author: KENNETH W. SHRUM, Presiding Judge.

text:
    Gayle A. MILLER, Petitioner-Respondent, v. Joel K. MILLER, Respondent-Appellant.
    No. 26909.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 21, 2006.

      James R. Sharp, Sharp & Bredesen, Springfield, for appellant.
    Susan S. Jensen, Pratt, Fossard, Jensen & Masters, L.L.P., Springfield, for respondent.
   KENNETH W. SHRUM, Presiding Judge.

This is a dissolution of marriage case. The trial court dissolved the marriage of Gayle Miller (“Mother”) and Joel Miller (“Father”), awarding Mother sole legal and physical custody of the two minor children, Hayley and Garrison, with only supervised visitation for Father. Father appeals.

On appeal, Father makes seven claims of trial court error. Generally stated, Father challenges as erroneous the custody plan, the amount of child support ordered (both prospective and retroactive sums), the attorney fee award to wife, and that part of the judgment ordering Father to make a lump sum payment to Mother to equalize the marital property division. Several of Father’s points have merit (Points I and IV-YI). We reverse outright the part of the judgment complained of in Point I. We reverse and remand that part of the judgment addressed in Points IV-YI. In all other respects, the judgment is affirmed.

STANDARD OF REVIEW

In reviewing a trial court’s judgment in a dissolution case, this court must follow the well-known standards of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo.banc 1991); In re Marriage of Michel, 142 S.W.3d 912, 917 (Mo.App.2004). Thus, the decree must be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 917[1].

FACTS

Father and Mother married October 18, 1986, and separated in October 2000. Two children were born of the marriage, Hay-ley (December 14, 1995) and Garrison (October 18,1999). Throughout the marriage, Mother was the primary caregiver to the children as she worked only on weekends and Father worked during the week.

After the separation, Husband visited the children during the daytime on Saturdays and Sundays, every other weekend. He also saw the children “for an hour or so” two to three times during the week. This visitation schedule continued until approximately August 2001. At that time, Mother shortened the visitations because Hayley stated that Father “massagfed] her between her legs” during a “tick check.” Mother sought to stop the visitations altogether, but was told by her attorney that this was not possible.

Father admitted to viewing pornography on the Internet (first manifesting itself in 1995) and sought counseling for this problem. In psychological evaluations ordered by the trial court, Father described his addiction to pornography, claiming it was “[k]ind of like drugs. Seems to take more and more.” He claimed he viewed “anything that had to do with sex” and “the more bizarre the better.” He further told the psychologist, Dr. Bradford, that he “saw a lot of young children being abused.” Father would search the Internet for “anything out of the ordinary” including child pornography, “hard core things” such as “rape, torture, pretty much bondage stuff,” and “animals.”

As part of his findings, Dr. Bradford stated:

“The most critical thing, to this examiner, is the level of his pornography usage, whether it is through or whether it might return or cause impulsive or poor behaviors toward the children. Also, there is the question of what the children might be exposed to.... [Father] might say that although he viewed pictures, he would not act any further than that. Experts on addiction would often say that the viewing of increasingly bad pictures is part of moving from one stage to another in addiction. Whether he would act or not on the fantasies, is not clear from our data.”

To deal with the problem, Dr. Bradford recommended:

“[OJngoing therapy for [Father] to deal with all the issues he has had with depression, pornography, relationships, vocational issues, child visitation and care issues, etc. It would be most important to have a therapist who is very familiar with pornography addiction, who could testify or vouch for him that he is making progress and that might be willing to say that he has had enough treatment that he would pose no risk for visitation, extended visitation, short trips, eventually possible joint custody, etc.
“Short visits seem to be occurring at this time and that seems appropriate, but then again the situation and emotions of the children should be further investigated to further explore how that might be going. *Further interviews of the children by the therapist and investigation of how the children are doing in therapy with Leslie Brown would be an important part in understanding the needs and thoughts of the children in this case.”

The therapist mentioned in Dr. Bradford’s report, Leslie Brown, began seeing Hayley in October 2001. Hayley’s counseling resulted from her exhibiting behavioral problems such as being physically aggressive and masturbating in public. The first time Brown witnessed Hayley’s anger problems was after a meeting with Father in April 2002. At this meeting, Brown recommended to Father that Hay-ley was not ready for overnight visitations. When Hayley found this out, Hayley “raged, was absolutely furious, intensely so, and that rage continued week after week after week, escalating into absolutely calculating, vicious attacks.” Apparently, Hayley did not want Father to know that she did not want to go on overnight visits. In December 2002, Hayley related to Brown that she “acted out” because she believed doing so would equate to less visitation time with Father.

In her opinion, Brown believed that Hayley had an overwhelming fear of Father because she was confused on whether he molested her and because Father was an extremely angry person. A Division of Family Services investigation into the molestation allegation resulted in a finding of “no probable cause” and Brown stated that she was unsure if the abuse occurred. Father, of course, denied any wrongdoing. We will further address these issues in our discussion of Points II and III.

In 2004, Father’s visitation with the children changed to supervised contact for two hours per week and Hayley’s behavior improved. Brown testified that Hayley is “totally convinced that if somebody were not watching, that [Father] would be scary again.”

Ultimately, Brown and the guardian ad litem appointed by the court recommended that Father only be allowed supervised visits with Hayley and Garrison. The trial court agreed, finding unsupervised contact with Father would harm the children physically and emotionally. As such, Father was given supervised visits for one hour per week with the children.

The supervised contact stemmed, in part, from Dr. Bradford’s recommendations and Father’s cavalier attitude toward the situation. For instance, Dr. Bradford claimed that Father needed ongoing treatment for his pornography problem, and “one concern we currently have is, in terms of treatment, he seems to be going as little as possible ... not as much as possible.” Even in light of Dr. Bradford’s evaluation, Father testified at the dissolution trial that he “never had a problem with child pornography,” even though he actively sought such materials on the Internet. Moreover, Father told the court that he refused any sort of continued therapy for his problem.

At this point, we refrain from further discussion of the facts as the above presents a sufficient overview. Other facts and pertinent parts of the judgment will be discussed further in addressing Father’s points on appeal.

Point I: Conditioning Visitation on Payment of Therapy Costs

Father’s first point maintains the trial court committed reversible error when it decreed he could not visit his children “[u]ntil or unless” Brown was paid for past therapy sessions and any future visitation would stop if he “fail[ed] to pay ... Brown for future therapy for Hayley.” Several parts of the trial court’s judgment must be considered in deciding this claim of trial court error.

First, Mother was ordered to maintain health and dental insurance for the children, but Father was required to pay any “medical, dental, orthodontia, psychological and psychiatric expenses ... for the ... children, which are not paid for by [Mother’s] insurance.” (Emphasis supplied.) Second, the trial court allowed Mother a Form 14 credit of $223 for health insurance costs. Third, the court allowed Mother a $174 per month credit for other extraordinary child rearing costs per Line 6e of Form 14. Mother testified the $174 figure represented monthly therapy costs for Hayley. Fourth, the trial court used a separate paragraph to order Father to pay past and future therapy costs for Hayley and ruled that if Father failed to pay these costs to Brown, all visitation with the children would immediately cease until Father was current on the payments.

In his brief, Father concedes the trial court had authority to order him to pay Brown’s fees; he argues, however, that “it is clearly not appropriate for the trial court to base a parent’s ability to see his children on the payment of those fees.” This court agrees.

A redundancy exists in this judgment regarding Father’s obligation to pay Brown’s expenses. This is so because the separate order is for expenses already included—at least in part—in the child support payment calculation. See Gordon v. Gordon, 924 S.W.2d 529, 536 (Mo.App.1996). Granted, the redundancy is otherwise irrelevant in our analysis of Point I, yet we reference it to emphasize that Father’s obligation to pay any or all of Brown’s therapy charges is simply a part of his child support obligation. This is true whether payment of Brown’s services for Hayley was ordered as part of the Form 14 child support calculation or as a separate item of support per section 454.638.3.

With that said, we are persuaded that the trial court exceeded its authority when it conditioned Father’s visitation with his children on the payment of child support, i.e., on payment of Brown’s therapy charges for Hayley. We find support for this in the following.

The General Assembly of Missouri, via section 452.375.4, has declared it to be “the public policy of this state that frequent, continuing and meaningful contact with both parents” after dissolution of marriage “is in the best interest of the child.” In a similar vein, section 452.365 provides that “[i]f a party fails to comply with a provision of a decree ..., the obligation of the other party to make payments for support ... or to permit visitation is not suspended but he [or she] may move the court to grant an appropriate order.” For instance, if Father failed to pay the Form 14 part of his child support obligation, the remedy for Mother was to move the court to grant an appropriate order, not suspend visitation. Kessinger v. Kessinger, 829 S.W.2d 658, 660 (Mo.App.1992); State ex rel. Williams v. Williams, 647 S.W.2d 590, 593[5] (Mo.App.1983).

The trial court here clearly had authority to include Brown’s fees as part of Father’s child support obligation. See Foraker v. Foraker, 133 S.W.3d 84, 97-98 (Mo.App.2004); Kirkwood v. Kirkwood, 77 S.W.3d 675, 686 (Mo.App.2002). What it did not have was the authority to empower Mother to unilaterally suspend Father’s visitation rights by claiming he had not paid this part of his child support obligation. In effect, the judgment purports to authorize Mother to do what section 452.365 strictly prohibits, namely, prohibit future visitation for nonpayment of support. We hold that the court lacked authority to sanction Father for nonpayment of child support in this fashion. That part of the judgment is reversed.

We turn next to Father’s contention that the trial court erred when it ordered that he cannot visit the children until he pays Brown’s past due fees. Although this is not the same situation as the future child support issue discussed above, we find it analogous and hold the trial court lacked authority to enter that order. We do so, not only for the public policy reasons expressed in sections 452.365 and 452.375.4, but also based upon Mansell v. Mansell, 583 S.W.2d 284 (Mo.App.1979).

In Mansell, the trial court conditioned the noncustodial parent’s right to visitation on the payment of a $1,500 bond to ensure that she would return the children from California after the visitation period ended. Id. at 285. The Mansell court found the $1,500 bond to be an “unauthorized condition” on the exercise of visitation rights. Id. at 288[6]. Here, the condition that Father pay this child support payment “up front” before visitation can be had is a similar “unauthorized condition.”

In so holding, we recognize there is statutory and case authority for requiring prepayment of certain fees as a prelude to supervised visitation. See Reding v. Reding, 836 S.W.2d 37, 42 (Mo.App.1992). The Reding court reasoned that if the need for supervised visitation is proven, then such visitation “would necessarily require payment of expenses for supervision.” Id. at 42[5]. Moreover, Reding ruled that a trial court has “broad discretion in apportioning the expenses of exercising child custody rights! ]” and that such discretion was not abused by ordering the visiting parent to pay supervision costs up front. Id. at 42-43[6].

That is not the same as requiring a parent to pay some part of child support as a prelude to visiting. There is no analogous statutory empowerment of a trial court to condition the exercise of visitation rights on the payment of child support as there is in paying for supervision expenses.

In sum, the trial court erred when it required Father to pay the therapy part of his child support obligation, past or future, as a prelude to exercising his visitation rights. The trial court had no such authority. Father’s first point is granted.

Points II and III: Supervised Visitation Issues

In his second and third points, Father argues the evidence was insufficient to support that part of the trial court’s judgment which limited his contact with the children to one hour of supervised visitation each week. We disagree.

The paramount concern in child custody cases is whether the trial court’s order serves the best interest of the child. In re Snoke, 913 S.W.2d 407, 408-09[2] (Mo.App.1996). We will affirm the trial court’s decision unless we are firmly convinced the welfare of the children requires some other disposition. Snoke, 913 S.W.2d at 409[3],

A trial court shall not order supervised visitation unless it finds that the visitation would endanger the child’s physical health or impair his or her emotional development. § 452.400.1-2; Robinson v. Robinson, 128 S.W.3d 543, 547 (Mo.App.2003). Appellate courts give great deference to a trial court’s assessment of the best interests of the child “because it is in the better position to judge the credibility of the witnesses, as well as their sincerity, character, and other intangibles not completely revealed by the record.” Snoke, 913 S.W.2d at 409. “This deference is critical in domestic cases, where testimony is often sharply divergent and lawyers are prone to reargue the facts on appeal.” Id.

Father’s second point challenges the sufficiency of the evidence as it pertains to the visitation order regarding Hayley. In that vein, we note the evidence overwhelmingly supports the trial court’s judgment restricting Father’s visitation. First and foremost, Dr. Bradford stated that, as the matter stood, Father posed a risk to both children due to his preoccupation with pornography. This, however, was not the only supportive evidence of the trial court’s judgment. Other evidence supports the judgment and conclusion, specifically, Brown’s testimony.

In describing her sessions with Hayley, Brown related the following. Hayley possessed an unusual fear of her Father and was terrified of overnight visits. In part, this fear stemmed from her perception of whether Father molested her. Hayley related to Brown that Father “massaged my privates.” At other times, she characterized Father touching her as “checking for ticks.” But, Hayley also stated that Father “touched me besides checking for ticks.”

Similarly, in a July 2003 therapy session, Hayley told Brown: “I’m nervous sometimes when I’m with dad. And the touching thing, I’m not sure really that he won’t do that again. I don’t think he will, but he might, but I’m not sure. I kind of think he’s weird for doing that.” In a February 2004 session, Hayley related: “I’m hiding something about daddy, but I don’t want him to get in trouble. I decided that a long time ago. Then I forgot it. I think — I just get a bad feeling about daddy.”

Father has denied the sexual abuse allegations. A DFS investigation resulted in a finding of “no probable cause.” Brown also testified that there was inadequate evidence to determine if Hayley had been abused by Father. Father heavily relies on the so-called lack of abuse evidence to argue that contact with him is not harmful.

Whether it can be proven that Father molested Hayley is not the issue. The issue is that Hayley believed “something” wrong happened. Father refused to acknowledge this fact. Brown opined that if Father discussed the problem with Hayley, then progress might be made. This has not occurred. Because of this failure, Hayley “can’t just put it away and be done with it, and that has caused her emotional duress.” That emotional harm was directly caused by Father.

At the end of the hearings, the family court commissioner pointed out this lack of effort by Father:

“I’ve got about thirty years of observation both as a practicing attorney for two decades and eleven years on the bench and — and I don’t believe I’ve — I have not heard any testimony that was more disturbing, more aberrant, than what I’ve heard with regard to the strange behavior of Hayley.
“I don’t think it would have been inappropriate for [Father] to have been more proactive in communicating with Ms. Brown, saying, you know, ‘This is a terrible thing. This is a terrible situation. My daughter’s behavior that you’re observing is absolutely off-the-wall and concerns me a lot. Let me help however I can. Can I — Tell me how I can participate.’ I don’t see that kind of a proactive approach.”

Instead of trying to help his daughter, Father chose to do nothing. If Father had attempted to help Hayley, she might not be so emotionally troubled. For this reason alone, the requirements of section 452.400.1-2 have been met and a supervised visitation order was proper with regard to Hayley.

This type of emotional harm, however, does not stand alone. Other evidence pertaining to Hayley and Father must be discussed because it will be shown how this negatively affected Garrison, which is the focus of Father’s third point. In that point, Father argues the evidence was insufficient to support the court’s judgment limiting his contact with Garrison to supervised visitation. Father claims there is simply no evidence that Garrison has been harmed in any way by contact with Father. Again, we disagree with that notion.

Dr. Bradford found that Father suffered from a personality disorder with strong narcissistic tendencies. This personality disorder has taken its toll on Hayley. For instance, Brown testified that narcissists typically have many anger issues, and Hayley confirmed that fact about Father in sessions with Brown. This anger manifested itself causing Hayley to be further fearful of Father.

Because she feared Father and because he demanded perfect behavior of her on visits, Hayley tried to meet Father’s expectations. However, Hayley also had deep-seated anger and resentment toward Father, and she bottled this inside herself for fear of displeasing Father. After visits, this rage and anger was let loose on those around her, namely, Mother, Garrison, and Brown. More than this, Hayley modeled her rage after Father’s behavior. Brown opined that Hayley’s behavior at home was, in turn, having a negative effect emotionally on Garrison. In this indirect way, Garrison has been harmed by Father, who has done nothing to improve the situation.

Father seemingly argues that, even if contact with Hayley should be limited, no evidence supports limiting time with Garrison. Father claims that all problems revolve around Hayley and this fact should not impact his visitation with Garrison. What Father fails to comprehend is that if visits were split, the relationship between Hayley and Garrison would likely worsen, and possibly destroy any sibling ties.

Given all of these negative factors, we believe the trial court’s judgment of supervised visitation is fully supported by the record. We would be remiss, however, if we failed to mention one final problem preventing Father from exercising unsupervised contact with the children in his home. That involves his addiction to or problem with child pornography.

At one point, Father began seeing a psychologist for various issues including viewing pornography over the Internet. He stopped seeing this counselor with no intentions of continued counseling. Father admitted that he viewed child pornography on the Internet and masturbated while doing so. This occurred while Hayley was present in the home. At trial, Father inexplicably claimed that he has never had a problem with child pornography. As Father’s former counselor aptly stated, narcissists are less likely to admit they have a problem which is the necessary first step in dealing with an addiction.

Because Father obstinately refused to acknowledge his problem with child pornography, it is not a great leap or inference to conclude that this problem could pose risks to Hayley and Garrison in the future if they visited unsupervised in his home. For this additional reason, we cannot say the trial court’s judgment limiting Father’s contact with the children was wrong.

We are not firmly convinced that the welfare of the children requires some other disposition. Snoke, 913 S.W.2d at 409[4]. The trial court’s judgment is supported by substantial evidence, it is not against the weight of the evidence, nor does it erroneously declare or apply the law. Robinson, 128 S.W.3d at 546. Point denied.

Point IV: Division of Marital Property and Debts

Father’s fourth point maintains the trial court erred when it ordered him to pay $20,500 to Mother in order “to make more equitable the division of property.” This point has merit.

The trial court’s $20,500 equalization figure was apparently arrived at as follows. The court classified as marital property the parties’ residence and personal property listed on Exhibit “E” and valued it at $111,025. This was awarded to Mother. Also, the court assigned to Mother as marital debts the house mortgage ($61,291) and a debt Mother owed to a family member ($16,900). Accordingly, the net marital property award to Mother (sans equalization award) was $32,834.

The court listed on Exhibit “F” the award to Father as his share of marital assets. This property was valued at $75,264. Included in this list were cattle sales proceeds, valued at $10,800. Regarding Father’s responsibility for marital debts, the court took a two-step approach. First, it assigned a $1,515 Discover credit card debt to Father and used it to calculate Father’s net marital property award ($75,264 less $1,515 = $73,749). Then, without considering other marital debts it assigned to Husband, the court looked at the difference between the parties’ respective marital property awards ($73,749 for Father and $32,840 for Mother). Based on that asserted discrepancy, the court ordered Father to pay Mother $20,500 “to make more equitable the division of property.”

The second part of marital debt assignment to Father was an order that Father was to pay debts totaling $62,299 that were not used in calculating his net marital asset distribution. These debts consisted of $45,599 in credit card accounts and $17,000 listed as a debt on a Honda van. The court explained its ruling as follows:

“[Father] incurred these above debts after the date of separation without [Mother’s] knowledge and in violation of the Court’s Interim Domestic Order, which the Court determined by the evidence presented that these debts were incurred at [Father’s] sole discretion, include expenses incurred on behalf of [Father’s] extramarital affairs, and include in part [Father’s] attorney fees and [Father’s] portion of Guardian ad Litem fees, including orders of contempt. These debts were not included in the division of marital property in determining the equity of the distribution of the property and debt of the parties.” (Emphasis supplied.)

In effect, the court ordered Father to make an equalizing payment by creating a fictional difference between the two net marital asset awards. It did this by ordering Father to pay marital debts without using those debts in calculating Father’s net marital asset amount. This was a misapplication of the law.

Section 452.330.1 mandates that in a dissolution of marriage case “the court shall ... divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors.” (Emphasis supplied.) A trial court has no discretion or leeway to leave out of its analysis any marital property or marital debt when deciding what is a fair and equitable division thereof. “Marital debts are to be considered when establishing a fair distribution of the marital property.” Travis v. Travis, 63 S.W.3d 296, 298 (Mo.App.2001). The inclusion of both marital property and marital debts as part of the “just basis” analysis is inexorably commanded by section 452.330.1. Bean v. Bean, 115 S.W.3d 388, 393 (Mo.App.2003). This does not mean, however, that property and debt division have to be equal; the only requirement is that they be fair and equitable and take into account all relevant factors, including those listed in section 452.330.1. Id. at 393[6].

As a reviewing court, we ordinarily assume the trial court considered all the evidence when it divided the marital property and marital debt. Id. The problem here, however, is that the trial court specifically stated it did not include over $45,000 of marital debt in determining the equity of the distribution of the property and then used that omission as the basis for its $20,500 equalization order. In doing so, the court committed reversible error.

We hasten to add that the trial court’s rationale for ordering Father to pay these debts is sound. Father had affairs, Father violated court orders, Father was a spendthrift, and the list could go on. We do not disagree that Father should be required to pay these marital debts. Nor do we intend that our reversal of this “equalization award” be read as precluding an equalization payment on remand, nor as an intimation that a just division of marital assets and marital debt would necessarily mean an equal division of net marital assets. We simply cannot find authority for excluding the subject marital debts in deciding what is a just division.

This court sympathizes with the trial court’s dilemma in fashioning a just distribution of marital assets and debt without adequate evidence showing why Father had the large credit card debts, without evidence of what Father did with his sizea-ble income, and without evidence of the outcome, if any, of Father’s threatened bankruptcy. We anticipate these and other evidentiary failings will be addressed upon remand.

For the reasons stated, we find Point IV has merit. We reverse that part of the judgment that ordered Father to pay Mother $20,500 and remand for further proceedings regarding all aspects of the division of marital property and marital assets.

Point V: Child Support Issue

Father’s fifth point maintains the court erred in setting his child support obligation at $1,890 per month. In part, he argues for reversal because (1) there was no evidence to support the amount of income imputed to him by the court, and (2) the Form 14 calculation was erroneous because it included $174 on Line 6e thereof for an item that he was ordered to pay via a separate provision in the decree (Brown’s charges for Haley’s counseling). These arguments have merit.

The trial court imputed income to Father in the amount of $7,587 per month. Mother concedes in her brief there was insufficient evidence to support the $7,587 monthly income figure that the trial court imputed to Father. She claims that the correct amount imputable to Father is $7,193 per month. Father disagrees, saying that the evidence only supports an imputed income of $6,600 per month.

Despite Mother’s admission that the trial court erred in imputing a $7,587 monthly income to Father, she urges that we not reverse. This is based on her claim that $7,193 is the correct amount to be imputed and that the difference between child support based on $7,587 per month and $7,193 per month is “de minimis.” As authority for this notion, she cites Franke v. Franke, 913 S.W.2d 846 (Mo.App.1995). There, the trial court imputed income to the father of $11,400 per month and ordered him to pay $1,249 per month in child support. Id. at 850-51. At the time (1994), the Form 14 guidelines did not encompass incomes in the $11,400 per month range. On appeal, the father argued that a $42 per month miscalculation by the trial court regarding mother’s income “fundamentally flaw[ed] the entire child support award” and should result in reversal. Id. at 851. The Franke court disagreed, holding that it would not disturb the child support award for such a small miscalculation. Id. Those are not the facts of this case.

First, we cannot discern how the court here arrived at the $7,587 monthly income it imputed to Husband. As such, we can only speculate whether the court intended to impute income to Husband based on the evidence most favorable to him, least favorable to him, or somewhere in between. Second, even if we accept Mother’s argument that $7,193 per month is the amount that should be imputed to Father, the result would be a $70 decrease in Father’s out-of-pocket expenses each month. We would be hard pressed to hold that this $70 difference was de minimis for a person currently grossing only $1,200 per month (albeit capable of earning substantially more). Third, there is another error in the child support decision, specifically, the redundancy in the “therapist cost” portion of the child support award. That is a factor not present in the Franke case. On this record, we cannot characterize the errors as “de minimis.” Father’s fifth point has merit. We reverse and remand that part of the judgment relating to Father’s child support obligation.

Point VI: Retroactive Child Support

Father’s sixth point complains there was no evidence to support the trial court’s order that he pay child support retroactive to November 2002 in the amount of $1,890 per month. Mother concedes that “there is no evidence showing that [Father] earned an income in 2003 and the end of 2002 that was similar to the income used on the Form 14 to calculate [Father’s] retroactive child support obligation.” With that concession made, Mother asks that “the issue of retroactive child support from November 2002 through 2003 be remanded to the trial court to determine an accurate Form 14 for that ... period.” Based on this request and the lack of evidence to support what the trial court found on this issue, we grant Father’s sixth point. The retroactive child support part of the judgment is reversed and remanded.

Point VII: Attorney Fee Issue

Father’s final claim of trial court error relates to its award of attorney fees to Mother. Father argues the trial court abused its discretion when it ordered him to pay $34,000 to Mother for her legal expenses. He insists, inter alia, that the judgment created such a huge financial disparity between Mother and him that to order Father to pay Mother’s attorney fees was an abuse of discretion.

In most circumstances, parties to a dissolution case are responsible for their own' attorney fees. Silcox v. Silcox, 6 S.W.3d 899, 905[17] (Mo.banc 1999). Even so, trial courts are authorized by section

452.355.1 to award reasonable attorney fees in some dissolution cases. Adair v. Adair, 124 S.W.3d 34, 40 (Mo.App.2004).

We note, however, that section 452.355.1 permits but does not require an award of attorney fees. In re Marriage of Baker, 986 S.W.2d 950, 958[16] (Mo.App.1999). Thus, an attorney fee award per section 452.355.1 is not one of unregulated discretion. In ruling a party’s request for attorney fees in a dissolution case the trial court must consider all relevant factors, including the financial resources of the parties, the merits of the case, and the actions of the parties during the pendency of the action. Bean, 115 S.W.3d at 397; § 452.355.1. In addition to specific factors listed in section 452.355.1, evidence that a litigant increased marital debts during the pendency of a case in direct violation of a court order is a factor supportive of an attorney fee award. Bean, 115 S.W.3d at 397.

Here, the judgment recites that the trial judge had “taken all relevant factors into consideration” in dividing marital property and debt and in adjudging custody and visitation. There is no such recital regarding the attorney fee award. In so stating, we are mindful that a trial court’s ruling of attorney fee issues is presumptively correct. In re Marriage of Michel, 142 S.W.3d at 927. This is a corollary to the presumption that trial judges know and follow the law. C.A.W. v. Weston, 58 S.W.3d 909, 914 (Mo.App.2001). The problem here is that those presumptions are countered by the fact that the trial court created a fictional, understated net marital asset distribution for Father. We cannot tell how heavily, if at all, this error influenced the trial court as it weighed the financial resource part of the attorney fee issue. What we do know is that the financial resource factor is a significant one here. This is so because of Father’s heavy debt load and because the evidence is mixed that Father’s conduct during the marriage or during the pen-dency of the case contributed to increased attorney fees for Mother. For the most part, he candidly admitted most of his pre-separation and post-separation misconduct; consequently, Mother did not have to expend attorney fees to prove what he admitted. On the other hand, his misconduct weighed heavily in deciding custody issues and occupied large amounts of attorney hours. Thus, the financial resource factor and evidence that Father increased marital debts during the pendency of the case in direct violation of a court order are the principal factors revealed by this record that are supportive of an attorney fee award.

Mindful that a trial court is vested with broad discretion in making an attorney fee award and that we will only reverse if the trial court abused that discretion, Sileox, 6 S.W.3d at 905[18], we are not persuaded that reversal is mandated here. On the other hand, we are not persuaded we should affirm due to the uncertainty about whether the trial court used its erroneous net marital asset calculation as a deciding factor in its attorney fee analysis. Because the case is being reversed and remanded to resolve other issues, we also remand for reconsideration of the attorney fee issue.

We reverse that part of the judgment that conditioned Father’s visitation on payment of the counselor-therapist’s fees; we reverse and remand the part of the judgment that addresses child support and division of marital assets and marital debts; we remand for reconsideration that part of the judgment that deals with attorney fees; and in all other respects, we affirm the judgment of the trial court.

BARNEY, J., and BATES, C.J., concur.

      . All statutory references herein are to RSMo (2000) unless stated differently. All rule references are to Supreme Court Rules (2005) unless otherwise indicated.

      . As explained below, we remand the attorney fee part of the judgment (addressed in Point VII) so that it may be revisited after other reversed parts of the judgment are dealt with on remand.

      . At one point Mother testified the $174 monthly "extraordinary child rearing cost" item on line 6e of Form 14 was "the cost for therapy with Leslie Brown.” Later, when asked if any other expense was part of this $174 cost item, Mother answered, "Off the top of my head, having to recall so far back, I cannot tell you.” In her brief, Mother seems to concede Hayley's therapy cost was $174 per month. However, other evidence suggests that the psychologist’s bill for Hayley was $90 per week and Mother only wanted Father to pay one-half of Brown's charges. Such confusion, not only about this but on other evidentiary items, is understandable when as here, a case is started in early March 2004 but not completed until December 2004. We understand that overcrowded trial dockets and scheduling difficulties abound, yet the ever-increasing practice of partially trying domestic relations cases and then recessing them for extended periods is a too frequent source of problems for the trial court, litigants, their attorneys, and for appellate courts.

      . Presumably, the separately ordered payment of therapy costs by Father was based on section 454.633.3. That statute provides in pertinent part:
      "As between parents, responsibility for the child’s care expenses that are not covered by a health benefit plan may be equitably apportioned between the parties by the court ... in percentage shares based on their income....”

      . The phrase "Form 14 part of his child support obligation" refers to the "presumed child support amount” calculated pursuant to Civil Procedure Form No. 14 as referred to in Rule 88.01.

      . Section 452.400 authorizes supervised visitations when prescribed circumstances exist.

      . As with other exhibits attached to the judgment, Exhibit "F” was incorporated by reference as a part of the judgment.

      . On appeal, he complains it was wrong for the trial court to put the sale proceeds on the asset side of his marital property award. We disagree. There was evidence that the parties owned the cattle at the time of separation, Father sold the cattle, they had a value of at least $10,800, and Mother never received any of the sale proceeds. Although Father gave varied explanations about both the ownership and what happened to the sale proceeds, "[a] trial court does not have to specifically find that it believes monies have been secreted or squandered in anticipation of divorce, because its action can imply such a conclusion where sufficient evidence exists to support the conclusion.” Loomis v. Loomis, 158 S.W.3d 787, 791 [7] (Mo.App.2005). That is the situation here. Moreover, the trial court was free to disbelieve Father’s testimony on this issue and his vague and unsupported assertions that part of the cows belonged to his father and that other proceeds from the sale of livestock went entirely to pay expenses. Id. at 790-91.

      .There were two other debts assigned to Father that the court did not use in its net marital asset distribution; a $34,000 attorney fee award to Mother and a $9,631 unpaid balance on the guardian ad litem’s fee and Brown's account. The omission of these two items from the marital asseVmarital debt analysis did not contribute to the "equalization order” error. This follows because "an award of attorney fees is not part of the division of marital property and should not be considered in the propriety of the division.” Foraker, 133 S.W.3d at 105-06.

      . Father currently earns $1200 per month. The court imputed income to Father on the basis of his previous employment, which Father voluntarily quit. Father argues that the court should not have considered a "flex credit,” which is apparently some type of "health insurance benefit,” when it imputed income. This argument appears' to be without merit. See Farr v. Cloninger, 937 S.W.2d 760, 764 (Mo.App.1997); Fulton v. Adams, 924 S.W.2d 548, 554 (Mo.App.1996). However, evidence on this issue is scant at best; consequently, the trial court may wish to reconsider it on remand and hear additional evidence.

      . On remand, the trial court is free to hear additional evidence on the child support issue including, but not limited to, (a) clarifying evidence regarding "flex plan” benefits mentioned on Father’s pay stubs, i.e., to learn if those benefits are includable as income; (b) current evidence about Mother’s work situation and potential imputable income to her; (c) clarifying and updating evidence about the cost of Hayley’s therapy sessions; and (d) any other evidence relevant to the latest child support schedule that was implemented in 2005.

      . We stress "reasonable attorney fees” because "[a]ll case law emphasizes the broad discretion of the trial court to award all, some, or none of the amounts billed by counsel.” B.J.D. v. L.A.D., 23 S.W.3d 793, 800 (Mo.App.2000). A trial court "is not obliged to rubber stamp counsel’s billings.” Id. at 800[23].


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ryan SMITH, Appellant.
    No. ED 86006.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 21, 2006.
    Craig A. Johnston, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Defendant, Ryan Smith, appeals from the judgment upon his conviction of burglary in the second degree in violation of Section 569.170, RSMo 2000, for which Defendant was sentenced as a prior and persistent offender under Section 558.016, RSMo 2000, to fifteen years’ imprisonment. Defendant argues the trial court abused its discretion (1) in not allowing Defendant to introduce evidence of hearsay statements after the State opened the door, and (2) in overruling Defendant’s objections and allowing an officer to testify that Defendant’s shoes and the impressions those shoes made in a courtroom demonstration matched those prints found at the scene of the crime when he was not disclosed as an expert in violation of Rule 25.03(A)(5).

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    GATTERMEIR-ELLIOTT REAL ESTATE COMPANY, L.L.C., Plaintiff-Appellant, v. K.H., INC., JWB Land Company, L.L.C., BWJ Properties, L.L.C. and John Belt, Defendants-Respondents.
    No. 26874.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 22, 2006.
    Thomas G. Pirmantgen, Jefferson City, MO, for Appellant.
    Matthew F. Howard, Eldon, MO, for Respondent.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

This is an appeal after a bench trial from a judgment in favor of the owner of commercial property and against a real estate broker. The broker contends that the owner leased property, which broker was hired to market and sell, to individuals that broker had “submitted” the property to and whose names were disclosed to the owner pursuant to the contract. The trial court found the following: by contract, the owner of the property reserved the right to sell the property itself; the broker did not submit the property to either of the lessees, nor participate in the negotiations leading up to the execution of the lease agreement; the broker did not comply with the requirements of the contract in order to be entitled to any commission; and, therefore, the broker had no right to a commission under the contract. We shall affirm the judgment of the trial 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. State ex rel. Nixon v. Alternate Fuels, Inc., 158 S.W.3d 811, 813 (Mo.App. S.D.2005). We affirm.

Gattermeir-Elliott Real Estate Co., L.L.C. (“Broker”) brought a five-count petition against K.H., Inc., JWB Land Company, L.L.C., BWJ Properties, L.L.C. and John Belt (collectively, “Owner”). In its petition, Broker contended that it originally entered into a contract on February 6, 2001, with K.H., Inc., to sell a business known as Backwater Jack’s Restaurant (“the property”). Under the contract, Owner agreed to pay Broker compensation of 10% of the sale price for the property, on an exclusive agency basis, “when and if [Broker] produces a prospect ready, willing, and able to purchase the property at the sale price”; however, the parties agree that Owner reserved the right to sell the property on its own. The property was not sold during the initial period of the agreement; subsequently, JWB Land Company, L.L.C. and BWJ Properties, L.L.C. were added as parties to the agreement as “Owner” and the sale price was changed to $1,525,000 on September 20, 2002.

The contract provided:

3. Owner will pay Broker compensation of 10% to be received when and if Broker produces a prospect ready, willing, and able to purchase the property at the sale price and on the terms listed below or later agreed upon, and the prospect indicates in writing an intention to purchase the property, with the parties recognizing that Broker is not authorized to bind Owner to execute a sale contract unless so authorized by Owner, in writing, and if a deposit is made on a sale and is then forfeited, one-half of the deposit (not to exceed the compensation which Broker would have been otherwise entitled to receive) will be paid to or retained by (as the case may be) Broker. In addition, Owner agrees to pay Broker a marketing fee of $_on (check whichever applies) the date of this Agreement or the date that the other compensation above provided is payable.
4. Owner will pay Broker the above compensation if the property is sold, exchanged, or leased by any other person during the term of this Agreement or if a sale, exchange, or lease is made, directly or indirectly, within 360 days after the expiration of this Agreement or any extension hereof, to any person to whom Broker has submitted the property and whose name was disclosed to Owner, in writing, by registered or certified mail within 10 days after the expiration of this Agreement or any extension hereof.

Broker further contended it submitted the property by its agent, Michael Elliott (“Elliott”), to Billy Borders (“Borders”) and Gary Prewitt (“Prewitt”), the subsequent lessees, before the contract expired in November 2002, that Owner received written and other notice that Broker had submitted the property to Borders and Prewitt during the term of the Agreement, that Broker was the procuring cause of any sale, exchange or lease of the property, and the property was sold, exchanged or leased by Owner in November or December 2002, during the term of the agreement. Broker brought claims for a breach of contract, unjust enrichment, fraudulent misrepresentation, fraudulent concealment, and tortious interference with a business expectancy.

Broker brings three points on appeal. First, it claims the trial court erred in concluding that its claim fails under seetion 429.616 because the statute only prohibits untimely suits based on a broker’s lien and this suit is based on Broker’s rights arising under the written contract and not the broker’s lien. Second, Broker contends the trial court erred in finding that the property was not submitted to the eventual lessees unless a physical showing and/or disclosure of financial or confidential information was made because the property was submitted when it was brought to the prospect’s attention, as by advertising or introduction, with the intent that it be accepted. Finally, Broker contends the trial court erred in concluding that the property was not leased to Borders.

In Point I, Broker challenges a finding by the trial court that Broker’s claim fails under section 429.616 because the statute prohibits untimely suits that are based on a broker’s lien and not for a suit brought on a breach of contract. Even though Broker had filed a hen against the property, Broker claims this particular action was not brought upon a broker’s lien but upon the contract. A review of the petition clearly reflects that Broker did not bring a suit to enforce its claimed lien; however, it is not necessary to reach a determination concerning the exact meaning and effect of section 429.616 because the trial court gave judgment to Owner on Broker’s claim for a breach of contract, notwithstanding Owner’s claim that section 429.616 bars the action, and specifically found Broker did not have an action on the contract. Broker does not claim any other basis for a judgment on its behalf based upon the Ken in any of its other points relied on and any discussion regarding a broker’s lien claim would simply be an advisory opinion. This Court does not render advisory opinions. State v. Self, 155 S.W.3d 756, 761 (Mo. banc 2005); Reeves v. Snider, 115 S.W.3d 375, 380 (Mo.App. S.D.2003). We decline to review Point I.

Likewise, we do not address Point III, as a resolution of that issue would not affect in any way the disposition of this matter. Broker contends in Point III that the court erred in determining that a Kmit-ed Kability company, of which Borders was a member, was the actual lessee of the subsequent contract for a lease. Significantly, Broker does not contend it had a contractual relationship of any kind with Borders or the limited liability corporation and neither was named as a defendant in the original suit. An extended discussion of the factual determination made by the court in this regard would serve no purpose as it does not aid in the resolution of the issue before this Court, whether Broker is entitled to a commission on its written contract with Owner.

We will proceed to the crux of this appeal, Point II, in which Broker contends that the trial court erred in declaring the law when it concluded that the property was not “submitted” to a prospective purchaser unless a physical showing and/or disclosure of financial or confidential information was made because the law is contrary in that it has been held that a property is “submitted” to a prospect when it is brought to the prospect’s attention as by advertising or introduction, and with the intent that it be accepted.

In its point relied on, Broker directs our attention to the language of Paragraph 4 of the contract, which allows recovery of compensation if Broker “submitted” the property to the eventual lessee, and states:

4. Owner will pay Broker the above compensation if the property is sold, exchanged, or leased by any other person during the term of this Agreement or if a sale, exchange, or lease is made, directly or indirectly, within 360 days after the expiration of this Agreement or any extension hereof, to any person to whom Broker has submitted the property and whose name was disclosed to Owner, in writing, by registered or certified mail within 10 days after the expiration of this Agreement or any extension hereof

(emphasis added).

Although Broker focuses on the issue of whether the property was “submitted” to the eventual lessee, it glosses over another specific clause of the contract, which mandates that Broker disclose to Owner, in writing, by registered or certified mail within 10 days after the expiration of the agreement or any extension, any person to whom Broker claimed to have submitted the property. Although Broker admits it did not make any attempt to comply with the second provision of the contract, Broker claims the requirement was nonetheless met because, while the contract was pending, it sent written notice of persons to whom the property was “submitted” in the form of progress reports. Broker relies upon the testimony of its agent, Elliott, that on May 14, 2002, he sent a “property viewing report” to Owner to inform them about Borders. The report stated, “I gave color brochure, Maggie Mae’s restaurant will close in a few days, shows interest, who knows.” Initially, we note it is not clear from the court’s findings that the trial court believed Elliott regarding the progress report. The court made a finding that Broker, through its agent, Elliott, when directly asked, admitted that he had done nothing to submit the property to Borders, admitted that he had not submitted the property to Borders and claimed he was due a commission simply because he was the listing agent and that Borders knew he was the listing agent. Nevertheless, even assuming at this juncture that the court resolved that issue in favor of Broker, Broker’s claim still fails.

Broker relies upon Gundaker v. Templer, 560 S.W.2d 306 (Mo.App.St.L.D.1977), for the proposition that the property viewing reports submitted by Broker were substantial compliance with the second provision of the contract. It contends that the failure to notify Owner in writing within ten days after the contract ended was a “slight deviation” from the contract and thus Broker provided substantial compliance as to time as well as manner of notification and was entitled to a commission under the contract. We disagree.

Broker’s reliance upon Gundaker is misplaced. In Gundaker, at issue was an exclusive listing contract, not a contract as here where it was agreed that Owner could negotiate and sell the property with no obligation to Broker. Id. at 307. Additionally, Gundaker involved a situation in which the broker actually submitted written, successive contracts to the owners of the property on behalf of the buyers, who eventually purchased the property, and the owners made counteroffers on each of the offers. Id. at 308. Significantly, Broker did not produce any written offers or negotiations between Owner and lessees in the case before us. In Gundaker, the final, successful agreement for the sale of the property between the same buyers and same sellers was made two weeks after the listing expired. Id. Again, there were no negotiations, no offers, and no counteroffers produced by Broker on behalf of these lessees to Owner. Any negotiations occurring between Owner, who had a right to negotiate and sell the property, and the lessees do not assist Broker.

Finally, the contract in Gundaker was substantially different from the provision sought to be enforced in this case. The contract in Gundaker, which was a form provided by the broker, read in part:

If within three (3) months after date of this listing, a ready, willing and able purchaser is produced by the undersigned Realtor, or by us, [owners] or by any other person, or if said property shall be contracted by us to be sold to, leased to, or exchanged with any person procured by the undersigned Realtor, or by us, by any other person, or if within an additional term of two (2) months the property is contracted, by us to be sold to, leased to, or exchanged with anyone contacted by or through said Realtor within the first period, and registered in writing with us within ten (10) days following the expiration of the first period, we will pay said Realtor a commission on the total selling, leasing, or exchange price of 6 percent.

Id. at 307-08 (emphasis added). Clearly, the Gundaker court analyzed the language “registered in writing with us,” and determined a slight deviation occurred in compliance with the contract because the language in the contract simply required the broker to provide sellers, at some time, with a list or the like and the sellers had received written notice of the buyers in the form of the written offers. Id. at 809.

The issue before us is not whether Owner had one “list” of prospective buyers. The purpose of Paragraph 4 in this contract is only susceptible of one meaning, that Owner will have written notice from Broker, with the formality of registered mail so that there is no dispute whether the notice was given, of the legal obligation to pay a commission for any persons to which Broker claims it has submitted the property. Sending progress reports during the listing period of Broker’s activities is not a slight deviation of the explicit provisions of the contract and does not relieve Broker of those provisions. At issue is a commission in the amount of $152,500. It defies logic that if Broker determined that it had “submitted” the property to the eventual lessees that it would not protect itself by sending a registered letter, pursuant to the contract, to Owner. Such action benefits Broker and Owner by allowing both parties to base future actions on any claims that Broker submitted the property to a potential buyer or lessee. Broker simply did not comply with its own contract to notify Owner in the proper manner of its claim that it had submitted the property to the lessees. As such, the court did not err by entering judgment for Owner. Point II is denied.

The judgment is affirmed.

BATES, C.J., McGHEE, Senior Judge, concur.

PARRISH, J., recused.

      . John Belt was the sole principal of the owner corporations.

      . We do not recount the somewhat complicated history of the title of the property, as it is not relevant to any issue in this appeal.

      . The trial court granted a directed verdict to Owner on Counts III, IV, and V of the petition; Broker has not appealed from that judgment.

      . All references to statutes are to RSMo 2000, unless otherwise specified.

      . Thus, Broker is also abandoning any claims for unjust enrichment and proceeding on Count I, a breach of contract.

      . Borders and Prewitt both testified at trial that Borders did not participate in any negotiations in pursuit of the property. Prewitt approached Borders to be his partner in operating the restaurant after Prewitt had already negotiated a deal to lease the property with Owner; therefore, Borders became a subsequent lessee when he became a business partner to Prewitt. The trial court concluded that Prewitt or his company was the lessee in this case, not Borders.

      .Section 429.616 states:
      A real estate broker may bring suit to enforce a lien which attaches pursuant to the provisions of sections 429.600 to 429.627 in the circuit court in the county where the property is located by filing a verified petition that the lien has been recorded. Unless the claim is based upon an option to purchase the commercial real estate, the broker claiming such lien must commence proceedings within six months after recording the lien and failure to commence proceedings within the six months shall extinguish the lien. A claim for the same lien, extinguished pursuant to this section and section 429.618, may not be asserted in any subsequent proceeding.

      . It is undisputed that pursuant to the express terms of paragraph 3 of the contract, Broker did not "produce” a "prospect ready, willing and able to purchase the property at the sale price and on the terms listed.” Broker does not claim otherwise.


author: JEFFREY W. BATES, Chief Judge.

text:
    Paul Steven HOWDESHELL, Petitioner-Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Respondent-Appellant.
    No. 26740.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 22, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen.; Cheryl Caponegro Nield, Assoc. Solicitor Gen., Jefferson City, MO, for Appellant.

      Timothy R. Cisar, Lake Ozark, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

The Director of Revenue (Director) revoked the driver’s license of Paul Howde-shell (Howdeshell) for one year after he refused to submit to a chemical test of his breath to determine his blood alcohol content. Howdeshell filed a petition for review. At trial, the only evidence presented by either party was a certified copy of HowdeshelPs driving records from the Department of Revenue. The trial judge decided he had “no basis to believe that there was probable cause to arrest [Howdeshell] for driving while intoxicated.” Therefore, the court entered a judgment setting aside the administrative revocation and reinstating Howdeshell’s driving privileges. The Director contends the judgment is not supported by the evidence and resulted from a misapplication of the law. We agree. The judgment is reversed, and the cause is remanded with directions to reinstate the Director's one-year revocation of Howde-shelPs driver’s license.

I. Summary of the Relevant Statutory Framework

Section 577.020.1 specifies six circumstances in which a person who operates a motor vehicle upon the public highways of this state is deemed to have consented to a chemical test of the person’s breath, blood, saliva or urine to determine the alcohol or drug content of the person’s blood. One such circumstance is when “the person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition^]” § 577.020.1(1). If the arrestee refuses to take the chemical test, the officer is required to make a sworn report of that fact to the Director. § 577.041.2(2). Upon receipt of the officer’s report, the Director is required to revoke the individual’s driving privileges for one year. § 577.041.8.

By fifing a petition for review, the individual can obtain a post-revocation hearing in circuit court. § 577.041.4. There are only three issues to be decided at the hearing: “(1) whether or not the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; and (3) whether or not the person refused to submit to the test.” Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); § 577.041.4. “If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive.” § 577.041.5. The burden of proof rests on the Director. Rain v. Director of Revenue, 46 S.W.3d 584, 587 (Mo.App.2001). If the Director makes a prima facie case for revocation, however, the burden of producing evidence to rebut the Director’s case shifts to the driver. McFall v. Director, Dept. of Revenue, 162 S.W.3d 526, 533-34 (Mo.App.2005); Hamor v. Director of Revenue, 153 S.W.3d 869, 872 (Mo.App.2004).

II. Factual and Procedural History

In August 2004, Howdeshell was notified by the Department of Revenue that his driving privileges would be revoked for one year because he refused to submit to a chemical test of his blood alcohol level. He filed a petition for review pursuant to § 577.041.4.

In November 2004, attorneys for the Director and Howdeshell appeared for the post-revocation hearing. They agreed that the Director’s case would be submitted via Exhibit 1, which was a certified copy of Howdeshell’s driving records from the Department of Revenue. These records were incomplete because the first page of the officer’s alcohol influence report (AIR) and the third page of his incident report were missing. Neither attorney appears to have noticed the omissions, and Exhibit 1 was admitted by stipulation. It contained the facts set out below.

At 1:48 a.m. on August 5, 2004, Osage Beach Police Officer Tim Taylor (Officer Taylor) was traveling west on Highway 54. At that location, the highway had two westbound and two eastbound lanes. Officer Taylor observed a white Ford Taurus traveling at a high rate of speed in the inside, eastbound lane. He activated his radar unit and checked the Taurus’ speed. It was traveling 86 m.p.h. in a 45-m.p.h. zone. A light rain was falling, and the pavement was wet. As the Taurus approached a curve, it slid sideways into the outer, eastbound lane and nearly struck the curb. The vehicle increased speed as it exited the curve. Officer Taylor continued to monitor his radar unit. As the Taurus passed Officer Taylor, it was going 90 m.p.h. in a 45-m.p.h. zone. Officer Taylor made a quick U-turn and activated his lights and siren. The brake lights on the Taurus activated briefly, but then went off. It was obvious to Officer Taylor that the Taurus was not slowing down. When he caught up with the vehicle, it made a quick left turn into a gravel lot. Officer Taylor followed and exited his patrol car. The driver of the Taurus said his accelerator stuck. He provided his driver’s license and proof of insurance to Officer Taylor. These documents identified Howdeshell as the Taurus’ driver. Officer Taylor detected a strong odor of intoxicants coming from the Taurus and asked Howdeshell if he had been drinking. He admitted to drinking “a couple of beers.” While speaking with him, Officer Taylor detected a strong odor of intoxicants coming from Howdeshell’s person. When Officer Taylor advised Howdeshell to get out of the Taurus, he hesitated and seemed confused. He appeared to be trying to unbuckle his seat belt, but it was not fastened. Howde-shell was given some field sobriety tests and failed all of them. He was arrested for driving while intoxicated and transported to the police station. Howdeshell was asked to submit to a chemical test of his breath.- He asked for an attorney and was given 20 minutes to contact one. After the 20-minute period expired, Howdeshell was again asked to submit to a chemical test of his breath. He refused to give a sample.

After Exhibit 1 was admitted in evidence, the attorneys stipulated that Howdeshell would have two days to present any additional evidence he wanted the court to consider. When none was presented within the allotted time period, the court closed the evidence and took the case under submission.

In December 2004, the court entered a judgment in favor of Howdeshell. The court found that Howdeshell did refuse the breath test, but he was entitled to have his driving privileges reinstated for the following reasons:

[T]he court finds no evidence was presented regarding whether or not [Howdeshell] was the only person in the car. Evidence was presented that the officer observed a strong odor of intoxicants in the car but no evidence showing results of field sobriety tests were described (page 3 of incident report was not submitted). Court therefore has no facts to review relating to any sobriety tests, only officer’s conclusions. Court does not know what tests were given nor a description of [Howdeshell’s] perform-anee. Therefore, the Court has no basis to believe that there was probable cause to arrest [Howdeshell] for driving while intoxicated.

This appeal followed.

III. Standard of Review

We must affirm the trial court’s judgment unless: (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; (3) the trial court erroneously declared the law; or (4) the trial court erroneously applied the law. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); Laney v. Director of Revenue, 144 S.W.3d 350, 352 (Mo.App.2004). In license revocation cases, however, it is important to note that neither a trial court nor an appellate court may disregard uncontroverted evidence supporting the fact that all elements of the Director’s case were met. Cumutt v. Director of Revenue, 142 S.W.3d 225, 227 (Mo.App.2004).

IV. Discussion and Decision

Exhibit 1 was the only evidence presented by either party. This exhibit consisted of certified copies of the Director’s records, which included a copy of the AIR and Officer Taylor’s incident report. The facts necessary to establish the Director’s prima facie case can be proven through such documentary evidence alone. See, e.g., Curnutt, 142 S.W.3d at 227; Burk v. Director of Revenue, 71 S.W.3d 686, 687 (Mo.App.2002); Lyons v. Director of Revenue, 36 S.W.3d 409, 411 (Mo.App.2001); McCabe v. Director of Revenue, 7 S.W.3d 12, 14 (Mo.App.1999). On appeal, the Director and Howdeshell agree that Exhibit 1 contained sufficient facts to prove that Howdeshell was arrested and refused the breath test. Therefore, the first and third elements of the Director’s prima facie case were met. The only disputed issue is whether Officer Taylor had reasonable grounds to believe Howdeshell was driving a motor vehicle in an intoxicated condition. Reasonable grounds and probable cause are virtually synonymous. Hinnah, 77 S.W.3d at 620. As our Supreme Court noted in Hinnah:

Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense. Whether there is probable cause to arrest depends on the information in the officers’ possession prior to the arrest. There is no precise test for determining whether probable cause exists; rather, it is based on the particular facts and circumstances of the individual case.

Id. at 621 (citations omitted). “The probable cause required for the suspension or revocation of a driver’s license is the level of probable cause necessary to arrest a driver for an alcohol-related violation.” Brown v. Director of Revenue, 85 S.W.3d 1, 4 (Mo. banc 2002). This level of probable cause exists “when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist.” Rain v. Director of Revenue, 46 S.W.3d 584, 587 (Mo.App.2001). The trial court must assess the facts “by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer.” Cox v. Director of Revenue, 37 S.W.3d 304, 307 (Mo.App.2000). In the case at bar, the trial court decided that Officer Taylor lacked probable cause to believe Howdeshell was driving a motor vehicle while in an intoxicated condition. The court gave two reasons for this decision, which we shall examine in turn.

The first reason given by the trial court for finding a lack of probable cause was that the Director failed to prove Howde-shell was the only person in the Taurus. We must admit to having some difficulty in discerning what the trial judge meant by this statement. The judge could have meant that the Director failed to prove Howdeshell had no passengers in his vehicle. If so, the court misapplied the law because the presence or absence of a passenger in the Taurus has no relevance whatsoever to the determination of the three issues the court was required to decide. See § 577.041.4. A determination that the Director failed to make a prima fade case for this reason is erroneous. Alternatively, the judge could have meant that the Director failed to prove Howde-shell was actually driving the Taurus. If so, the court misapplied the law and made a decision that is unsupported by the evidence. To make a prima fade case, the Director did not have to prove that Howdeshell was the driver of the car. Hinnah, 77 S.W.3d at 621-22; Hamor, 153 S.W.3d 869, 872 (Mo.App.2004). The Director was only required to prove that Officer Taylor had reasonable grounds to believe Howdeshell was driving the Taurus. Shumaker v. Director of Revenue, 171 S.W.3d 135, 138-39 (Mo.App.2005). The facts contained in Exhibit 1 were sufficient to prove this element of the Director’s case. When the Taurus finally stopped, Officer Taylor approached the vehicle and asked the driver to produce his license and proof of insurance. The driver complied. Each of these documents identified Howdeshell as the driver. No contrary evidence was presented. Therefore, Officer Taylor did have reasonable grounds to believe Howdeshell was driving the Taurus. We conclude that the trial court’s first reason for finding the Director failed to prove the existence of probable cause simply cannot be upheld, either legally or factually.

The second reason given by the trial court for finding a lack of probable cause was that the Director failed to present evidence concerning the details of the field sobriety tests administered to Howdeshell. Such information may have been contained in the missing pages from the AIR and Officer Taylor’s incident report, which appear to have been inadvertently omitted from Exhibit 1. Once again, the salient issue is not whether Howdeshell was actually intoxicated; rather, it is whether Officer Taylor had reasonable grounds to believe that Howdeshell was intoxicated. Hinnah, 77 S.W.3d at 621; Hamor, 153 S.W.3d 869, 872 (Mo.App.2004). We interpret the trial court’s ruling to mean that the Director had to present evidence concerning the details of the field sobriety tests administered to Howdeshell in order to make a prima fade case. For the following reasons, we disagree.

We begin by noting that “[i]t is not essential that field sobriety tests be performed in order to show reasonable grounds.” Edmisten v. Director of Revenue, 92 S.W.3d 270, 274 (Mo.App.2002). Such non-mandatory tests supplement the officer’s other observations and merely aid in the determination of whether there is probable cause to arrest. Schulte v. Director of Revenue, 55 S.W.3d 876, 879 (Mo.App.2001); Terry v. Director of Revenue, 14 S.W.3d 722, 724-25 (Mo.App.2000). In the ease at bar, the uncontroverted evidence established that Officer Taylor had reasonable grounds to believe the following facts: (1) Howdeshell was driving the Taurus at 86-90 m.p.h. on wet pavement in a 45-m.p.h. speed zone; (2) due to the rainy conditions and the vehicle’s high rate of speed, the car slid from the inside to the outside lane of traffic and nearly hit the curb as the vehicle rounded a curve; (3) Howdeshell sped up after that event took place; (4) he continued to drive at a high rate of speed after Officer Taylor began his pursuit with lights and siren activated; (5) Officer Taylor detected a “strong odor of intoxicants” coming from the Taurus and Howdeshell’s person; (6) Howdeshell admitted drinking a couple of beers; and (7) when he was asked to exit the Taurus, he appeared confused and attempted to unlatch his seatbelt even though it was not fastened. These uncontroverted facts were sufficient to prove the second element of the Director’s prima facie case without even considering the field sobriety tests conducted by Officer Taylor. Similar observations by an officer have been held sufficient to establish probable cause to arrest a driver for driving while intoxicated in the absence of any field sobriety tests being performed. See, e.g., Chancellor v. Lohman, 984 S.W.2d 857, 858 (Mo.App.1998) (probable cause to arrest existed because the driver was traveling at high speed, had alcohol on his breath, admitted drinking, was unsteady on his feet, and had bloodshot and glassy eyes); McNeill v. Wallace, 699 S.W.2d 534, 535 (Mo.App.1985) (probable cause to arrest existed because the driver weaved between lanes, failed to dim his lights, had glassy eyes, did not walk normally, and smelled strongly of alcohol).

Furthermore, the certified records admitted in evidence stated that Officer Taylor did administer field sobriety tests to Howdeshell, and he failed all of them. The trial court appears to have disbelieved this evidence, even though it was uncontra-dicted, because Exhibit 1 did not contain the details of the testing. Howdeshell argues the missing pages of Exhibit 1 contained this information, and the Director’s failure to adduce such evidence created a legitimate fact question for the trial court to decide. We are unable to agree. In order for a trial court to disregard evidence that supports the Director’s prima facie case, there must be a legitimate factual dispute or credibility determination for the court to make. In rare instances, a trial court can be required to decide a legitimate factual dispute that arises because the documentary evidence presented by the Director is internally inconsistent. See, e.g., Richardson v. Director of Revenue, 165 S.W.3d 236, 241 (Mo.App.2005); Reece v. Director of Revenue, 61 S.W.3d 288, 292 (Mo.App.2001). More typically, a legitimate factual dispute or credibility determination is presented by: (1) cross-examination of a witness for the Director which raises a legitimate credibility dilemma with respect to a material aspect of the Director’s case; or (2) calling one or more witnesses whose testimony directly contradicts the Director’s evidence. See, e.g., McCarthy v. Director of Revenue, 120 S.W.3d 760, 762-63 (Mo.App.2003); Ruth v. Director of Revenue, 143 S.W.3d 741, 743-44 (Mo.App.2004). Here, the trial court was not required to decide a legitimate factual dispute or make a credibility determination concerning the field sobriety tests administered by Officer Taylor. Unlike the records in Richardson and Reece, Exhibit 1 contained no internal inconsistencies concerning Howdeshell’s failure of the field sobriety tests. Since Exhibit 1 was the only evidence introduced at the hearing, Howdeshell also failed to controvert this evidence via the direct or cross-examination testimony of any witness. The incomplete nature of Exhibit 1 was significant only if the facts contained in the remainder of the exhibit were insufficient to establish the Director’s prima facie case. See Routt v. Director of Revenue, 180 S.W.3d 521, 524 (Mo.App.2006) (although one page of the officer’s narrative report was missing, there was still sufficient evidence in the rest of the exhibit to support a finding that the officer had reasonable grounds to believe Routt was driving while intoxicated); Melvin v. Director of Revenue, 130 S.W.3d 11, 15 (Mo.App.2004) (holding that- the trial court erred in ruling for driver because the Director’s records were incomplete; the missing pages were not necessary for the trial court to find that probable cause existed based on the uncontroverted facts contained in the officer’s narrative report); Marsey v. Director of Revenue, 19 S.W.3d 176, 177-78 (Mo.App.2000) (although the first page of the AIR was missing, the trial court erred in concluding that the uncon-troverted facts in the Director’s records were insufficient to prove probable cause). In any event, the fact that Exhibit 1 was missing two pages was readily apparent when it was offered. Howdeshell had no objection to its admission. Therefore, he waived any objection to the exhibit on the ground that it was incomplete. See Barlow v. Fischer, 103 S.W.3d 901, 907 (Mo.App.2003). Prior to the close of the evidence, Howdeshell could have furnished the court with the two missing pages from Exhibit 1. He also could have presented testimony from Officer Taylor or himself concerning how the field sobriety tests were conducted. HowdeshelFs failure to controvert the evidence that he failed the field sobriety tests in any of the foregoing ways raises the presumption that such evidence would have been unfavorable to him. McCarthy, 120 S.W.3d at 763; Smith v. Director of Revenue, 77 S.W.3d 120, 122 n. 3 (Mo.App.2002).

Because Officer Taylor’s statement concerning Howdeshell’s failure of the field sobriety tests was uncontradicted, the trial court erred in disregarding that evidence for the purpose of determining the existence of probable cause. See Terry v. Director of Revenue, 14 S.W.3d 722, 724-25 (Mo.App.2000) (statement in AIR that driver failed HGN field sobriety test, which was admitted without objection and was not refuted at trial, conclusively contradicted driver’s contention that he did not really fail the test). When Howde-shell’s failure of the field sobriety tests is considered in conjunction with the other facts already summarized above, we conclude the Director presented sufficient evidence to prove the second element of its prima facie case: that Officer Taylor had reasonable- grounds to believe Howdeshell was driving a motor vehicle while in an intoxicated condition. See, e.g., Walker v. Director of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004) (probable cause existed because the driver was swerving, his movements were slow, he smelled of alcohol, had glassy eyes, admitted drinking two beers and failed a field sobriety test); Brown v. Director of Revenue, 85 S.W.3d 1, 7 (Mo. banc 2002) (probable cause existed because the driver made an illegal turn, did not immediately pull over when the officer pursued, had bloodshot eyes, put his foot down during a field sobriety test and smelled strongly of alcohol); Soest v. Director of Revenue, 62 S.W.3d 619, 621 (Mo.App.2001) (probable cause existed because driver was weaving, admitted drinking one beer and failed field sobriety tests); Peters v. Director of Revenue, 35 S.W.3d 891, 893 (Mo.App.2001) (probable cause existed because driver was speeding, had watery and glassy eyes, smelled of alcohol and failed one field sobriety test). The trial court’s contrary conclusion is not supported by the evidence and appears to have been based on an erroneous application of the law.

The Director made a prima facie ease for revocation, which Howdeshell failed to rebut. Therefore, we reverse the judgment and remand the cause with directions that the circuit court reinstate the one: year revocation of Howdeshell’s driving privileges.

SHRUM, P.J., and GARRISON, J., concur.

      . All references to statutes are to RSMo Cum. Supp. (2004).


text:
    Kathleen GIBSON-KNOX, Appellant, v. CLASSIC PRINT, Respondent.
    No. 27295.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 27, 2006.

      Susan L. Brown, Brown and Crouppen, P.C., St. Louis, for appellant.
    J. Bradley Young, Roberts, Perryman, Bomkamp <⅞ Meives, P.C., St. Louis, for respondent.
   KENNETH W. SHRUM, Presiding Judge.

In this workers’ compensation case, the Labor and Industrial Relations Commission of Missouri (“Commission”) denied Kathleen Gibson-Knox (“Claimant”) benefits. Her claim for benefits is based on a carpal tunnel syndrome condition that she asserts was work-related. An administrative law judge (“ALJ”) had ruled favorably to Claimant, but Commission reversed that award. Claimant appeals to this court, alleging Commission’s decision was unsupported by sufficient competent and substantial evidence. We affirm.

STANDARD OF REVIEW

Section 287.495.1 contains the applicable standard of review. Abel v. Mike Russell’s Standard Serv., 924 S.W.2d 502, 503 (Mo.banc 1996). Only one of the grounds listed in that statute, however, is pertinent here: “The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award ... (4)[if] there was not sufficient competent evidence in the record to warrant the making of the award.” § 287.495.1.

In reviewing a Commission decision, this court “must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23[1] (Mo. banc 2003). Whether the Commission’s decision is supported by competent and substantial evidence is determined “by examining the evidence in the context of the whole record.” Id. at 223. It is only in “rare” cases that a Commission award is contrary to the overwhelming weight of the evidence. Id.

FACTS

Claimant began working for Mike Bleile and his company, Classic Print, in April 2001. She was hired as an “accountant/bookkeeper,” but her duties also included answering the telephones, waiting on customers, and making copies. Sometime between April and June 2003, Claimant first experienced problems with her hands. In October 2003, she finally sought medical treatment as her “hands were going numb.”

On October 27, 2003, Claimant visited her family physician, Dr. Osborn. Initially, he diagnosed that the numbness in Claimant’s hands “probably” resulted from “carpal tunnel syndrome” and he would “give her a note saying this could be work related and [see] if she can get this under work mans [sic] comp.” (Emphasis added.) On that same day, Dr. Osborn also gave Claimant a note claiming that the numbness was “definitely work related.” (Emphasis added.) After this doctor visit, Claimant continued working for Employer, but was terminated in February 2004 as the company was downsizing.

Before Claimant was terminated in February 2004, she filed a workers’ compensation claim for benefits, alleging a work-related injury to her left and right wrists. At the hearing before the ALJ, Claimant testified that she spent seven hours per day typing, i.e., her employment duties were the substantial factor causing her bilateral carpal tunnel syndrome. On the other hand, Bleile testified via deposition that Claimant only spent ninety minutes per day typing.

The amount of time spent typing per day was the critical issue at the hearing. This followed from the expert medical testimony. Two doctors, Woodward and Koo, opined that the carpal tunnel syndrome could be caused by other illnesses, namely, hypothyroidism and diabetes. The doctors claimed, however, that if Claimant typed over four to five hours per day, the injury would be considered work-related. Dr. Koo clarified her opinion, stating that this must be sustained or constant typing such as thirty minutes out of an hour.

The ALJ rendered his decision and expressly found that Claimant and her witnesses were credible. The ALJ found that Claimant typed for more than five hours per day and that this work was a substantial factor in her bilateral carpal tunnel syndrome. Employer appealed to the Commission which reversed the ALJ’s award. The Commission’s decision, like the ALJ’s, turned on a credibility determination:

“On cross-examination, [Claimant’s] job duties were thoroughly discussed, especially the work entailed by the use of QuickBooks. The Commission finds this cross-examination and the corresponding answers enlightening and probative as to whether or not there was a possible exposure leading to the contraction of the alleged occupational disease, carpal tunnel syndrome, vis-a-vis the condition being resultant of a non-occupational cause.
“In addition to the cross-examination of [Claimant] concerning what her job duties actually entailed, the Commission also finds extremely enlightening and probative the testimony of [Bleile], [Bleile’s] description of [Claimant’s] job duties differed remarkably from [Claimant’s]; and indicated little if any type of sustained repetitive activities performed by [Claimant]. We accept his testimony as being more credible than the testimony of [Claimant].”

This appeal by Claimant followed.

DISCUSSION AND DECISION

In her only point on appeal, Claimant alleges the Commission erred when it reversed the ALJ’s award because its decision was not based on sufficient competent and substantial evidence. Claimant argues the Commission’s decision to believe Bleile’s testimony “was not reasonable.” Claimant’s brief is devoted to showing why she and her witnesses should be believed over Employer and its witnesses.

In essence, Claimant asks this court to substitute our judgment for that of the Commission. Pointing to the fact that the ALJ heard “five” testimony, Claimant argues that we should accept the ALJ’s credibility determination (favorable to Claimant) over that rendered by the Commission. This we cannot do.

Absent fraud, “the findings of fact made by the commission within its powers shall be conclusive and binding.” § 287.495.1. “The Commission is the sole judge of the weight of the evidence and credibility of the witnesses.” Negri v. Continental Sales & Serv., 139 S.W.3d 565, 569[5] (Mo.App.2004). This is not to say that the ALJ’s superior vantage point in viewing live testimony should be disregarded by the Commission. The Commission should take into consideration the credibility determinations made by the ALJ. Kent v. Goodyear Tire and Rubber Co., 147 S.W.3d 865, 871[6] (Mo.App.2004). Obviously, when the ALJ is presented with live testimony, he or she is in a better position to judge a witness’s credibility rather than the Commission in examining a cold record. Id. But, it must always be remembered that when the Commission reviews an award by an ALJ, the Commission “is not bound to yield to his or her findings, including those relating to credibility, and is authorized to reach its own conclusions.” Id. at 871 [7].

The Hampton case illustrates how the foregoing principles apply in a factual context analogous to what occurred here. There, the ALJ heard the live testimony of the employee and expert testimony came in via deposition and medical records. After seeing and hearing the Hampton claimant testify, the ALJ found him only partially credible and awarded him 25% permanent partial disability. Hampton, 121 S.W.3d at 221. In reviewing the cold record, the Commission reversed the ALJ because it believed the employee was “fully credible,” i.e., the Commission apparently considered the ALJ’s credibility call, but rendered its own independent judgment. Id. at 222. The Commission then awarded him permanent and total disability.

On appeal, the Missouri Supreme Court affirmed the Commission’s credibility determination. The court did so despite the fact that the record contained contrary medical evidence and despite the fact that the ALJ heard the live testimony of the employee and found him only partially credible. Id. at 221-24.

We see little difference in the case at bar. Here, the Commission found the testimony of Bleile more credible than the testimony of Claimant. Even though Claimant testified in person before the ALJ, the Commission was not bound to follow the ALJ’s credibility call. Id. at 223-24. Moreover, Claimant presents no evidence or argument that the Commission failed to consider the ALJ’s credibility determination. Kent, 147 S.W.3d at 871. Although Bleile’s testimony was presented via deposition, the Commission was free to believe that testimony and reach its own independent conclusions on the credibility of other witnesses. See Hampton, 121 S.W.3d at 223-24; Kent, 147 S.W.3d at 871; Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179-80 (Mo.App.2004). Finding no fraud, we are bound by those findings of fact. Abel, 924 S.W.2d at 503; § 287.495.1.

If Claimant were the only witness testifying to the amount of time she spent typing per day and if the Commission made no express finding that her testimony was simply to be disbelieved, then this court might be faced with one of those “rare” cases where the Commission’s decision was contrary to the overwhelming weight of the evidence. But, those are not our facts. We are faced with two diamet-rieally opposed pieces of testimony. The Commission must make the determination of what is to be believed.

We would be remiss if we failed to note that Commission’s decision to believe Bleile is further supported by other testimony in the record. For instance, the employee who took over Claimant’s job (Sarah Bull) testified as to how the Quick-Books program works:

“I only have to type however many letters it takes to get the vendor’s name or the name to pop up. And it pops up, and then I hit tab, and then enter the dollar amount, tab. That writes it out for me. Write maybe a short memo on what it’s for.”

Moreover, Bull testified that there is no constant typing such as for longer than five or ten minutes.

Similarly, Dr. Koo also testified as to her knowledge with the QuiekBooks program. As the Commission found, Dr. Koo used the computer program at work and at home; consequently, she was familiar with how it operates. Dr. Koo was asked to assume that Claimant used QuiekBooks for seven hours per day and if that assumption would affect her opinion. She responded: “If that’s what her activity entailed for her eight-hour day, then I would say that definitely her work had no contributing factor or is in any way associated with her development of her cai’pal tunnel syndrome.” Apparently, this is based on the fact that the program, as Bull testified, is not one in which constant or sustained typing is required.

Simply stated, Bleile’s testimony coupled with that from Bull and Dr. Koo fully supports the Commission’s decision. To accept Claimant’s argument would ignore our standard of review. The Commission was fully entitled to disbelieve Claimant and her witnesses and accept the testimony preferred by Employer. Point denied.

The decision of the Commission denying workers’ compensation benefits to Claimant is supported by sufficient competent and substantial evidence and is not against the overwhelming weight of the evidence. The Commission’s decision is affirmed.

GARRISON, J„ and BATES, C.J., concur.

      . All statutory references are to RSMo (2000), unless indicated otherwise.

      . When referring solely to the company, we use the term "Employer.'' When referring to the owner, we use his surname.

      . The Commission’s reference to "Quick-Books” relates to the testimony from Claimant concerning the type of computer program she used while working for Employer. Claimant also testified that she did work for another company owned by Bleile operating out of the same building as Employer. This was an appraisal business and Claimant testified she performed certain bookkeeping duties for them, using the same computer system.

      . Although the Hampton opinion implies the testimony there was presented as we have stated, it is not totally clear on that subject. However, examination of the briefs filed with the Supreme Court of Missouri in Hampton— accessible via the Court's website — confirms what we have stated, namely, the Hampton employee’s testimony was the only "live” evidence.

      . The ALJ should be commended on his thoughtful analysis of the evidence; however, he failed to mention Bull’s testimony which seemingly contradicts Claimant’s description of work duties.

      . This is especially true when none of Claimant’s witnesses could confirm how long each day she spent typing. They merely testified that she did some bookkeeping work for them. From this, the ALJ extrapolated that the work would obviously take longer than four to five hours because she did work for at least three appraisers. However, there was no evidence indicating how long it took to enter each appraiser's individual information. Moreover, the "logbook” work she testified she did for the appraisers appears to be merely accounts receivable and payable work that would not require sustained typing.