author: MARY K. HOFF, Judge.

text:
    In the Interest of N.H.
    No. ED 84498.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 1, 2005.

      Mary D. Fox, St. Louis, MO, for Appellant.
    Margaret E. Gangle, St. Louis, MO, for Respondent.
   MARY K. HOFF, Judge.

Rhondalynn Harris (Mother) appeals from the trial court’s judgment of disposition placing Mother’s minor son, N.H., in the custody of the Missouri Department of Social Services, Children’s Division, (Division) after finding, in relevant part, that N.H. had missed 55 out of 99 days of school during the 2003-04 school year, as well as almost half of the days of school during the 2002-03 school year. We affirm the judgment with modification.

In February 2004, the Division filed a petition seeking the care and custody of N.H. due to educational neglect under Section 211.031.1 RSMo 2000. During the adjudication hearing, the trial court received a stipulation in which Mother admitted she “failed to provide [N.H.] with the education required by law.” At that hearing, the trial court also took judicial notice of its file, received a copy of N.H’s birth certificate, and heard testimony from a Deputy Juvenile Officer (DJO) regarding the inability to locate N.H.’s father.

Prior to hearing testimony at the dispo-sitional hearing, both the DJO and N.H.’s Guardian Ad Litem (GAL) responded “no” to the trial court’s inquiry whether they thought “the permanent plan is termination of mother’s parental rights.” The trial court then heard testimony from a Division Case Manager regarding a child assessment and service plan report (Plan) for N.H., which was also admitted into evidence. In relevant part, the Case Manager stated that N.H. was in a non-relative foster home, attending school, and doing better academically “since he is going to school regularly,” and that the Plan included “things that [the Case Manager thought M]other needs to do in order to be reunified with [N.H.].” The GAL also presented a recommendation to the trial court that the Division “retain custody for appropriate placement,” with specified services provided for Mother, and that Mother be required to: submit to a psychological evaluation, a parenting assessment, and a psychiatric evaluation, and obtain and maintain adequate housing and regular employment or financial security.

During the dispositional hearing, the trial court remarked it would “not make a finding of no reasonable efforts since there may be a mental health issue, ... [a]nd maybe the mental health issue will convince me that reunification is appropriate,” and required the Division “to engage in reasonable efforts to reunify [N.H.] with Mother.”

The-trial court’s judgment of disposition placed legal custody of N.H. with the Division and, in part, specifically required the Division “to. engage in reasonable efforts to reunify [N.H.] with Mother.” The judgment of disposition also, however, stated in the attached Exhibit 1 that, “[i]n the opinion of the Court, pursuant to Section 211.183.7 RSMo., reasonable efforts by the ... Division for Motherfs reunification with N.H.] are not required because: ... Mother has subjected [N.H.] to a severe act or recurrent acts of emotional abuse.”

In her sole point, Mother urges the finding of the trial court that reasonable efforts by the Division to reunify N.H. and Mother are not required because Mother has subjected N.H. to a severe act or recurrent acts of emotional abuse was not supported by substantial evidence and was against the weight of the evidence.

We review the judgment in this educational neglect proceeding under the standard for court-tried civil cases, In Interest of J.B., 58 S.W.3d 575, 578 (Mo.App. E.D.2001). Therefore, we affirm the judgment “unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. We also “defer to the trial court on issues of fact and the credibility of witnesses.” Id. Additionally, “[i]n reviewing the sufficiency of the evidence, we consider the evidence and all reasonable inferences which might be drawn ther.efrom in the light most favorable to the trial court’s judgment.” Id.

Section 211.183, pursuant to which the trial court made its challenged finding, provides that

[t]he division shall not be required to make reasonable efforts [to make it possible for the child to return home] but has the discretion to make [such] reasonable efforts if a court of competent jurisdiction has determined that ... [t]he parent has subjected the child to a severe act or recurrent acts of ... emotional ... abuse toward the child....

Section 211.183.7(1). While the statutorily required “emotional abuse” is not statutorily defined, and we have not been directed to or found a Missouri case addressing “a severe act or recurrent acts of ... emotional ... abuse” for purposes of Section 211.183.7(1), we are not persuaded that N.H.’s absence from school for numerous days during two consecutive school years in and of itself constitutes the statutorily required “severe act or recurrent acts of ... emotional abuse.” In terms of the record, the only evidence regarding N.H.’s absence from school is the stipulation that N.H. missed numerous days of school during two consecutive school years, and testimony that he is now doing better academically since he began attending school regularly. The record is barren of any explanation for N.H.’s absences. Due to the limited record before us, we do not know the reason for or source of N.H.’s repeated school absences. Therefore, we are unable to discern any connection between those absences and any emotional abuse of N.H. Nor does the record available to us reveal any evidence of emotional abuse suffered by N.H. as a result of these school absences or any emotional abuse inflicted on N.H. by Mother due to N.H.’s absence from school. Finally, the record available to us does not show that N.H.’s admitted school absences in any manner constituted either a severe act of emotional abuse or recurrent acts of emotional abuse. Here, no one is contesting the fact that N.H.’s repeated school absences constituted educational neglect. Rather, the sole challenge here is to the trial court’s finding of a severe act or recurrent acts of emotional abuse based on the available record. We have at issue and under consideration now only the lack of an evidentiary basis for the trial court’s emotional abuse finding.

Respondent DJO argues testimony presented at the dispositional hearing that N.H. was seeing a therapist, had seen a doctor, had “psychological issues,” and had poor hygiene when the Division worker first saw him “could well have led the trial court to the conclusion that there had been a severe act or recurrent acts of emotional abuse.” Such testimony is not sufficient under the circumstances of the case because none of that testimony in any way linked or associated those circumstances to emotional abuse of N.H. by Mother or to emotional abuse of N.H. arising out of his undisputed absence from school.

Respondent also contends our decision in In Interest of A.H., 45 S.W.3d 899 (Mo.App.2001), supports the challenged finding of the trial court here. In that case, we found there was competent and substantial evidence to support the trial court’s determination that the minor child had been subjected to a severe act of physical abuse and, therefore, reasonable efforts at reunification were not required. Id. at 901. The trial court’s finding was based on the minor child’s medical records, which indicated that: the child had been “dropped approximately four feet onto a concrete ground” by the child’s mother’s boyfriend while in mother’s custody, resulting in a fractured left femur; the child “had other bruises in various degrees of healing”; and the child had “required medical attention at [a hospital] after falling down a flight of stairs” approximately one year earlier. Id. The minor child’s mother did not testify or present evidence at the dispositional hearing. Id. We find the case factually distinguishable because the basis of the severe abuse was physical and medical records were available to establish that physical abuse, whereas in the present case there is no evidence available establishing N.H. was the victim of emotional abuse, much less severe or recurrent acts of such abuse.

Without more, there is no evidentiary support for the trial court’s challenged determination. Mother’s contention that the challenged finding is not supported by substantial evidence and is against the weight of the evidence is well-taken.

Moreover, the trial court’s judgment of disposition was inconsistent. At page 4 of the judgment of disposition the trial court specifically required the Division “to engage in reasonable efforts to reunify [N.H.] with Mother,” but then stated in Exhibit 1 attached to the judgment of disposition that, “[i]n the opinion of the Court, pursuant to Section 211.183.7 RSMo., reasonable efforts by the ... Division for Mother[’s reunification with N.H.] are not required because: ... Mother has subjected [N.H.] to a severe act or recurrent acts of emotional abuse.” As we noted earlier, there is no evidence to support the finding of emotional abuse, and there is no explanation by the trial court to clarify the apparently inconsistent directives regarding the Division’s reunification efforts.

A judgment that is inconsistent or contradictory on a material matter, or that is based on conclusions at variance with the facts, cannot stand. Barrett v. Barrett, 963 S.W.2d 454, 457 (Mo.App. E.D.1998). While such judgments may be reversed and remanded, we are authorized by Rule 84.14 to “dispense with the remand process” and render a judgment the trial court should have rendered. Norber v. Marcotte, 134 S.W.3d 651, 662 (Mo.App. E.D.2004). Pursuant to Rule 84.14, we may modify a challenged judgment by deleting portions of it. See Hileman v. Hileman, 909 S.W.2d 675, 680 (Mo.App. E.D.1995); State Div. of Family Servs. v. A.J., 872 S.W.2d 594, 598 (Mo.App. E.D.1994); Meiners v. Meiners, 858 S.W.2d 788, 791 (Mo.App. E.D.1993).

We accordingly modify the judgment of disposition only by deleting the finding in Exhibit 1 of the judgment of disposition stating that “[i]n the opinion of the Court, pursuant to Section 211.183.7 RSMo., reasonable efforts by the ... Division for Mother[’s reunification with N.H.] are not required because: ... Mother has subjected [N.H.] to a severe act or recurrent acts of emotional abuse.” As so modified, the judgment of the trial court is affirmed.

LAWRENCE E. MOONEY, Presiding Judge and LAWRENCE G. CRAHAN, Judge, Concur.

      . In relevant part this statute provides that the family court has exclusive original jurisdiction in proceedings "DQnvolving any child who may be a resident of or found within the county and who is alleged to be in need of care and treatment because ... [t]he child while subject to compulsory school attendance is repeatedly and without justification absent from school.” Section 211.031.l(2)(a) RSMo 2000. All subsequent statutory citations are to RSMo 2000, unless otherwise noted.


source: Caselaw Access Project

author: KATHIANNE KNAUP CRANE, Judge.

license: Public Domain

text:
    Teresa FORD, Claimant/Respondent, v. WAL-MART ASSOCIATES, INC., Employer/Appellant, and Insurance Company of the State of Pennsylvania c/o Claims Management, Inc., Insurer/Appellant.
    Nos. ED 84455, ED 84468.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 1, 2005.

      Juhe L. Petraborg, Maurice D. Early, Simon and Early, P.C., St. Louis, MO, for appellant.

      David S. Schmidt, O’Fallon, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

In this worker’s compensation case, employer, Wal-Mart Associates, Inc., and insurer, Insurance Company of the State of Pennsylvania, appeal from the final award of the Labor Industrial Relations Commission (Commission) allowing compensation and modifying the award and decision of the Administrative Law Judge (ALJ), with one member concurring in a separate opinion. The ALJ had found claimant permanently and partially disabled, but denied claimant’s request pursuant to Section 287.510 RSMo (2000) to double the temporary award previously made for noncompliance. The Commission modified the award to impose the penalty of doubling the temporary award because employer had not paid $21,445.27 of claimant’s medical bill, which caused the treating physician to refuse to provide claimant with further medical services. Employer and insurer assert that the Commission erred in doubling the temporary award because, they argue, they complied with the temporary award, and the unpaid medical bill was a legitimate fee dispute not involving claimant or causing her detriment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 10, 1998, while claimant was lifting boxes to stock shelves in employer’s automotive service department, she felt pain and heard her back “pop.” She notified her supervisors and, because the pain continued, she began treatment with her own physician, Peter Montgomery, M.D., the next day. Employer subsequently authorized her to see Frank Petkovich, M.D.

On June 24, 1998 claimant filed a claim for compensation. On July 27, 1999, the ALJ entered a Temporary or Partial Award finding claimant entitled to temporary total disability payments from June 11, 1998 and continuing for as long as the condition continues. The award ordered medical treatment in the following language:

Section 287.140 RSMO provides that the employer shall provide such medical treatment as may reasonably be required after the injury or disability to cure and relieve from the effects of the injury. The claimant need not present conclusive evidence of the need for future medical treatment; claimant need only show the need as a matter of “reasonable probability”. Tate, at p. 329. The testimony of Dr. Petkovich and Dr. Mirkin is persuasive as a matter of reasonable probability that Ms. Ford is in need of such medical care as may cure and relieve of the effects of her work injury. The employer is to provide such treatment consistent with the recommendations of Dr. Petkovich.

In compliance with the temporary award, employer and insurer authorized Dr. Pet-kovich to perform an anterior lumbar dis-cectomy at L5-S1 of the lumbar spine, and a fusion of L5 and SI with two cages and bone grafting from the iliac crest on August 30, 1999. A second fusion was performed on April 13, 2000.

On June 28, 2000, Dr. Petkovich filed an Application for Payment of Additional Reimbursement of Medical Fees pursuant to 8 CSR Section 50-2.030. Dr. Petkovich’s bill for services rendered for claimant’s injury totaled $32,181.10. Employer paid $10,735.83, leaving a balance of $21,445.27.

Dr. Petkovich examined claimant several times after the April 13, 2000 fusion. On October 24, 2000, he concluded that claimant had reached maximum medical improvement (MMI).

In August, 2001, claimant experienced an increase in back pain. Dr. Theodore Rummel, an orthopedic surgeon who had performed surgery on claimant’s arms, advised her to return to Dr. Petkovich. On August 15, 2001, claimant’s attorney made a written request to employer to authorize claimant to see Dr. Petkovich. In addition, on August 24, 2001, claimant’s attorney sent her to J.H. Morrow, Jr., D.O. who also determined that claimant was at MMI. On September 11, 2001, claimant was treated by her primary physician, Dr. Montgomery, who advised her to return to Dr. Petkovich.

In December, 2001, claimant’s attorney received a verbal authorization from employer for additional treatment from Dr. Petkovich, which he relayed to claimant. Claimant scheduled a visit for January 16, 2002. However, on January 15, 2002, Dr. Petkovich’s office sent claimant’s attorney a facsimile transmission advising that Dr. Petkovich would not see claimant again until his balance was paid in full. Claimant reported to Dr. Petkovich’s office for her scheduled visit, but was also told she would not be seen because her bill had not been paid.

Prior to the hearing on the final award, claimant filed a request for a penalty under Section 287.510 RSMo (2000) for employer’s failure to pay Dr. Petkovich. Employer requested that Dr. Petkovich’s claim and the issue of the reasonableness of his fees be heard in a separate proceeding from the hearing on the final award. The ALJ found that claimant had an interest in the issue because of her request for a penalty and denied employer’s request for a separate hearing. This issue was included at the final hearing held on January 7 and March 11, 2003.

At the final hearing, Dr. Petkovich testified that at the time he saw claimant on October 24, 2000, he determined that she would not need any further orthopaedic care unless she developed additional problems, but that she would need intermittent analgesics in the future for her lower back pain. He concluded that she suffered from persistent pain that would continue. At the time of the hearing he believed that claimant’s pain would be a permanent condition. Dr. Petkovich testified that, if claimant was experiencing severe back pain on January 16, 2002, he would have recommended that she be seen by him.

Prior to the entry of the final award by the ALJ, employer paid the outstanding balance on Dr. Petkovich’s bill and Dr. Petkovich withdrew his Application for Payment. Accordingly, in his final award, the ALJ did not rule on the merits of the fee dispute. The ALJ found that claimant was permanently and totally disabled. The ALJ also found that the employer and insurer need to provide ongoing analgesics for pain as recommended by Dr. Petko-vich. However, he denied claimant’s requests for attorney’s fees, costs, and a double award under Section 287.510 RSMo (2000).

Both claimant and employer requested review by the Commission. The Commission affirmed the ALJ’s award and decision allowing compensation for the permanent total disability, but modified the ALJ’s award by doubling the award for noncompliance under Section 287.510 RSMo (2000). The Commission found that a temporary or partial award must be complied with until a final award is issued. It determined that employer and insurer’s failure to pay the outstanding balance owed to Dr. Petkovich resulted in the denial of treatment to which claimant was entitled under the temporary award. As a result, the Commission ordered employer and insurer to pay $57,522.39 as a penalty.

DISCUSSION

For their sole point on appeal, employer and insurer contend that the Commission abused its discretion in doubling the temporary award. They argue that they fully complied with the temporary award and that they were not required to provide medical treatment after claimant had reached MMI. They also argue that the unpaid balance of Dr. Petkovich’s bill was a legitimate fee dispute that did not involve claimant or affect her benefits under the award.

The Commission has the discretion to impose a penalty pursuant to section 287.510 RSMo (2000). We will not interfere unless it appears that the action of the Commission was clearly arbitrary and constituted an abuse of discretion. Negri v. Continental Sales & Service, 139 S.W.3d 565, 570 (Mo.App.2004).

Section 287.510 provides employees with the remedy of a double award when an employer does not comply with a temporary or partial award of compensation under the workers’ compensation act, and medical bills are not paid. The statute provides:

In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount thereof may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.

Section 287.510 RSMo (2000). A penalty may be awarded under this statute when an employer has not paid medical bills and has refused to pay, claiming non-responsibility. Hendricks v. Motor Freight Corp., 570 S.W.2d 702, 710 (Mo.App.1978).

The fact that claimant had been assessed at MMI did not terminate employer and insurer’s responsibility for claimant’s treatment under the temporary award. In the temporary award, the ALJ ordered employer to provide “such medical care as may cure and relieve of the effects of the work injury.” Section 287.140.1 “entitles the worker to medical treatment as may reasonably be required to cure and relieve from the effects of the injury.” Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo.App.1996). This includes “treatment ‘which gives comfort [relieves], even though restoration to soundness [cure] is beyond avail.’ ” Id., quoting Williams v. A.B. Chance Co., 676 S.W.2d 1, 4 (Mo.App.1984). Accordingly, a finding of MMI is “not inconsistent with the need for future medical treatment.” Id. at 278. The Commission may not deny future medical treatment to relieve a claimant’s pain because a claimant may have achieved MMI. Kaderly v. Race Brothers Farm Supply, 993 S.W.2d 512, 517 (Mo.App.1999). Employer and insurer were not excused from continuing to provide medical treatment to claimant to relieve her pain after she reached MMI.

Employer’s failure to pay the fee jeopardized benefits to which claimant was entitled. Claimant was deprived of additional treatment to relieve her pain as a result of employer and insurer’s failure to pay Dr. Petkovich’s bill.

Employer and insurer also contend that the Commission erred because Dr. Petkovich’s unpaid bill was a legitimate fee dispute that did not involve claimant. They argue that the fee dispute should not have been made part of claimant’s final hearing and the fee dispute should not have been considered an act of non-compliance. The only authority cited for this argument is a quoted statement purportedly taken from 8 CSR 50-2.030.

The quoted language on which employer and insurer rely is not contained in 8 CSR 50-2.030. We will not search other legal authorities or the record for other authority supporting this claim. Since this is the only legal authority cited in support of this argument, we deem the argument abandoned. Jordan v. Stallings, 911 S.W.2d 653, 660 (Mo.App.1995).

The Labor and Industrial Relations Commission did not abuse its discretion in imposing the penalty under section 287.510 RSMo (2000). The Commission’s award is affirmed.

PATRICIA L. COHEN, P.J. and ROBERT G. DOWD, JR., J., concur.

      . Claimant also filed a notice of appeal, but has not asserted any points of error in her brief. Her brief solely responds to employer and insurer's brief. Her cross-appeal is therefore deemed abandoned. Rule 84.05; Cowden v. Sun Oil Co. of Pennsylvania, 583 S.W.2d 547, 549 (Mo.App.1979).

      . The concurring member would have also awarded attorney's fees to claimant.

      . Separate issues should be stated in separate points. Chancellor Development Co. v. Brand, 896 S.W.2d 672, 674 (Mo.App.1995).


author: PER CURIAM.

text:
    Louis STANGLE, Appellant, v. MORGAN STANLEY DW, INC. and Division of Employment Security, Respondents.
    No. ED 84898.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 1, 2005.
    Louis Stangle, Chesterfield, MO, appellant acting pro se.
    Morgan Stanley DW, Inc., Attn: Corporate Tax Department, San Francisco, CA, respondent Morgan Stanley acting pro se.
    Marilyn G. Green, Jefferson City, MO, for respondent Labor and Industrial Relations Commission.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Louis Stangle appeals the Labor and Industrial Relations Commission’s determination that Stangle was disqualified from receiving unemployment benefits because he voluntarily quit his job to attend to his wife’s and mother-in-law’s health needs and not for “good cause attributable to such work or to the claimant’s employer” under section 288.050.1(1) RSMo 2000.

We have reviewed the parties’ briefs and the record on appeal and find that the Commission’s decision is supported by competent and substantial — in fact, uncon-troverted — evidence, on the whole record, that Stangle voluntarily quit for reasons unrelated to his work or employer. Thus, while he may have had good cause personally for leaving his job, his reasons are not sufficient to entitle Stangle to unemployment benefits under the statute. There is no error of law. See, e.g., Lashea v. Fin-Clair Corporation, 30 S.W.3d 237, 241 (Mo.App. E.D.2000) (leaving employment under “compulsion of marital or parental obligation” lacks causal connection with employment required by the statute); see also generally Hessler v. Labor & Industrial Relations Commission, 851 S.W.2d 516, 518 (Mo. banc 1993) (“An employee’s good cause, subjectively measured, does not avoid the statute’s harsh result;” condition motivating decision to quit must have been created by work or employer).

An extended opinion would have no precedential value. We affirm the judgment under Rule 84.16(b).


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Larry D. KELING, Respondent, v. Carol L. KELING, Appellant.
    No. ED 83915.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 1, 2005.

      Michele Hammond, Scot C. Trout, Cor-dell & Cordell, P.C., St. Louis, MO, for Appellant.

      Richard K. Zerr, Burke, Zerr, Wulff & Briscoe, LLP, St. Charles, MO, for Respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Carol Keling (“Wife”), appeals from the judgment of the Circuit Court of St. Charles County dissolving her marriage to Respondent, Larry Keling (“Husband”). We affirm in part and reverse and remand in part.

Husband and Wife were married on March 5, 1983 in St. Charles, Missouri. Eric Keling (“Eric”), born on March 20, 1993, and Sommer Keling (“Sommer”), born on July 17, 1998, are the only two children born of the marriage. The parties separated on or about September 17, 2002. Husband filed a dissolution of marriage petition on September 19, 2002.

In November of 2002, Wife filed a “Motion For Appointment Of Guardian Ad Li-tem” alleging that Husband, during the period from September 15, 2002 through October 13, 2002, became angry and lost his self-control in front of the minor children. She also alleged that Husband has been verbally abusive to her, and that he had awoken Eric and told him that Wife was performing sex acts with another man. Lastly, she alleged that Husband was calling her derogatory names in the presence of the minor children. As a result, a guardian ad litem was appointed by the court to represent the interests of the children pursuant to section 452.423, RSMo 2000. On November 13, 2002, Christine Hendrix (“Hendrix”) filed a consent to appointment as guardian ad litem, agreeing to represent Eric and Sommer in the proceeding. Less than three weeks later, Hendrix sought to be released from the case stating that she could not substantiate the allegations of neglect or abuse after interviewing Husband, Wife and Eric. Sommer was not interviewed by Hendrix. The court ordered that Hendrix be released from the case on December 13, 2002, and the trial was conducted without a guardian ad litem present to represent the interests of the minor children.

On December 19, 2002, the parties entered into a consent judgment pending the dissolution proceeding. The consent judgment granted Husband and Wife joint legal and joint physical custody of the parties’ children, who were to reside with Husband, subject to Wife’s periods of physical custody as set forth in a schedule. On December 2, 2003, subsequent to a bench trial, the court entered its judgment finding that it was in the best interests of the children to place them in the sole legal and physical custody of Husband, subject to Wife’s rights of temporary custody and visitation. The court believed that due to the “history of domestic violence” between Husband and Wife and their failure to communicate concerning the children, it would be inappropriate to order joint legal and physical custody.

Wife, a trained dental assistant, was imputed gross monthly earnings of $2,427. Husband was imputed gross monthly earnings of $4,606. Wife was ordered to pay Husband $458 per month for child support. This appeal followed.

In reviewing this case, we must affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. McCollum v. McCollum, 128 S.W.3d 62, 65 (Mo.App. E.D.2003). We view the evidence and the reasonable inferences therefrom in the light most favorable to the prevailing party. Id. The party that challenges the dissolution decree has the burden of demonstrating error. Id. at 66.

We will first address Wife’s fourth point on appeal.

In her fourth point on appeal, Wife claims the trial court erred in ordering the release of the guardian ad litem prior to the hearing.

A party is not entitled to have allegations of eiTor considered on appeal if they were never presented to or passed on by the trial court. In re Marriage of Campbell, 868 S.W.2d 148, 151 (Mo.App. S.D.1993). However, pursuant to Rule 84.13(c), we can review issues not preserved in the trial court to determine if plain error was committed affecting substantial rights which resulted in a manifest injustice or a miscarriage of justice. Id.

There is no indication in the record that an objection was made by Wife concerning the court’s decision to release the guardian ad litem prior to trial. Thus, Wife failed to preserve this point for appeal as it was not presented to or expressly passed on by the trial court. Nevertheless, because the best interests of the children are involved, we elect to review the point on appeal for plain error pursuant to Rule 84.13(c).

“The guardian ad litem shall: (1) Be the legal representative of the child at the hearing, and may examine, cross examine, subpoena witnesses and offer testimony; (2) Prior to the hearing, conduct all necessary interviews with persons having contact with or knowledge of the child in order to ascertain the child’s wishes, feelings, attachments, and attitudes. If appropriate, the child should be interviewed .... ” Section 452.423.2.

When we interpret a statute, our primary role is to determine the intent of the General Assembly from the language used in the statute and, whenever possible, give effect to that intent. Harrison v. King, 7 S.W.3d 558, 561 (Mo.App. E.D.1999). In ascertaining legislative intent, the words present in the statute are to be considered in their plain and ordinary meaning. Id. If the language of a statute is clear and unambiguous, we will give effect to the language as written and will not turn to statutory construction. Id.

The objective in appointing a guardian ad litem is to make certain that the child’s best interests are adequately represented and protected. Ludvik v. Ludvik, 969 S.W.2d 284, 286 (Mo.App. E.D.1998).

Wife argues that because the guardian ad litem was released prior to the hearing, this violated the mandate of RSMo 452.423.2 that the appointed guardian ad litem shall be the legal representative of the child at the hearing. We agree.

It is clear from the language of section 452.423.2 that the statute requires the appointed guardian ad litem to represent the children at the hearing. Husband contends that Hendrix was acting in good faith by asking to be released of her guardian ad litem duties prior to the hearing in order to prevent the run up of guardian ad litem fees to be paid by Husband and Wife. This is irrelevant. The best interests of the children are paramount here, and it is the duty of the guardian ad litem to protect the interests of the children. See Wilkinson v. DeClue, 890 S.W.2d 774, 776 (Mo.App. E.D.1995).

Furthermore, manifest injustice is present in this case. Hendrix based her decision to seek withdrawal, prior to the hearing, on her interviews with Husband, Wife, and Eric. No guardian ad litem was present at the hearing to have the opportunity to examine or cross-examine witnesses and listen to all of the evidence. The evidence at the hearing included the testimony of Dr. Linda Partridge (“Dr.Partridge”), the children’s therapist, who stated that she saw signs of trauma in both children as a result of Husband’s behavior. Hendrix was not available to question this witness as she had already been released from the case, nor did Hendrix ever speak to Dr. Partridge.

In Hendrix’s motion to be released from the case, she simply stated that she was “unable to substantiate any conduct that would rise to the level of abuse and/or neglect on the part of either party that would necessitate the continued involvement of a Guardian ad Litem in this case.” None of the friends and relatives of Husband and Wife who testified at trial were questioned by Hendrix, and, again, neither was Dr. Partridge. Especially in light of the “history of domestic violence” between the parties, this case begged for careful consideration by the appointed guardian ad litem. Hendrix did not complete the duties of a guardian ad litem set out in section 452.423.2. Therefore, the trial court committed plain error in releasing Hendrix from her duties as a guardian ad litem prior to the hearing, which resulted in no guardian ad litem representing the interests of the children at the hearing. As a result of this finding, Wife’s first, second and fifth points on appeal, which are contingent upon the custody determination, need not be addressed.

In her third point on appeal, Wife asserts that the trial court erred in imputing income of $2,427 per month to her. Wife argues that there was no evidence that she was purposefully limiting her income to evade her responsibility to her children.

A spouse cannot avoid responsibility to his or her family by deliberately limiting his or her work to reduce income. In re Marriage of Graham, 87 S.W.3d 898, 900 (Mo.App. E.D.2002). A trial court may, in proper circumstances, impute income to a spouse according to what the spouse could earn by use of his or her best efforts. Id. Deference is given to the trial court’s ability to judge the credibility of witnesses. Bauer v. Bauer, 28 S.W.3d 877, 888 (Mo.App. E.D.2000).

The trial court imputed earned income of $2,427.00 per month to Wife based upon full-time employment at $14.00 per hour as a trained dental assistant in arriving at Wife’s child support obligation. Wife testified that she makes $14.00 per hour as a dental assistant. Wife claimed she had not sought full-time work because she “chose to live more frugally so [she] would have more time with [her] children.” The trial court was entitled to disbelieve Wife’s explanation as to why she was not working full-time. Furthermore, Wife admitted there are other jobs available to her for which she is electing not to apply. Therefore, the court did not err by imputing $2,427.00 per month in income to Wife. Point denied.

Judgement is affirmed in part and reversed and remanded in part for further proceeding in accordance with this opinion.

SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J., concur.

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


text:
    Elizabeth HUGHES, Plaintiff/Respondent, v. ANANT RAJ CORPORATION, d/b/a Days Inn of Oak Grove, Defendant/Appellant.
    No. ED 83924.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 1, 2005.
    John F. Cooney, St. Louis, MO, for appellant.
    Robert S. Bogard, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL JR., J., and KATHIANNE KNAUP CRANE, J.
   ORDER

PER CURIAM.

Anant Raj Corporation (“Anant Raj”) appeals from the judgment of the trial court after a jury verdict awarding $200,000 in damages to Elizabeth Hughes on her negligence claims.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the motion court is affirmed in accordance with Rule 84.16(b).


text:
    Dwayne A. JACKSON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84413.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 1, 2005.
    Amanda R. Schehr, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Dwayne A. Jackson appeals the judgment denying his Rule 24.035 motion for post-conviction relief without an evidentia-ry hearing. He alleges his plea counsel provided ineffective assistance by advising him to plead guilty without investigating the facts or researching the law and by failing to request a mental evaluation.

Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Paul A. CRAWLEY, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 84083.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 1, 2005.
    S. Paige Canfield, St. Louis, MO, for appellant.
    Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   PER CURIAM.

Movant, Paul A. Crawley, appeals from the judgment denying on the merits his Rule 24.035 motion for post-convietion relief without an evidentiary hearing after he pleaded guilty to the class B felony of robbery in the second degree, in violation of section 569.030 RSMo (2000). We dismiss his appeal pursuant to the escape rule.

Movant pleaded guilty to robbery in the second degree, in violation of section 569.030 RSMo (2000), arising out of the robbery of a Borders bookstore. The trial court sentenced movant to ten years imprisonment, but suspended execution of the sentence and placed him on three-years probation, with probation to be transferred to South Carolina. On September 28, 2000, movant admitted he had violated the conditions of his probation, and the trial court revoked his probation. It scheduled a sentencing hearing for January 4, 2001. Movant failed to appear for the sentencing hearing and the court issued a warrant for his arrest. In September 2002, movant was arrested in Georgia and extradited to Missouri. On March 19, 2001, the trial court received a letter from Dr. Sidney Steinberg advising that movant had been hospitalized from November 7, 2000 until January 26, 2001. On November 26, 2002, defendant appeared for sentencing and the trial court ordered execution of the previously imposed ten-year sentence.

Movant filed two pro se Rule 24.035 motions for post-conviction relief. Appointed counsel filed a statement in lieu of an amended motion. The motion court denied both pro se motions without an evidentiary hearing, finding that movant failed to allege facts, unrefuted by the record, that warranted relief. Movant appeals.

We do not reach the merits of movant’s allegations of error on appeal because the escape rule requires that the appeal be dismissed. The escape rule is a judicially-created doctrine that operates to deny the right of appeal to a criminal defendant who escapes justice. State v. Troupe, 891 S.W.2d 808, 809 (Mo. banc 1995); State v. Bickell, 941 S.W.2d 767, 768 (Mo.App.1997). It applies not only to direct appeals but also to appeals from the denial of motions for post-conviction relief. Nichols v. State, 131 S.W.3d 863, 865 (Mo.App.2004); Fogle v. State, 99 S.W.3d 63, 65 (Mo.App.2003).

Under the escape rule, we may dismiss post-conviction appeals whether or not the motion court reached the merits of the movant’s claim. Nichols, 131 S.W.3d at 865; Fogle, 99 S.W.3d at 65. The escape rule is applicable to those errors occurring before and up to the escape. Nichols, 131 S.W.3d at 865; Fogle, 99 S.W.3d at 65. A willful failure to appear for sentencing invokes the escape rule. State v. Crump, 128 S.W.3d 642, 643 (Mo.App.2004); Nichols, 131 S.W.3d at 865. Dismissal is appropriate if the appellate court determines that the escape “adversely affect[ed] the criminal justice system.” Troupe, 891 S.W.2d at 811. That determination is within the appellate court’s sound discretion. Id.

In his reply brief, movant argues that we should not dismiss his appeal under the escape rule because he missed the sentencing hearing because of his health problems, and in the twenty months from the time of that hearing until his arrest, he did not harm anyone and justice was not adversely affected. We disagree. Movant did not seek a continuance of his sentencing based on his hospitalization. His failure to appear caused the court to issue a warrant for his arrest. After his release from the hospital, he did not voluntarily surrender but remained at large for nineteen more months until he was arrested in Georgia and extradited. This caused a twenty-two month delay in his sentencing. These circumstances support a finding that movant’s escape was willful and adversely affected the criminal justice system. Troupe, 891 S.W.2d at 810-12; Nichols, 131 S.W.3d at 865; Fogle, 99 S.W.3d at 65; State v. Burk, 49 S.W.3d 207, 212 (Mo.App.2001).

Movant’s claim of error on appeal involves the voluntariness of his plea. This necessarily involves error that occurred before his failure to appear for sentencing and arrest. Movant’s failure to appear at sentencing waives his right to appeal this error. See Nichols, 131 S.W.3d at 865; Fogle, 99 S.W.3d at 65.

Movant’s appeal is dismissed.


author: JAMES K. PREWITT, Judge.

text:
    In re the MARRIAGE OF Richard Darwin BERRY and Maureen Smith Berry. Richard Darwin Berry, Petitioner-Respondent, and Maureen Smith Berry, Respondent-Appellant.
    No. 26130.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 16, 2005.

      Devon F. Sherwood, Springfield, MO, for appellant.
    Dennis P. Wilson, Parsons & Wilson, P.C., Dexter, MO, for respondent.
   JAMES K. PREWITT, Judge.

Richard Darwin Berry (“Husband”) and Maureen Smith Berry (‘Wife”) were married on May 29, 2000, in Warren County, New York. There were no children born to the marriage. On February 3, 2003, Husband petitioned for dissolution.of marriage in Stoddard County, Missouri. Wife was personally served with process on February 14, 2003, in West Point, New York. Wife contested the Missouri court’s jurisdiction.

At the time of trial, Husband was stationed at West Point, New York, and Wife lived in the Albany, New York area. Following a hearing at which both parties were present and represented, the trial court entered its judgment and decree of dissolution on January 26, 2004, finding that it had both personal and subject matter jurisdiction. The circuit court ordered that the marriage be dissolved, awarded wife attorney’s fees plus reimbursement for travel expenses, divided marital property, allocated marital debts, and denied Wife’s request for maintenance. Wife appeals.

In his petition for dissolution, Husband alleged that he was a resident of Stoddard County, Missouri, serving in the United States Army on active duty and stationed at West Point, New York. Husband conceded that Wife was a resident of the State of New York. Husband at that time requested only that the marriage “be dissolved, and for such other and further relief as to the Court may seem just and proper.”

Wife filed a pro se “Answer and Response,” in which she objected to jurisdiction. Therein, Wife stated that she did not consent to service and rejected “any previously and illegally served papers.” She requested “to have the complaint dismissed.”

On April 16, 2003, Husband filed a “First Amended Petition for Dissolution of Marriage,” in which he amended his original petition by adding a request for division of marital property and debts.

Wife obtained counsel and filed her “Answer to First Amended Petition for Dissolution of Marriage” and “Counter Petition for Dissolution of Marriage” on May 28, 2003.

Preliminary to a hearing held June 23, 2003, Wife’s counsel requested that the trial court dismiss the action for “lack of jurisdiction by the Court[,]” contending that neither party was a resident of Missouri. The trial court denied Wife’s motion and proceeded to hear the cause.

A “Judgment and Decree of Dissolution of Marriage” was filed January 26, 2004, in which the trial court found that it had “personal jurisdiction over the parties and subject matter jurisdiction in this ease[.]” The trial court apportioned the marital debt, divided the marital property, awarded Wife $500.00 for attorney fees, and ordered Husband to pay Wife’s medical insurance premiums and travel expenses. Wife’s request for maintenance was denied upon the trial court’s finding that Wife “has sufficient property and income to provide for her reasonable needs.” The trial court made the order denying maintenance “not modifiable.”

In her appeal, Wife presents two points relied on. Point I challenges the trial court’s judgment denying maintenance to Wife on the 'basis that the trial court did not have either personal jurisdiction or subject matter jurisdiction. In her second point, Wife contends that the trial court’s denial of maintenance was error in that “the evidence demonstrated that [Wife] was disabled from employment and lacked sufficient income and assets to provide for her reasonable needs[.]” We find Point I to be dispositive and need not address Wife’s second point.

In Missouri, to obtain personal jurisdiction over a non-resident defendant, “the plaintiff must make a prima facie showing that 1) the cause of action arose out of an activity covered by Missouri’s long-arm statute, ... and 2) the defendant had sufficient minimum contacts with Missouri to satisfy the requirements of due process.” Wray v. Wray, 73 S.W.3d 646, 649 (Mo.App.2002).

“An action for dissolution of marriage involves an amalgam of contractual right and status.” Ferrari v. Ferrari, 585 S.W.2d 546, 547 (Mo.App.1979). “Insofar as the proceeding affects certain contractual aspects of the marriage (such as maintenance) the action is in personam and requires personal service or presence of the other spouse for valid judgment.” Id. “Insofar as such a proceeding affects status only, the action is in rem or quasi-in-rem and requires only that the res be before the court upon proper notice.” Id. “The tribunal must have jurisdiction over the person of the defendant to adjudicate a personal liability against him and must have jurisdiction over the thing, be it status or specific property, to affect the interest of defendant in that thing.” Id.

“[L]ack of personal jurisdiction forestalls consideration of orders pertaining to maintenance ... and attorney’s fees.” Thompson v. Thompson, 657 S.W.2d 629, 631 (Mo.banc 1983). “This is not to say that a court in a proper case is precluded from acquiring jurisdiction over the status of the marriage.” Id.

Husband contends that Wife’s failure to assert the defense of lack of jurisdiction “either by motion or in her answer ... constitutes a waiver of such defenses.” “ ‘Rule 55.27(g)(1)(B) provides that the defense of lack of personal jurisdiction, among other things, is waived ... if it is neither made by motion under this Rule [55.27] nor included in a responsive pleading.’ ” Crouch v. Crouch, 641 S.W.2d 86, 90 (Mo.banc 1982). “Due process requires that, in the absence of minimum contacts to support personal jurisdiction, the rule effect a waiver of the jurisdictional defense only if the defendant has already appeared before the court and has neither timely raised nor otherwise waived jurisdiction.” Id.

Wife raised the issue of jurisdiction in her original pro se “Answer and Response,” in which she stated “[t]hat I am unfamiliar with the residency requirements for this Court, however, object to jurisdiction.” Wife alleged that the parties were married in the State of New York, that both live in the State of New York, and that Wife never lived in Missouri. Wife also stated that she rejected service and asked the court to find that service was improper.

In her subsequent “Answer to First Amended Petition for Dissolution of Marriage,” Wife denied that Husband’s residence was Stoddard County, Missouri, “and further denie[d] that his legal residence is ... Bernie, Missouri, for at least 90 days immediately preceding the filing of his petition.” In her “Counter Petition for Dissolution of Marriage” which was filed as part of Wife’s Answer, Wife contends that both parties are residents of New York and that “[njeither party is a resident of the State of Missouri, and therefore, the State of Missouri is without jurisdiction to hear this cause.” Wife further contended that all marital property and marital debts were outside of the State of Missouri. Wife requested that the court dismiss for lack of jurisdiction, “or in the alternative, to dissolve the marriage; to make an equitable division of the marital property and assignment of the marital debts; to order [Husband] to pay [Wife] a reasonable sum for [Wife’s] maintenance; [and] to order [Husband] to pay [Wife’s] attorney fees and costs herein incurred[.]” Wife correctly contends that once raised, an objection to personal jurisdiction is preserved through the trial. Wray, 73 S.W.3d at 649. Based on the above facts, we conclude that Wife preserved the jurisdictional question she now raises.

To support a general judgment in per-sonam against an absent spouse, Rule 54.06(b) requires, among other things, that the petitioner continue to live in this state. Husband has satisfied this prong, in that he testified that he never abandoned his Missouri domicile although he was actively serving in the military and stationed outside of Missouri at the time of his marriage to Wife. See Edwards v. Edwards, 709 S.W.2d 165, 168 (Mo.App.1986). Husband entered the military in May of 1989, separated from the military in March of 1996 and relocated to Clifton Park, New York to reside. In November of 1999, Husband returned to Missouri and coached high school basketball in Caruth-ersville. In the early spring of 2000, Husband was issued a Missouri driver’s license. Husband reactivated his military-service in April of 2000, at which time he was stationed in New York. Husband testified that he was a registered voter in Stoddard County, had filed state income tax returns regularly in the State of Missouri, and had always considered himself a resident of Missouri.

However, Rule 54.06(b) also “mandates compliance with the minimum contacts test by requiring that one whom the state would subject to an in personam judgment for maintenance, support, attorney’s fees, suit money, or disposition of marital property must have ‘lived in lawful marriage within this state.’ ” Crouch, 641 S.W.2d at 89. See also § 506.500.2, RSMo. Here, neither party testified that such had been the case, and the record supports Wife’s contention that the couple never resided in Missouri during their marriage, nor did she have sufficient minimum contacts to satisfy due process requirements.

A personal judgment entered against a party by a court lacking personal jurisdiction over that party is void. Maul v. Maul, 103 S.W.3d 819, 820 (Mo.App.2003). Here, the trial court lacked jurisdiction to enter orders pertaining to maintenance, attorney fees and division of property, but the trial court had jurisdiction over the status of the marriage and could dissolve it. Ferrari, 585 S.W.2d at 548. See also Thompson, 657 S.W.2d at 631.

That portion of the decree dissolving the marriage is affirmed. In all other respects, the judgment is reversed and the cause remanded with instructions to the trial court to vacate all other provisions in the judgment.

GARRISON, P.J., and RAHMEYER, J., concur.


author: KENNETH W. SHRUM, Judge.

text:
    Denise Marie CLASSICK, Petitioner-Appellant, v. Charles Ray CLASSICK, Respondent-Respondent.
    No. 26211.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 16, 2005.

      Richard L. Schnake, Neale & Newman, L.L.P., Springfield, for appellant.
    James R. Sharp, Sharp & Bredesen, Springfield, for respondent.
   KENNETH W. SHRUM, Judge.

Denise Marie Classick (“Mother”) sought to relocate with her minor children from Missouri to Ohio. Charles Classick (“Father”) filed a motion to prevent such relocation pursuant to section 452.377. After an evidentiary hearing, the trial court ruled that Mother’s proposed move would not be in the children’s best interests. Mother appeals, claiming the trial court’s judgment is against the weight of the evidence and the court improperly applied the statutory best interest factors. We disagree. We affirm.

STANDARD OF REVIEW

A judgment granting or denying permission to relocate minor children is reviewed pursuant to the well-known standard of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Swisher v. Swisher, 124 S.W.3d 477, 480 (Mo.App.2003). Thus, we will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Cullison v. Thiessen, 51 S.W.3d 508, 510 (Mo.App.2001).

We view the evidence and all reasonable inferences therefrom in the light most favorable to the judgment, disregarding contrary evidence and inferences. Id. at 511. “An appellate court should not set aside a judgment as being against the weight of the evidence, unless it firmly believes that the judgment is wrong, or the judgment is clearly against the logic of the circumstances.” Swisher, 124 S.W.3d at 480[2].

FACTS

Mother and Father were married in June 1992. Three children were born of the marriage. The eldest daughter, Chelsea, was born December 11, 1993, and twin daughters, Courtney and Catelynn, were born December 20, 1995. During the marriage, both before and after the children were born, the family moved often. The moves were primarily caused by Father’s quest for better employment. When Chelsea was to begin the first grade, the family decided to move to Springfield, Missouri, with the avowed purpose of making the town their permanent home.

In June 2001, Mother met Don Heaney (“Heaney”). In August 2001, Mother and Father separated. Mother filed for divorce that same month, which was eventually granted in November 2002. Approximately six months later, Mother married Heaney. The couple was expecting their first child together in November 2003.

Mother sought to relocate with the minor children to the Cincinnati, Ohio, area where Heaney worked and lived. Heaney looked for employment in Springfield, but was unable to find a job that paid as well as his job in Ohio.

Via the divorce decree, Mother and Father were “awarded joint legal and joint physical custody of the minor children.” Father’s parenting time included the following: Three weekends of each month from 6:00 P.M. on Friday to 6:00 P.M. on Sunday; three nonconsecutive weeks during the summer; spring breaks in odd-numbered years; and rotating holidays.

In Mother’s “Notice of Relocation” to Father, she proposed an alternate schedule if the children were allowed to move with her to Ohio. She offered the following parenting time changes: One monthly visit of four days that coincided with scheduled days off school; six weeks in the summer; and spring break every year. Mother also proposed changing the holiday schedule. For instance, she sought to change the parenting times during Easter and Independence Day whereby she exercised custody, instead of the rotating schedule.

Father timely filed his motion to prevent Mother’s relocation. Father claimed that permitting relocation “is not in the best interests of the minor children, would be financially and physically burdensome on the parties and would make substantial and meaningful contact between Father and the minor children impossible.” In its judgment, the court made extensive findings of fact and conclusions of law, determining that Mother’s proposed relocation would not serve the best interests of Chelsea, Courtney, and Catelynn. This appeal followed.

Point I: Best Interests Factors

In her first point on appeal, Mother alleges the trial court committed reversible error when it found that three statutory best interests factors weighed against her relocation. We disagree.

When a parent seeks to relocate the principal residence of a child, that party “shall have the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child.” § 452.377.9. In making its best interests determination, the trial court looks to the factors set forth in section 452.375.2. Herigon v. Herigon, 121 S.W.3d 562, 569 (Mo.App.2003). The applicable factors involved here are:

“(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
“(2) The needs of a child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
“(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
“(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
“(5) The child’s adjustment to the child’s home, school, and community.”

§ 452.375.2.

As to the first and fourth factors, the court found that both weighed against relocation. Mother has not challenged those findings on appeal. As to the second factor, the court found:

“Although these two parents appear to be exemplary as far as their ability and willingness to perform their functions are concerned, [Father’s] relationship with his children would be detrimentally affected if the children relocate. The record shows substantial contact between the children and their father since their birth and the needs of the children would not be met in that their contact with their father would not be frequent, continuing or meaningful if allowed to relocate.
“If allowed to move to Ohio, the children would grow to resent the 1,200 mile trip to and from Ohio every time they were to see their father. As the children develop into teenagers, [Father’s] relationship with his children would be effectively eliminated due to the increased time the children will spend with friends, school activities and other ties to the new community.
“The Court does not feel that contact between the father and children one time per month would be appropriate in this case in light of the father’s substantial involvement with the children’s lives since birth. Furthermore, the Court finds that it would be naive of the mother to think that she and the children would be able to find four days per month to make a 1,200 mile trip to see their father, as she proposes, for the next ten years and beyond. This factor weighs heavily against relocation.”

Mother argues that the court’s finding in this regard is based solely on the distance issue between Missouri and Ohio. Mother then argues that existing case law “does not view distance ... as a barrier to relocation.” To support her argument, Mother cites case law wherein a parent was allowed to relocate out of state despite the impact the move would have on the other .parent’s visitation rights.

Mother’s argument and supporting cases are less than persuasive. “Disputes concerning the relocation of children must be resolved on their particular facts rather than rigid application of rule.” Cullison, 51 S.W.3d at 511[1] (emphasis supplied). Here, the particular facts of this case amply support the trial court’s findings under the second factor.

Father’s relationship with the children was one of extensive involvement. He was described as a “model father.” After the divorce, Father bought a home that was seven houses away from the marital residence to be near the children. Father not only exercised his parenting time allotted via the divorce decree, he also spent time with the children on unexpected occasions, such as being with them on snow days. Father attended most of the children’s extracurricular activities as well. In essence, via the parties’ mutual actions, Father’s parenting time with the children was not solely limited to that contained in the parenting plan. As aptly stated by Father in describing this mutual give and take, “[W]e have done a good job, I think, overall ... for the most part ... we’d move the schedules around to accommodate each other’s needs.”

As the evidence indicates, if the relocation were permitted, Father’s relationship with the children would be effectively destroyed. He would not be involved with them on a day-to-day basis. He would not be able to attend any of their activities. Simply stated, he would barely see his children.

To counter this obvious impact, Mother points to several options for Father to see the children. Mother proposes that once per month the children would travel to Missouri. Mother ignores case law that holds frequent travel, such as that proposed, can be deleterious to the children and runs contrary to their best interests. See, e.g., In re S.E.P. v. Petry, 35 S.W.3d 862, 872-73 (Mo.App.2001); Maher v. Maher, 951 S.W.2d 669, 676-77 (Mo.App.1997). Mother also claims that increased time during spring break is an adequate substitute. This time, however, only amounts to one extra week every other year as Father was awarded spring break in odd-numbered years. Along these same lines, Mother seeks to decrease other parenting times awarded Father under the decree. The only advantageous aspect of Mother’s plan was the increased time during the summer. The trial court obviously did not believe that these extra three weeks would adequately compensate for the lost time and contact Father and the children would endure the entire year. This was certainly not error.

Based on the foregoing facts of this case, the court’s finding on the second factor is supported by substantial evidence and does not erroneously declare or apply the law.

As to the third factor, the court found:

“The children are well adapted to their existing environment, have many friends, are well liked by their Mends and classmates and have excellent interaction and interrelationships with those people who are important to them. They are also very bright children, making excellent grades in school, and appear to be very well adjusted on a social level as well. This factor weighs against relocation.”

Mother acknowledges that this finding is supported by the evidence. She argues, however, that relationships with the “core family” are more significant than those with distant relatives or friends, citing Dorman v. Dorman, 91 S.W.3d 167 (Mo.App.2002).

In effect, Mother argues that the Dorman court found that a relationship with a stepfather and a half-sibling will automatically override the significance of any other relationship besides that of parent and child. We disagree with that interpretation. First, the father in Dorman was not veiy involved with his child, unlike Father here. Consequently, in Dorman, the court recognized the family unit (the mother, stepfather, and half-sister) would be the most significant influence on the child. The court never held that others could not significantly affect the child more so than the “core family.” Second, the plain language of the statute shows otherwise, i.e., other individuals besides close family members can significantly affect children, to wit: “The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests.” § 452.375.2(3). Any argument to the contrary is rejected.

Moreover, in the argument section of her brief, Mother cites no testimony that showed what type of relationship the children had with Heaney. This further distinguishes the Doman case because that type of evidence was presented to that court. On the other hand, the evidence here abundantly supports the findings by the trial court on the third factor as Mother acknowledges. The children’s Mends and classmates certainly have significantly affected them in a positive fashion. Additionally, there was testimony indicating the children have a good relationship with Father’s best Mend and his wife, i.e., they are like an aunt and uncle. Simply stated, the trial court was free to accept the testimony that all of these individuals positively and significantly affected the children, and it was in their best interests to maintain these relationships.

As to the fifth and final factor, the court found that the children “are very well adjusted to their home, school and community.” The evidence overwhelmingly supports this finding and Mother does not dispute this proposition. She argues, however, that the court improperly penalized her for her choice to remarry. Mother further states that she has an absolute right to remarry, whether or not that person lives out of state. She claims that the trial court “pinn[ed]” its finding on the fact that she married someone from a different state. We disagree.

The trial court’s judgment implicitly found that the children’s stability (provided by residency in Springfield) was of paramount importance. All parties acknowledged that the children were thriving in this environment. Uprooting them from their home, their Father, their friends, and their school is simply not in their best interests. See Seaman v. Seaman, 41 S.W.3d 889, 896[13] (Mo.App.2001) (finding stability and a good environment are primary considerations).

The importance of maintaining stability for these children can be gleaned from a number of facts. For instance, Father refused a job opportunity in Kansas City so the family would not have to move again and could maintain the life they built in Springfield; in fact, Mother actually told Father that if he wanted that job he could commute. Also, during the divorce while negotiating a settlement, Mother mentioned that Heaney was going to move to Springfield, whether or not he had a job, i.e., relocation was not an issue. At a hearing involving the relocation, Mother testified that she and Heaney originally planned to live in Springfield. Heaney, however, could not find employment that paid him as much as he earned in Ohio; thus, they turned to “Plan B,” namely, relocation. These facts implicitly show the admission by all involved parties that moving is not in the .children’s best interests.

Essentially, via the fifth factor, the trial court decided that forcing the children to move is unfair when the relocation is unnecessary. Mother chose to marry a man who she knew lived in another state. Because their plans failed to materialize, Mother seeks to burden the children by forcing them to move hundreds of miles from their home. Mother’s mere desire to move versus the need to move is simply not sufficient. Newell v. Rammage, 7 S.W.3d 517, 522 (Mo.App.1999).

Mother has wholly failed to show the trial court erred in applying the section 452.375 factors in making its best interests determination. Point denied.

Point II: Sufficiency of the Evidence

In her second point on appeal, Mother claims the trial court erred in denying relocation for a variety of reasons. First, she claims the court ignored all of the visitation that Mother proposed except for the monthly visits. Second, she points to various reasons why relocation should be allowed. Finally,, she asserts that her request to relocate was made in good faith.

As to Mother’s first prong, that was decided adversely to her in our discussion of her first point. Via statute, the court was required to, and did, consider “the proposed parenting plan” submitted by Mother. § 452.375.2(1). Furthermore, as stated previously, the plan increased Father’s parenting time by the following: (1) three extra weeks in the summer; (2) one extra spring break every other year; and (3) Memorial and Labor Days “to be included in the monthly visits;” however, Father received these days in odd-numbered years. The plan took from Father at least two weekends per month, all day-to-day contact, and Easter and Independence Day in alternating years.

There is no evidence the court did not consider everything Mother proposed. The court merely disbelieved Mother’s assertions that the plan was workable, that the plan allowed for meaningful contact between Father and the children, and that the parties would follow through with its terms for the next decade. We do not firmly believe that the judgment is wrong, nor do we believe that the judgment is clearly against the logic of the circumstances. Swisher, 124 S.W.3d at 480[2], This prong of Point II is denied.

Next, Mother claims that the reasons listed in note nine should compel relocation. Mother points to nothing, however, that suggests the court failed to consider these factors. The court merely determined that the benefits of moving to Ohio did not outweigh the harmful detriments. Under our standard of review, the fact that substantial evidence may exist to support an appellant’s position does not, standing alone, entitle an appellant to relief on appeal. Herigon, 121 S.W.3d at 567[7]. Prong (b) of Mother’s second point is denied.

Finally, the issue of Mother’s good faith has not been challenged. The court found that she was acting in good faith. This provides no reason for finding error in the court’s best interests judgment. Point denied.

The judgment of the trial court which sustained Father’s motion to prevent relocation is affirmed.

PARRISH, P.J., and BATES, C.J., Concur.

      . Respondent filed a motion to dismiss the appeal which was taken with the case. Respondent’s motion is hereby denied. In re Marriage of Boyd, 786 S.W.2d 626, 626-27 (Mo.App.1990).

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

      . On appeal, there is no issue regarding Mother’s good faith in proposing a relocation.

      . We do not ignore those cases Mother cites in support of her argument. In relocation cases, however, the particular facts of a case must guide the decision rather than rigid applications of certain rules. Cullison, 51 S.W.3d at 511 [1]. For instance, Mother cites Weaver v. Kelling, 53 S.W.3d 610 (Mo.App.2001), wherein the trial court permitted a mother’s move to Texas even though the relocation would negatively affect the Father’s involvement in day-to-day activities and visits during the week. However, the original visitation schedule described therein was "hectic,” and the relocation was found to actually stabilize the visitation, thus promoting the children’s best interests. Id. at 615. That is not what the court found here; consequently, the Weaver case would be considered inappo-site even if we were to apply rigid applications of rules in relocation cases.

      .For instance, the father there refused to travel twenty miles to exercise visitation, did not call the child, and failed to write letters or send cards. Dorman, 91 S.W.3d at 168, 173.

      . The child in Dorman had never been away from his mother for more than a week, the mother was his primary caregiver, and the child interacted well with the stepfather. Id. at 173.

      . For instance, if the evidence showed that a stepfather ignored the child, never spoke to the child, and never interacted with the child, then the law certainly could not say that this relationship automatically overrode the significance of others.

      . We deem this to be merely a wish versus a necessity because Heaney testified that if relocation were not permitted, he would look for a job in Springfield in a different field in order to make an adequate living. Likewise, Mother could continue in her current job. It appears that the only reason Mother seeks relocation is for the benefit of Heaney, i.e., so he can keep his current job.

      . Those reasons are (1) Heaney could not find a job in Springfield, (2) there is "potential” for a better education in Ohio, (3) the children are "capable” of adjusting to the move, (4) Cincinnati offers "lots of cultural and entertainment opportunities,” and (5) staying in Springfield results in less stability.

      . As to Mother’s justifications, we note the following: (1) Heaney could find a job in Springfield, albeit not in his chosen profession; (2) the children receive an excellent education in Springfield; (3) children, in general, are "capable” of many things including adjusting to a new location, but the essential question is whether they should be forced to do so; and (4) Springfield offers "lots of cultural and entertainment opportunities” as does Cincinnati. Finally, we find that Mother’s fifth reason, i.e., staying in Springfield results in less stability, is frivolous.


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Morris Dwayne JACKSON, Appellant.
    No. WD 62608.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.

      Rosalynn Koch, State Public Defender Office, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Andrea Maza Follett, Officer of Attorney General, Jefferson City, for respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Morris Jackson appeals a jury verdict finding him guilty of second-degree statutory rape, section 566.084 RSMo 2000, of his girlfriend’s 14-year-old daughter. Jackson raises three points of error: (1) that the trial court erred in admitting as evidence the birth certificate of the victim’s child and a prior civil paternity judgment entered against Jackson; (2) that the date of Jackson’s trial was in violation of sections 217.450 and 217.460 RSMo (2000), because his trial took place more than 180-days after Jackson requested disposition of his case and thus, the court no longer had jurisdiction; and (3) the trial court erred by not intervening sua sponte when the prosecutor made certain comments during closing argument. We find the trial court retained jurisdiction over Jackson’s case, but that the State grossly misstated its burden of proof and the obligation of the jury during closing argument resulting in manifest injustice. Accordingly, we reverse Jackson’s conviction on plain error.

Facts and Procedural History

On May 31, 2002, a criminal complaint was filed against Morris Jackson. At the time the complaint was filed, Jackson was in prison serving a nine-year sentence on unrelated charges. Pursuant to section 217.450 of the Uniform Mandatory Disposition of Detainers Law (UMDDL), Jackson filed a Request for Disposition of Indictments, Informations, or Complaints on June 24, 2002, giving the State 180-days to bring him to trial. The Request referenced one count of forcible sodomy and one count of first-degree statutory rape. Over the following months the preliminary hearing was continued four times either by the court or the State.

The parties agree that under the UMDDL the 180-day period after Jackson’s request for disposition expired on December 21, 2002. After his indictment the trial court set the matter on its “trial request docket” on December 2, 2002, and scheduled an arraignment for December 9. The docket sheet indicates that on December 2, 2002, the case was set for trial on January 15, 2003. There is no indication that the State, the defendant, or his counsel appeared on that date (December 2), and it otherwise appears that the court was engaged in another jury trial that day. At arraignment on December 9, 2002, Jackson pleaded not guilty and the judge made reference to the January 15, 2002, trial date to which no objection was heard. The record does not reflect that the State at any time during this period advised the trial court of the UMDDL request or that the 180-day limitation period was running short. On December 27, 2002, Jackson filed a motion to dismiss the charge on grounds that the 180-day time period the State had to bring him to trial had expired. The trial court denied the motion to dismiss, and the case proceeded to trial on January 15, as scheduled.

The jury returned a verdict finding Jackson guilty of second-degree statutory rape. The trial court entered Sentence and Judgment on March 10, 2003, imposing a twelve-year sentence. Jackson appeals this judgment raising the three aforementioned points of error. We address Point II first because it is a jurisdictional question and decline to address Point I because we find Point III to be dispositive.

Discussion

The Trial Court Did Not Lose Jurisdiction Under the UMDDL

Jackson argues that the trial court lost jurisdiction over his case pursuant to section 217.450 of the Uniform Mandatory Disposition of Detainers Law, because the State did not bring him to trial within 180 days following receipt of his request for compliance with the UMDDL.

Section 217.450.1 of the UMDDL provides, “Any person confined in a department correctional facility may request a final disposition of any untried indictment, information or complaint pending in this state on the basis of which a detainer has been lodged against him while so imprisoned.” Jackson filed such a request on June 24, 2002. The State, then, had 180 days to bring Jackson to trial absent tolling of the limitation period. Section 217.460 RSMo (2000). Section 217.460 further provides that if the case is not brought to trial within the required time frame, “no court of this state shall have jurisdiction of such indictment, information or complaint, ... and the court shall issue an order dismissing the same with prejudice. ” (emphasis added). The parties agree that the 180th day after June 24, 2002, was December 21. Jackson’s trial took place more than three weeks later on January 15, 2003.

The 180-rday limit established by the UMDDL is “not absolute” and there are notable exceptions and tolling provisions to the 180-day requirement of Section 217.450.1. See State v. Coons, 886 S.W.2d 699, 701 (Mo.App.1994). For the purposes of this case, the most conspicuous exception arises when a defendant requests or acquiesces to a trial beyond the 180-day period. If a defendant acquiesces to a trial date beyond the 180-day period, the court does not lose jurisdiction and the statute is tolled. Kenneth-Smith v. State, 838 S.W.2d 113, 116 (Mo.App.1992); See also Lee v. State, 97 S.W.3d 9, 14 (Mo.App.2002). The State bears the burden of proving that the 180-day limitation period was properly tolled. State v. Laramore, 965 S.W.2d 847, 850 (Mo.App.1998).

A reading of the record reveals that the defendant acquiesced to the January 15, 2003, trial date (i.e., beyond the 180-day period) at a December 9, 2002, hearing. A portion of that transcript reads as follows:

[The Court]: State appears by Assistant Prosecuting Attorney Knight. Defendant appears in person and by Counsel Tom Marshall. Formal arraignment waived and pleas of not guilty entered. Cause transferred to trial request docket for setting at 9 a.m., December 16, 2002, Division I.
Okay.
[Mr. Marshall]: Thank you.
[The Court]: Wait a minute. That may already be set for trial, Mr. Marshall.
[Mr. Marshall]: Excuse me, Judge?
[The Court]: That’s already set for trial.
I’m sorry.
[Mr. Marshall]: When is it set, Judge?
[The Court]: Set for the 15th of January.
[Mr. Marshall]: Thank You.
(Hearing adjourned.)

The facts of this case are strikingly similar to those in Lee v. State, 97 S.W.3d 9 (Mo.App.2002), where the defendant’s trial date was set beyond the 180-day time limit. Id. at 12-13. The defendant was aware of the trial date and made no objection. Id. at 14. The Court of Appeals ruled that the defendant’s failure to object to the trial being scheduled beyond the 180-day deadline imposed by Section 217.460 constituted a waiver and tolled the statute. Id. at 14-15.

We find no reason or authority indicating a different conclusion is necessary in Mr. Jackson’s case. Jackson was given the opportunity in court to object to his trial date set after the 180-day period; he did not. As such, his failure to object to the trial date constituted a waiver and tolled the application of the statute. The trial court retained jurisdiction over Jackson’s case.

Point denied.

Closing Argument

Jackson argues in Points I and III respectively, that the trial court erred in admitting the civil paternity judgment and the birth certificate indicating that Jackson was the father of the victim’s child, and that the trial court erred when it failed to sua sponte intervene when the prosecution made certain remarks during closing argument. Although we question the prudence of using a civil judgment as evidence of statutory rape when biological evidence is available, we need not reach the issue because we find Jackson’s point regarding closing argument dispositive.

Jackson avers that the prosecution virtually eliminated its own burden of proof when it told the jury during closing argument that, “It is a matter of law. He is the father of that child,” and ‘You don’t really even have to worry about whether you’re making the right decision if you find him guilty because it’s already been decided.” These comments were in reference to the civil paternity judgment against Jackson which found that he was the biological father of the victim’s child. Jackson asks for plain error review of this issue recognizing that no objection was made during trial.

The plain error doctrine is a limited avenue for granting relief, especially on account of remarks made during closing argument. “Relief should rarely be granted on assertions of plain error as to closing argument because, in the absence of objection and request for relief, the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.” State v. Collins, 962 S.W.2d 421, 426 (Mo.App.1998) (quoting State v. Silvey, 894 S.W.2d 662, 670 (Mo. banc 1995)). An additional reason for not granting plain error in such situations is that “trial strategy looms as an important consideration in deciding whether to object and such assertions are generally denied without explanation.” Id. Finding plain error resulting from statements made during closing argument is so exceptional that relief is often denied without explanation, State v. Crowe, 128 S.W.3d 596, 600 (Mo.App.2004), and will only be granted if the defendant demonstrates that the improper remarks had a decisive effect on the verdict, State v. Jacobs, 939 S.W.2d 7, 11 (Mo.App.1997). Generally, such a “decisive effect” exists when a showing is made of a reasonable probability that, in absence of the remarks, the verdict would have been different. State v. Johns, 34 S.W.3d 93, 115 (Mo. banc 2000); State v. Roberts, 838 S.W.2d 126, 132 (Mo.App.1992).

Nevertheless, there is a threshold at which intentional misstatements made by a prosecutor during argument will amount to plain error. State v. Baldridge, 857 S.W.2d 243, 248 n. 2 (Mo.App.1993) (intentionally and materially misleading argument by prosecution may be grounds for reversal, even if reviewed only as plain error). Although finding plain error resulting from prosecutor remarks made during argument is extraordinary, it is by no means unprecedented. State v. Weiss, 24 S.W.3d 198, 203 (Mo.App.2000) (prosecutor’s purposeful misconduct in commenting on excluded evidence constituted plain error); State v. Zindel, 918 S.W.2d 239, 242-44 (Mo. banc 1996) (comment on defendant’s exercise of right to remain silent as evidence of his sanity was plain error); See also City of Cape Girardeau v. Jones, 725 S.W.2d 904 (Mo.App.1987); State v. Luleff, 729 S.W.2d 530 (Mo.App.1987); State v. Hammonds, 651 S.W.2d 537 (Mo.App.1983); State v. Davis, 566 S.W.2d 437 (Mo. banc 1978).

It hardly needs mention that there is a historical sanctity in the jury process that constitutes one of the most fundamental rights provided by our state and federal constitutions. Much law has developed both to protect this right, to ensure its fairness and operation, and to protect the-jury’s vitally independent role in the determination of guilt and innocence. A jury has a solemn, never trivial, duty in determining whether a defendant will be deprived of that most fundamental right, liberty. It is never proper nor constitutionally permissible to mislead a criminal jury about the nature of its-duty and obligation or, as we think happened here, tell the jury that it can disregard the court’s instruction about proof beyond a reasonable doubt. The statement, “You don’t even really even have to worry about whether you’re making the right decision if you find him guilty because it’s already been decided” was more than just a misstatement of law. It constituted a manifest injustice and entitling the defendant to a new trial.

The State contends that the prosecution made the comments in retaliation to certain defense counsel remarks during closing. To be sure, a prosecutor may retaliate to an issue raised by the defense in closing even if the prosecutor’s comment would otherwise be improper. State v. Clayton, 995 S.W.2d 468, 479 (Mo. banc 1999). Here Jackson’s attorney made comments during closing downplaying the significance of the paternity judgment. These comments were not improper and, therefore, did not “open the door” for retaliation.

Even in the event that a prosecutor’s fight to retaliate is triggered by improper comments by defense counsel, the prosecutor is not entitled to retaliate if the evidence does not support the prosecutor’s remarks. State v. Jones, 128 S.W.3d 110, 114 (Mo.App.2003).

In this case, not only were the prosecutor’s statements not supported by the evidence, they were patently false. Jackson’s criminal guilt had not “already been decided” and when the prosecutor asserted as such she overstepped any sensible boundaries of retaliation and committed a gross misrepresentation of the State’s burden of proof amounting to manifest injustice.

EDWIN H. SMITH, Chief Judge, and ROBERT G. ULRICH, Judge, concur.

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


author: ROBERT G. ULRICH, P.J.

text:
    JUVENILE OFFICER, Respondent, v. Stacy WARNER, Appellant.
    No. WD 63885.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.
    Lynn M. Ewing, III, Nevada, MO, for Respondent.
    Brian D. Webb, Independence, MO, for Appellant.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR. and JOSEPH M.ELLIS, JJ.
   ROBERT G. ULRICH, P.J.

Stacy Warner (Mother) appeals from a judgment/full order of child protection entered by trial court pursuant to the, Child Protection Orders Act, sections 455.500 to 455.538. She claims that the trial court erred in granting the order because (1) the order was issued for a period of time in excess of 180 days in violation of section 455.516, and (2) insufficient evidence was presented to support the order.. The judgment is affirmed.

Facts

Juvenile Officer filed a petition for order of child protection against Mother on December 31, 2003. The petition sought the protection of Mother’s minor child, who was almost five years old. It alleged that the child’s father and the child’s uncle had sexually abused her and that Mother, who initially separated the child from her father, had returned the child to the father’s home where the uncle was also residing. The petition also alleged that Mother had knowingly and intentionally sexually abused the child and inflicted emotional abuse on the child. The trial court issued an ex parte order of child protection the same day awarding custody of the child to her grandmother.

The trial court held a hearing on the petition on January 23, 2004, and Mother appeared pro se. On January 26, 2004, the trial court issued a full order of protection effective until January 22, 2005. The order provided that Mother shall not stalk, abuse, threaten to abuse, molest, or disturb the peace of the child and that Mother shall not enter the family home of the child nor have any contact with the child except by supervised visitation as authorized by Juvenile Officer. Thereafter, Mother filed a timely notice of appeal.

While this appeal was pending, Juvenile Officer filed a motion for renewal of full order of protection on July 1, 2004. The trial court renewed the full order of protection on September 2, 2004. However, on November 30, 2004, the trial court set aside the order of protection on Mother’s motion because notice of the hearing on the motion for renewal was not served on Mother. The trial court also entered an ex parte order pending hearing on the motion for renewal.

Standard of Review

This is a court-tried case. Appellate review of a court-tried case requires that the court’s judgment be affirmed unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In the Interest of R.T.T., 26 S.W.3d 830, 834 (Mo.App. S.D.2000).

Discussion

Juvenile Officer, through counsel, acknowledges that the trial court misapplied the law and exceeded its statutory authority when it ordered its restrictions applicable to Mother for a period of time of 361 days. Section 455.516.1 provides, in pertinent part, “if the petitioner has proved the allegation of abuse of a child by a preponderance of the evidence, the court may issue a full order of protection for a definite period of time, not to exceed one hundred eighty days.” Mother does not dispute that, although the order was for a time length greater than the law provides, the order was not void but legally effective for 180 days only. Thus, the trial court’s full order of protection expired by law on July 24, 2004, 180 days after its issuance.

Mother next asserts that no substantial evidence of abuse was presented to support the order. A threshold question, however, is whether this point is moot because the order of protection expired on July 24, 2004. “When an event occurs that makes a decision on appeal unnecessary or makes it impossible for the appellate court to grant effectual relief, the appeal is moot and generally should be dismissed.” Belton v. Moore, 112 S.W.3d 1, 5-6 (Mo.App. W.D.2003)(quoting State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998)). Several cases have dismissed an appeal from a full order of protection based on mootness where the order had expired and was not extended. See Hannah v. McCubbin, 21 S.W.3d 125, 126 (Mo.App. W.D.2000); McGrath v. McGrath, 939 S.W.2d 46, 47 (Mo.App. W.D.1997); Pope v. Howard, 907 S.W.2d 257, 258 (Mo.App. W.D.1995). In this case, however, Juvenile Officer attempted to extend the order when she filed a motion for renewal of full order of protection pursuant to section 455.516.1 on July 1, 2004, before expiration of the original order. Section 455.516.1 provides, in pertinent part, “Upon motion by either party, the guardian ad litem or the court-appointed special advocate, and after hearing by the court, the full order of protection may be renewed for a period not to exceed one hundred eighty days from the expiration date of the originally issued full order of protection.” The trial court renewed the full order of protection on September 2, 2004; however, the order was set aside because Mother did not receive notice of the hearing on the motion. The trial court then entered an ex parte order of protection pending hearing on the motion for renewal pursuant to section 455.516.1. The statute provides, in pertinent part, “If for good cause a hearing cannot be held on the motion to renew the full order of protection prior to the expiration date of the originally issued full order of protection, an ex parte order of protection may be issued until a hearing is held on the motion.” § 455.516.1. Because Juvenile Officer filed a motion for renewal of full order of protection before the expiration of the original order and the motion is currently pending, this appeal is not moot. Thus, Mother’s second point is considered.

For a trial court to issue a full order of protection, the petitioner must prove the allegation of abuse of a child by a preponderance of the evidence. § 455.516.1. Abuse is defined in the Child Protection Orders Act as “any physical injury, sexual abuse, or emotional abuse inflicted on a child other than by accidental means by an adult household member, or stalking of a child. Discipline including spanking administered in a reasonable manner shall not be construed to be abuse.” § 455.501(1).

In her petition, Juvenile Officer alleged that Mother sexually abused the child and inflicted emotional abuse on the child when she returned the child to the home of the child’s father and the child’s uncle, both of whom were alleged to have sexually abused the child. At the hearing on the petition, Juvenile Officer withdrew her allegation that Mother had sexually abused the child and proceeded on the theory that Mother subjected the child to emotional abuse by returning her to the home of her father. Juvenile Officer presented the testimony of two witnesses, Mother and Tracy Clements-Pierce, a licensed professional counselor who completed a forensic evaluation of the child after she disclosed that her father and her uncle had sexually molested her. First, Mother testified that in April 2003 as she was bathing the child, she noticed that the child’s vaginal area was red. The child told Mother that her daddy had touched her with baby wipes. Mother took the child to the doctor the next day, and the child again told the doctor that her father had touched her. The doctor called the DFS, hotline. A SAFE exam was performed as well as a forensic evaluation to gain additional information and assess the credibility of the child. Mother also obtained an order of protection for the child against the child’s father.

Mother further testified that she eventually “dropped” the protective order because the child’s father did not sexually abuse the child. She also testified that she and the child were at the home of the child’s father on several occasions in late December 2003. Finally, Mother stated that she no longer believes that the child’s father sexually abused the child because child does not fear her father, wants to be with him, and loves him. She indicated that she plans to continue to allow the child’s father to have contact with the child.

Next, Ms. Pierce testified that during the forensic evaluation, the child disclosed to her that her father’s penis had touched her rectum, that her father had touched her genitals with a baby wipe, and that she had touched her father’s penis with her hand. Ms. Pierce also testified that based on her interview of the child and several tests conducted during the evaluation, she determined that the child had been sexually abused. Finally, Ms. Pierce testified that it is not uncommon for a child who has been sexually abused by a parent to want to spend time with that parent.

The evidence presented supports Juvenile Officer’s allegation that Mother returned the child to the home of the child’s father. Uncontroverted evidence was presented that the child’s father had sexually abused her, and the trial court believed the evidence. .Mother contends that while such evidence might support a finding of neglect to invoke an investigation by DFS or a juvenile court proceeding, it did not rise to the level of abuse to support the trial court’s judgment in this case. Mother’s contention is wrong. By allowing the child’s father to have contact with the child, Mother subjects the child to further sexual abuse by the father. Sexual abuse of the child would necessarily result in her emotional distress, and subjecting the child to the reasonable probability of sexual abuse is to subject the child to the reasonable probability of emotional abuse. Providing an opportunity for the child’s father to further sexually abuse the child constitutes subjecting the child to emotional abuse. Therefore, substantial evidence of abuse was presented to support the trial court’s full order of protection.

The judgment of the trial court is affirmed.

SMART, J. and ELLIS, J. concur.

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

      . A petition seeking the protection of the minor child was also filed against Mother’s husband, the child’s father, Jeremy Warner, which is not the subject of this appeal.

      . The petition form used by the court requires the petitioner to check one of four boxes coinciding with the definition of abuse and provide a narrative of the acts constituting the abuse alleged. As discussed, Juvenile Officer checked the boxes for sexual abuse and emotional abuse. At the hearing, Mother questioned the allegations. The county prosecutor, representing Juvenile Officer explained,
      Well, let me address that, Judge. And — ■ And that is, as the Court is aware, a check-box on the form. And the petition then asks, in the next box, for a recitation of the facts that give rise to the claim. I think the Petitioner admits that the box should not have been checked. The Court should consider only the narrative as set forth in the next paragraph which describes only Ms. Warner’s conduct in allowing continued contact with her husband.
      It is unclear in counsel’s explanation which box Juvenile Officer admits should not have been checked. Nevertheless, Juvenile Officer maintained her allegations in the narrative, which specifically provided,
      [The child] had related to her mother and to a therapist that she had been sexually abused by her father and uncle while in the care of her father and or her mother Stacy Jo Warner prior to April 2003. Stacy Jo Warner filed a child protection action at that time and separated the children from that environment. She has now returned her children to the home of Jeremy Warner where he resides with his brother Chris, who is the uncle alleged to have abused [the child] also.
      This narrative was sufficient to allege emotional abuse by Mother.


text:
    Shane Adam HAHN, Respondent, v. Teesha Ann Marie HAHN; Defendant Department of Social Services, Family Support Division, State of Missouri, Appellant.
    No. WD 64087.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.
    Sarah Mclean, Kansas City, MO for Appellant.
    Shane A. Hahn, Bates City, MO, Respondent Pro Se.
    Wendell Geary Jaco, Kansas City, MO, for Defendant.
    Before PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

The Missouri Department of Social Services, Family Support Division (State) appeals the trial court’s judgment reducing Mr. Shane Hahn’s obligation to reimburse the State for public-assistance benefits paid on behalf of his dependent children.

For the reasons set forth in the memorandum provided to the parties, we affirm the trial court’s judgment. Rule 84.16(b).