is entitled to retroactive child support, and this Court will not substitute its judgment for that of the trial court." Slattery v. Slattery, 185 S.W.3d 692, 697 (Mo. App. E.D. 2006). Father provided Mother a lump sum child support payment of $7,000 in August 2023 to cover an earlier time period when he did not pay support. Father was injured on the job in August 2022, and was on disability, but he did keep the children and Mother on his health insurance plan through his work as long as he could, and Father agreed to pay the children's outstanding medical bills. Father also agreed at the initial trial proceedings that Mother would receive a percentage of his lost wages from when he was injured to the date of the first trial proceedings. Finally, Mother claimed both children as dependents on her 2022 tax return and did not split any portion of the refund with Father. We cannot say that the trial court abused its discretion in not awarding Mother retroactive child support from June 1, 2023, to the time of trial in May 2024. Finally, we discuss Mother's second point, in which she challenges the trial court's use and in camera review of an exhibit containing Father's confidential settlement with his employer for work-related injuries he sustained after the parties separated. As to point two, we discern that Mother attempts to challenge the trial court's application of the law, although she does not say so either in her point relied on or in her argument. Mother and her counsel were not permitted to view the exhibit. Mother contends that she was denied "due process" because she did not have

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the ability to advocate for an "equitable distribution of marital assets." 4 We dismiss this point for two reasons. First, although Mother claims that she preserved her objection to the trial court's viewing of the settlement in camera without allowing her to view it, a review of the record reveals she did not object at trial. In her brief, Mother provides two specific citations to support her contention that she objected at trial. The first portion of the transcript where Mother states she objected is as follows, specifically in italics: [Father's Attorney]: Your Honor, I think that . . . the settlement agreement itself indicates that the only way that it can be disclosed by any party to the action would be by court order and under seal. THE COURT: Okay. [Father's Attorney]: So that would have to happen for any information related to that to be disclosed. [Mother's Attorney]: I don't believe the authority of the lawsuit – well, of the trial court in Shawnee County can decide whether that lump sum that was paid to [Father], it shouldn't be revealed to a court deciding a dissolution of marriage case. THE COURT: I can't do my job unless I know what I'm looking at. [Mother's Attorney]: That's what I'm saying. THE COURT: I mean, it would not be fair to either side if I'm expected to just pick a number out of the air. I mean, I might be picking a number way too low or way too high and wouldn't have an accurate calculation with regards to

4 We note that Mother and Father agreed to the division of their property including vehicles, bank accounts, and other personal property. The parties also agreed to a division of marital debt. We fail to understand Mother's argument on appeal that she should have been able to view Father's confidential settlement to better advocate for an equitable distribution of marital assets when she agreed to the division of their property. Additionally, after awarding Mother fifty percent of Father's settlement proceeds for lost wages, the trial court designated the balance of Father's settlement with his employer as nonmarital. On appeal, Mother does not challenge the trial court's designation of the balance of the settlement as nonmarital.

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what I decide in my decision. You look like you are ready to get up and say something. [Father's Attorney]: Your Honor, if the Court were to order the settlement document to be provided to you under seal, I think that [complies] with the agreement that was signed by [Father]. And that could be done, but I don't think it can be disseminated to the parties, the attorneys or anyone else if you get to the point where you think any of it is divisible. THE COURT: I would have to see the document before I would know if any of it was relevant to the division, because I would want to know the breakdown of the proceeds. [Father's Attorney]: And there is no breakdown. If you want to issue an order allowing the document to be provided to you, it can be provided to you as of right now. Because I did have [Father] bring a copy with him because that might have been an issue. But the agreement specifically says under court issue and basically sealed. THE COURT: Okay. [Mother's Attorney]: We would ask that you issue an order, then, Judge, either oral or we can get you one to sign. THE COURT: Does Respondent need a written order or just an oral pronouncement good? [Father's Attorney]: I think an oral pronouncement or something in Casenet that specifically says that you are ordering that it be provided to the court under seal. . . . THE COURT: All right. I am going to order that information concerning the . . . settlement be provided to the Court for the Court's use in dividing assets and potentially for calculation of child support. Because I don't know now if there is some part of the award that discusses future payments. So. [Father's Attorney]: Which there is not, but you'll see that in the document. THE COURT: Any other preliminary issues we need to discuss before we start putting on more evidence? [Mother's Attorney]: Nothing from Petitioner. The second portion of the transcript where Mother states she objected is as follows, again in italics:

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[Mother's Attorney]: I would like to read into the record one stipulation the parties have agreed to. You are the only one who has seen the settlement document. Respondent has a pending lawsuit . . . [and] [t]he parties stipulate and agree that should said lawsuit award [F]ather a judgment for lost wages, that petitioner shall receive 50 percent of any settlement of judgment that delineates a period of time for lost wages . . .That was a stipulation that was entered into between the parties at the end of the trial last time. [Father's Attorney]: I agree, Your Honor. [Mother's Attorney]: That is why this settlement from [Father's employer] is relevant without us knowing what is in it. [Father's Attorney]: I guess you are going to be the only one who knows. But my understanding is [the] lump sum does not delineate lost wages or period of time or what that would be – or how they calculated it. [Mother's Attorney]: I'm ready, Judge. THE COURT: I can already tell you, my anticipation is that I'm going to go through and look at – I know what the number is, but I'm going to look at what his wages were and then what he got paid for disability and probably make some type of calculation based on that. [Mother's Attorney]: Okay, Judge. That is all relevant. We wanted to put in that stipulation. I appreciate it. The record simply does not support Mother's contention that she objected to the trial court viewing the settlement in camera without allowing her to view it. Although Mother filed a motion for new trial and included such a claim, this was insufficient. Because Mother did not object at trial, the issue is not preserved for appeal. Metro. St. Louis Sewer Dist. v. St. Ann Plaza, Inc., 371 S.W.3d 40, 48 (Mo. App. E.D. 2012). This Court will not convict a trial court of error on an issue that was not put before the trial court to decide. Tolu v. Stientjes, 703 S.W.3d 619, 635 (Mo. App. E.D. 2024); S.M.W., 658 S.W.3d at 210. See also Moody v. Dynamic Fitness Mgmt., Ltd., 707 S.W.3d 610, 618 (Mo. banc 2025) ("[t]o preserve for appeal a claim of evidentiary error, a party must object to the evidentiary ruling at trial"); Metro. St. Louis Sewer Dist., 371 S.W.3d at 47-48 (stating that, " [e]ven in a court-tried case, where no post-trial motion

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is required to preserve substantive issues for appellate review . . . we cannot address arguments that the appellant failed to raise at trial."). Therefore, at best, Mother's second point is subject to plain error review. We have discretion to review plain errors affecting substantial rights pursuant to Rule 84.13(c) when the court finds that manifest injustice or miscarriage of justice has resulted therefrom. We will not find plain error, however, unless there are substantial grounds for believing that the trial court committed error that is evident, obvious and clear and where the error resulted in manifest injustice or miscarriage of justice. S.M.W., 658 S.W.3d at 210 (internal quotation marks and citation omitted). "Although the rule makes clear that we have discretion to review an unpreserved claim for plain error, our Supreme Court has expressly stated that such review is ' rarely' granted in civil cases." Kelley v. Dep't of Corr, 679 S.W.3d 69, 83 (Mo. App. E.D. 2023) (citing Mayes v. St. Luke's Hosp. of Kansas City, 430 S.W.3d 260, 269 (Mo. banc 2014)). Here, we will not exercise our discretion to review this unpreserved purported error. Even if the claim had been properly preserved, we must still dismiss the point because Mother failed to supply this Court with an adequate record under Rule 81.12. See Pierson v. Laut, 113 S.W.3d 298, 299 (Mo. App. E.D. 2003). Mother has not provided the exhibit the trial court viewed in camera to this Court. Rule 81.12 provides that "[t]he record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision." Rule 81.12(a). While Rule 81.12(f) permits this Court to order that the record be supplemented, it is neither the respondent's nor this Court's duty to obtain the materials necessary to determine an appellant's point on appeal. See Davis v. Johnson Controls, Inc., 549 S.W.3d 32, 37 n.3 (Mo. App. E.D. 2018). The rule makes it clear that it is the appellant's—Mother's—duty to compile the record on appeal. See Pierson, 113 S.W.3d at 299.

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Further, Rule 81.16(a) provides that if original exhibits are necessary to the determination of any point relied on, they shall be deposited in the appellate court by the appellant. As relevant to the circumstances in this case, Rule 81.16(a) provides: If a party other than appellant has custody of exhibits, appellant may request that party to either deposit the exhibits with the appellate court or deliver them to appellant for deposit with the court. The party having custody shall either promptly deliver them to appellant or deposit them with the court. Here, the exhibit—the confidential settlement—that Mother was not allowed to view at trial is obviously not in her possession. Mother, however, could have filed a motion under Rule 81.12(f) asking us to direct Father—the respondent—to file the exhibit under seal in this Court. Or, Mother could have requested that Father deposit the exhibit in this Court or provide it to her for deposit pursuant to Rule 81.16(a). Either way, it was Mother's duty to initiate the request for the exhibit. The failure to substantially comply with Rules 81.12 and 81.16 preserves nothing for review. In re Marriage of Weinshenker, 177 S.W.3d 859, 864 (Mo. App. E.D. 2005). Conclusion Because Mother failed to give a fair and concise statement of the facts, did not identify which Murphy ground she relies upon in seeking reversal of the trial court's judgment in her points relied on, and failed to provide this Court with everything necessary to determine all of the questions presented by her appeal, we dismiss the appeal.

_____________________________ Janet Sutton, Presiding Judge

Gary D. Witt, J. and W. Douglas Thomson, J. concur.