# McAllister v. McAllister

> Missouri Court of Appeals · January 28, 2003 · 101 S.W.3d 287

URL: https://www.frixlaw.com/law-library/cases/9662221

## Case

- **Full name:** Hayes M.C. McALLISTER, Plaintiff-Appellant, v. Irma Lee McALLISTER, Respondent
- **Court:** Missouri Court of Appeals
- **Decided:** January 28, 2003
- **Citations:** 101 S.W.3d 287; 2003 Mo. App. LEXIS 95; 2003 WL 173719
- **Precedential status:** Published
- **Opinion:** Dissent by Blackmar
- **Judges:** Blackmar, Charles, Crahan, Lawrence, Mooney
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9662221

## Opinion text

CHARLES B. BLACKMAR, Senior Judge,
dissenting.
After careful reflection I feel that I must dissent. I am in my 55th year as a member of the Missouri Bar. In all those years I have never seen, in any court, Federal or state, the abrupt termination of proper examination by the imposition of a time limit. The trial judge so departed from prevailing standards of judicial procedure and fundamental fairness that a full retrial before another judge is required.
Although the majority did not base its holding on the inadequacy of the appellant’s statement of the point relied on, I perceive no fault in the point as stated, and see no basis for criticism of counsel. I have no difficulty in seeing what counsel is complaining about. He was not allowed to complete his cross-examination. The legal error is obvious and requires no citation. I am impatient with unnecessarily close scrutiny of points relied on by appellate panels. I find the lengthy, rambling points employed by lawyers in attempting to satisfy judges less than helpful.
Nor am I persuaded that the error was harmless. The majority appropriately states that we are obliged to defer to the trial judge’s credibility calls, but this judge has not heard the whole case! This is especially so as to the appellant’s second point, in which the court holds that the wife has established an oral gift of the *295 parties’ home to her when title was in the husband’s name before the marriage. I shall not comment on the merits of the second point except to say that I find the wife’s evidence of a gift less than overwhelming and am unwilling to accept the trial court’s credibility call in the absence of cross-examination.
The majority properly recognizes the difficulty in presenting an offer of proof as to cross-examination which has not been allowed to proceed. There is no substitute for a quick response to direct examination. As many lawyers have learned to their dismay, the examinee may blurt out a devastating answer which will affect the trial of the whole case. When there is fundamental error of the magnitude here demonstrated, counsel should not be required to prove that the error was not harmless.
Busy judges understandably try to move their heavy caseloads, but they must operate within the established framework. This case did not involve a rambling or repetitious cross-examination. Counsel was allowed only a few minutes. In a case involving substantial issues of credibility, we should send an unequivocal message to trial judges.
I would reverse the judgment and remand the case for retrial before another judge.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9662221. Public record. Not legal advice.