author: ROBERT S. BARNEY, Judge. JOHN E. PARRISH,

text:
    STATE of Missouri, Respondent, v. Larry Dale TAYLOR, Appellant.
    No. 25954.
    Missouri Court of Appeals, Southern District, Division Two.
    July 5, 2005.

      Amy Bartholow, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Appellant Larry Dale Taylor (“Defendant”) appeals his conviction, following a jury trial, for two counts of assault of a law enforcement officer in the second degree, violations of section 565.082, and one count of resisting arrest, a violation of section 575.150. Defendant was sentenced to concurrent sentences of twenty years imprisonment for felony assault of a law enforcement officer in the second degree; one year confinement in the county jail for misdemeanor assault of a law enforcement officer; and seven years imprisonment for resisting arrest. Defendant now alleges two points of trial court error discussed more fully below. We affirm the judgment of the trial court.

Defendant does not challenge the sufficiency of the evidence to support the judgment. This Court accepts as true all evidence supporting the verdict, including all favorable inferences therefrom and disregards all contrary evidence and inferences. State v. Dunn, 21 S.W.3d 77, 79 (Mo.App.2000).

The record reveals that on the evening of October 26, 2001, two McDonald County Sheriffs Department officers, Deputy Harvey Gow (“Gow”) and Sergeant Carl Cos-per (“Cosper”), along with two reserve officers, went to Defendant’s home to arrest him on two outstanding parole warrants. Cosper knocked on Defendant’s door and the door was opened by a young woman who was later identified as Jeanie Bird (“Bird”). Bird refused to allow the officers to enter the residence even after the officers informed her that they had a warrant. When the officers were finally able to enter the residence, they located Defendant and informed him that he was under arrest. As Cosper approached Defendant with handcuffs in hand, Defendant pulled a knife out from behind his back, raised the knife over Cosper’s head “as if to stab [him] in the chest area,” and told the officers to leave his house. Gow immediately drew his service weapon and pointed it at Defendant. Gow told Defendant to “[d]rop the knife.” Defendant threatened that if the officers touched him, he would kill them. The officers were able to convince Defendant to drop his knife and Gow then put his weapon away. As the officers continued to discuss Defendant’s outstanding warrants with him, he again became agitated and pulled a second knife from his waistband. At that time he told the officers “let’s get it on right here, right now. Either you kill me or I’m going to kill you.” Again the officers were able to convince Defendant to put the knife down. After further discussion with Defendant, he agreed to speak with either Chief Deputy Tom West (‘West”) or Sheriff Robert Evenson (“Evenson”) about possibly turning himself in.

Cosper called Evenson and informed him of the situation at Defendant’s residence. Evenson called the Special Emergency Response Team (“SERT”) for assistance and proceeded to Defendant’s home. While Cosper and Gow awaited Evenson’s arrival, they continued to talk calmly with Defendant. While they were talking with Defendant, Defendant removed a large medieval battle axe from a wall in his home and began to carry it around with him.

Upon their arrival, Evenson and West talked with Defendant in his bedroom and it became clear to them that Defendant was not going to leave the residence peacefully. While Evenson and West were talking with Defendant in his bedroom, the SERT officers arrived. Evenson told Defendant that he was going to go call the judge to see if he could get permission to have Defendant turn himself in the next day and Evenson and West exited the bedroom.

In the meantime, the SERT officers stationed themselves in Defendant’s bathroom and planned to lure Defendant out of the bedroom and either set off a “flash bang” distraction device or shoot Defendant with a beanbag gun. Cosper got Defendant to come out of his bedroom by requesting some aspirin. When Defendant emerged from his bedroom, the SERT officers attempted to set off the “flash bang” device, but the device failed to detonate. The team then shot Defendant in the chest or stomach with a beanbag gun in an effort to subdue him; however, when Defendant was struck with the beanbag he pulled two knives out of the waistband of his pants and threatened to kill all of the officers on the scene. Defendant was then shot with the beanbag gun a second time, which forced him to drop at least one of the knives. Defendant then fled into his bedroom and shut the door. With Bird barricaded in his bedroom with him, Defendant tried to use the battle axe to hold the door closed. The officers attempted to gain entry into the bedroom by kicking down the door, but ended up engaged in a pushing match with Defendant on the other side of the door. Defendant offered to allow Bird to leave the room and the officers moved away from the door to allow her to exit. Once Bird left the room, Defendant again barricaded the door and refused to emerge. When the SERT officers forced the bedroom door open, they “dog-piled” Defendant and handcuffed him. Gow then put leg irons on Defendant and he was taken into custody.

Following a jury trial, Defendant was convicted and sentenced to a total of forty-eight years imprisonment. This appeal followed.

In his first point on appeal, Defendant maintains the trial court plainly erred in allowing the State to discuss the fact that Defendant was on parole at the time he committed the offenses for which he was convicted. Defendant argues that such a plain error resulted in manifest injustice and violated his right to due process. Defendant’s second point on appeal asserts the trial court plainly erred in failing “to quash the venire panel sua sponte and declare a mistrial.” Specifically, he maintains that “in front of the entire [jury] panel, several venirepersons implied that [Defendant] was a bad person who had committed bad acts in the past ...;” accordingly, the entire panel was “poisoned” and Defendant did not receive “a fair trial from an impartial jury.”

Defendant concedes that both allegations of trial court error were not properly preserved for appeal and that he failed to raise either matter in his motion for new trial as required under Rule 29.11(d). Nonetheless, he now requests this Court to review his points for plain error.

“ ‘An assertion of plain error under Rule 30.20 places a much greater burden on a defendant than an assertion of prejudicial error.’ ” State v. Reynolds, 72 S.W.3d 301, 305 (Mo.App.2002) (quoting State v. Deckard, 18 S.W.3d 495, 497 (Mo. App.2000)). Rule 30.20 provides, in pertinent part, that “plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” If in our discretion we decide to review Defendant’s claim of plain error, Defendant must show that the trial court’s error so substantially violated his rights that manifest injustice or a miscarriage of justice would result if the error is left uncorrected. State v. White, 92 S.W.3d 183, 189 (Mo.App.2002). Plain error “is error that is evident, obvious and clear.” White, 92 S.W.3d at 189. “The plain error rule should be' used sparingly and doés not justify a review of every alleged trial error that has not been properly preserved for appellate review.” Id.

Defendant’s first point on appeal states in full:

The trial court plainly erred, resulting in manifest injustice, by: 1) allowing the State to tell the jury during opening statement that at the time of the alleged offenses [Defendant] was a parolee, that parole warrants had been issued two different times for parole violations, and that there was another outstanding bench warrant for [Defendant’s] arrest for felonious restraint; 2) allowing the State to call parole officer Nancy Maniré as a witness for the sole purpose of establishing that [Defendant] was on parole and that two warrants had been issued for his parole violations; 3) allowing the State to elicit from law enforcement witness that they had arrested [Defendant] on previous occasions and had gone to his home to serve parole warrants; 4) allowing the State to introduce the physical warrants into evidence; 5) allowing cross-examination of [Defendant] as to his parole status, his failure to report or complete drug screens, and 6) in failing to declare a mistrial sua sponte after the introduction of all of this evidence, because the trial court’s failure to act violated [Defendant’s] right to due process of law and a fair trial by a fair and impartial jury guaranteed by the 5th, 6th, and 14th Amendments to the U.S. Constitution and Article I, Sections 10 & 18(a) of the Missouri Constitution, in that [Defendant’s] parole status constituted evidence of uncharged crimes was unnecessary to explain the officer’s conduct in going to his home, and was more prejudicial than probative on any issue at trial, and led the jury to infer that [Defendant] must be guilty of the present offenses.

During its opening statement in the present matter, the State remarked that on the evening of Defendant’s arrest, Defendant’s probation and parole officer had issued “two warrants for [Defendant’s] arrest. ...” A “felony warrant ... for [Defendant’s] failure to cooperate and give a drug screen ...” was issued along with a bench warrant “for [Defendant’s] arrest on another pending charge, and that charge was felonious restraint.”

In its case in chief, the State called Defendant’s probation and parole officer, Nancy Maniré (“Maniré”) to establish that “there was an active warrant that was proper” when the police went to Defendant’s home on October 26, 2001. Maniré testified that indeed Defendant was on parole at the time of his arrest; that he had violated the terms of his parole on two occasions; and, that two parole warrants had been issued for his arrest. When the State tried to clarify Manire’s testimony about the reasons for the issuance of the warrants, Defendant objected to that line of questioning on the basis that Maniré would be “talking about prior bad acts or bad offenses ... that have nothing to do with this particular charge concerning assault....” The trial court sustained the objection “as to bad acts” and ruled that the State “will be allowed to — to tell this jury that there are two warrants for him and when those were issued.” Maniré then testified that one warrant was issued on April 20, 2001, and the other warrant was issued on May 22, 2001.

Shortly thereafter, the State introduced into evidence a “certified record of another warrant for [Defendant’s] arrest issued by [Judge] John LePage.” Defendant stated there was “[n]o objection” to the introduction of the additional warrant.

Additional testimony related to the warrants was elicited through Gow and Cos-per, whose testimony confirmed that the officers were at Defendant’s home in order to serve two warrants and arrest him. Further, Cosper stated that they had “arrested [Defendant] previously [on] a different day.” On cross-examination by Defendant’s counsel, Cosper went on to state that he recognized Defendant because he had “arrested him prior to [the evening in question].” Defendant’s counsel then asked Cosper if Defendant’s previous arrest had been “for that case that was dismissed, the one that was the alleged assault?” The State objected that the question “assumes facts not in evidence” and the trial- court then told Defendant’s counsel, “I am now going to admonish you publicly in front of the jury for your conduct. You were told not to go into this area. You will be allowed to inquire on that case if you so choose.” Later, the trial court changed its ruling and informed the State that it would “not be allowed to go in to [sic] the other case.”

It is generally recognized that a criminal defendant has a right to be tried only for the offense for which he is charged. State v. Pennington, 24 S.W.3d 185,189 (Mo.App.2000). “The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is not admissible for the purpose of showing the propensity of the defendant to commit such crimes.” State v. Burns, 978 S.W.2d 759, 761 (Mo. banc 1998). “ ‘Proffered evidence will run afoul of th[is] rule ... if it shows that the defendant has committed, been accused of, been convicted of or definitely associated with another crime or crimes.’ ” State v. Wallace, 952 S.W.2d 895, 397 (Mo.App.1997) (quoting State v. Hombuckle, 769 S.W.2d 89, 96 (Mo. banc 1989)).

However, there are many exceptions to the general rule. “[State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993) ] recognizes five categories of exceptions to the general rule prohibiting admission of evidence of uncharged misconduct and adds a sixth exception.” State v. Roberts, 948 S.W.2d 577, 591 (Mo. banc 1997). “Such evidence is admissible if it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial; or (6) a signature modus operandi [where nearly identical incidents are so unusual and distinctive as to corroborate the victim’s testimony].” Id. Further, “evidence of uncharged misconduct is admissible to paint a complete picture of the crimes charged and to explain circumstances that led to the current charges.” State v. Joos, 966 S.W.2d 349, 354 (Mo.App.1998). In “paint[ing] a complete and coherent picture of the crime charged, [the State] is not required to sift and separate the evidence.” State v. Fleischer, 873 S.W.2d 310, 315 (Mo.App.1994); see also State v. Henderson, 826 S.W.2d 371, 374 (Mo.App.1992). Such “evidence is also admissible to explain an officer’s conduct in making an arrest.” Joos, 966 S.W.2d at 354. Furthermore, “[t]he mention of outstanding warrants may be admissible to provide a clear and coherent narrative of the circumstances preceding the arrest.” State v. Sanders, 761 S.W.2d 191, 192 (Mo.App.1988) (holding that the mention that defendant was “wanted” or the subject of an “arrest warrant” for an unrelated offense is admissible to provide a clear and coherent narrative of the circumstances preceding the arrest).

To be admissible, evidence of prior bad acts must be “both logically and legally relevant.” Roberts, 948 S.W.2d at 591. “[E]vidence is logically relevant, in that it has some legitimate tendency to establish directly the accused’s guilt of the charges for which he is on trial ...” and such evidence “is legally relevant, in that its probative value outweighs its prejudicial effect.” Bernard, 849 S.W.2d at 13. The trial court, in its discretion, determines the admissibility of other crimes evidence by evaluating whether the prejudicial effect of the evidence outweighs its probative value. State v. Hamilton, 817 S.W.2d 8, 11 (Mo.App.1991). Trial courts have broad discretion in determining whether to admit or exclude evidence. State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997). A trial court’s admission of irrelevant and immaterial evidence, even of other crimes, will not be reversed on appeal absent a showing of prejudice. State v. Hampton, 648 S.W.2d 162, 166 (Mo.App.1983).

Here, the testimony related to the issuance of parole warrants for Defendant’s arrest was admissible to provide a clear and coherent narrative of the circumstances preceding his arrest. Sanders, 761 S.W.2d at 192.

First, we note that “[t]he mere existence of warrants does not prove appellant guilty of any prior offense.” Sanders, 761 S.W.2d at 192. Second, “the testimony in [Defendant’s] case not only explained the legality of his arrest but helped explain [to the jury] why two [police officers] had entered [Defendant’s] home ...” in an effort to arrest him. Id. at 193. Third, the trial court was “careful to deny the admission into evidence of the details ...” underlying the issuance of the arrest warrants. State v. Churchir, 658 S.W.2d 35, 38 (Mo.App.1983). When Maniré testified vaguely about the reasons behind the issuance of the arrest warrants, the trial court limited her testimony to whether there was an “active warrant that was proper.” Such evidence is admissible “to present a complete and coherent picture of the events that transpired.” State v. Morrow, 968 S.W.2d 100,107 (Mo. banc 1998) (quoting State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994)).

Turning to the issue of whether references to Defendant being on parole constituted inadmissible prior bad acts evidence, we acknowledge that a “reference to parole [c]ould indicate to the jury that defendant had earlier been convicted of a crime.” State v. Brown, 670 S.W.2d 140, 141 (Mo.App.1984). However, in the present matter Defendant himself took the stand at trial and personally detailed a list of his prior convictions. On direct examination by his own attorney, Defendant acknowledged that he had previous felony convictions. Defendant testified that he was convicted of “[p]ossession and manufacturing of marijuana;” “in 1970, [he] was convicted of brandishing a weapon;” and, he “was convicted by a jury back about ... '71 — for stealing and got 90 days in jail.” On cross-examination, Defendant again admitted the foregoing prior convictions. Accordingly, where Defendant admitted on the stand the evidence about which he complains, we fair to see how mere references to the fact that Defendant was on parole were prejudicial to Defendant. Such evidence certainly is not sufficiently prejudicial to warrant a reversal. See Sanders, 761 S.W.2d at 192. It was Defendant’s burden to show the trial court committed plain error such that manifest prejudice affecting his substantial rights occurred. Hombuckle, 769 S.W.2d at 92-93. In the instant case, there is no plain error falling within these guidelines. Defendant’s first point is denied.

Defendant’s second point on appeal asserts the trial court’s failure to sua sponte declare a mistrial and quash the entire jury venire was plain error which resulted in manifest injustice. Accordingly, Defendant maintains his constitutional rights were violated in that several jurors implied he “was a bad person who had committed bad acts in the past.”

In the present matter, during jury voir dire, the trial court acknowledged the fact that they lived in a small community and there would inevitably be some jurors who knew Defendant personally. First, Veni-reperson Gary Poyner (“Poyner”) responded that he knew Defendant because he “used to be a bar operator and [Defendant] used to come in and give [him] a hard time....” Following Poyner’s comment, the trial court again read the jury instructions to the venire panel and emphasized that its concern was for their impartiality.

Thereafter, Venireperson Patricia Parsons (“Parsons”) indicated that she “could not really be fair about [Defendant] because” she knew him and “what he has done in the past.” The trial court called counsel to the bench and made the decision to immediately dismiss Parsons from the venire.

Further, Venireperson Nathan Oben-shain (“Obenshain”) indicated that he knew Officer Gow through “the D.A.R.E. program” and stated that he had “had several dealings with [Defendant].” The State then instructed Obenshain that it did not “want to get in to what [he] knew” but it just wanted to know if Obenshain “might have trouble being fair and impartial to both sides.” Obenshain stated that he did not “think [he] could be fair to either side ... knowing what [he] kn[e]w, and [he] wouldn’t want to jeopardize any other jurors .... ” He was later stricken from the panel.

Later, Venireperson Dorothy Moore (“Moore”) stated that she worked with Defendant “maybe 25 or 30 years ago, when he was a real young man,” but she had no feeling either way “other than the fact of what [she] read in the newspaper.” Also, Moore indicated she knew Defendant’s mother but she had not “been in contact with them in several years.... ” When asked about her impartiality, Moore stated, ‘"Well, I don’t know that I’d know any more about [the case] than anyone else, but when I knew [Defendant], he wasn’t like this now.” At that time, the trial court again called counsel for both sides to the bench and told them that “the last thing [it] want[ed][wa]s to declare an early mistrial. So any questioning on this issue, any other individuals that raise their hands [would be] take[n] up in the absence of the rest of the jurors.” Moore was later stricken from the panel. Defendant never objected to the various statements made by the venire panel and failed to request a mistrial.

“Appellate courts are wary of claims that a trial court erred in failing to declare a mistrial sua sponte in a criminal case.” State v. Derrick, 965 S.W.2d 418, 419 n. 1 (Mo.App.1998). “Consequently, a judge who declares a mistrial in a criminal case sua sponte may thereafter be confronted by the defendant’s contention that he cannot be retried.” Id. “To convict a trial court of an error, not put forth by the defendant (e.g., failure to declare a mistrial sua sponte), allows an accused to stand mute when incidents unfavorable to him or her occur during trial, gamble on the verdict, and then seek favorable results on appeal.” State v. Tilley, 104 S.W.3d 814, 819 (Mo.App.2003). “This puts courts in an untenable position, and it is contrary to the principle of law that an appellate court will not convict a trial court of an error not put before it to decide.” Id. at 819-20.

With that being said, “[t]he trial court is in the best position to determine the impact of a juror’s statement upon other members of the panel.” State v. Kelley, 83 S.W.3d 36, 41-42 (Mo.App.2002). “Control of voir dire is within the discretion of the trial court; only abuse of discretion and likely injury justify reversal.” State v. Taylor, 944 S.W.2d 925, 933 (Mo. banc 1997).

The trial court is vested with broad discretion in determining whether a jury panel should be dismissed because of statements made by an individual juror. State v. Evans, 802 S.W.2d 507, 514 (Mo. banc 1991). Its ruling will not be disturbed on appeal unless there is a clear abuse of discretion. Id. The entire venire panel will be quashed only if a remark by an individual juror is so inflammatory and prejudicial that it deprives the defendant of his right to a fair trial. Id.; State v. Weekley, 92 S.W.3d 327, 330 (Mo.App.2002). Defendant “has the burden to show prejudice when making a claim that the impartiality of the panel has been tainted by comments made during the voir dire.” State v. Reed, 789 S.W.2d 140, 141 (Mo.App.1990); see State v. Sumowski, 794 S.W.2d 643, 647 (Mo. banc 1990).

Here, Poynor indicated that he knew Defendant because when he worked in a bar, Defendant “used to come in and give [him] a hard time a lot.” However, there was no indication that Poynor believed Defendant to be guilty based on his past knowledge of Defendant’s behavior, nor was there any indication that Poynor could not be impartial in the matter. His dismissal by the trial court was based on his “relationship with [Defendant].” “He made no suggestion that he knew anything about [Defendant’s] guilt.” State v. Sprinkle, 122 S.W.3d 652, 669 (Mo.App.2003). “This comment merely made him inappropriate to sit on the jury panel, and he was properly excused for cause.” Id.

As for Parsons, she not only admitted that she knew Defendant, but also admitted she could not be impartial if she sat on the jury due to her knowledge of Defendant’s past behavior. Parsons’ statement did not reveal any specific acts of past behavior by Defendant. It has long been held that “[disqualification of an individual juror due to remarks indicating bias or prejudice is generally not a sufficient ground in itself to challenge the entire jury panel.” State v. Jordan, 947 S.W.2d 95, 96 (Mo.App.1997).

Obenshain stated that he “had several dealings with [Defendant]” but did not state he thought Defendant was guilty. He stated that he could not “be fair to either side.” Further, Obenshain’s statement about Defendant was vague as to what kind of “dealings” he may have had with Defendant. “The comment did not refer to any prior bad acts of [Defendant, nor clearly indicate that [Obenshain] had a negative view of [Defendant].” Kelley, 83 S.W.3d at 42. “The trial court could consider this ambiguity and [Obenshain’s] impassive tone in concluding that the comments were not so inflammatory as to prejudice the jury panel against [Defendant].” Id.; see also Moss v. State, 10 S.W.3d 508, 513 (Mo. banc.2000).

Moore stated she knew Defendant and his Mother and that she had worked with Defendant when he was younger. She stated that she was not sure about her impartiality. As with Obenshain, Moore did not specifically “refer to any prior bad acts of [Defendant]” nor did she at all indicate that she “had a negative view of [Defendant].” Kelley, 83 S.W.3d at 42. Further, Moore indicated she might be able to “give both sides a fair trial, [such that] the venire could infer she did not assume [Defendant] was guilty and would base her decision on the evidence.” State v. Crenshaw, 852 S.W.2d 181,184 (Mo.App.1993).

Moore’s comments simply “made h[er] inappropriate to sit on the jury panel, and [s]he was properly excused for cause.” Sprinkle, 122 S.W.3d at 669.

The trial court is in the best position to decide the impact of such comments on the jury. Weekley, 92 S.W.3d at 330. As the Supreme Court of Missouri stated in State v. Bynum, 680 S.W.2d 156, 160 (Mo. banc 1984),

There is a strong presumption that the jury tendered at the outset of the trial has been properly selected. One who would challenge the jury panel must do so before trial, by pleading and proving fatal departures from the basic procedural requirements. A defendant cannot stand trial, hoping for acquittal, and then challenge the selection of the jury which convicts. Even so, there is a degree of tolerance, and a panel will be held to be improperly constituted only for substantial reasons.

The comments by the members of the venire panel in the present case were not so inflammatory or substantial as to prejudice Defendant and deprive him of a fair trial, especially considering Defendant’s objection was not preserved at trial.

As stated previously, for Defendant to prevail on his claim of plain error he must show that the court’s failure to sua sponte grant a mistrial so substantially affected his rights that a manifest injustice or miscarriage of justice will inexorably result if left uncorrected. State v. Ballard, 6 S.W.3d 210, 214 (Mo.App.1999). In applying this standard, we are mindful that a mistrial is a drastic remedy that should be used sparingly and granted only in extraordinary circumstances. State v. Clover, 924 S.W.2d 853, 856 (Mo. banc 1996). Defendant has failed to prove that he was prejudiced by the trial court’s failure to sua sponte declare a mistrial. Defendant’s second point is denied.

The judgment of the trial court is affirmed.

PARRISH, P. J., concurs in result in separate opinion.

BATES, C.J., concurs.

JOHN E. PARRISH,

Presiding Judge, concurring.

I concur in the result reached; that the judgment of conviction is to be affirmed. I would do so, however, on the basis that the two points appellant seeks to raise were not preserved for appellate review in that they were not raised in his motion for new trial as required by Rule 29.11(d). I would decline appellant’s request for plain error review of those issues.

“The plain error rule should be used sparingly and does not justify a review of every trial error that has not been properly preserved for appellate review.” State v. McMillin, 783 S.W.2d 82, 98 (Mo. banc), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). In my opinion it is readily apparent that there is no substantial ground for believing that either of the claims of error appellant now asks this court to review constitutes a substantial ground for finding there was manifest injustice or miscarriage of justice. See Rule 30.20. I would, therefore, decline to grant plain error review and affirm the judgment of conviction for the reason that the points appellant raises were not preserved for appellate review.

      . One of the aforementioned assault counts was a Class B felony and the other count was a Class A misdemeanor. Several other charges against Defendant were dismissed. Defendant was also charged and sentenced as a prior and persistent offender pursuant to section 558.016.
      Unless otherwise stated, all statutory references are to RSMo 2000 and all rule references are to Missouri Court Rules (2005).

      . In both of Defendant’s points relied on, he lumps numerous assertions under each point relied on. "Points containing multifarious allegations of error violate [Rule 84.04].” State v. Thompson, 985 S.W.2d 779, 784 n. 1 (Mo. banc 1999); see also Thummel v. King, 570 S.W.2d 679, 688 (Mo. banc 1978). "All this has required the Court to parse the points and dissect the argument to discern the gist of the several claims. A point relied on is not the place for rambling, makeweight argument.” Thompson, 985 S.W.2d at 784 n. 1. While arguments which violate Rule 84.04 are not required to be reviewed by this Court, we have chosen to review Defendant’s points ex gratia. Mace v. Daye, 17 S.W.3d 154, 156 (Mo.App.2000).

      . Poyner was later dismissed by the trial court because if his relationship with Defendant.

      . In Kelley, a venireperson admitted that he attended high school with the defendant and had seen the defendant at the store where he worked. Kelley, 83 S.W.3d at 42. Based on this, the venireperson stated, "I know about [defendant], so, no, I could not be impartial.” Id. The trial court ruled that the venireper-son’s "rather impassive" statement was vague and overruled the defendant’s objection that the venireperson’s statement had tainted the jury panel. Id.

      . In Moss, "[o]ne stricken venireperson lived in co-defendant[’s] ... neighborhood and said of him, 1 just know what that kid can be like.' Another said she knew both co-defendants through church because her husband had visited them in jail.” Moss, 10 S.W.3d at 513. The Moss court found that "[wjhile these statements could be construed as derogatory toward Moss, their meaning is ambiguous, and they do not support a finding that the entire venire panel was tainted.” Id.


source: Caselaw Access Project

author: JOHN E. PARRISH, Presiding Judge.

license: Public Domain

text:
    BOLIVAR INSULATION COMPANY, d/b/a A-1 Insulation and Materials Co., Appellant, v. BELLA POINTE DEVELOPMENT, L.L.C., Trendwest Resorts, Inc., and Worldmark, The Club, Respondents.
    No. 26641.
    Missouri Court of Appeals, Southern District, Division Two.
    July 8, 2005.

      Kerry D. Douglas, Douglas, Haun & Heidemann, P.C., Bolivar, for appehant.
    Bryan O. Wade, Ginger K. Gooch, Husch & Eppenberger, LLC, Springfield, for respondents Trendwest and Worldmark the Club.
   JOHN E. PARRISH, Presiding Judge.

Bolivar Insulation Co. d/b/a A-l Insulation and Materials Co. (A-l) appeals a summary judgment granted Trendwest Resorts, Inc. (Trendwest) on A-l’s action to enforce a mechanic’s hen and denial of its motions for summary judgment on claims against Bella Pointe Development, L.L.C. (Bella Pointe) and against Trend-west and Worldmark, The Club (World-mark). This court reverses the judgment awarded Trendwest and remands, and dismisses A-l’s appeal of the denial of its motions for summary judgment.

Trendwest owns property known as “Worldmark,' The Club at Lake of the Ozark” (the Worldmark property). Trend-west entered into a purchase agreement with Bella Pointe for the Worldmark property in March 2000. Trendwest has been sole owner of the Worldmark property since June 28, 2000. Bella Pointe agreed to act as general contractor for Trendwest in constructing a condominium project on the property. A-l was one of a number of contractors hired by Bella Pointe to assist with the construction project.

Trendwest’s Motion for Summary Judgment against A-l

A-l filed a notice of claim of mechanic’s lien August 23, 2001, in the amount of $12,820.66 “for work and labor done and/or material furnished” on improvements to Building C of the Worldmark property. A-l filed a mechanic’s lien on the property September 12, 2001, and an action to enforce the mechanic’s lien December 18, 2001.

Trendwest moved for summary judgment as to A-l’s action to enforce its mechanic’s lien. Trendwest contended the mechanic’s lien filed by A-l did not state “a just and true account of the demand due” or a “true description of the property” as § 429.080 requires. Trendwest alleged that what A-l filed was “merely a handwritten note that lacks any itemization of materials used, labor expended, or a precise description of the Property.”

The trial court granted summary judgment for Trendwest against A-l. It declared:

The undisputed facts establish that A-l Insulation’s “just and true account” is inadequate on its face and fails to satisfy the conditions necessary to establish and perfect a mechanic’s lien. Chapter 429 RSMo. (2000). The A-l “just and true account” fails to identify (1) the date of work, (2) location of work, (3) sufficiently describe the materials provided, (4) the labor performed, and (5) the prices charged. Any one of the five deficiencies, standing alone, is enough to make the lien defective as a matter of law.

The trial court “dismiss[ed] the mechanic’s lien filed by A-l Insulation....” It further found no just reason for delay in entering judgment. See Rule 74.01(b).

A-l’s first point on appeal argues that the trial court erred in granting summary judgment “because the admissible, competent evidence submitted by [A-l] refuted the property owners’ claims of deficiencies under Chapter 429 RSMO. and such evidence demonstrated that [A-l’s] enforcement process followed applicable Missouri law.”

Section 429.080 states requirements for asserting a mechanic’s lien. It provides:

It shall be the duty of every original contractor, every journeyman and day laborer, and every other person seeking to obtain the benefit of the provisions of sections 429.010 to 429.340, within six months after the indebtedness shall have accrued to file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall, in all cases, be verified by the oath of himself or some credible person for him.

A-l’s hen described the account for which it sought recovery as:

As per attached B
TOTALS: $12,820.66[]
CREDITS: $ 0.00
TOTAL NOW DUE $12,820.66

The “attached B” is a copy of an invoice that states materials were sold to “Bella Point [sic].” It states a delivery site of “54-29 Bid C” and describes the materials, quantity, and installation as: “Crawlspace Srd-4th Level”; “R-1315 2x4 EXT Walls,” total feet 7504; “R-1115 R Bath-Party Wall,” total feet 10944; “R 7925 R/F Between Floors” total feet 12292; and “100 Proper vent.” The real estate is stated to be in Camden County, Missouri, at “BUILDING ‘C’ OF TRENDWEST RESORTS INC., WORLD MARK — CLUB AT LAKE OF THE OZARK PER ATTACHED LEGAL A AS PLATTED IN CAMDEN COUNTY MISSOURI.” “Exhibit A” attached to the lien statement is a metes and bounds legal description of real estate. The hen statement states “said premises, buildings, and improvements belong to and owned by: TRENDWEST RESORT, INC AN OREGON CORPORATION.” The invoice attached to the hen statement states $12,820.16 as the amount charged.

The invoice for the materials reflects the date of “3-23” and a “date stamp” of “MAR 28, 2001.” The hen statement is stamped as filed with the circuit clerk September 12, 2001. From the dates set forth on the hen statement and the allegations in the pleading by which A-l seeks to enforce the hen, A-l is asserting the materials in question were provided within six months of the date the pleading was filed, i.e., within six months preceding September 12, 2001. Section 429.080 does not require a hen statement to identify the exact date work was performed or material was provided, but that the hen be filed within six months after the demand accrued.

The statutes creating mechanic’s hens are remedial in nature. Refrigeration Supplies, Inc. v. J.L. Mason of Missouri, Inc., 872 S.W.2d 105, 107 (Mo.App. 1994). Pleadings setting forth a hen and seeking its enforcement are to be favorably construed and given the benefit of every reasonable and fair intendment. Id. A-l’s lien and petition to enforce the hen affirmatively assert sufficient information to meet the statutory requirement that the date of the work be disclosed, and the date disclosed is within the period required by § 429.080 for filing the hen.

The hen statement identifies the location of the work or material by stating the delivery site and the installation of materials, and by attaching a legal description of the real estate on which Building C is located. The materials provided and the labor performed are set forth in the lien statement.

Determination of the adequacy of a hen statement turns on whether the statement provides detail and itemization sufficient to enable the owner to investigate and determine the propriety of the hen claim. Commercial Openings, Inc. v. Mathews, 819 S.W.2d 347, 350 (Mo. banc 1991).

[F]ailure to itemize individual prices for furnished material has never been regarded as fatal to the sufficiency of a subcontractor’s lien statement. See, e.g., Glasco Elec. Co. v. Best Elec. Co., 751 S.W.2d 104, 108 (Mo.App.1988); S & R Builders & Suppliers, Inc. v. Marler, 610 S.W.2d [690] at 696-97 [(Mo.App.1980) ]. All that is required is that the .hen statement “advise the owner or the public of the total amount due and the nature of the materials furnished.” Glasco Elec. Co. v. Best Elec. Co., 751 S.W.2d at 108 (emphasis added).

Id.

The hen statement sufficiently described the materials, provided and the' prices charged to meet the requirements of § 429.080. A-l’s assertion that the trial court erred in finding that the just and true account provided by the lien statement was inadequate and failed on its face to satisfy conditions necessary to establish and perfect a mechanic’s lien is well taken.

Other grounds were asserted in the motion for summary judgment that were not addressed in the trial court’s findings. Those grounds will be addressed for the reason that a summary judgment is to be sustained on appeal on any theory that supports the judgment that was granted. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 387-88 (Mo. banc 1993); Birdsong v. Christians, 6 S.W.3d 218, 223 (Mo.App.1999).

Trendwest contended it was entitled to summary judgment because A-l provided seven hen waivers that acknowledged payments and a final hen waiver, and that Trendwest had fully paid the contractor who ordered the materials that were used in Trendwest’s building. None of the hen waivers, however, relate to work done to Building C. A-l’s claim is directed to a lien on Building C. Trendwest’s contention that it had hen waivers for the claim for which A-l sought a hen was not supported by the record before the trial court.

Trendwest’s claim that it did not owe the obligation for which A-l sought relief because Trendwest had paid its contractor, Bella Pointe, did not entitle it to summary judgment in that a property owner who has fully paid a contractor is still subject to a claim for mechanic’s hen against its property by a subcontractor against which the contractor has defaulted. Northeast Painting Co. v. AOC Intern. (U.S.A.), Ltd., 831 S.W.2d 711, 712 (Mo. App.1992); Frank Powell Lumber Co. v. Federal Ins. Co., 817 S.W.2d 648, 652 (Mo.App.1991). Point I is granted. The summary judgment against A-1 must be reversed.

A-l Motions for Summary Judgment against Bella Pointe, Trendwest, and Worldmark

A-l filed motions for summary judgment against Bella Pointe and against Trendwest and Worldmark. The trial court denied those motions. Points II and III argue that this was error. Denial of a motion for summary judgment does not present an appealable issue. Nodaway Valley Bank v. E.L. Crawford Const., Inc., 126 S.W.3d 820, 824 (Mo.App.2004); Shelter Mut. Ins. Co. v. DeShazo, 955 S.W.2d 234, 238 (Mo.App.1997). Points II and III are dismissed.

Disposition

The summary judgment against A-l in favor of Trendwest is reversed. The appeal of the denial of motions for summary judgment of A-l against Bella Pointe and against Trendwest and Worldmark is dismissed. The case is remanded.

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

      . References to statutes are to RSMo 2000.

      . The lien statement states the amount charged as $12,820.66. The "attached B” invoice appears to state the amount charged as $12,820.16. The difference is de minimis and is of no consequence.


author: EDWIN H. SMITH, Chief Judge.

text:
    James M. FORTNER, Appellant, v. Amanda Kay FORTNER, Respondent.
    No. WD 64569.
    Missouri Court of Appeals, Western District.
    July 12, 2005.

      William J. Daily, Glasgow, MO, for appellant.
    Tonnie M. Martin, Jefferson City, MO, for respondent.
    Before: EDWIN H. SMITH, C.J., and HOWARD and HOLLIGER, JJ.
   EDWIN H. SMITH, Chief Judge.

James Fortner appeals the judgment of the Circuit Court of Howard County modifying its child custody order, pursuant to § 452.410.1, granting his former wife, Amanda Fortner (respondent), sole physical custody of the parties’ three minor children. In its dissolution decree of August 26, 2002, the trial court awarded the parties joint physical custody of the children. On February 26, 2003, the trial court awarded temporary sole physical custody to the respondent, due to the appellant’s military service in Iraq. Upon his return from Iraq, the appellant filed a motion to restore the original custody arrangement, while the respondent filed a motion to modify, seeking permanent sole physical custody of the children. On August 2, 2004, the trial court sustained the respondent’s motion and overruled the appellant’s.

The appellant raises six points on appeal. In Point I, he claims the trial court erred in sustaining the respondent’s motion to modify because, in doing so, it misapplied § 452.410.1, by basing its required finding of changed circumstances on facts that arose before the prior decree was entered and were known to the court at the time of the prior decree. In Point II, he claims the trial court erred in sustaining the respondent’s motion because the evidence was insufficient to support the required finding of changed circumstances. In Point III, he claims the trial court erred in sustaining the respondent’s motion because, in doing so, it misapplied §§ 452.410.1 and 452.375 by failing to consider, as required, in determining whether the modification was in the best interests of the children, the factors of § 452.375.2 and by failing to make detailed written findings regarding those factors, as required by § 452.375.6. In Point IV, he claims the trial court erred in sustaining the respondent’s motion to modify because the evidence was insufficient to support the requisite finding that the respondent’s proposed custody arrangement was necessary to serve the best interests of the children. In Point V, he claims the trial court erred in sustaining the respondent’s motion to’ modify because, in doing so, it misapplied § 452.375.5 by failing to consider alternative parenting plans as authorized by that section. In Point VT, he claims the trial court erred in overruling his motion to restore the original custody arrangement because his evidence supported the sustaining of his motion.

We reverse and remand.

Facts

The parties were married on August 13, 1994, in Keytesville, Missouri. Three children were born of the marriage: Grace, born July 22, 1997; Charles, born August 4, 1998; and Lillian, born November 12, 2000. The parties’ marriage was dissolved by the Circuit Court of Howard County on August 26, 2002. In the dissolution decree, the court, in accordance with the parties’ separation agreement, awarded them joint legal and physical custody of the children.

On February 21, 2003, the respondent filed a “MOTION FOR TEMPORARY CUSTODY.” In her motion, she alleged that the appellant, a member of the National Guard, “ha[d] received notification that his unit will be deployed [to Iraq] on February 27, 2003.” Consequently, she requested that the court “grant [her] temporary physical custody ... for all time periods of [the appellant’s] active duty in the military service of the United States, and for all other orders as the Court deems proper under the circumstances.” On February 26, 2003, the court issued a “JUDGMENT AND DECREE OF MODIFICATION OF JUDGMENT AND DECREE OF DISSOLUTION OF MARRIAGE FOR TEMPORARY CHANGE IN CHILD CUSTODY,” indicating that the respondent’s “motion for temporary custody is heard and sustained.”

On January 9, 2004, the appellant returned from Iraq. On January 27, 2004, he filed a motion to restore the original custody arrangement. On March 5, 2004, the respondent filed her answer to the appellant’s motion, as well as a motion to modify, seeking permanent sole physical custody of the children.

On May 13, 2004, the parties’ competing motions were taken up and heard by the trial court. On May 27, 2004, the court issued what it entitled “MEMORAN-DUM7FINDINGS,” in which it made findings of fact and conclusions of law and ordered that: “[The respondent’s] attorney shall prepare a proposed judgment for the court within 10 days of this order and shall furnish a copy of said proposed judgment to [the appellant’s] attorney. If no objection is made thereto within 5 days by [the appellant], the Court shall execute the same.” On August 2, 2004, the trial court entered its judgment modifying its child custody order, granting the respondent sole physical custody of the minor children. The court did not incorporate its May 27, 2004, memorandum into its judgment.

This appeal followed.

Standard of Review

Our review of a court-tried case involving matters of custody is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In re Marriage of Eikermann, 48 S.W.3d 605, 608 (Mo.App.2001). We will affirm the judgment so long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Id.

I.

In Point I, the appellant claims the trial court erred in sustaining the respondent’s motion because, in doing so, it misapplied § 452.410.1, by basing its required finding of changed circumstances on facts that arose before the prior decree was entered and were known to the court at the time of the prior decree. Specifically, he claims that the trial court’s February 26, 2003, order of temporary custody constituted the trial court’s prior decree for purposes of § 452.410.1 and that the court’s finding of changed circumstances was based upon facts, known to the court, that arose before that order was entered. We disagree.

Under Rule 75.01, “[t]he trial court retains control over judgments during the thirty-day period after entry of [the] judgment^]” Any attempt by the trial court to retain jurisdiction beyond that thirty-day period is without effect. Lacher v. Lacker, 785 S.W.2d 78, 81 (Mo. banc 1990). Consequently, once a judgment of dissolution of marriage becomes final, “a motion to modify under RSMo .§ 452.410 is required to bring custody of the children under the jurisdiction of the trial court.” T.L.I. v. D.A.I., 810 S.W.2d 551, 554 (Mo.App.1991) (citing Lacker, 785 S.W.2d at 81). In that regard, § 452.410.1 provides:

Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. Notwithstanding any other provision of this section or sections 452.375 and 452.400, any custody order entered by any court in this state or any other state prior to August 13, 1984, may, subject to jurisdictional requirements, be modified to allow for joint custody in accordance with section 452.375, without any further showing.

Hence, assuming jurisdiction, in. a modification proceeding the court’s determination is two-fold: (1) was there a substantial change in circumstances; and, (2) if so, are the best interests of the child served by modifying custody? Heslop v. Sanderson, 123 S.W.3d 214, 218 (Mo.App.2003); Love v. Love, 75 S.W.3d 747, 762 (Mo.App.2002). Unless the trial court finds the requisite substantial change of circumstances, it never reaches the best interests issue. Mallett v. Mallett, 63 S.W.3d 300, 302 (Mo. App.2001); Brethorst v. Brethorst, 50 S.W.3d 864, 867 (Mo.App.2001).

Here, the trial court’s judgment modifying the parties’ custodial arrangement was prompted by the respondent’s motion to modify, brought pursuant to § 452.410.1, such that jurisdiction was proper. In its judgment, the trial court found that both prongs of § 452.410.1 had been met, explaining that “[sjince the date of the Judgment and Decree of Dissolution of Marriage there have been changes in the circumstances regarding the custodial parents and the minor children and a modification is necessary to serve the best interests of the children.” As to the first prong, changed circumstances, the judgment reads:

13. The changes include:

a. The Petitioner, James M. Fortner, was deployed into active duty in the military in February, 2003, and was gone for more than 10 months and was unable to provide custodial care for the children, resulting in [the respondent] having sole responsibility and providing custodial care for the minor children for 15 months of the 21 months' since the Judgment and Decree of Dissolution of Marriage.
b. The [appellant] is now employed at a full-time position with the Department of Corrections wherein he works second shift from approximately 3:30 p.m. until 11:30 p.m. Wednesday through Sunday each week, making [the appellant] unavailable for the minor children in the evenings and weekends when they are not in school or daycare, resulting in the major responsibility for raising the children falling on babysitters and day care providers if [the appellant] had primary physical custody;' and [the appellant] does not have in place a well-defined plan to assist him in providing the necessary care for the children while he is at work.
c. [The respondent], Amanda K. Fort-ner’s situation has improved and she provides a stable home for the ehil-dren, in that she now resides in a home sufficiently large enough to provide adequate living arrangements for the minor children, and has sufficient income to provide financial support for the minor children.
d. [The respondent] has provided the majority of the custodial care for the children since the dissolution due to [the appellant’s] military deployment.
e. The children have achieved stability in their present home with [the respondent], and it is in their best interests for physical custody to be transferred to [the respondent].
f. [The respondent] has completed all but two (2) weeks of her educational requirements to obtain her degree, and she is employed only twenty (20) hours per week during the same time period that she attends school and is given school credit for her working hours on Monday and Wednesday mornings from 8:00 a.m. until 12:00 noon and Tuesday, Wednesday and Thursday evenings from 5:30 p.m. until 10:00 p.m.; thus allowing her to be home to care for the basic needs of the children during most of their waking hours while minimizing the use of daycare to only 15 hours a week in the evening with preschool being provided only two mornings a week.

Based on the trial court’s judgment, it is clear that in determining that there had been a substantial change of circumstances, the court considered the August 26, 2002, decree of dissolution to be the “prior decree of custody” for purposes of modification, rather than the February 26, 2003, order of temporary custody. In other words, the court looked back to August 26, 2002, rather than February 26, 2003, in addressing whether there had been a substantial change of circumstances. The appellant claims the trial court erred in looking any further back than February 26, 2003, the date of its order of temporary custody. Because we find that the trial court’s order of temporary custody was null and void, and, therefore, of no effect, Sumnicht v. Sackman, 968 S.W.2d 171, 174 (Mo.App.1998), we disagree.

As noted, supra, the trial court entered its decree of dissolution, awarding the parties joint physical custody of the children, on August 26, 2002. In early February 2003, the appellant received notice that he was to be deployed to Iraq on February 27, 2003. Consequently, on February 21, 2003, the respondent filed a “MOTION FOR TEMPORARY CUSTODY,” requesting that the court “[g]rant temporary physical custody to [her] for all time periods of [the appellant’s] active duty in the military service of the United States, and for all other orders as the Court deems proper under the circumstances.” This motion culminated with the February 26, 2003, order of temporary custody, wherein the court ordered that the “[respondent is granted temporary legal and physical custody of the minor children.”

Section 452.380, governing temporary custody motions and orders, reads:

1. A party to a custody proceeding may move for a temporary custody order. The motion must be supported by an affidavit. The court may award temporary custody after a hearing or, if there is no objection, solely on the basis of the affidavits.
2. If a proceeding for dissolution of marriage or legal separation is dismissed, any temporary custody order is vacated unless a parent or the child’s custodian moves that the proceeding continue as a custody proceeding and the court finds, after a hearing, that the circumstances of the parents and the best interest of the child require that a custody decree be issued.

Consistent with the proposition that once a decree of dissolution becomes final, a § 452.410.1 motion to modify “is required to bring custody of the children under the jurisdiction of the trial court[,]” T.L.I. v. D.A.I., 810 S.W.2d at 554, § 452.380 has been interpreted to mean that “orders of temporary custody are ancillary to an underlying proceeding and are limited to custody pending the resolution of litigation.” Lardinois v. Lardinois, 852 S.W.2d 872, 873 (Mo.App.1993) (citing Adams v. Adams, 812 S.W.2d 951, 955 (Mo.App. 1991)). In other words, § 452.380 authorizes a party in a custody proceeding, such as a dissolution proceeding or legal separation proceeding, to file a motion for temporary custody while the action is pending; it does not, however, “provide a vehicle for courts to acquire perpetual jurisdiction [over the children].” Adams, 812 S.W.2d at 955. As a result, an order of temporary custody prompted solely by a motion for temporary custody, unaccompanied by some sort of underlying litigation, is null and void, as such an order is beyond the trial court’s jurisdiction. See Sumnicht, 968 S.W.2d at 174 (explaining that actions of the trial court entered in excess of or beyond the jurisdiction of the trial court are null and void); see also Burchett v. Burchett, 572 S.W.2d 494, 504 (Mo.App.1978) (explaining that an order of temporary custody entered without some sort of pending litigation is coram non judice).

Having determined that an order of temporary of custody prompted solely by a motion for temporary custody is null and void, it quickly becomes apparent that the trial court did not err in looking back to August 26, 2002, rather than February 26, 2003, in addressing whether there had been a substantial change of circumstances. It is undisputed that the trial court’s February 26, 2003, order of temporary custody was prompted solely by the respondent’s “MOTION FOR TEMPORARY CUSTODY,” and that, at the time, there was no pending litigation in the parties’ dissolution case. As such, that order was void, and the trial court was correct to look beyond it in making its finding of changed circumstances. Simply put, the trial court properly characterized its original decree of dissolution, entered on August 26, 2002, as “the prior decree” for purposes of § 452.410.1. Hence, the appellant’s claim, that the trial court could not look to changes that occurred between the time of dissolution and the temporary order of custody to modify its “prior” decree, is without merit.

Point denied.

II.

In Point II, the appellant claims the trial court erred in sustaining the respondent’s motion to modify because the evidence was insufficient to support the required finding of changed circumstances. Specifically, he claims that the trial court’s finding of changed circumstances was based solely on facts that arose before the trial court issued its prior decree, as claimed in Point I, and the record was otherwise insufficient to support the court’s finding.

Inasmuch as the appellant’s claim of error in this point is predicated on his claim of error in Point I, which failed, it must also fail.

Point denied.

III.

In Point III, the appellant claims the trial court erred in sustaining the respondent’s motion to modify because, in doing so, it misapplied §§ 452.410.1 and 452.375 by failing to consider, as required, in determining whether the modification was in the best interests of the children, the factors of § 452.375.2 and by failing to set forth detailed findings regarding those factors, as required by § 452.375.6. We agree.

As noted, supra, in a modification proceeding the court’s determination is twofold: (1) was there a substantial change in circumstances; and, (2) if so, are the best interests of the child served by modifying custody? Heslop v. Sanderson, 123 S.W.3d at 218; Love v. Love, 75 S.W.3d at 762. As to the second prong, or best interests prong, our appellate courts have held that the trial court is required to consider all relevant factors, including the eight factors set forth in § 452.375.2. Love, 75 S.W.3d at 762-63. Those factors are:

(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian.

In addition, because the parties had not agreed to the custodial arrangement, the trial court was obligated to include in its judgment the statutory finding mandated by § 452.375.6. Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005); In re Marriage of Copeland, 148 S.W.3d 327, 330 (Mo.App.2004). That section provides, in pertinent part, that:

If the parties have not agreed to a custodial arrangement ..., the court shall include a written finding in the judg- ■ ment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child.

In its judgment of August 2, 2004, sustaining the respondent’s motion to modify, the court made no written findings pertaining to the best interests of the children concerning the modification, other than to state that “a modification is necessary to serve the best interests of the children.” The respondent essentially concedes that this is insufficient to satisfy the requirements of §§ 452.375.2 and 452.375.6, but nonetheless contends that the trial court properly considered the required factors set forth in § 452.375.2 and that it provided sufficient written findings detailing its consideration of those factors. • In that regard, the respondent points to the trial court’s “MEMORANDUM/FINDINGS,” issued on May 27, 2004. Therein, the trial court indicated that:

The next question to be determined is whether a change in the custodial arrangement is in the best interests of the children. Respondent has provided the majority of the custodial care for the children since the dissolution due to Petitioner’s military deployment. Respondent’s situation has improved and she appears to have a stable home for the children. On the other hand, Petitioner was absent for an extended period of time, although not due to his owp fault. His present employment will provide him with little actual time to be with the children. He will have to rely greatly upon childcare assistance from third parties and the nature and extent of that help is not clear to the Court. The extensive degree of help and assistance previously provided to him by the maternal grandmother is no longer available. The children appear to have achieved stability in their present home. The Court finds that it would be in the best interests of the children for physical custody to be transferred to the Respondent.

Even assuming, arguendo, that we can consider the May 27, 2004, memorandum on appeal, we nonetheless find that it is insufficient to meet the requirements of §§ 452.375.2 and 452.375.6. Not once does the trial court reference § 452.375. In addition, the only factors of § 452.375.2 that are even indirectly discussed in the court’s written finding are § 452.375.2(5), which refers to the “child’s adjustment to [its] home, school, and community[,]” and § 452.375.2, which refers to “the ability and willingness of [each parent] to actively perform their functions as mother and father for the needs of the child[.]” While a court need discuss Only the relevant factors and 'need not mechanically discuss every factor listed in § 452.375.2, we find the court’s recitation in this case to be insufficient to allow meaningful review in light of the evidence. Moreover, the court failed to discuss subsection (4) (frequent, continuing, and meaningful contact), which is particularly mentioned in § 452.375.6. Consequently, we must reverse the court’s judgment sustaining the respondent’s § 452.410.1 motion to modify and remand the cause so that the trial court can revisit the issue, hearing new evidence if need be, of whether a custody modification is in the best interests of the children, taking into consideration all of the factors set forth in § 452.375.2, as well as any other relevant factors. It follows, therefore, that the appellant’s remaining claims of error are rendered moot. See Mo. Consol. Health Care Plan v. Cmty. Health Plan, 81 S.W.3d 34, 50 (Mo.App.2002) (a point is moot where resolution of the issue it presents would have no practical effect upon the ultimate outcome of the appeal). We are not required to address points that are rendered moot. Id.

Conclusion

The trial court’s judgment sustaining the respondent’s § 452.410.1 motion to modify the court’s decree of dissolution is reversed, and the cause is remanded for further proceedings in accordance with this opinion.

HOWARD and HOLLIGER, JJ„ concur.

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

      . All rule references are to the Missouri Rules of Civil Procedure, 2005, unless otherwise indicated.

      . It is unclear whether an order of temporary custody is proper during the pendency of a § 452.410.1 motion to modify. See Muegler v. Muegler, 784 S.W.2d 839, 840 n. 1 (Mo.App. 1990).

      . Section 452.375.6 expressly states that "the court shall include [the relevant] written finding in the judgment or order[.]"