author: PAUL J. SIMON, Judge.

text:
    William TAYLOR, Appellant, v. ZOLTEK COMPANIES, INC., et al., Respondents.
    No. ED 76131.
    Missouri Court of Appeals, Eastern District, Division One.
    May 23, 2000.

      Steven E. Dyer, St. Louis, for appellant.
    Gerald M. Dunne, Richard B. Hein, Kodner Watkins, Muchnick & Dunne, L.C., St. Louis, for respondent.
   PAUL J. SIMON, Judge.

William Taylor, appellant, appeals the trial court’s judgment granting respondents’, Zoltek Companies, Inc. (Zoltek) and Zsolt Rumy (Rumy), motion for summary judgment on appellant’s claims for breach of contract, tortious interference, and punitive damages.

On appeal, appellant contends that the trial court erred in sustaining respondents’ motion for summary judgment because he presented material facts in dispute regarding: (1) Zoltek’s anticipatory breach of appellant’s long term incentive plan, thereby satisfying his burden to defeat Zoltek’s and Rumy’s motion for summary judgment.; and (2) Zolt Rumy’s tortious interference with appellant’s long term incentive plan, thereby satisfying his burden to defeat Zoltek’s and Rumy’s motion for summary judgment. We affirm.

Appellate review of a summary judgment is de novo. ITT Commercial Finance Corp., et al. v. Midr-America Marine Supply, 854 S.W.2d 371, 376 (Mo.banc 1993). The record is viewed in the light most favorable to the non-moving party, according that party all reasonable inferences that may be drawn from the record. Id. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true, unless contradicted by the non-moving party’s response to the summary judgment motion. Id. at 376.

Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. A defending party may establish a right to judgment by showing (1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded'affirmative defense. Id. at 380.

The non-movant must show by affidavit, depositions, answer to interrogatories, or admissions on file, that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed. Id. A “genuine issue” exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. at 382. A “genuine issue” is a dispute that is real, not merely argumentative, imaginary or frivolous.' Id.

The record reveals that appellant began working for Zoltek in May 1978 as a salesperson. Over the years, he progressed steadily within the company and in 1991 Rumy, Chairman of the Board, President and Chief Executive Officer of Zoltek, promoted him to Vice President of the company’s Equipment and Services Division, also known as ESBU. Appellant did not have an employment contract. On August 31, 1992, appellant and Zoltek entered into a Non-Qualified Stock Option Agreement (Agreement), which incorporated by reference Zoltek’s Long Term Incentive Plan (Plan). The Agreement granted appellant the right to participate in Zoltek’s Plan. Rumy and appellant signed the Agreement.

The preamble to the Agreement provides:

WHEREAS, [appellant] is now an officer or key employee of Zoltek, and Zoltek considers it desirable and in its best interest to give [appellant] an inducement to acquire a proprietary interest in Zoltek and thus to promote the future growth, development and continued success of Zoltek.

Paragraph 1 of the Agreement grants appellant the option to purchase a maximum of 50,000 shares of $.01 par value Common Stock in Zoltek at a price of $4.00 per share. Paragraph 2 provides that the term of the option lasts ten years, ending on August 31, 2002. Paragraph 3, governing the time of exercise of the option, provides:

This option shall become exercisable as to one-third of the total shares specified in Paragraph 1 hereof on the first anniversary of the date of grant, and thereafter as to the next one-third of the total shares specified in Paragraph 1 hereof on the second anniversary of the date of grant, and as to the remaining one-third of the total shares specified in Paragraph 1 hereof on the third anniversary of the date of grant, which amounts shall accumulate from .year to year for the full term hereof to the extent not previously exercised, so long as [appellant] shall continue to be employed by Zoltek as of such dates, (emphasis added).

Section 16 of the Plan, entitled No Right to Employment, provides:

A Participant’s right, if any, to continue to serve the Company and its subsidiaries as an officer, employee, or otherwise, shall not be enlarged or otherwise affected by his or her designation as a Participant under the Plan.

Section 17, entitled Duration, Amendment and Termination, provides in pertinent part:

... The Board of Directors may amend the Plan from time to time or terminate the Plan at any time. However, no action authorized by this paragraph shall reduce the amount of any existing Award or change the terms and conditions thereof without the Participant’s consent...

While appellant included sections 15, 16, 17, 18, and 19 of the Plan in support of his reply to the motion for summary judgment, the full text of the Plan has not been made part of the record.

In October of 1994, appellant received a written “performance appraisal” from Rumy, which states in pertinent part:

... as a result I have decided the company cannot afford to let you continue in your current position without demonstrating a significant change in your attitude and approach. It is my decision that you will not be considered for the position of general manager for the ESBU for a long time, if ever. I feel it is the best for all concerned that you relocate to the McKelvey office on special assignment until you and I can come to terms of how or if you can handle the sales management of the ESBU.

On December 27, 1994, Rumy sent appellant an “Inter-Office Memo” (Memo) which states that he “decided that it is not in the Company’ best interest to have [appellant] return to the ESBU in any management position.” It further states that the “decision is final and it leaves few options for [appellant’s] continued employment with Zoltek” and that “none of these options will offer the same salary or the continued participation in the incentive stock option plan.” The options were as follows:

Option 1: If you wish to stay with Zol-tek, I can offer you an interim assignment in the open territory that you have been covering until we can find a suitable outside salesman to take the territory or we find a general manager for the ESBU. After that time you would be assigned to the Flexigraf national sales position, reporting to the Sales Manager of the CFBU. This position would have a maximum salary of $50,000 and would not have a company car. Once the assignment is defined, we could design an incentive bonus plan similar to the ESBU sales territory.
If you elect this option, you will also forfeit the last third of your stock options. You will have to sign an agreement to this effect. On the positive side, the 33,333 shares you would still have would not have to be exercised immediately.
Option 2: If you elect to terminate your employment at this time, you will depart with a significant amount of money. You will have to sign the enclosed agreement, which is identical to the one John Huesman had to sign, and exercise the 33,333 share option within three months as the Incentive Stock Option Plan calls for.

The Memo asked appellant to make a decision as to which option he would elect by the end of the week.

Appellant discussed the Memo with Rumy sometime during the first week of January 1995. During the discussion, appellant stated that Option 2 was unacceptable to him and that though it was a tremendous burden on him, he would accept demotion, the $50,000 salary and the loss of the company car, but that he could not accept losing one-third of his stock options. Rumy replied that appellant’s decision was not acceptable. Appellant asked Rumy “well, I guess that’s the end of our relationship or I guess I’m fired.” Rumy replied, “Well, I guess you are.” Thereafter, appellant’s relationship with Zoltek was severed and his employment terminated. However, appellant exercised his option and purchased 5,500 shares on January 19, 1995, and 27,833 shares on January 25, 1995, for a total of 33,333 shares, two-thirds of the maximum 50,000 shares.

On September 29, 1998, appellant filed his second amended petition, which he amended by interlineation on March 4, 1999. In Count I of his petition, breach of contract, plaintiff alleged that Zoltek repudiated and breached the terms of the Agreement and “On December 27, 1994, when Rumy, acting in his managerial capacity as Chairman, President and Chief Executive Officer of Zoltek ...” “demanded in writing that [appellant] select one of two alternatives ...” concerning his employment, “both of which expressly terminated his rights under the long term incentive plan with respect to the final one-third of his stock option shares.” In Count II of his petition, appellant alleged a claim against Rumy for Tortious Interference with his contract and Count III set forth his claim against Zoltek for punitive damages.

On October 23, 1998, respondents filed their answers essentially denying appellant’s allegations and raised affirmative defenses, including the doctrine of impossibility inasmuch as appellant never exercised his option to purchase the remaining shares, a business justification for termination of appellant’s employment, and failure to state a cause of action.

On February 22, 1999, respondents filed a joint motion for summary judgment supported by a memorandum, Rumy’s affidavit, and exhibits, including copies of the Agreement, appellant’s deposition and petition. On March 3, 1999, appellant filed his reply supported by a memorandum, his affidavit, and various exhibits, including portions of the deposition of James Betts, a member of Zoltek’s Board of Directors, the Agreement, section 15 through 19 of the Plan, Rumy’s Memo and the petition. On March 25, 1999, the trial court granted respondents’ motion without making written findings of fact and conclusions of law and entered judgment in their favor on all counts. Appellant appeals the judgments on his claims for breach of contract against Zoltek and for tortious interference against Rumy, but not the judgment on his claim for punitive damages against Rumy.

In his first point, appellant contends that the trial court erred in granting respondents’ motion for summary judgment because he presented material facts in dispute regarding Zoltek’s anticipatory breach of the Agreement thereby satisfying his burden to defeat respondents’ motion for summary judgment. However, his argument is directed to the application of the law to the facts. Our review of the motion for summary judgment and appellant’s reply to the motion reveals that there are no genuine issues of material fact. In his reply to the motion for summary judgment and argument on appeal, appellant essentially contends that Rumy’s Memo constituted an anticipatory breach of the Agreement, which is a question of law rather than fact. Therefore, his point has preserved nothing for our review. Rule 84.04. However, in the interest of resolving this matter on the merits, we will address plaintiffs argument.

Appellant’s argument is directed to the first option set forth in Rumy’s Memo, which allegedly affected his right to participate in the Plan. Appellant argues that, pursuant to paragraph 3 of the Agreement, he is entitled to participate in the Plan, so long as he remains an employee of Zoltek and that the first option constituted an anticipatory breach because it indicated Zoltek’s intention to terminate his participation in the Plan, even though he would be an employee of the company. He further argues that by terminating his participation in the Plan, Zoltek altered the terms of the plan, which, he contends can only be done by the approval of Board of Directors or with appellant’s consent, neither of which has occurred.

Appellant, who did not have an employment contract, was an employee at will and in accordance with section 16 of the Plan, appellant’s employment relationship was not affected by his designation as a participant in the Plan. Therefore, Zoltek had the right to demote or terminate appellant with or without cause. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 663 (Mo.banc 1988). Rumy, as Chairman of the Board, President and Chief Executive Officer of Zoltek, clearly had the authority to promote appellant to Vice President of the ESBU and to sign the Agreement on behalf of Zoltek granting appellant’s participation in Plan. Likewise, his authority to demote or terminate appellant for cause or no cause is not disputed.

Although the Memo indicated that as a condition of remaining an employee, appellant would have to forfeit his right under the Agreement to participate in Zoltek’s Plan, it did not alter or amend the terms of the Plan. The Memo was directed to appellant’s job performance and his status as Vice President of the ESBU. It clearly expressed Rumy’s dissatisfaction with appellant’s performance and his intent to remove him as Vice President of ESBU. Because Zoltek, through its Chairman of the Board, President and Chief Executive Officer, Rumy, was exercising its rights as an employer in the employment relationship, the Memo did not alter the terms of the Plan. Further, since there was no dispute as to Zoltek’s right to demote or terminate appellant, there was no breach of the Agreement. Point denied.

In his second point, appellant contends that the trial court erred in sustaining respondents’ motion for summary judgment because he presented material facts in dispute regarding Zolt Rumy’s tortious interference with his Plan, thereby satisfying his burden to defeat Rumy’s motion for summary judgment. Specifically, appellant contends that he has offered sufficient evidence to prove the absence of justification by alleging that Rumy employed improper means in terminating appellant’s participation in the Plan. He contends that he properly alleged and stated that: 1) Rumy threatened him in the Memo whereby Rumy told appellant that he had to either forfeit the last one-third of his stock options under the Plan or be fired; 2) Rumy was not justified and had no legal right to unilaterally terminate appellant’s Plan because Rumy never received approval from Zoltek’s board of directors or from appellant; and 3) Rumy used false and misleading statements regarding appellant’s business skills and abilities to justify terminating appellant’s participation in the Plan.

However, our review of the motion for summary judgment and appellant’s reply to the motion does not indicate genuine issues of material fact. Additionally, our review of appellant’s brief reveals that he did not raise a factual dispute, but essentially argues the application of the law to the facts. The thrust of his argument is directed to his contention that Rumy threatened appellant, that he was not justified and had no a legal right to •terminate appellant’s participation in the Plan and that he made false and misleading statements to justify terminating appellant’s participation. Therefore, appellant has not preserved his point for review. Rule 84.04. However, in the interest of resolving the matter on its merits, we will address his argument.

A claim for tortious interference with a contract or business relationship requires proof of each of the following:

(1) A contract or valid business relationship or expectancy;
(2) Defendant’s knowledge of the contract or relationship;
(3) Intentional interference by the defendant inducing or causing a breach of the contract or relationship;
(4) The absence of justification;
(5) Damages resulting from defendant’s conduct.

Community Title Co. v. Roosevelt Federal Sav. And Loan Ass’n, 796 S.W.2d 369, 372 (Mo.banc 1990). Appellant has the burden of producing substantial evidence to establish the absence of justification. Id. “The absence of justification” is defined as “the absence of any legal right to take the actions complained of.” Eggleston v. Phillips, 838 S.W.2d 80, 83 (MoApp. E.D.1992). A person is justified in interfering with a contract or expectancy if he or she has a legal right to do so. Id. Rumy as the Chairman of the Board, President and Chief Executive Officer of Zoltek is empowered to transact, without special authorization from the board of directors, all acts of an ordinary nature which are incidental to his office by usage or necessity and to thus bind the corporation. Holtmeier v. Dayani, 862 S.W.2d 391 (Mo.App. E.D.1993).

Rumy, as Chairman of the Board, President and Chief Executive Officer, had an interest in appellant’s job performance and his Memo was clearly directed to appellant’s performance as Vice President of ESBU. Further, as Chairman of the Board, President and Chief Executive Officer, Rumy had the authority and legal right to demote or terminate appellant as Vice President of ESBU with or without cause and was therefore justified in doing so. Johnson, 745 S.W.2d at 663 (Mo.banc 1988). Thus, there is no absence of justification and appellant’s claim falls short. Point denied.

JUDGMENT AFFIRMED.

GARY M. GAERTNER, P.J. and JAMES R. DOWD, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Interest of Z.M.H., a Minor. N.H., Natural Mother, Appellant, v. Juvenile Officer, Respondent.
    No. ED 75856.
    Missouri Court of Appeals, Eastern District, Southern Division.
    May 30, 2000.
    Matthew E. Hill, Cape Girardeau, for appellant.
    Abbie Crites-Leoni, Cape Girardeau, David S. Durbin, Jefferson City, Jeffrey P. Dix, Guardian Ad Litem, Jackson, for respondent.
    Before GARY M. GAERTNER, P.J., and ROBERT G. DOWD, Jr., and JAMES R. DOWD, JJ.
   ORDER

PER CURIAM.

The trial court terminated the parental rights of Z.M.H.’s natural mother (Mother). Mother appeals the trial court’s judgment and argues the trial court erred when it (1) denied Mother’s motion for a directed verdict, (2) terminated Mother’s rights because the judgment was against the weight of the evidence, and (3) failed to consider and make findings required under Section 211.447, RSMo 1998. We affirm.

We have reviewed the briefs of the parties, the legal file, and the transcript. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth reasons for this order pursuant to Rule 84.16(b).


author: SHERRI B. SULLIVAN, Judge.

text:
    Roy M. WILCUTT, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 76722.
    Missouri Court of Appeals, Eastern District, Southern Division.
    May 30, 2000.

      Walter S. Drusch, Jr., Lowes <& Drusch, Cape Girardeau, for respondent.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for appellant.
   SHERRI B. SULLIVAN, Judge.

Director of Revenue (“Director”) appeals from the trial court’s judgment reinstating the driving privileges of Roy M. Wilcutt (“Driver”) and setting aside Director’s order suspending Driver’s driver’s license under Section 302.505 for driving a motor vehicle with a blood alcohol concentration of at least .10% by weight. The trial court found that Director failed to sustain his burden of proof for the admissibility of Driver’s breathalyzer test results. We reverse and remand.

On May 14,1998, a Missouri State Highway Patrol officer stopped Driver’s car for a broken headlight. Upon contact with Driver, the officer smelled a strong odor of intoxicants on Driver’s breath. The officer also noticed Driver’s eyes were watery, bloodshot, glassy, and Driver’s pupils reacted poorly to light. Additionally, the officer observed Driver to be unsteady on his feet. Driver agreed to perform several field sobriety tests, the results of which indicated to the officer that Driver was intoxicated.

The officer arrested Driver for driving while intoxicated and transported him to the sheriffs office. Driver consented to take a breathalyzer test, the results of which determined Driver’s blood alcohol concentration to be .109%. Director suspended Driver’s driver’s license under Section 302.505 for driving a motor vehicle with a blood alcohol concentration of at least .10% by weight. The suspension was upheld after an administrative hearing.

Driver filed a Petition for Trial De Novo in the Cape Girardeau County Circuit Court pursuant to Section 302.535. At trial on January 26, 1999, Director’s evidence consisted of the following: (1) a copy of 19 CSR 25-30.051 effective October 30, 1998; (2) testimony of the officer who maintained the DataMaster and is a Type II permit holder from the Department of Health; (3) an affidavit from Rock Creach from the Department of Health; (4) the Datamaster Maintenance Report dated April 28, 1998; (5) a RepCo Marketing, Inc. Certificate of Analysis for the simulator solution; and (6) Department of Revenue records containing the arresting officer’s Alcohol Influence Report, including a DataMaster checklist and a printout of Driver’s breathalyzer test results.

Driver objected to the admission of the breathalyzer test results because the certificate of analysis did not comply with the version of 19 CSR 25-30.051 in effect at the time of the maintenance report and because Director failed to prove who made and supplied the solution.

The trial court found the certificate of analysis defective and deficient in that it did not comply with the version of 19 CSR 25-30.051 in effect at the time of the maintenance report. The court also found that the emergency version of 19 CSR 25-30.051 effective May 4, 1998, did not apply retroactively because it was not purely procedural and that the Department of Health did not have the authority to promulgate emergency rules. Thus, the trial court applied the version of 19 CSR 25-30.051 in effect at the time of the maintenance report.

In July 1999, the trial court set aside the suspension of Driver’s driver’s license finding that Director failed to sustain his burden of proof for the admissibility of Driver’s breathalyzer test results, and therefore failed to show that Driver’s blood alcohol concentration was .10% or greater.

Director alleges trial court error in reinstating the driving privileges of Driver and setting aside Director’s order suspending Driver’s driver’s license under Section 302.505 because the trial court misinterpreted and misapplied the law and its decision was against the weight of the evidence in that the arresting officer had probable cause to arrest Driver for driving while intoxicated and Driver’s blood alcohol concentration exceeded ,10%.

The trial court’s judgment will 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. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).

At trial, the director has the burden of establishing a prima facie case for suspension of a driver’s license. Hurley v. Director of Revenue, 982 S.W.2d 694, 696 (Mo.App. E.D.1998). To meet this burden, the director must show by a preponderance of the evidence that at the time of the arrest: (1) there was probable cause for arresting the driver for driving while intoxicated; and (2) the driver’s blood alcohol concentration was .10% or greater. Guccione v. Director of Revenue, 988 S.W.2d 649, 652 (Mo.App. E.D.1999). To establish a foundation for admission of breathalyzer test results, the director must show that the test was performed (1) according to techniques and methods approved by the Department of Health; (2) by an operator holding a valid permit; and (3) using equipment and devices approved by the Department of Health. Id Once the director has established a prima facie case, the burden shifts to the driver to present evidence to rebut the prima facie case by a preponderance of the evidence. Id The burden is high to rebut the director’s prima facie case, and it must be done with evidence, not by merely pointing out inconsistencies. Hurley, 982 S.W.2d at 696-697.

Although the trial court made no findings regarding whether probable cause existed for arresting Driver for driving while intoxicated, the evidence supports such a conclusion. Probable cause exists when circumstances and facts would warrant a person of reasonable caution to believe an offense has been committed. Guccione, 988 S.W.2d at 654. The determination of whether a police officer has probable cause to arrest must be made in relation to circumstances as they appeared to a prudent, cautious, and trained police officer. Id.

The officer’s written statement regarding Driver’s arrest is contained in the Alcohol Influence Report. After stopping Driver’s car for a broken headlight, the officer smelled a strong odor of intoxicants on Driver’s breath. The officer also noticed Driver’s eyes were watery, bloodshot, glassy, and Driver’s pupils reacted poorly to light. Additionally, the officer observed Driver to be unsteady on his feet. Driver agreed to perform several field sobriety tests, the results of which indicated to the officer that Driver was intoxicated. This evidence is sufficient to establish that the officer had probable cause to arrest Driver for driving while intoxicated.

At the time of Driver’s arrest, the emergency version of 19 CSR 25-30.051 was in effect. At the time of trial, the current version of 19 CSR 25-30.051, identical to the emergency version, was in effect. The version prior to the emergency version, in effect at the time of the maintenance report, required a certificate of analysis to state the name of the supplier, the lot or batch number of the solution, the ethanol concentration in aqueous solution and vapor solution, and the expiration date. The emergency and current version require only that the maintenance report show the solution was from an approved supplier. Approved suppliers include: Alcohol Countermeasure, Inc.; Guth Laboratories, Inc.; and RepCo Marketing, Inc.

We recently have decided several cases involving the issue presented here. See, e.g., Blechle v. Director of Revenue, 11 S.W.3d 655, 658 (Mo.App. E.D.1999); Harper v. Director of Revenue, 14 S.W.3d 614, 617 (Mo.App. E.D.1999); Selix v. Director of Revenue, 985 S.W.2d 380, 382 (Mo.App. E.D.1999); Meurer v. Director of Revenue, 984 S.W.2d 873, 876 (Mo.App. E.D.1999); and Vilcek v. Director of Revenue, 974 S.W.2d 602, 604-605 (Mo.App. E.D.1998). In these cases, we have held that the version of 19 CSR 25-30.051 in effect on the date of the trial de novo is applicable to the evidence introduced at that trial. Further, we have held that 19 CSR 25-30.051 is procedural and subject to retrospective application.

Based on these holdings, we find the trial court erroneously applied the version of 19 CSR 25-30.051 in effect on the date of the maintenance report and erroneously concluded that the certificate of analysis was defective and deficient. We find that the certificate of analysis introduced at the trial de novo complied with the requirements of the current version of 19 CSR 25-30.051 in effect on the date of the trial. The record on appeal sufficiently reveals that the solution supplier was RepCo Marketing, Inc., one of the approved suppliers mentioned in 19 CSR 25-30.051. Thus, Director sufficiently established a foundation for the admission of Driver’s breathalyzer test results, and consequently that Driver’s blood alcohol concentration was .10% or greater.

Having established a pilma facie case for suspension of Driver’s driver’s license, the burden shifts to Driver to present evidence to rebut the prima facie case by a preponderance of the evidence. Driver did not present any evidence at trial and therefore did not meet his burden. Thus, the trial court’s decision to reinstate Driver’s driving privileges is against the weight of the evidence.

We hold the trial court erred in reinstating the driving privileges of Driver and setting aside Director’s order suspending Driver’s driver’s license because Director complied with the methods of testing for blood alcohol concentration as required by the Department of Health under 19 CSR 25-30.051 in effect on the date of trial. Accordingly, the judgment of the trial court is reversed and remanded with directions to reinstate the suspension of Driver’s driving privileges.

MARY RHODES RUSSELL, C.J. and HOFF, J., concur.

      . All statutory references are to RSMo. Supp. 1997, unless otherwise indicated.

      . The type of breathalyzer used on Driver was the DataMaster.

      .Specifically, the trial court found the certificate of analysis did not identify the supplier of the solution nor the "independent laboratory” or its location, and it did not state the ethanol concentration in aqueous solution and vapor solution.

      . Driver did not file a brief with this Court, choosing instead to adopt the decision of the trial court as his argument.

      . This version was effective from May 4, 1998 to October 30, 1998.

      .This version became effective October 30, 1998.


text:
    Clessie WEINZETTLE, Appellant, v. ST. ANTHONY’S MEDICAL CENTER, Respondent.
    No. ED 76845.
    Missouri Court of Appeals, Eastern District, Division One.
    May 30, 2000.
    Harry J. Nichols, St. Louis, for appellant.

      John J. Mohan, Margaret A. Hesse, Blackwell Sanders Peper Martin, St. Louis, for respondent.
    Before GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

Appellant, Clessie Weinzettle, (“claimant”), appeals the judgment of the Labor and Industrial Relations Commission in favor of respondent, St. Anthony’s Medical Center, (“employer”) denying claimant any benefits based on the finding that the medical condition for which she sought compensation was not caused by her employment. We affirm.

We have reviewed the briefs of the parties, the legal file, and the transcripts, and find the denial of benefits is supported by substantial and competent evidence and is not against the weight of the evidence based on the record as a whole. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).


text:
    Thomas K. DANIELS, Appellant, v. TREASURER OF THE STATE of Missouri, AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent.
    No. ED 77029.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 30, 2000.
    Robert A. Bedell, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Paul K. Petraborg, Asst. Atty. Gen., Jefferson City, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Claimant Thomas Daniels appeals from a Final Award of the Labor and Industrial Relations Commission denying his claim for workers’ compensation. On appeal, he argues that the Commission erred when it found he sustained pre-existing permanent partial disability but failed to find it was a hindrance or obstacle to employment.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. No precedential or jurisprudential purpose would be served by an extended opinion reciting detailed facts or restating principles of law. We have, however, provided the parties with a memorandum for their exclusive use detailing the reasons for our decision. The Commission’s Award is affirmed pursuant to Rule 84.16(b).


text:
    Mattie MORRIS, Appellant, v. DIVISION OF DESIGN AND CONSTRUCTION, STATE of Missouri, et al., Respondent.
    No. ED 77063.
    Missouri Court of Appeals, Eastern District, Division Three,
    May 30, 2000.

      Frank J. Mesen, Jr., St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Elizabeth J. Ituarte, Asst. Atty. Gen., St. Louis, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Mattie Morns (“Claimant”) appeals a final Award by the Labor and Industrial Relations Commission affirming the award of the Administrative Law Judge and denying Claimant’s claim for compensation.

We have reviewed the briefs of the parties and the record on appeal and find that the Commission’s Award is supported by competent and substantial evidence on the record. No error of law appears. No precedential or jurisprudential purpose would be served by an extended opinion reciting detailed facts and restating principles of law. We have, however, provided a memorandum opinion to the parties for their exclusive use detailing the reasons for our decision. We affirm the Award pursuant to Rule 84.16(b).


author: RICHARD B. TEITELMAN, Presiding Judge.

text:
    Marolyn G. BAILEY, Appellant, v. Charles E. BAILEY, Jr., Respondent.
    No. ED 76553.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 30, 2000.

      Frances M. Weir, St. Charles, for appellant.
    Wesley C. Dalton, Warrenton, for respondent.
   RICHARD B. TEITELMAN, Presiding Judge.

Marolyn G. Bailey (Wife) appeals from a judgment and decree dissolving her marriage to Charles E. Bailey, Jr. (Husband). Wife challenges (1) the trial court’s division of marital property and (2) its post-judgment order requiring her to pay Husband $1000 in attorney’s fees for this appeal. We affirm pursuant to Rule 84.16(b) with respect to the property division issue, and dismiss Wife’s appeal with respect to the fees issue.

Background

The parties were married on May 9, 1997; they separated on August 1, 1998. Wife filed her dissolution petition approximately one month following separation. Trial was held on April 30, 1999. No children were born of the marriage. Prior to the marriage, Wife resided at 28 Fair-lane Acres, in Warrenton, Missouri. Wife owned a one-half interest in this property, together with her mother who owned the other one-half interest. Immediately after the marriage the parties moved into the home on Fairlane Acres, which became the marital residence. The parties jointly took out a loan for $63,000, primarily for the purpose of acquiring the residence. $45,000 of this sum was used to purchase Wife’s mother’s one-half interest in the residence; $5,000 was used for repairs and improvements to the house; and the remaining $13,000 was used to liquidate Wife’s separate personal debts.

The main issue at trial concerned the value of the marital residence and its division. Husband requested one half the equity in the house. Wife wanted the residence declared her separate property or, in the alternative, if it be declared marital property that she receive all of the equity. At trial there was testimony that the market value of the home was within a range of $95,000 to $115,000. There was also evidence that while the couple resided together Husband had made several valuable improvements to the property.

The court’s judgment and decree, entered on May 20,1999, found the residence to be marital property. The decree placed no specific dollar value on the residence. The decree awarded Wife the residence, and ordered her to pay $20,000 to Husband within ninety days for his share of the marital equity in the residence. The decree further ordered that if Wife did not pay Husband $20,000 within ninety days of the decree, then the house was to be sold by a licensed realtor and after payment of expenses and the outstanding mortgage (which was $62,000 at the time of trial) the balance of sale proceeds was to be divided equally between the parties. This appeal followed.

Subsequent to the judgment and Wife’s notice of appeal, Husband filed with the trial court a Motion for Attorney’s Fees on Appeal. After a hearing, the court on October 5, 1999 entered an order granting Husband’s motion and ordering Wife to pay Husband $1,000 for his attorney’s fees on appeal.

Discussion

In her first point relied on, Wife contends the trial court erred in awarding Husband $20,000 of the equity in the marital residence “because the record does not support its findings in light of all relevant factors in Section 452.330 RSMo.” We disagree. The determination and division of marital property is within the discretion of the trial court and we defer to the trial court’s judgment unless it is an abuse of discretion. Kettler v. Kettler, 884 S.W.2d 729, 731 (Mo.App. E.D.1994). Further, review of this matter is governed by the principles of Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. We find that the trial court’s award of $20,000 to Husband for his share of equity in the marital residence is supported by substantial evidence and is not against the weight of evidence. No error of law appears, nor any abuse of discretion. A discussion of this point would have no precedential value. Point denied. Rule 84.16(b).

In her second point Wife contends the trial court erred in its award to Husband of attorney’s fees on appeal. The trial court-and only the trial court — has authority to award such fees in a pending appeal of a dissolution proceeding. See Clarke v. Clarke, 983 S.W.2d 192, 195 (Mo.App. E.D.1998); Schumann v. Schumann, 830 S.W.2d 562, 563 (Mo.App. E.D.1992). An order awarding such fees is itself a separate, final and appeal-able, post-dissolution order. Clarke v. Clarke, 983 S.W.2d at 195; Leone v. Leone, 917 S.W.2d 608, 616 (Mo.App. W.D.1996). Wife, however, has not separately appealed the court’s order. No notice of appeal was ever filed concerning that matter. A timely filing of a notice of appeal is a jurisdictional requirement. Griffin v. Griffin, 982 S.W.2d 788 (Mo.App. E.D.1998). Accordingly, this Court is without jurisdiction to consider Wife’s claim concerning the fees issue she now seeks to raise, and to that extent her appeal is dismissed.

Conclusion

The judgment and decree of dissolution is affirmed. Wife’s appeal of the trial court’s post-dissolution order of October 5, 1999, awarding Husband $1,000 attorney’s fees on appeal, is dismissed.

CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J„ concur.

      . Husband’s request that he be awarded $2,500 in damages for a frivolous appeal pursuant to Rule 84.19 is denied. Though the primary issue raised by Wife in this appeal was not ultimately persuasive, we do not find that her claim of error was so patently devoid of arguable merit as to be frivolous. See Pomachon v. Fomachon, 748 S.W.2d 705, 709 (Mo.App. E.D. 1988).


text:
    Brenda Louise DYE, Appellant, v. Elliott Hoyt DYE, Respondent.
    No. ED 76625.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 30, 2000.
    Aaron S. Dubin, Clayton, for appellant.
    Elliott Hoyt Dye, Granite City, IL, pro se.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ.
   ORDER

PER CURIAM.

Brenda Louise Dye appeals the trial court’s denial of her motion to modify the parties’ decree of dissolution. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b)(1).


author: VICTOR C. HOWARD, Judge

text:
    In the Interest of C.M.D. and S.D., Juvenile Officer, Respondent, v. M.D. (Mother) and G.B. (Grandmother), Appellants, R.D. (Father), Defendant.
    Nos. WD 56616, WD 56685.
    Missouri Court of Appeals, Western District.
    May 30, 2000.

      Laura Higgins Tyler, Kansas City, Guardian ad litem.
    Mary K. O’Malley, Robert M. Schieber and Michael R. Fogal, Kansas City, for Respondent.
    Steven J. Schleicher and Douglas L. Miller, Kansas City, for Appellant M.D.
    William D. Piedimonte, Independence, for Appellant G.B.
    Before: LAURA DENVIR STITH, P.J., and HOWARD and NEWTON, JJ.
   VICTOR C. HOWARD, Judge

The natural mother, M.D., appeals from the trial court’s termination of her parental rights. M.D. raises two points on appeal. First, she contends that the trial court erred by denying her petition for writ of habeas corpus. Second, she contends that there was insufficient evidence for the trial court to terminate her parental rights.

The maternal grandmother, G.B., appeals from the trial court’s denial of her motion to intervene in the proceeding for termination of parental rights involving C.D., one of the children.

We affirm.

Facts

This case involves the termination of the parental rights of the natural mother, M.D., in regard to two minor children, C.D., born April 3, 1992, and S.D., born May 9, 1995. Prior to being taken into Division of Family Services (“DFS”) custody, C.D. had been left in the care of his maternal grandparents most of the time since he was five weeks old. S.D. had been left in others’ care several times as an infant. The children were removed from M.D.’s custody on February 8, 1996.

On February 9, 1996, the juvenile officer filed petitions alleging that the children were without proper care, custody and control in that M.D. left the children in the care of others while she abused drugs, and she did not make adequate provisions for the children’s care. On March 29, 1996, the juvenile officer filed amended petitions alleging that M.D. repeatedly left the children in the care of others without making adequate arrangements for their care, custody and support. The petition also alleged that M.D. offered to “sell” S.D. to his foster parents on at least three occasions. The petition further alleged that M.D. habitually abused drugs and in January 1996 she tested positive for three controlled substances, including cocaine. On October 8,1996, the family court commissioner sustained the petitions and found the children in need of care and treatment. The family court judge adopted the findings of the commissioner.

C.D. has had two official placements and one unofficial placement since coming into DFS care. Until October 1997, C.D. was placed with M.D.’s mother. S.D. was placed with a foster family when he came into DFS care, and he has remained in that placement throughout the time he has been in DFS care.

The juvenile officer filed petitions for termination of M.D.’s and the father’s parental rights with regard to C.D. and S.D. on December 16,1997.

On October 9, 1998, G.B., the children’s maternal grandmother, filed a motion to intervene in the proceeding for termination of parental rights in the case involving C.D. The court denied G.B.’s motion.

The termination hearing was held on October 9, 1998. On October 26, 1998, the trial court terminated M.D.’s and the father’s parental rights on the grounds discussed under Point II. This appeal followed.

Point I of M.D.’s Appeal

M.D.’s first point on appeal is that the trial court erred by denying her petition for writ of habeas corpus. M.D. argues that the trial court failed to exercise discretion by referring to a court “policy” of denying such writs. M.D. claims that the denial of her request to personally appear before the trial court at the termination hearing was a violation of her due process rights in that her appearance would not have been an undue burden or delay to the proceedings, and her right to appear in a proceeding to terminate her parental rights should be considered an essential right.

M.D. filed her petition for writ of habeas corpus on October 8, 1998. On October 9, 1998, the trial court denied her petition. The trial court stated that it was denying the petition for the following reasons: 1) it is the tradition of the court that such petitions are not granted because of the obvious risk to the community and the possibility of flight; 2) the petition was filed the day before trial; and 3) M.D.’s rights were not substantially impaired because the court had made arrangements for M.D. to participate in the hearing by phone, such that she would be allowed to participate “in an audio fashion throughout the course of the trial and also be allowed to present testimony and hear and understand what the proceedings are with respect to each of her children.”

Section 491.230.2 provides, in relevant part, as follows:

No person detained in a correctional facility of the department of corrections shall appear and attend or be caused to appear and attend any civil proceeding, regardless of whether he is a party, except when: (1) The offender is a respondent in a chapter 211 proceeding to terminate parental rights. In such cases the trial judge may only issue a writ of habeas corpus ad testificandum to an offender after the department of corrections has been notified and allowed fifteen days to file a written objection and be granted an opportunity to appear and make an oral presentation in opposition to the offender’s appearance on the basis of security considerations and the best interests of the child or children.

In the present case, M.D. filed her petition for writ of habeas corpus the day before trial. Under § 491.230.2, the department of corrections must be notified and allowed fifteen days to object to the petitioner’s appearance before such a writ may be granted. We also note that the order setting cause, copies of which were provided to both M.D. and her attorney, stated as follows:

PLEASE BE ADVISED THAT TO COMPLY WITH SECTION 491.230 RSMO. CONCERNING THE ISSUANCE OF A WRIT OF HABEAS CORPUS AD TESTIFICANDUM FOR A PARTY IN THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS FIFTEEN DAYS NOTICE PRIOR TO THE PRESENTATION OF THE WRIT TO THE COURT MUST BE GIVEN TO MICHAEL FINKEL-STEIN, GENERAL COUNSEL OF THE DEPARTMENT OF CORRECTIONS, 2729 PLAZA DRIVE, JEFFERSON CITY, MISSOURI 65101.

If we were to grant M.D.’s point, it would mean that any parent involved in a termination proceeding could file a petition for writ of habeas corpus the day before trial, and the trial would then have to be postponed while the department of corrections was given an opportunity to object to the petitioner’s appearance. We do not believe that this is what the legislature intended when it drafted § 491.230.2. Because M.D.’s petition for writ of habeas corpus was not timely, the trial court did not err in denying her petition. Point I is denied.

Point II of M.D.’s Appeal

M.D.’s second point on appeal is that the trial court erred in terminating her parental rights because there was insufficient evidence for the court to do so, in that the State failed to prove that she had abandoned the children, the trial court failed to consider all of the evidence presented, and the trial court included in its judgment alleged facts contradictory to her undisputed evidence.

“We will affirm the trial court’s order terminating a parent’s rights unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” In re M.P.W., 983 S.W.2d 593, 596 (Mo.App. W.D.1999). We will reverse the judgment of the trial court terminating the parental rights of a party only when we firmly believe that the judgment is wrong. In re R.K., 982 S.W.2d 803, 805 (Mo.App. W.D.1998). “We review the facts and all reasonable inferences therefrom in the light most favorable to the trial court’s order.” In re M.P.W., 983 S.W.2d at 596. In addition, we defer to the trial court’s determination of the credibility of the witnesses. In Interest of B.A., 931 S.W.2d 926, 930 (Mo.App. W.D.1996).

A trial court may terminate parental rights where it finds that it is in the best interest of the child and where it appears by clear, cogent, and convincing evidence that one of the grounds for termination’ under § 211.447 exists. In re M.P.W., 983 S.W.2d at 598. “Clear, cogent and convincing evidence in an action for termination of parental rights is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” In Interest of J.M., 815 S.W.2d 97, 101 (Mo.App. W.D.1991).

In its judgments, the trial court stated that pursuant to § 211.447.2(1), it found that M.D. abandoned the children in that for a period of six months she, without good cause, left the children without any provision for parental support and without making arrangements to visit or communicate with the children although able to do so. Specifically, the court found that M.D. had made only token contact with the children since September 24, 1996, and she had not provided support, financial or otherwise, for the care of the children during the same period of time.

The court further found that pursuant to § 211.447.2(3), the children had been under the jurisdiction of the family court for more than one year, conditions of a potentially harmful nature continued to exist, and there was little likelihood that those conditions would be remedied at an early date so that the children could be returned to the parents in the near future. The court found that the continuation of the parent-child relationship greatly diminished the children’s prospects for early integration into a stable and permanent home. Specifically, the court found that M.D. had failed to participate in substance abuse therapy, failed to participate in parenting classes, failed to maintain contact with the children, and generally failed to work toward reunification. The court found that M.D. had made token efforts since the filing of the termination petition. The court found that as to subsections (a) through (d) of § 211.447.2(3), (a) M.D. had made little or no progress in complying with the terms of the social service plans entered into by her and DFS; (b) the efforts of DFS to aid M.D. in adjusting her circumstances or conduct to provide a proper home for the children had failed; (c) no evidence was adduced to support a finding of parental mental condition; and (d) no evidence was adduced to support a finding of parental chemical condition.

The trial court also made the following findings as to the factors specified in § 211.447.3: 1) the children had few, if any, emotional ties to the parents; 2) the parents had not maintained regular visitation or other contact with the children; 3) the parents had not provided financial or other support for the cost of care and maintenance of the children since they were placed in the custody of DFS; 4) no additional services would be likely to bring about lasting parental adjustment enabling a return of the children to the parents within an ascertainable period of time; 5) the parents demonstrated by their abandonment of the children and their failure to maintain contact with DFS and the children, their disinterest and lack of commitment to the children; and 6) M.D.’s conviction for forgery, a felony offense, is of such a nature that the children would be deprived of a stable home for a period of years. The court also found that the juvenile officer’s evidence was more credible than the parents’ evidence.

M.D. first contends that the trial court incorrectly cited several of the statutes in its judgment. She cites the rule that “the severance of the parent-child relationship by an act of the law is an exercise of awesome power and demands strict literal compliance with the statutory authority from which it is derived.” M.D. contends that “strict literal compliance” should require that the judgment contain proper citations of law in termination of parental rights cases. Section 211.447 was amended effective July 1, 1998, after the petitions for termination were filed and before the court entered its judgments. There is a presumption in Missouri that statutes are to operate prospectively and not retroactively unless the legislature specifically provides that the statute have retroactive effect or the statute is procedural or remedial only and the substantive rights of the parties are not affected. Pierce v. State, Dept, of Social Services, 969 S.W.2d 814, 822 (Mo.App. W.D.1998). Neither of the exceptions apply in this case, and therefore the amended law applied prospectively. In any case, the relevant 1998 amendments primarily changed the section numbers of the applicable provisions. The amended provisions remain substantively similar to the previous provisions.

Next, M.D. argues that she did not abandon her children, and therefore the trial court erred in terminating her rights under § 211.447.4(1). Under § 211.447.4(1), a juvenile officer or DFS may file a petition to terminate the rights of a parent to a child if the child has been abandoned. A child over one year old at the time of the filing of the petition is deemed abandoned if, for a period of six months or longer, “[t]he parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so.” Furthermore, “[a]bandonment is defined as the voluntary and intentional relinquishment of custody of a child with the intention that the severance be of a permanent nature or as the intentional withholding by a parent of his care, love, protection and presence without just cause or excuse.” In re R.K., 982 S.W.2d at 806. “Abandonment focuses on the parent’s intent, taking into consideration all evidence of the parent’s conduct before and after the applicable statutory period.” Z.H. v. G.H., 6 S.W.3d 567, 570 (MoApp. W.D.1999).

Pam Anderson, the DFS social service worker assigned to the case from November 1996 to July 1998, testified at trial that the children came into DFS care in February 1996 because “they had been left in the care of others frequently” without adequate arrangements being made for their care. She also testified that M.D. “did not meet [the children’s] medical needs and their physical needs, provide diapers, clothes, food or money for their care.” She testified that to her knowledge and according to the case file, M.D. had made no progress since the children came into DFS care. She testified that M.D. did not provide any support, financial or otherwise, for the children. She testified that M.D. did not send any cards, letters or birthday presents to the children until after the petition for termination of parental rights was filed. She testified that M.D. knew how to contact the children’s custodians in order to contact the children. She testified that M.D. complied with few, if any, of the requirements of the written service agreements she entered into with DFS. She testified that neither of the children know their mother, and that they call the people they are living with mom and dad and that they have bonded with their custodial families. She testified that there were no services that DFS could offer M.D. to bring about reunification with the children. She testified that she had written about three letters to M.D. telling her that she would like M.D. to contact her so that they could discuss what services could be provided to her, and M.D. never responded to the letters.

S.D.’s foster mother testified that M.D. had not had any contact with S.D. from October 1996 to December 1997, and that M.D. had never sent her any money for S.D.’s support. She testified that M.D. did send S.D. an Easter gift in 1996 and that M.D. did write to him the first time she was incarcerated.

M.D. admitted that she had not sent any money to the children’s foster families in order to help support the children. She said that she sent money to her mother to forward to S.D. M.D.’s mother testified that M.D. had never provided her with any money to help support C.D., and that she had only sent money to him at Christmas 1996. Concerning C.D., M.D.’s mother testified that “[n]ow, continually [M.D.] would come around and he would see her, but there was such a huge space in between that he was — he lost contact of who she was. And that was just kind of the way the situation was.”

M.D. correctly states the rule that “[w]here there is good cause, because of a temporary situation, a parent may leave a child in the custody of a third party without abandoning the child.” In Interest of M.J.A., 826 S.W.2d 890, 897 (Mo.App. S.D.1992). “However, this principle is limited to cases where, once the temporary placement is made, the parent continues to show parental interest and concern for the child.” Id. This is not the case here.

The record indicates that M.D. was incarcerated from April 1996 to August 1996, from March 1997 to September 1997, and from November 1997 to the date of trial. However, incarceration does not discharge a parent’s statutory obligation to provide her child with a continuing relationship through communication and visitation. In re R.K., 982 S.W.2d at 806. Furthermore, a parent is not allowed to maintain only a superficial or tenuous relationship with her child in order to avoid a determination of abandonment. Id. Pursuant to § 211.447.7, a trial court may attach little or no weight to infrequent visitations, communications or contributions. Id. “In fact, courts may regard such efforts as token and terminate parental rights despite their existence.” Id.

Furthermore, the substantially reduced wages received by incarcerated parents do not excuse their obligation to make monetary contributions toward support of their children. In Interest of M.L.K., 804 S.W.2d 398, 402 (Mo.App. W.D.1991). While such a contribution from an incarcerated parent will not significantly assist in providing the parent’s child with essentials, even a minimal contribution evinces the parent’s intent to continue the parent-child relationship. Id. Evidence of this intent is lacking when the parent fails to make any contribution, no matter how diminutive the amount. Id.

It is undisputed that M.D. has not seen the children or spoken to them on the phone since September 1996. In addition, the record indicates that from February 1996 to December 1997, M.D. provided no financial support for the children, and from September 1996 to December 1997, she did not send the children any cards, gifts or letters, other than Christmas money in 1996, despite having information on where to contact the children. We find that there was clear, cogent and convincing evidence that supported the trial court’s finding that M.D. abandoned her children.

M.D. contends that even if the evidence supported the trial court’s finding that she abandoned the children, the evidence showed that she repented the abandonment. “A parent may repent of an abandonment. However, not every gesture by a natural parent will terminate such abandonment.” In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo. banc 1984) (citations omitted). Whether or not there has been a repentance of abandonment requires an examination of the parent’s intent, an inferred fact, determined by considering all the evidence of the parent’s conduct, including that before and after the statutory period. Id.

Almost all the actions M.D. cites as evidence of her repentance of abandonment occurred after the filing of the petitions for termination of her parental rights.

A parent’s conduct after the filing of the termination petition cannot constitute the sole consideration of the trial court’s decision. All grounds for termination must to some extent look to past conduct because the past provides vital clues to present and future conduct. Otherwise, a parent may argue that he has reformed since the filing of the petition; reformation having occurred while the child was away.

In Interest of T.T., 954 S.W.2d 429, 432 (Mo.App. W.D.1997) (citations omitted). Furthermore, M.D.’s contributions and communications prior to the filing of the petitions were so infrequent that they were properly given little or no weight by the trial court. The evidence does not support M.D.’s contention that she repented her abandonment of the children.

M.D. further argues that the trial court erred in finding, under § 211.447.6, that 1) she failed to maintain regular visitation or other contact with her children; 2) she had not provided financial or other support for the children since they were placed in the custody of DFS; 8) she had demonstrated her disinterest and lack of commitment by her abandonment and failure to maintain contact with her children; and 4) her conviction for forgery is of such a nature that the children would be deprived of a stable home for a period of years.

Section 211.447.6 provides as follows:

When considering whether to terminate the parent-child relationship pursuant to subsection 2 or 3 of this section or subdivision (1), (2), (3) or (4) of subsection 4 of this section, the court shall evaluate and make findings on the following factors, when appropriate and applicable to the case:
(1) The emotional ties to the birth parent;
(2) The extent to which the parent has maintained regular visitation or other contact with the child;
(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;
(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;
(5) The parent’s disinterest in or lack of commitment to the child;
(6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;
(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.

We initially note that M.D. does not dispute the trial court’s findings that the children have few, if any, emotional ties to her, and that no additional services would be likely to bring about lasting parental adjustment enabling a return of the children to her within an ascertainable period of time.

As for the trial court’s finding that M.D. failed to maintain regular visitation or other contact with her children, this finding has already been addressed in our discussion of the trial court’s finding of abandonment. We will not discuss it further here, other than to state that the evidence supports the trial court’s finding.

In regard to the trial court’s finding that M.D. had not provided financial or other support for the children since they were placed in the custody of DFS, the record indicates that M.D. did not provide any financial support for the children until after the petitions for termination were filed. There is no indication that M.D. ever provided food, clothing, or other support for the children while they were in DFS custody.

Concerning the trial court’s finding that M.D. had demonstrated her disinterest and lack of commitment by her abandonment and failure to maintain contact with her children, this finding has also been discussed previously in this opinion, and without rehashing our previous discussion, we simply reaffirm that the evidence supports the trial court’s finding.

In regard to the trial court’s finding that M.D.’s conviction for forgery is of such a nature that the children would be deprived of a stable home for a period of years, the record reflects that at the time of trial, M.D. was incarcerated as a result of her conviction of the class C felony of forgery. She was eligible for parole in June 1998, and she was scheduled to be released on October 23, 1999. The judgment terminating M.D.’s parental rights was entered on October 26, 1998. Even if M.D. was released on the scheduled date and the trial court erred in finding that M.D.’s incarceration would deprive the children of a stable home for a period of years, the error is harmless, as the other factors in § 211.447.6 overwhelmingly weigh in favor of termination of M.D.’s parental rights.

M.D. also argues that the trial court erroneously terminated her parental rights under § 211.447.4(3). Because the existence of one of the statutory grounds is a sufficient condition for termination of parental rights, provided termination is in the best interest of the child, review of the trial court’s findings on the ground of abandonment is all that is necessary in this case. In re R.K., 982 S.W.2d at 806. Point II is denied.

G.B.’s Appeal

G.B.’s sole point on appeal is that the trial court erred in denying her motion to intervene in the termination of parental rights proceeding concerning C.D. because § 211.177 provides a right to grandparents to intervene in any proceeding in which custody is an issue unless the trial court decides that intervention is against the best interest of the child. G.B. contends that there was no evidence that intervention was against the best interest of the child. G.B. did not have custody of the child at the time she sought to intervene.

Section 211.177.1 provides as follows:

A grandparent shall have a right to intervene in any proceeding initiated pursuant to the provisions of this chapter, in which the custody of a grandchild is in issue, unless the juvenile judge decides after considering a motion to intervene by the grandparent that such intervention is against the best interest of the child.

A termination of parental rights proceeding under § 211.447 is separate and distinct from a proceeding to determine custody under § 211.031. In a termination proceeding, the factors a court must evaluate and make findings on are set forth in § 211.447.6. None of those factors involve custody of the child.

Clearly the focus of the court is on the parent-child relationship and whether severing that relationship is in the best interest of the child. Custody of the child is not “in issue.” Although § 211.453 allows a court to summons any other person whose presence it deems necessary to the proceedings, § 211.177.1 creates no right of intervention in a termination case. G.B.’s point is denied.

The judgment of the trial court is affirmed.

LAURA DENVIR STITH, P.J., and NEWTON, J., concur.

      . All statutory references are to RSMo Cum. Supp.1997, unless otherwise indicated.

      . The relevant amendments are as follows:
      Section 211.447.2(1) was amended as § 211.447.4(1); Section 211.447.2(3) was amended as § 211.447.4(3); and Section 211.447.3 was amended as § 211.447.6.

      . In order to avoid confusion, we will refer to the section numbers as they appear in the amended statutes.

      . These factors are set forth in our discussion of Point II of M.D.’s appeal.


author: LAURA DENVIR STITH, Presiding Judge.

text:
    In the Interest of C.M.D., Plaintiff, Juvenile Officer, Respondent, v. G.B. (Grandmother), Appellant.
    No. WD 56723.
    Missouri Court of Appeals, Western District.
    May 30, 2000.
    Laura Higgins Tyler, Kansas City, for plaintiff.
    Anastacia Renae Adamson, Michael Reid Fogal, Co-Counsel, Robert Michael Schieber, Co-Counsel, Kansas City, Mary Kathryn O’Malley, Co-Counsel, for respondent.
    Before Presiding Judge LAURA DENVIR STITH, Judge JOSEPH M. ELLIS and Judge EDWIN H. SMITH.
   LAURA DENVIR STITH, Presiding Judge.

G.B., the grandmother of C.D., appeals the juvenile court’s ruling denying her motion to intervene in the juvenile court case in which the custody of C.D. is being determined. Because we agree with Grandmother that under Section 211.177 she has a right to intervene in the custody proceeding where, as here, the trial judge did not find that intervention was against the best interests of the child, and because we reject the judge’s implicit ruling below that Section 211.177 does not provide a basis for intervention if the parental rights of the parents have been terminated, we reverse and remand with directions that the judge below immediately grant Grandmother’s motion to intervene and proceed without delay to determine the custody and visitation issues which Grandmother has been seeking to have addressed for the last one and one-half years.

I. FACTUAL AND PROCEDURAL HISTORY

This case has an unusual procedural history. Appellant G.B. is the grandmother of C.D., who was born on April 3, 1992 to M.D. (Mother). Mother left C.D. in the care of G.B. (Grandmother) when he was five weeks old. Grandmother cared for C.D., without appreciable assistance from Mother, until C.D. was about five and one-half years old. In February, 1996, when C.D. was not quite four years old, the Department of Family Services (DFS) took jurisdiction over C.D. and his sibling, S.D., on the basis that Mother had left them without care, custody or support in that she had left C.D. almost continuously with his Grandmother without substantial assistance from Mother, and had left S.D. in the care of others.

The juvenile court took jurisdiction over C.D. and initially placed him in Grandmother’s care and custody from February 1996 until September 1997. At that point, due to deterioration of her own marriage of 25 years, Grandmother sought help from DFS and custody of C.D. was changed to the home of foster parents, the M. family, who were acquaintances of Grandmother. The order specified that Grandmother and C.D. were to continue having contact, and Grandmother continued to visit with C.D. while he lived with the M. family, although she eventually made her visits more infrequent so as to allow for more bonding between C.D. and the M. family.

On December 16, 1997, the Juvenile Officer of Jackson County, Missouri filed a Petition for Termination of Mother’s and Father’s parental rights as to C.D. The Juvenile Officer requested that custody be placed with Grandmother during the proceeding’s pendency, but later that was changed to the M family. Grandmother was not served with a copy of this pleading nor made a party to the case. Grandmother sought to intervene in the termination of parental rights action on October 9, 1998, but her motion was denied. On that same date, the trial court granted the motion to terminate Mother’s and Father’s parental rights. Mother appealed that determination, and Grandmother appealed denial of her motion to intervene. This Court assigned that appeal case number WD 56616.

In the meantime, .on September 4, 1998, the Juvenile Court Commissioner recommended in the separately pending juvenile court custody case - the case that is the subject of this appeal — that contact between Grandmother and C.D. be terminated. On September 10, 1998, the juvenile judge entered an order to that effect. Grandmother was not served with a copy of the order. On November 3, 1998, Grandmother filed a motion to intervene in this custody proceeding, but that motion was denied by the Commissioner in a one-sentence order stating simply “Now on this 5th day of November, 1998, the Motion to Intervene filed the 5th day of November, 1998, is denied.” Once that order was adopted by the juvenile court judge, Grandmother appealed it to this Court. We assigned that appeal case number WD 56723. We then consolidated that appeal with Grandmother’s appeal of the denial of her motion to intervene and the other issues in .the termination of parental rights action, WD 56616.

Judge Ronald R. Holliger entered an order on February 9, 1999, directing Commissioner Payne to hold a hearing on Grandmother’s motion to intervene in the juvenile custody proceeding. In accordance with the understanding of the parties that such a hearing would be held, this Court dismissed Grandmother’s appeal of the juvenile court custody case order denying her visitation with C.D. so that the matter could proceed to hearing per agreement of the parties without waiting for determination of the separate issues raised in the termination of parental rights casé. The appeal by Grandmother and Mother of the order terminating Mother’s parental rights remained pending in this Court, and our decision affirming that termination is handed down concurrently with this opinion, In the Interest of C.M.D. and S.D., 18 S.W.3d 556 (Mo.App. W.D.,2000).

Unfortunately, when a hearing was held in the juvenile custody case on remand, the juvenile court commissioner entered an order taking under advisement the issue of Grandmother’s motion to intervene in the juvenile custody case. In so doing, he noted the pendency on appeal of the termination of parental rights case, and so as “to avoid inconsistent orders,” held that “the Motions to Intervene by G.B. and M.B. are hereby taken under advisement pending determination of appeal of Termination of Parental Rights proceeding.”

In other words, although this Court had unconsolidated the two appeals so that there could be a determination of the intervention issue in the custody case while the parental rights issue was pending in this Court, the juvenile court commissioner believed that it would be somehow inconsistent to allow intervention to Grandmother if termination of Mother’s parental rights was upheld in the termination proceeding, and therefore decided that he would delay ruling on intervention pending the outcome of the termination of parental rights. At oral argument on this appeal, the parties indicated that it was also their understanding that the juvenile court commissioner intended by this order that, if the termination were upheld, then he would deny Grandmother the right to intervene in the juvenile custody case, but if the termination were reversed, then he would grant or would consider granting the motion to intervene.

Grandmother filed a Petition for Writ of Mandamus in this Court, asking us to direct the Commissioner to rule on the motion to intervene without delay, inasmuch as the issue of intervention in the juvenile proceeding was separate from and not dependent on the right of Grandmother to intervene in the termination of parental rights case, and inasmuch as termination of parental rights should not be dispositive of her right to intervene on the issue of custody under Section 211.177.1. She argued that section provided her with the right to intervene as of right where, as here, there was no showing that intervention would not be in her grandson’s best interests.

We granted our Preliminary Writ of Mandamus on January 19, 2000, and, following briefing, held oral argument on the request for a permanent writ on March 8, 2000. In light of the arguments made in the briefs and at argument, this Court determined to treat the Petition for Writ of Mandamus filed by Relator Grandmother as a motion to reinstate her appeal in WD 56723 of the juvenile court’s denial of her motion to intervene pursuant to Section 211.177 in the underlying juvenile custody case. We did so because we determined that dismissal of that appeal had been improvidently granted in that the issues in that case were ripe for resolution and the delay caused by the dismissal and remand for hearing had ultimately led to the events which caused the filing of the Petition for Writ of Mandamus.

For that reason, on March 13, 2000, we reinstated Grandmother’s appeal of the denial of her Motion to Intervene in the juvenile custody case, WD 56723 (although we ordered that this appeal no longer be consolidated with appeal of the parental termination case, as that case had already been fully briefed and argued). We directed the filing of supplemental briefs in that appeal addressing whether the Commissioner erred in denying Grandmother’s motion to intervene in the juvenile custody case pursuant to Section 211.177.

Having reviewed the briefs of the parties, for the reasons set forth below we now determine that the trial court erred in denying Grandmother’s motion to intervene, in that she had a right to intervene under Section 211.177 because custody of her grandchild was at issue and the juvenile judge did not decide that intervention would be against the best interests of her grandson.

II. THE RIGHT TO INTERVENE UNDER SECTION 211.177 IS NOT DEPENDENT ON WHETHER PARENTAL RIGHTS ARE BEING TERMINATED, BUT ON WHETHER INTERVENTION IS AGAINST THE CHILD’S BEST INTEREST

It is conceded that this case involves the custody of C.D., and that he is Grandmother's grandson. The parties also agree that the right of a grandparent to intervene in a proceeding such as this, involving custody of a grandchild, is determined by Section 211.177, which states:

1. A grandparent shall have a right to intervene in any proceeding initiated pursuant to the provisions of this chapter, in which the custody of a grandchild is in issue, unless the juvenile judge decides after considering a motion to intervene by the grandparent that such intervention is against the best interest of the child.
2. The right of a grandparent to intervene pursuant to the provisions of this section may terminate upon the adoption of the child except where the child is adopted by a stepparent, another grandparent or other blood relative.

Sec. 211.177 RSMo 1994.

As is evident, this section on its face provides that a grandparent has the right to intervene unless the juvenile judge decides, after considering the motion to intervene, that intervention is against the grandchild’s best interests. Here, the juvenile judge made no such determination. He simply issued a one-line order denying the motion to intervene. He held no hearing on the motion, permitted the presentation of no evidence on it, and nowhere found that intervention would be against the child’s best interests. Indeed, even when this case was on remand and the judge finally held a hearing, he did not find that intervention would be against the child’s best interests. Rather, he held a ruling on intervention in abeyance pending determination of the termination of parental rights case, believing that intervention should be denied if the parental rights were terminated in the parallel case. He thus made the determination of the right to intervene dependent on the determination of the termination of the parental rights case, rather than on the best interests of the child. In this ruling, the juvenile court commissioner erred.

Indeed, the ruling below denying intervention put Grandmother in a paradoxical, “Catch-22” situation. The circuit court ruled in the termination of parental rights case that Grandmother had no right to intervene in that case because it did not involve the determination of C.D.’s custody, since in Jackson County custody issues are separated out for hearing before the juvenile court, as occurred here. On that basis, we have today affirmed denial of Grandmother’s motion to intervene in the termination of parental rights case, for, we found, it involves solely the issue whether Mother and Father’s parental rights should be terminated, not whether Grandmother should be permitted to visit her grandson or potentially to regain custody of him. That issue, we found, was being decided in the juvenile custody case - that is, in the case which is the subject of this appeal. See In the Int. of C.M.D., 18 S.W.3d 556, supra.

Yet, the Juvenile Officer tries to have it both ways, by then arguing on this appeal that there was no point in allowing Grandmother to intervene in this custody case, since, in light of the circuit court’s termination of her daughter’s parental rights in the termination case, she instantly was no longer a grandmother, and therefore no longer had a right to intervene in the custody case under Section 211.177, as it applies only to grandparents. Therefore, the juvenile officer argues, it was proper to deny intervention here, since parental rights had been terminated in the termination case before the court ruled on the motion to intervene.

If we accepted this argument, the juvenile officer would have succeeded in preventing Grandmother’s intervention in both cases, by arguing in the termination case that custody is not at issue in that case and thus intervention in the termination case was properly denied, yet then arguing in this case that the result of the termination case determines Grandmother’s right to custody and it is therefore pointless to let her intervene here, in the case which ostensibly deals with custody issues. We reject this approach.

Section 211.177 gives a grandparent the right to intervene in proceedings involving custody, and that right should not be defeated by semantics and wordsmanship contests. If, as the Juvenile Officer now argues, Grandmother’s right to intervene and to obtain custody or visitation were determined by the outcome of the parental termination case, then we would have erred in holding today, as we do in our opinion in the termination case handed down this day, that Grandmother had no right to intervene in the termination case, for it would be the resolution of that termination case that would, in reality and in practical effect, be determinative of Grandmother’s right to intervene and right to gain custody of or visit with her grandson, C.D.

However, we reject the Juvenile Officer’s argument that Section 211.177 makes Grandmother’s right to intervene dependent on the outcome of the termination of parental rights case. By its terms, Section 211.177.1 gives a grandparent the right to intervene in a proceeding involving custody of a grandchild unless the court finds intervention is against the grandchild’s best interests. And, while the court and the Juvenile Officer seem to equate a termination of the mother or father’s parental rights with a finding that intervention would not be in the child’s best interests, the statute does not support that result. To the contrary, Section 211.177.2 states:

2. The right of a grandparent to intervene pursuant to the provisions of this section may terminate upon the adoption of the child except where the child is adopted by a stepparent, another grandparent or other blood relative.

Sec. 211.177.2 RSMo 1994. As is evident, the statute does not state that termination of a parent’s parental rights terminates the right of the grandparent to intervene. To the contrary, it states that the right to intervene terminates only “upon adoption of the child except where the child is adopted by a stepparent, another grandparent or blood relative.” Id. We will not engraft another limitation of the right to intervene where the legislature has chosen not to do so.

And, indeed, the approach taken in Section 211.177.2 makes sense as a policy matter. In many instances in which a parent’s rights are being terminated, a relative will seek to obtain custody of that child, and may eventually adopt the child or seek to do so. This is often in the child’s best interests. The fact that the potential adopting party, or party who is given custody of the child, is the grandparent of the child is a relevant and important issue in deciding custody or the appropriateness of adoption. Often, as is the case here, the child will have bonded with the grandparent and will have spent much time in the care of the grandparent. For this reason, unless the child is adopted by someone who is not a blood relative, other grandparent, or stepparent, the statute gives the grandparent the right to intervene in any proceeding involving custody. This just makes common sense.

Yet, under the Juvenile Officer’s interpretation of the statute, as soon as a parent’s rights are terminated, even if the grandparent is planning to adopt the child, the grandparent’s rights to intervene in the custody case would be terminated. This result is illogical, and is not in conformity with the statute.

Grandmother here moved to intervene in the custody case. That motion was denied without a hearing and without a finding that it would be against the best interests of C.D. to allow Grandmother to intervene. We find no evidence in this record supporting a finding that such intervention would be against C.D.’s best interests.

Accordingly, we reverse the ruling of the juvenile court and remand with directions to the court to immediately grant the motion to intervene filed by Grandmother and proceed without delay to finally reach the merits of the custody and visitation issues which Grandmother has been attempting to have addressed for the last one and one-half years.

Judge JOSEPH M. ELLIS and Judge EDWIN H. SMITH concur.


author: HAROLD L. LOWENSTEIN, Judge.

text:
    Phillip and Jerii RODMAN, Respondents, v. Charles R. SCHRIMPF d/b/a D & R Apartments, Appellants.
    No. WD 56320.
    Missouri Court of Appeals, Western District.
    May 30, 2000.

      David G. Bandre, Jefferson City, for respondents.
    James W. Riner, Jefferson City, for appellant.
    Before: Presiding Judge LAURA DENVIR STITH, Judge LOWENSTEIN and Judge EDWIN H. SMITH.
   HAROLD L. LOWENSTEIN, Judge.

This appeal emanates from a simple lawsuit, initially filed in the Small Claims Court in Cole County, that has finally landed here in a terrible procedural snarl. The Rodmans (here the respondents, but who will be referred to as Tenants) filed a one page claim for damages against Schrimpf (here the appellant, who will be referred to as Landlord) for problems encountered in a rental home in Jefferson City. These problems included sewer gas entering the home causing health problems and forcing the Tenants to spend tune out of the premises, squirrels in the attic and insufficient air conditioning. A judgment was entered for the Tenants for $1,000.

Landlord filed for a trial de novo in circuit court, and after a bench trial in front of Judge Sodergren, judgment was entered on May 13, 1998, in favor of Landlord. Tenants pled and offered evidence that Landlord had breached the implied warranty of habitability.

On June 9, Tenants filed a new trial motion based on the following reasons:

(1) Because the Court erred in finding for Defendants (Landlord) and against Plaintiffs; (2) Because the finding and judgment of the Court are without support in the evidence; (3) Because the finding and judgment of the Court are against the weight of the credible evidence; and (4) Because the finding and judgment of the Court are contrary to the law.

The next pertinent event occurred on August 24, when the court granted Tenant’s motion for new trial “for good cause shown” and transferred the case to the presiding judge for assignment for the new trial. No reasons or grounds for sustaining the new trial motion were stated in the order. The case was assigned that day to Judge Brown.

On August 26, Landlord filed a notice of appeal to this court. On September 18, Tenants filed in the trial court a “Motion to Amend Judgment” to allow them, under Rule 73.01(a)(5), to amend the August 24th judgment “to conform with Rule 78.03 which states: ‘Every Order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted’.”

On September 23, Judge Sodergren sustained Tenant’s motion to amend the judgment. The judge ruled the specific reason the motion for new trial had been granted was that the trial court erred by determining the Tenants had not properly “invoked the implied warranty of habitability (sic).”

While this case continued on the circuit court’s docket for the new trial, Landlord filed for extraordinary relief seeking a ruling that the trial court’s efforts to amend were void because the case had been assigned to a new judge and because Landlord had filed an appeal. Landlord’s efforts were denied, and Landlord’s appeal on the grant of Tenant’s amended motion for new trial was argued before this court. In this posture, this appeal presents two questions to be resolved.

I. Did the Trial Court Have Jurisdiction in September to Amend Its August 24th Judgment Granting a New Trial “For Good Cause Shown”?

This first question is almost free of debate between the appellant-Landlord and the respondent-Tenants. The answer to whether the September amendment adding specificity to the August judgment was done with jurisdiction is in the negative and for two reasons. First, Missouri case law clearly states that “[o]nce a change of judge has been entered and the case transferred to another judge the disqualified judge has no further authority in the case and any orders made after the disqualification are void.” State ex rel. Johnson v. Mehan, 731 S.W.2d 887 (Mo.App.1987). See also Byrd v. Brown, 613 S.W.2d 695, 699 (Mo.App.1981). In the case at bar, once Judge Sodergren removed himself from the case, he no longer had jurisdiction in the matter. As the record indicates, the case was assigned to Judge Brown on August 24, 1998. As such, any matters, such as the motion to amend judgment, should have been ruled upon by the new trial judge, Judge Brown.

Under these facts, the second reason why the attempt to modify the original August 24th judgment for new trial was without jurisdiction, is because of the effect of the appeal filed by Landlord on August 26 th. “The filing of an effective notice of appeal ordinarily cuts off the trial court’s jurisdiction to exercise any judicial function in the case and vests the jurisdiction in the appellate court. The circuit court effectively no longer has an active case pending on its docket, its jurisdiction being limited to the exercise of ministerial functions provided by statute or rules of procedure.” Jordan v. City of Kansas City, 972 S.W.2d 319, 323 (Mo.App.1998) (citation omitted).

The granting of the motion to amend and the subsequent amended judgment of September 23rd were entered without jurisdiction. The amended September judgment will be reversed. The result is that the August judgment which granted the new trial motion without specifying on which grounds it was granted, as required by Rule 78.03, will now be examined.

II. How Does Rule 84.05 Impact the August Judgment Which Did Not Comply with Rule 78.03?

Where the grounds for a new trial are not specified, Rule 84.05(c) and (d) come into play on appeal. Those two portions of the rule, which, because of the disposition under the previous portion of this opinion, now become applicable here, read as follows:

(c) Where Trial Court Fails to Specify Grounds for the Granting of a New Trial. When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent. In such event if the appellant serves on the respondent a statement requesting that respondent prepare the original brief on or before the time when the record on appeal is filed, the respondent shall file the original brief and reply brief, if any, and serve them within the time otherwise required for the appellant to serve briefs. The appellant shall prepare the answer brief and serve it in the time otherwise required for the respondent to serve the respondent’s brief.
(d) Where New Trial Is Granted by Trial Court Without Specifying Discretionary Grounds. If the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on any discretionary grounds.

Under normal circumstances, this court’s function in cases where a new trial has been granted and grounds have not been specified, is succinctly set out in Stewart v. Stewart, 901 S.W.2d 302, 303 (Mo.App.1995), where the wife had listed some six reasons for her motion for new trial.

Our standard of review is strictly limited due to the fact that the trial court’s order granting wife a new trial did not specify the grounds on which it based its decision as required by Rule 78.03. When a court fails to specify the grounds, “the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent.” Rule 84.05(c); Hylton v. Vaught, 780 S.W.2d 367, 367 (Mo.App.1989). We will not presume that the motion for new trial was granted on discretionary grounds. Northeast Mo. Elec. Power Coop. v. Todd, 401 S.W.2d 161, 162 (Mo.App.1966); Rule 84.05(c). The wife will meet that burden if she demonstrates that the motion for new trial should have been sustained on some ground alleged therein. C.M. v. KM., 878 S.W.2d 55, 56 (Mo.App.1994). In meeting this burden, wife is confined to the errors specified in her motion for new trial and in her brief. Id.

In Curtis v. Curtis, 491 S.W.2d 29, 33 (Mo.App.1973), the Southern District said the “trial court’s power to grant a new trial is discretionary only as to questions of fact and matters affecting the determination of the issues of fact. There is no discretion in the law of a case.” In CuHis, the party in whose favor the motion for new trial was granted, without grounds having been stated in the order, attempted to rely on statements made on the record by the judge at the time of ruling on the motion to support the ruling. The court’s oral statements did not refer to any of the grounds stated in the new trial motion. Noting the narrow appellate review in such cases, the court declined to uphold the trial court’s action. See also Williams v. Williams, 565 S.W.2d 661, 663 (Mo.App.1978).

In the case at bar, Tenants stated only the following reasons in support of their motion for a new trial: the judgment was without support of the evidence,1 was against the weight of the evidence and the “judgment of the Court are (sic) are contrary to the law.” Landlord has requested under Rule 84.05(c) that Tenant bear the laboring oar in supporting the judgment when grounds for the grant were not stated. “The obvious purpose of these rules is to protect the party appealing from an order granting a new trial from the necessity of showing an absence of merit in each assignment of error set forth in the motion. Rather, it is appropriate to require the beneficiary of the new trial to identify the specific issues which are relied upon to support the order.” Blue Cross Health Services, Inc., v. Sauer, 800 S.W.2d 72, 75 (Mo.App.1990).

Tenants have asked this court to review and affirm the August order because of language used by Judge Sodergren in the docket sheet contemporaneous with the September order which has been ruled upon in the first point of this appeal. Specifically, in ruling on the motion to amend, the court’s notes read the grounds for the August order were based on Tenants’ argument that the judgment was contrary to the law. The court had ruled the implied warranty of habitability had not been properly invoked, but, in Judge Soder-gren’s notes, it was written “upon reflection and reviewed of P’s [Tenants] mot. for new trial the court determined that P may very well have properly invoked said implied warranty.”

Unfortunately for Tenants, and as discussed in the first point, the September actions of the judge came after he no longer had jurisdiction of the case, and the case was on appeal. Bearing on the decision of the effect of the August order granting the new trial in favor of the Tenants are the following factors: (1) Tenants’ motion for new trial, and particularly the ground that the judgment was contrary to the law is “worthless and state[s] no legal basis for a new trial.” Dixon v. Bi-State Development Agency, 636 S.W.2d 696, 697-8 (Mo.App.1982) (citing McCarthy v. Halloran 435 S.W.2d 339, 340 (Mo.1968)); (2) Under Rule 78.03, the August order granting a new trial, which did not specify of record the grounds on which it was being granted, created a presumption under Rule 84.05(c) and (d) that the grant of the motion was erroneous and placed on Tenants the burden to support the grant of the motion on a non-discretionary ground. McCarthy, 435 S.W.2d at 340.

What the court is left with is an inadequate motion for new trial followed by an inadequate order granting the motion. Even if this court could consider the court’s comments during the September attempt to modify the August order, it would, under the scope of review, be difficult to rule that the Tenants had made a case on the theory of implied warranty of habitability and that the trial court had specifically granted the new trial on that basis. Tenant’s motion for new trial does not state that they made a case under the theory of implied warranty of habitability. The order granting the motion is silent. To repeat, the rules and the law hold that the judgment may not be held to have been granted on discretionary grounds. Webster v. Jenkins, 779 S.W.2d 340, 342 (Mo.App.1989). Discretionary grounds relate to issues of fact and non-discretionary grounds relate to matters of law. Sloan v. Bankers Life & Casualty Company, 1 S.W.3d 555, 566 (Mo.App.1999); Stewart, supra, 901 S.W.2d at 304; Curtis, supra, 491 S.W.2d at 33. Even if the September comments could be construed to be a determination by the trial court of a legal issue, as the Tenants here on appeal now propose, the motion for new trial raised nothing. The Tenants’ motion did not contain “enough specific detail” to put the defendant on notice that the trial court might find for the plaintiffs on the motion. Hiers v. Lemley, 834 S.W.2d 729, 731-2 (Mo. banc 1992); Blue Cross, supra, 800 S.W.2d at 75; Williams, supra, 565 S.W.2d at 662. Since the Tenants, in order to meet their burden under the rules, are limited to the errors specified in their motion for new trial (and in their brief), they cannot now prevail. Stewart, supra, 901 S.W.2d at 303; Moran v. North County Neurosurgery, Inc., 714 S.W.2d 231, 232 (Mo.App.1986).

Under the aspects of this record, this court may not speculate as to whether the trial court executed the August order on the non-stated reason that the Tenants had made a case on the imphed warranty of habitability theory. Dixon, 6S6 S.W.2d at 698. The Tenants have failed in their brief to carry the burden of proving the August order was legitimately supported. The August order was presumptively wrong and, under the narrow scope of review, this court has no other recourse than to reverse the inadequate August order that followed inadequate grounds in the new trial motion.

Therefore, the judgments under review are reversed, and the cause is remanded to reinstate the May judgment in favor of Landlord.

All concur.