author: Justice KELLER.

text:
    Ismael GUTIERREZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-130-MR.
    Supreme Court of Kentucky.
    May 19, 2005.
    Karen Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Tami Allen Stetler, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice KELLER.

I. INTRODUCTION

Appellant, Ismael Gutierrez, was convicted of Murder, Unauthorized Use of a Motor Vehicle, First-Degree Burglary, Tampering with Physical Evidence, and Violation of a Domestic Violence Order (DVO), and he was sentenced to sixty years in prison. He claims that the trial court erred in its decision to allow the Commonwealth to use the violation of the DVO as a substantive charge and as an aggravating circumstance in the Murder charge. Because the validity of the DVO was not subject to challenge in this case, the trial court did not commit error in admitting this evidence, and we affirm Appellant’s convictions.

II. BACKGROUND

On April 5, 1998, Appellant choked and threatened to kill Alma Roque, his wife. Police responded to a call for help, and Appellant was charged with Fourth-Degree Assault. As a condition of bail, Appellant consented to a “no contact” order, which required Appellant not to have any contact with Roque while awaiting a hearing on the assault charge.

The following day, April 6, 1998, the Trimble District Court issued an emergency protective order (EPO). A hearing on the EPO was held on April 7, 1998, at which time the district judge reviewed the officer’s report and heard testimony from the victim, Alma Roque, concerning the assault on April 5, 1998. The district judge granted a continuance on the assault charge, but left the “no contact” order in effect. Appellant agreed to a continuation of the “no contact” order. Also, at that time, the district judge issued a domestic violence order (DVO), and Appellant confirmed that he understood both the order itself and the consequences of violating the order.

On May 26, 1998, Appellant pled guilty to the assault charge. The court accepted Appellant’s plea, which required him to pay a $100 fine and to pay for damage to Roque’s apartment. Also, Appellant agreed, pursuant to the DVO, not to have any contact with Roque.

On June 3, 1998, less than two months after the issuance of the EPO, Appellant entered Roque’s home and stabbed her to death. He was subsequently indicted for Murder, Theft by Unlawful Taking (Class D felony), First-Degree Burglary, Tampering with Physical Evidence, and Violation of a DVO. Appellant filed a motion to exclude violation of the DVO as the aggravating circumstance on the Murder charge. Based on the Commonwealth’s argument that the DVO was a civil order, not a criminal judgment, the trial court overruled Appellant’s motion to exclude evidence of the DVO.

The jury did not find Appellant guilty of Theft by Unlawful Taking, but instead it found him guilty of the lesser-included offense of Unauthorized Use of a Motor Vehicle. The jury, however, convicted Appellant on all of the other charges. The jury recommended fifty years for Murder, one year for Unauthorized Use of a Motor Vehicle, ten years for First-Degree Burglary, three years for Tampering with Physical Evidence, and one year for Violation of a DVO. The jury recommended that the sentences for Murder and Firsts Degree Burglary run consecutively and that the sentences for the other charges run concurrently, for a total sentence of sixty years imprisonment. The trial court sentenced Appellant in accordance with the jury’s recommendation. Appellant appeals to this Court as a matter of right.

III. ANALYSIS

Appellant claims that because the DVO was not valid, the trial court committed reversible error in admitting evidence of the DVO, both as an aggravating circumstance and as a separate substantive offense. We disagree.

The validity of a DVO must be challenged, if at all, prior to its violation or to its use as an aggravating circumstance. Although there is no Kentucky case law dealing directly with the issue before us, we can analogize the validity of a DVO, as a civil order, to an injunction. In Goodman v. Kentucky Board of Dentistry, the Court of Appeals, in upholding the trial court finding the appellant in contempt for violation of an injunction and sentencing him to sixty days in jail, held — and we believe rightfully so — that “[wjhether an injunction order is right or wrong, it is the duty of the party bound by the injunction to obey it so long as the injunction remains in effect.” Furthermore, “[i]t is almost unanimously agreed that if the defendant desires to attack the order or the decree as erroneous, he must do so, not by disregarding or violating it and then setting the eiTor up as a defense to a charge of contempt, but by a direct attack thereon by appeal or a motion to set it aside. He cannot attack it collaterally ....” In this case, Appellant did not challenge the DVO by direct attack in the proceedings in which it was issued, but rather he violated the order and then raised the issue of the validity of the DVO in his trial on criminal charges.

In effect, Appellant is asking this Court to rule that a collateral attack on the validity of a civil order in a subsequent prosecution for violation of that order is permissible. Such an approach to the validity of the DVO is contrary to our prior cases involving the validity of other civil orders and, consequently, must be rejected as a proper method of challenging the DVO. In fact, the only situation in which a collateral attack upon the validity of a court order during the prosecution for violation of that order is appropriate is when the issuing court lacked subject matter or personal jurisdiction. Here, however, the Trimble District Court had jurisdiction to issue the DVO. Therefore, any attempt to attack the validity of the DVO during the prosecution in circuit court for the murder charge or for violation of the order is barred.

Whether the validity of a DVO may be challenged when it is offered to prove an aggravating circumstance in a capital murder prosecution or to prove the criminal charge of violation of a protective order is also analogous to an issue that has been previously addressed by this Court in the context of a criminal proceeding, i.e., whether an underlying conviction offered to prove persistent felony offender (PFO) status may be collaterally challenged. In McGuire v. Commonwealth, this Court held that “[t]he PFO enhancement statute is similarly lacking in ‘any indication’ the General Assembly ‘intended to permit collateral attacks on prior convictions used for sentence enhancement purposes.’ ” We stated that “[t]he U.S. Supreme Court decision in Custis [v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994),] applies to proof of PFO status in the present case. KRS 532.080(2) and (3) require proof of the fact of ‘previous felony convictions’ and not their underlying validity.” Thus we held that “Kentucky trial courts are no longer required to conduct a preliminary hearing into the constitutional underpinnings of a judgment of conviction offered to prove PFO status unless the defendant claims ‘a complete denial of counsel in the prior proceeding.’ ” Of course, the right to counsel is not afforded in a civil case such as a DVO hearing.

We hold that proof of the underlying validity of a DVO is not required when the DVO is offered as evidence in other proceedings and thus it is not subject to collateral attack in those proceedings. Therefore, the validity of a DVO is not á proper subject of inquiry when it is offered as proof of an aggravating circumstance in a capital murder prosecution or to prove the criminal violation of the DVO. Accordingly; we hold that the trial court did not commit error in admitting evidence of the'DVO.

IV. CONCLUSION

Because proof of the validity of the DVO was not required, the trial court properly admitted evidence of the DVO to prove an aggravating circumstance of murder and to prove the charge of Violation of DVO. Accordingly, we affirm Appellant’s convictions.

All concur.

      . The trial court properly instructed the jury that the punishment for the two misdemeanor charges, Unauthorized Use of a Motor Vehicle and Violation of a DVO, was not to exceed twelve months in jail; however, the jury— obviously not understanding the difference between a twelve-month sentence and a one-year sentence — recommended sentences of "1 year” for each of these charges. The trial court properly sentenced the defendant to twelve months on these charges.

      . KY. CONST. § 110(2)(b).

        . See Leibson v. Taylor, 721 S.W.2d 690, 692 (Ky.1986), overruled on other grounds by Shaffer v. Morgan, 815 S.W.2d 402 (Ky.1991).

      . See P.H. Vartanian, Annotation, Right to Punish for Contempt for Failure to Obey Court Order or Decree Either Beyond Power or Jurisdiction of Court or Merely Erroneous, 12 A.L.R.2d 1059, at § 41[b] (1950, updated as April 28, 2005).

      . 823 S.W.2d 944 (Ky.App.1991).

      . Id. at 945.

      . P.H. Vartanian, Annotation, Right to Punish for Contempt for Failure to Obey Court Order or Decree Either Beyond Power or Jurisdiction of Court or Merely Erroneous, 12 A.L.R.2d 1059, at § 41[a] (1950, updated as April 28, 2005).

      . 885 S.W.2d 931 (Ky.1994).

      . Id. at 937 (quoting Custis v. United States, 511 U.S. 485, 493 114 S.Ct. 1732, 1737, 128 L.Ed.2d 517 (1994)).

      . Id.

      . Id. (quoting Custis, 511 U.S. at 493, 114 S.Ct. at 1737).

      . See May v. Coleman, 945 S.W.2d 426, 427 (Ky.1997) ("It is now elementary that an indigent criminal defendant is entitled to appointment of counsel in any proceeding in which he could be sentenced to a term of imprisonment. We have extended that right to civil contempt proceedings where imprisonment is a potential punishment. If a prisoner fails to defend a civil action brought against him, a guardian ad litem must be appointed for him before judgment may be entered.... Except in these limited circumstances, there is no constitutional right to counsel in a civil case.”).


source: Caselaw Access Project

author: Justice COOPER.

license: Public Domain

text:
    Larry HOWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee, and Commonwealth of Kentucky; Commonwealth’s Attorney’s Office for the Sixteenth Judicial Circuit; and Northern Kentucky Drug Strike Force, Appellants, v. Douglas M. Stephens, Judge, Kenton Circuit Court (Second Division); Department of Public Advocacy, Commonwealth of Kentucky; Larry E. Howell; and Finance and Administration Cabinet, Commonwealth of Kentucky, Appellees,
    No. 2002-SC-1064-MR, 2003-SC-0219-TG.
    Supreme Court of Kentucky.
    May 19, 2005.

      Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant Larry Howell (2002-SC-1064-MR).
    Gregory D. Stumbo, Attorney General, David A. Smith, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee Commonwealth of Kentucky (2002-SC-1064-MR).
    Gregory D. Stumbo, Attorney General, David A. Smith, Kent T. Young, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellants Commonwealth of Kentucky; Commonwealth’s Attorney’s Office for the Sixteenth Judicial Circuit; and Northern Kentucky Drug Strike Force (2003-SC-0219-TG).
    Douglas Stephens, pro se, Judge, Kenton Circuit Court, Covington, Counsel for Appellee Douglas M. Stephens, Judge, Kenton Circuit Court (Second Division) (2008-SC-0219-TG).
    Larry D. Beale, Department of Public Advocacy, Frankfort, Dennis Stutsman, Lexington, Counsel for Appellee Department of Public Advocacy, Commonwealth of Kentucky (2003-SC-0219-TG).
    Larry E. Howell, pro se, Luther Luckett Correctional Complex, La Grange, Counsel for Appellee Larry E. Howell (2003-SC-0219-TG).
    M. Holliday Hopkins, Finance and Administration Cabinet, Frankfort, Counsel for Appelee Finance and Administration Cabinet, Commonwealth of Kentucky (2003-SC-0219-TG).
   Opinion of the Court by

Justice COOPER.

On October 30, 2002, a Kenton Circuit Court jury convicted Appellant, Larry Howell, of trafficking in a controlled substance in or near a school, KRS 218A. 1411, and of unlawful transaction with a minor in the , second degree, KRS 530.065, both Class D felonies, and of being a persistent felony offender in the first degree (PFO I), KRS 532.080(3). By final judgment of November 13, 2002, Appellant was sentenced to twenty years imprisonment. On December 11, 2002, Appellant appealed to this court from that judgment as a matter of right, Ky. Const. § 110(2)(b), asserting reversible error due to: (1) pros-ecutorial misconduct during voir dire and opening statement; and (2) failure to dismiss the PFO I count when the Commonwealth failed to prove by competent evidence that Appellant was over the age of eighteen at the time of his commission of a prior offense essential to the charge.

Following the conviction, the Commonwealth moved the trial court, pursuant to KRS 218A.410(l)(j), to order the forfeiture of $4,674.00 found in Appellant’s possession during a search of his residence. On January 30, 2003, the trial court entered an order forfeiting and allocating the disbursement of that money. Appellant Howell asserts that the order of forfeiture violated his right to due process and his right to be free from excessive fines. However, he neither appealed from the order of forfeiture nor cross-appealed from the Commonwealth’s appeal from that order; thus, we are without jurisdiction to address whether the forfeiture, itself, was improper. United Bonding Ins. Co. v. Commonwealth, 461 S.W.2d 535, 536 (Ky.1970). We note that other courts have held in very similar circumstances that the failure to file a notice of appeal from a post-conviction forfeiture order is fatal. United States v. Casas, 999 F.2d 1225, 1230-32 (8th Cir.1993) (where forfeiture was ordered after sentence was imposed, and defendants only appealed from the imposition of the sentence, the court had no jurisdiction to consider challenges to the forfeiture orders); United States v. Kopituk, 690 F.2d 1289, 1343 (11th Cir.1982) (where forfeiture was ordered in a RICO action, the defendants “were required to file a separate notice of appeal from the [post-conviction] forfeiture judgment”). Thus, we cannot consider Appellant’s claims that the forfeiture order violated his rights under the Due Process and Excessive Fines Clauses.

The Commonwealth timely appealed to the Court of Appeals from the order of forfeiture insofar as it allocated portions of the forfeited funds to court costs, to the Department of Public Advocacy (D.P.A.) for attorney fees, and to the Finance and Administration Cabinet for reimbursement of expenses ordered for Appellant’s defense, instead of allocating all of the forfeited funds to Northern Kentucky Drug Strike Force and the Commonwealth’s attorney for the sixteenth judicial circuit. Inexplicably, the Northern Kentucky Drug Strike Force and the Commonwealth’s attorney were named as additional appellants and the trial judge, the D.P.A., and the Finance and Administration Cabinet were named as additional appellees. Only parties of record in the underlying action have standing to appeal, Bartholomew v. Paniello, 287 S.W.2d 616, 617 (Ky.1956), and an appeal may only be taken against parties of record in the underlying action. White v. England, 348 S.W.2d 936, 937 (Ky.1961). However, the Commonwealth has standing to contest the allocation of the forfeited money since it was the party that requested the forfeiture. We granted transfer from the Court of Appeals and consolidated the Commonwealth’s appeal with Appellant Howell’s appeal. We now affirm Appellant’s convictions but reverse and remand for a new penalty phase of his trial because improper evidence was used to prove that he was a PFO I. We also reverse the trial court’s allocation of the forfeited money and remand for allocation pursuant to KRS 218A.435(12).

After receiving complaints about Appellant’s drug activity, Detective Robert Scroggins of the Northern Kentucky Drug Strike Force set up surveillance outside of Appellant’s residence. The surveillance lasted approximately two months and produced. only evidence that many people came and went from the house. Scroggins then conducted a “trash pull,” in which he searched Appellant’s garbage for evidence of drug use. Scroggins found evidence of marijuana use and thereafter obtained a search warrant to search Appellant’s residence. The search led to the discovery of eight plastic bags of marijuana hidden in a cinder block wall on the side of Appellant’s house. The police also seized $4,674.00 in cash, which they found in Appellant’s wallet.

G.J., a 17-year-old male, testified that while riding in Appellant’s truck to Cov-ington, Appellant asked him if he was interested in purchasing marijuana. G.J. responded affirmatively and thereafter purchased a “dime bag” of marijuana from Appellant. This occurred again on a separate occasion approximately one year after the first incident. These incidents were the bases for Appellant’s convictions of unlawful transaction with a minor in the second degree and trafficking in a controlled substance in or near a school. G.J. further testified that on two other occasions, Appellant gave him an ounce of marijuana as a free sample.

I. PROSECUTORIAL MISCONDUCT.

Appellant first contends he is entitled to reversal for a new trial because the prosecutor (1) persistently attempted to define the term “reasonable doubt” during voir dire and (2) engaged in improper argument during opening statement. When considering allegations of prosecutorial misconduct we must determine whether the misconduct was so egregious that it denied the accused his constitutional right to due process of law. Slaughter v. Commonwealth, 744 S.W.2d 407, 411 (Ky.1987). “The required analysis ... must focus on the overall fairness of the trial, and not the culpability of the prosecutor.” Id. at 411-12.

During voir dire, the prosecutor told the prospective jurors a story about a colleague of hers who had interviewed a juror in a previous case to discover why he had not returned a verdict of guilty in that case. The juror explained that he had “a doubt” about the crime. Thereafter, the prosecutor, over several objections, persisted in distinguishing between “a doubt” and the prosecution’s burden of proving a case “beyond a reasonable doubt.”

Kentucky law clearly prohibits courts or attorneys from attempting to define “reasonable doubt” at any stage in a trial. RCr 9.56(2); Commonwealth v. Callahan, 675 S.W.2d 391, 393 (Ky.1984) (“trial courts shall prohibit counsel from any definition of ‘reasonable doubt’ at any point in the trial”). The Commonwealth’s assertion that Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), abrogates this rule in any way is without merit. Victor merely held that the “beyond a reasonable doubt” standard was constitutionally required. Id. at 5, 114 S.Ct. at 1243. The Court stated that the United States Constitution does not require trial courts to define the term “reasonable doubt” nor does it prohibit them from doing so. Id. Kentucky law, on the other hand, specifically prohibits such conduct.

It is doubtful that the prosecutor’s conduct here rose to the level of a violation of Callahan. Compare Simpson v. Commonwealth, 759 S.W.2d 224, 226 (Ky.1988) (“In all of those cases [where this Court found an impermissible attempt to define ‘reasonable doubt’], some attempt was made to use other words to convey to the jury the meaning of ‘beyond a reasonable doubt.’ In this case, there was no such effort.”) But even if a violation occurred, the trial court sustained defense counsel’s objections and admonished the jury that the standard was “reasonable doubt.” Appellant never moved for a mistrial. A party is under a duty to make “known to the court the action [he] desires the court to take ....” RCr 9.22; Jenkins v. Commonwealth, 477 S.W.2d 795, 797-98 (Ky.1972). “[F]ailure to move for a mistrial following an objection and an admonition from the court indicates that satisfactory relief was granted.” West v. Commonwealth, 780 S.W.2d 600, 602 (Ky.1989).

Appellant also asserts that the prosecutor engaged in inappropriate argument during the Commonwealth’s opening statement. Rather than stating what the evidence would show, she referred to Appellant as “that man” who “fed on these children’s weaknesses” and “took something away from these children.” While the foregoing statements are, indeed, more in the form of argument than a statement of the evidence, the trial court sustained defense counsel’s objections and admonished the prosecutor that “this is opening statement.” No further relief was requested; thus, we assume the relief granted was satisfactory. West, 780 S.W.2d at 602.

II. PENALTY PHASE EVIDENCE.

During the penalty phase of the trial, the Commonwealth attempted to prove that Appellant was a persistent felony offender in the first degree (PFO I). The PFO I statute requires the Commonwealth to prove, inter alia, that the offender has committed two previous felonies and was eighteen years of age or older at the time he committed both prior offenses. KRS 532.080(3). The failure to prove the age of the defendant at the time the previous offenses were committed is fatal. Tyler v. Commonwealth, 805 S.W.2d 126, 128 CKy.1991).

Christy Feldman of the Department of Corrections was the witness who attempted to prove Appellant’s status as a PFO I. She testified from Department of Corrections’ records that Appellant’s date of birth was March 7, 1961, and from the certified records of the Campbell Circuit Court, indictment number 80-CR-166, that he was convicted of burglary in the third degree, a Class D felony, on March 19, 1981. However, the Campbell Circuit Court records did not include a copy of the indictment or any other information identifying the date of the offense. Over Appellant’s objection, Feldman testified that a document “in her file” (not further identified, presumably Department of Corrections’ records), stated that the offense occurred on November 11, 1980. She then testified that the certified records of the Kenton Circuit Court, indictment number 84-CR-150, showed that Appellant was convicted on January 28, 1985, of burglary in the second degree, a Class D felony, and that the date of the offense listed in the indictment was January 11, 1984, at which time Appellant was prima facie over the age of eighteen. Appellant’s motion to dismiss the persistent felony offender indictment for insufficiency of the evidence was overruled.

In Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky.1991), the Commonwealth attempted to prove the defendant’s status as a PFO through the testimony of a Kentucky State Penitentiary records office supervisor, who testified directly from the Bureau (now Department) of Corrections’ resident record cards. Montgomery held that such evidence was insufficient because:

[T]he Bureau of Corrections has no direct or official responsibility in recording or compiling data regarding the underlying conviction, and there is no circumstantial guarantee of trustworthiness accompanying the transmittal and recording of such information at the Bureau of Corrections. On the contrary, the court clerk’s file is the official repository of such data.

Id. at 719. Thus, while the Commonwealth could prove Appellant’s date of birth by -extrinsic evidence, id.; Hayes v. Commonwealth, 698 S.W.2d 827, 831 (Ky.1985), it could not prove the date of the commission of the first offense by an unidentified document contained in the Department of Corrections’ file.

We held in Martin v. Commonwealth, 13 S.W.3d 232 (Ky.1999), that direct proof of - a particular PFO element was not required if there was evidence from which a jury could reasonably infer the existence of that element, e.g., that the defendant completed service of the sentence imposed on any of the previous felony convictions within five years prior to the date of the commission of the felony for which he now stands convicted. Id. at 235. However, there is no competent evidence in this case creating an inference that Appellant was at least eighteen years of age when he committed the offense of which he was convicted on March 19,1981. All we know is that the Campbell Circuit Court file bears a 1980 indictment number (and no explanation was given as to the significance of that fact). Appellant turned eighteen on March 7, 1979; thus, the offense could well have been committed while he was still a juvenile. Hayes, 698 S.W.2d at 831.

The Commonwealth asserts that Appellant should be barred from raising this issue by the doctrine of collateral es-toppel. After the second conviction in 1985, Appellant’s sentence was also subjected to PFO I enhancement. The Commonwealth presumes that the 1981 conviction was used in that enhancement and, thus, that Appellant is estopped to now claim that conviction is not available for enhancement. Howard v. Commonwealth, 777 S.W.2d 888, 889 (1989). However, Feldman did not testify that the 1981 conviction was used to enhance the 1985 conviction and did testify that Appellant had additional prior convictions other than the two relied upon for PFO I enhancement in this case. The certified copy of the Kenton Circuit Court record was not filed as an exhibit and is not in this record. Because of the uncertainty as to which convictions were used to enhance Appellant’s 1985 conviction, the doctrine of collateral estoppel does not bar Appellant from challenging the use of his 1981 conviction now.

We therefore reverse and remand for a new penalty phase trial, requiring only that upon retrial the Commonwealth sustain the persistent felony offender charges by competent evidence, which includes reasonable inferences therefrom. Martin, 13 S.W.3d at 235; Montgomery, 819 S.W.2d at 719-20; cf. Osborne v. Commonwealth, 43 S.W.3d 234, 245 (Ky.2001) (reversal on grounds of inadmissible evidence does not equate with reversal on grounds of insufficient evidence).

III. ALLOCATION OF FORFEITED FUNDS.

The Circuit Court ordered that, from the $4,674.00 in funds seized from the Appellant, the statutory court costs first be paid, then $1,500.00 be paid to the D.P.A. as reimbursement for Appellant’s defense, and then $1,500.00 be paid to the Finance and Administration Cabinet as reimbursement for expenditures ordered for Appellant’s defense. The Court then ordered the remainder of the funds to be paid pursuant to KRS 218A410.

The Commonwealth asserts that this allocation was erroneous, arguing that KRS 218A.435(12) provides for the distribution of all of the money forfeited in this case:

Other provisions of the law notwithstanding, the first fifty thousand dollars ($50,000) of forfeited coin or currency ... shall not be paid into the [asset forfeiture trust] fund but ninety percent (90%) shall be paid to the law enforcement agency or agencies which seized the property to be used for direct law enforcement purposes and ten percent (10%) to the office of the Commonwealth’s attorney or county attorney who has participated in the forfeiture proceeding.

(Emphasis added.) Because one hundred percent of the entire $4,674.00 is earmarked by KRS 218A.435(12), the Commonwealth argues that there is no basis for appropriating any amount of the forfeited money to any agency other than those specified by that statute. We agree.

In disbursing the funds in the manner that it did, the Circuit Court relied on KRS 31.211(1), which provides:

At arraignment, the court shall conduct a nonadversarial hearing to determine whether a person who has requested a public defender is able to pay a partial fee for legal representation, the other necessary services and facilities of representation, and court costs.... This partial fee determination shall be made at each stage of the proceedings.

In essence, the court attempted to effectuate a partial fee reimbursement. The D.P.A. argues that the court first made a determination that Appellant Howell had the ability to pay for his legal representation pursuant to KRS 31.211. The court then allotted monies belonging to Howell first to pay for his legal representation and expenses, then to the Commonwealth pursuant KRS 218A.410(l)(j). This argument, however, is premised upon the flawed assumption that illegal drug proceeds are a defendant’s property. To the contrary, title to all property forfeited under KRS 218A.410 vests in the Commonwealth at the time of the illegal act. As such, KRS 31.211(1) could not apply.

This concept is known as the “relation-back” doctrine. The seminal case regarding the relation-back doctrine with respect to forfeitures is United States v. Stowell, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 555 (1890), in which the United States Supreme Court addressed when the government’s rights would vest under the federal forfeiture statutes then in effect. The Court held that such rights vest on the date of the illegal activity:

[T]he forfeiture constitutes a statutory transfer of the right to the United States at the time the offense is committed; and the condemnation, when obtained, relates back to that time, and avoids all intermediate sales and alien-ations, even to purchasers in good faith.

Id. at 17, 10 S.Ct. at 247 (emphasis added).

This common-law doctrine has been codified in Kentucky. KRS 218A.410(2) provides:

Title to all property, including all interests in the property, forfeit under this section vests in the Commonwealth on the commission of the act or omission giving rise to forfeiture ... together with the proceeds of the property....

The statute protects only “subsequent bona fide purchaser[s] for value without actual or constructive notice of the act or omission giving rise to the forfeiture.” Id. As such, other creditors, including state agencies, may not claim any part of the funds if the government successfully obtains forfeiture. See United States v. Trotter, 912 F.2d 964, 966 (8th Cir.1990) (criminal fine assessed by the court could not be paid with assets already involved in a civil forfeiture proceeding); Eggleston v. Colorado 873 F.2d 242, 248 (10th Cir.1989) (sales tax liens could not be paid with forfeiture- funds); State v. Freeman, 814 P.2d 147, 153 (Okla.1991) (criminal fine and court costs could not be paid with proceeds from civil forfeiture action).

The Circuit Court expressly found that the $4,674.00 seized from Appellant Howell’s home was the product of his illegal drug activity and was therefore subject to forfeiture pursuant to KRS 218A.410(l)(j). As such, the circuit court then had a duty to order forfeiture of all the proceeds. The fact that KRS 218A.410(1) uses the language, “subject to forfeiture,” does not imply that an order of forfeiture is discretionary. Compare United States v. Currency Totalling $48,318.08, 609 F.2d 210, 213 (5th Cir.1980) (doctrine of relation back did not apply where the statute was found to provide for only a possibility of subsequent forfeiture). First, the opening sentence of KRS 218.410(2) dictates that a defendant’s rights in property “subject to forfeiture” are divested immediately upon the illegal act or omission, and not at some future time. Second, the use of the term “shall” in both subsections (2) and (3) of KRS 218A.410 indicates that the legislature intended the statute to be mandatory. KRS 446.010(29). Subsection (2) states, “Any property or proceeds subsequently transferred to any person shall be subject to forfeiture and thereafter shall be ordered forfeited” (emphasis added), and subsection (3) states, “If any of the property described in this section cannot be located ... the court shall order the forfeiture of any other property of the defendant up to the value of any property subject to forfeiture under this section.” (Emphasis added.) The language “subject to forfeiture” is used in this statute merely to give notice of the scope of property that shall be forfeited. See Eggleston, 873 F.2d at 246.

Because the trial court was required to order forfeit all property that it found “subject to forfeiture” under KRS 218A.410(1), and because the Commonwealth, not Appellant Howell, had title to the forfeited currency at all relevant times, the court had no option to use any part of that currency to reimburse the costs of Appellant’s defense.

Accordingly, we affirm Appellant’s convictions but reverse and remand this case to the Kenton Circuit Court for a new penalty phase trial, and with direction to distribute the forfeited funds of $4,674.00 in accordance with KRS 218A.435(12).

All concur.

      . G.J testified that a "dime bag” is the street term for ten dollars worth of marijuana.


author: PER CURIAM.

text:
    Shawn BARR, et al., Plaintiffs, Jeffrey Yarmak, Appellant, v. SPRINT CORP., et al., Defendants, George A. Barton and Law Offices of Herbert Hafif, Respondents.
    No. WD 61739.
    Missouri Court of Appeals, Western District.
    March 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2005.
    Application for Transfer Denied June 21, 2005.
    Dennis Owens, Kansas City, MO, for appellant.
    George A. Barton, Kansas City, MO, for respondent.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Jeffery Yarmak appeals the trial court’s judgment in favor of the Law Office of Herbert Hafif and the Law Office of George A. Barton, P.C. on the law firms’ motion to enforce an attorney’s lien. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    Phillip Jeffrey STILWELL, Appellant, v. Jill Marie STILWELL, Respondent.
    No. WD 63882.
    Missouri Court of Appeals, Western District.
    March 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2005.
    Application for Transfer Denied June 21, 2005.
    Dennis J. Campbell Owens, Kansas City, MO, for Appellant.
    Michele C. Puckett-Burkhead, Cameron, MO, for Respondent.
    Before PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Philip J. Stilwell appeals the trial court’s dissolution of marriage judgment that divided the assets, debts, and awarded attorney’s fees.

For the reasons set forth in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. David J. DAVIS, Appellant.
    No. WD 63621.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Kent Denzel, State Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, and Stephanie Morrell, Office of Attorney General, Jefferson City, for Respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge.
   ORDER

David J. Davis appeals the circuit court’s judgment convicting him of first-degree assault. We affirm. Rule 30.25(b).


author: PATRICIA L. COHEN, Presiding Judge.

text:
    THE MEDVE GROUP, Respondent, v. Elaine D. SOMBRIGHT, Appellant.
    No. ED 84034.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 16, 2005.

      Drew C. Baebler, St. Louis, MO, for appellant.
    Katharyn B. Davis, St. Louis, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

Elaine Sombright appeals a judgment of the Circuit Court of St. Louis County awarding The Medve Group $3,061.05 in unpaid rent and other charges, and possession of the rental property. On appeal, Ms. Sombright contends that the trial court erred when it permitted Medve to seek recovery based on time periods that predated the time period identified in its Affidavit and Petition for Rent and Possession (“the Petition”). More specifically, Ms. Sombright argues that, when the trial court permitted Medve to try the cause upon allegations not appearing in the Petition, she was unfairly surprised and denied an opportunity to adequately prepare for trial. We reverse.

Standard of Review

We review this case in accordance with the well-settled principles of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We affirm the trial court’s judgment 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. Id. at 32.

Background

In 2000, Ms. Sombright entered into a written lease with Natural Bridge Holding for rental of a house located at 8891 Romo-na in St. Louis County, Missouri. On December 2, 2003, Medve, owner of Natural Bridge Holding, filed its Petition under Chapter 535 R.S.Mo 2000, seeking $3,132.55 in unpaid rent for the “period July 1 to November 30, 2003,” and for other charges in the amount of $150.00, for a total amount due of $3,282.55. Ms. Som-bright filed an Answer, denying the allegations in Medve’s Petition and stating, inter alia, that she had paid all rent owed from July 1 through November 30, 2003, as well as through the time of her Answer. Ms. Sombright also filed a counterclaim for damages, alleging breach of the warranty of habitability and quiet enjoyment and defamation.

The parties tried the matter on January 8, 2004. Medve’s manager, its only witness at trial, testified that Ms. Sombright did not pay rent for May and June 2003 and “had a balance, but this balance accrued for month [sic] from an incident....” In addition, Medve’s manager did not specify the month or year from which the “balance” owed. Medve’s manager relied on a ledger containing Ms. Sombright’s account history in support of her testimony that Ms. Sombright owed a balance from 2002 and rent for May and June 2003.

On cross-examination, Ms. Sombright’s counsel asked Medve’s manager “there’s nothing in ... that you’re claiming here, about rent due prior to July of ’03 in the claim, is there?” Medve’s counsel objected to the question, stating “the statute says that the Court makes the determination as of the date of court what is due and owing ...,” and further that, “the rent and possession statute says that what we pled doesn’t matter.” In response, Ms. Som-bright’s counsel objected “to any evidence about what’s due and owing, other than what’s pleaded in this case,” explaining that Ms. Sombright “prepared a defense based upon what the allegations are.”

On further cross-examination, Medve’s manager clarified the months and amounts that Medve claimed to be due and owing at trial. Medve’s manager testified that Ms. Sombright owed a balance of $1,046.05 for “at least a month and half [sic]” in 2002 “because of an incident” and $1,420.00 for May and June 2003, plus an additional $400.00 in late fees. Medve asked the trial court to award it these amounts, plus court costs and attorney’s fees.

In her defense, Ms. Sombright testified that she paid her rent from the middle of 2002 until the end of 2002 and, likewise, from January 2008 through January 2004. Ms. Sombright offered evidence in the form of canceled checks to verify that she paid her rent for the time period alleged in the Petition, but not for the months Medve asserted for the first time at trial.

The trial court found in favor of Medve, awarding it damages of $8,061.05 and possession of the property at 8891 Romona. The trial court denied Ms. Sombright’s Counterclaim. This appeal followed.

Discussion

In her sole point on appeal, Ms. Som-bright contends that the trial court erred in allowing Medve to adduce evidence of unpaid rent and other sums accruing during time periods prior to the period pleaded in its Petition and for basing its judgment on those time periods. More specifically, Ms. Sombright alleges she was unfairly surprised by this evidence and materially prejudiced in that she was denied an opportunity to prepare a defense.

In response, Medve asserts that the trial court’s judgment can be reconciled with its Petition. It claims that “[ijnterpreting the ■facts in light of the judgment, it is supportable, in fact logical, to conclude that the Trial Court determined the monies that were paid by [Ms. Sombright] in July and August, 2003, were applied to prior amounts due.... ” Alternatively, Medve asserts that it is not bound by its pleadings because: (1) under the landlord-tenant statute the trial court “shall determine the amount due on the day of trial as of the day of trial ...” and (2) Section 517.031 R.S.Mo 2000 requires only informal pleadings in the associate circuit division.

We agree with Ms. Sombright that the trial court’s judgment in favor of Medve was improperly based on facts that Medve did not plead. The purpose of pleadings is to “present, define, and isolate the issues, so that the trial court and all parties have notice of the issues.” Norman v. Wright, 100 S.W.3d 783, 786 (Mo. banc 2003). It is well-settled that “one may not plead one state of facts and theory and to the unprepared surprise of his adversary recover on another and different theory and state of facts.” Faught v. St. Louis-San Francisco Ry. Co., 325 S.W.2d 776, 781 (Mo.1959). Further, “a judgment which is based upon issues not made by the pleadings is coram non judice and void.” Rouse Co. of Mo., Inc. v. Justin’s Inc., 883 S.W.2d 525 (Mo.App. E.D.1994) (trial court’s judgment awarding landlord possession of the premises was void where petition only sought delinquent rent).

A review of Medve’s Petition reveals that the issue for trial was whether Ms. Sombright owed “rent for the period of July 1 to November 30, 2003[,]” plus additional charges relevant to that time period. The Petition provides in relevant part:

COMES NOW affiant, Katharyn B. Davis, and states under oath that the above Defendant rents and occupies, as tenant or lessee of the Plaintiff, the premises situated in the County of St. Louis, Missouri described and known as 8891 Ramona and said property was rented to the Defendant by the month or under the terms of the lease, payable monthly in advance or on a date set out in the lease agreement, at the rate of $645.00 per month; that the sum of $3132.55 is now actually due for said rent for the period of July 1 to November 30, 2003; that the sum of $150.00 is now due for other charges; that the total amount due is $8282.55; that the same has been demanded from the Defendant, and that payment has not been made.

(Emphasis added). At trial, however, Medve did not claim or produce any evidence establishing that Ms. Sombright owed rent for the months alleged in its Petition. Rather, Medve’s witness stated that Ms. Sombright owed a balance of $1,046.05 for “at least a month and half [sic]” in 2002 “because of an incident” and $1,420.00 for May and June 2003, plus an additional $400.00 in late fees.

While Rule 55.33(b) allows a party to amend the pleadings to conform to the evidence at trial if an issue not raised by the pleadings is tried by the parties’ express or implied consent, see UT Communications Credit Corp. v. Resort Dev. Inc., 861 S.W.2d 699, 706 (Mo.App. E.D.1993), the trial record reveals that Ms. Sombright’s attorney objected to “any evidence about what’s due and owing, other than what’s pleaded in this ease.” Ms. Sombright, thus, did not impliedly consent to an amendment of the Petition. Moreover, Medve did not move to amend in accordance with Rule 55.33(b), and the trial court did not amend the pleadings on its own motion. As such, the trial court was limited to the facts and issues raised in the pleadings and was without authority to find in favor of Medve on the grounds that Ms. Sombright failed to pay rent for periods in 2002 or May and June 2003. See Faught, 325 S.W.2d at 781; UT Communications Credit, 861 S.W.2d at 707.

Medve argues that it is logical to conclude that the trial court simply determined the monies that were paid in July and August, 2003 were applied to prior amounts due. There is no evidence in the record to either support such a conclusion or draw such an inference. While Medve’s manager testified generally that “[w]hen [Sombright] paid it would go towards back rent,” the following exchange illustrates that, at trial, Medve sought rent for an unidentified period in 2002 and May and June 2003 — rather than the months it pleaded in the Petition:

The Court: And what was that balance?
The Witness: The end of 2002?
The Court: Right.
The Witness: $1,046.05
The Court: Okay. Now for May 2003, what was the amount — the amount of rent?
The Witness: From—
The Court: No. Just — You said she owed for May 2003, that’s how much.
The Witness: Oh. May 2003. What is the rental amount?
The Court: Right.
The Witness: The rental amount was this—
The Court: That she did not pay was what?
[Counsel for Medve]: 635. -
The Witness: 635, no, plus the 75.
The Court: The amount is how much?
The Witness: 635 plus the month-to-month 75.
The Court: Okay. So, then if I add up 635 times two equals — that’s 1,270. Is that right? 635—
[Counsel for Sombright]: Yes, Judge.
The Court: — time [sic] two. And then if I add the $75 times two, that’s what, 150?
[Counsel for Medve] 150.
The Court: So that’s a total of 1,420.
Then you want me to go back and add the 1,046, right?
[Counsel for Medve]: Correct....
[Counsel for Medve]: And then, if the Court wants to consider that, because she didn’t pay late charges kept accumulating every month.
[Counsel for Medve]: If we took the late charges from May of last year, that would be eight months of late charges, so that would be $400.

We are likewise not persuaded by Medve’s argument that it is excused from the' above well-settled pleading requirements by the language of Section 535.040, which provides for the trial court to “render judgment that the landlord recover ... the debt for the amount of the rent then due." (Emphasis added). Based on this language, Medve contends that it is irrelevant what time period or amounts of rent due are pleaded in its Petition, because it is entitled to recover whatever amount of rent is due from whatever period of time it chooses on the day of trial.

We disagree with Medve’s unwarranted expansion of Section 535.040. Medve’s interpretation renders the content of the petition in a rent and possession case meaningless. Under Medve’s argument, it can plead any time period in its Petition and recover, even if the time period pleaded is ultimately unsupported by the evidence. Moreover, such an interpretation is inconsistent with the language of both Sections 535.020 and 535.040. Section 535.020 requires the landlord to file a statement verified by affidavit, setting forth the “amount of rent actually due” and “that the rent has been demanded.” Section 535.040 requires a judge to render judgment for the “amount of the rent then due,” i.e. rent due to the date of judgment. See Farinella v. Croft, 922 S.W.2d 755, 756 (Mo. banc 1996).

Reading the above two statutes in harmony, it is clear that the legislature intended rent and possession actions to be “open-ended.” See Id. The open-ended nature of a rent and possession action allows a landlord to avoid filing successive petitions for amounts of rent due between the time of the filing of the initial petition and the date of judgment. Because it is unlikely that a landlord can predict when the case will be tried, the landlord may not know at the time the petition is filed the exact amount of rent due to the date of judgment. However, the same lack of knowledge is not present with respect to facts in existence as of the date the petition is filed. Accordingly, there is no rationale based on the relevant statutes that supports permitting Medve to present evidence of rent due outside the time period pleaded, other than amounts that accrued during the pendency of the action.

Finally, contrary to Medve’s argument, Section 517.031 does not provide a basis for Medve to recover rent due prior to the time frame identified in its Petition. To the contrary, Section 517.031 supports Ms. Sombright’s contentions herein. Section 517.031.1 provides that the petition must contain “the facts upon which the claim is founded.” (Emphasis added). In addition, Section 517.031 requires a petition be “sufficient to advise the defendant of the nature of the action.... ” Pemiscot County Memorial Hosp. v. Bell, 770 S.W.2d 499, 502 (Mo.App. S.D.1989). Here, Medve failed to comply with Section 517.031 when it pleaded one set of facts in its Petition and tried its action on another. As a result, Ms. Sombright, who prepared a defense based upon the allegations pleaded in Medve’s Petition, was surprised and prejudiced when the trial court permitted Medve to adduce evidence of and recover amounts predating the time frame alleged in its Petition. Point granted.

Accordingly, we reverse.

Conclusion

The trial court’s judgment in favor of Medve is reversed.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., Concur.

      . All citations to the Revised Statutes of Missouri ("R.S.Mo”) are to R.S.Mo 2000 unless otherwise specified.

      . Ms. Sombright does not challenge the trial court's denial of her counterclaim on appeal.

      . The Rules of Civil Procedure apply to actions pending in the associate circuit division, unless otherwise provided by law. Sections 517.011.1(3) and 517.021; see also Rule 41.01(d). Rule 55.33(b), accordingly, applies in this case.

      . Medve asserts that Ms. Sombright’s counsel did not object when it introduced a ledger of her account history into evidence. To the extent Medve suggests that by not objecting to the ledger Ms. Sombright impliedly consented to Medve’s seeking back rent for periods set forth in the ledger but not in its Petition, Medve is mistaken. The doctrine of trial by implied consent provides that issues not raised by the pleadings may be determined by the trial court when evidence is offered, without objection, bearing solely on that issue. City of St. Joseph, Missouri v. St. Joseph Riverboat Partners, 141 S.W.3d 513 (Mo.App. W.D.2004) (emphasis added). Here, the trial record shows that the ledger also contained information regarding Ms. Sombright’s account history for the period July 2003 through November 2003, the time frame alleged in the Petition.

      . We previously have held that because, pursuant to Section 535.160, a tenant may pay the rent and arrears on either the judgment date or after the date of the original trial and before any trial de novo, a landlord is not required to state the exact amount of rent due in the affidavit and statement required by Section 535.020. Mannion v. K. Khan, Inc., 992 S.W.2d 198, 200 (Mo.App. E.D.1999). Unlike this case, however, Mannion addressed the relationship between Section 535.020 and Section 535.160, and in particular, whether failure to state an exact amount of rent due hindered the tenant’s statutory right to "pay up the rent due.” Id. at 200. Because a tenant may "pay up" even after the date "the money judgment is given,” the tenant’s right to take action to retain the premises is preserved in the absence of an exact amount in the statement and affidavit. Id. Here, however, we are faced with a complete abandonment of not only the amount stated in the statement and affidavit but also the time frame alleged for the rent due, hindering not just the tenant’s right to "pay up” but more fundamentally, a right to prepare an adequate defense.


author: ROBERT G. ULRICH, P.J.

text:
    David J. WHELAN, Appellant, v. MISSOURI PUBLIC SERVICE, ENERGY ONE, a Division of Aquila, Inc., Respondent.
    No. WD 64002.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.

      James F. Crews, Tipton, MO, for appellant.
    Kirsten A. Byrd, Kansas City, MO, for respondent.
    Before: ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, P.J.

David Whelan appeals the judgment of the trial court following jury trial awarding him $50,000 in his personal injury action against Missouri Public Service, Energy One. Missouri Public Service admitted liability. Mr. Whelan claims that the trial court erred in (1) excluding the deposition testimony of his treating physician and (2) admitting evidence of his high school grades, both questions applicable to the issue of damages sustained by Mr. Whe-lan. The portion of the trial court’s judgment determining liability is affirmed, and the portion of the judgment awarding damages is reversed. The case is remanded for a new trial on the issue of damages.

In this action, Mr. Whelan alleged that he was electrocuted due to the negligence of Missouri Public Service and that as a result of the electrocution, he suffered brain injuries and psychological trauma. At the close of plaintiffs evidence, Missouri Public Service admitted liability, and directed verdict was entered accordingly. The only remaining issue for the jury, therefore, was damages. The jury assessed damages at $50,000. This appeal by Mr. Whelan followed.

Standard of Review

Mr. Whelan’s two points on appeal involve the admission or exclusion of evidence. The admission or exclusion of evidence lies within the sound discretion of the trial court, and the trial court’s ruling will not be disturbed absent abuse of discretion. Nelson v. Waxman, 9 S.W.3d 601, 603 (Mo. banc 2000). “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before it and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.” Id. at 604 (quoting Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991)). The trial court’s evidentiary ruling mil be affirmed unless there is a substantial or glaring injustice. Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 130 (Mo.App. E.D.2003).

The primary criterion in the admission of evidence is relevancy. Guess v. Escobar, 26 S.W.3d 235, 242 (Mo.App. W.D.2000). To be admissible, evidence must be logically and legally relevant. Id. Evidence is logically relevant if it tends to prove or disprove a fact in issue or corroborates other evidence. Id. “Legal relevance involves a process through which the probative value of the evidence (its usefulness) is weighed against the dangers of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time or needless presentation' of cumulative evidence (the cost of evidence).” Id. (quoting Olinger v. Gen. Heating & Cooling Co., 896 S.W.2d 43, 48 (Mo.App. W.D.1994)).

Exclusion of Deposition Testimony of Treating Physician

In Mr. Whelan’s first point on appeal, he claims that the trial court abused its discretion in excluding the deposition testimony of his former treating psychiatrist, Dr. Andrew Resnik. In his deposition, Dr. Resnik testified that he treated Mr. Whelan for approximately two years from January 2000 for symptoms of anxiety and depression. Dr. Resnik’s treatment focused primarily on medication management. Dr. Resnik also testified that he did not have an opinion as to the cause of Mr. Whelan’s symptoms. Missouri Public Service objected to the introduction of the deposition arguing that because Dr. Resnik did not have an opinion regarding whether Mr. Whelan’s symptoms were a result of the electrical shock, his testimony was irrelevant and lacked foundation. The trial court sustained the objection.

An expert witness is an individual “engaged by a party in anticipation of litigation in order to testify about scientific or technical matters.” Kehr v. Knapp, 136 S.W.3d 118, 123 (Mo.App. E.D.2004)(quoting DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 535 (Mo.App. E.D.1991)). Typically, an expert has no knowledge about the case or facts in controversy prior to being retained and instead gathers facts about the controversy through documents, materials, and other information provided to him by the attorney who contacted him. Id. (quoting State ex rel. Tracy v. Dandurand, 30 S.W.3d 831, 834 (Mo. banc 2000)).

A treating physician, however, has knowledge of the facts of the case and is not retained solely for litigation purposes. Id. A treating physician is first and foremost a fact witness as opposed to an expert witness. Brandt v. Med. Def. Assocs., 856 S.W.2d 667, 673 (Mo. banc 1993). “In personal injury litigation, the treating physician is likely to be the principal fact witness on the issue of damages.” Id. A treating physician is often assumed to be an expert witness because he uses medical training and skill in diagnosing and treating the patient and in describing to the jury the plaintiff’s condition and treatment. Id. A treating physician only functions as an expert witness, however, where one or both parties ask the witness to use the basic facts to draw conclusions and express opinions on relevant medical issues. Id.

In this case, the scope of Dr. Resnik’s testimony was limited to discussion of Mr. Whelan’s care and treatment over a two-year period from January 2000. While Dr. Resnik was asked his opinion regarding whether Mr. Whelan’s symptoms were caused by the electrical shock, Dr. Resnik did not have an opinion on the issue. Dr. Resnik, however, treated Mr. Whelan for psychiatric maladies that are inclusive of those manifested as posttraumatic stress disorder. Mr. Whelan presented other evidence in the form of expert witness testimony linking his symptoms and injuries treated by Dr. Resnik to the electrical shock. Dr. Kenneth Mace, a clinical psychologist, testified that based on Mr. Whe-lan’s symptoms of depression and anxiety, he diagnosed Mr. Whelan with posttrau-matic stress disorder. Dr. Mace also opined that Mr. Whelan’s posttraumatic stress disorder was caused by the electrical shock. In attempting to introduce Dr. Resnik’s deposition at trial, Mr. Whelan’s attorney specifically stated that he was not offering the witness as an expert. Instead, Dr. Resnik was a fact witness testifying about his care and treatment of Mr. Whelan. Such testimony was relevant to the issue of damages. Exclusion of Dr. Resnik’s deposition testimony was prejudicial to Mr. Whelan to the extent that Dr. Resnik’s care and treatment of Mr. Whe-lan impacts damages. The judgment of the trial court is, therefore, reversed, and the case is remanded for a new trial on the issue of damages.

Admission of Mr. Whelan’s High School Transcript

In his second point on appeal, Mr. Whelan claims that the trial court abused its discretion in admitting his high school transcript. He contends that his high school grades were not relevant to any issue in the case and only confused and misled the jury. Because the issue is likely to recur in a new trial, it is addressed briefly to provide guidance.

In his petition, Mr. Whelan alleged that as a result of the electrical shock, he suffered severe injuries to his brain and central nervous system as well as psychological trauma. He further alleged that as a result of these injuries, he is no longer able to work as a carpenter and has difficulty doing any type of work. At trial, Mr. Whelan testified that he was also unable to complete vocational training to pursue other work as a result of the shock and injuries he sustained. His expert psychologist testified that as a result of the electrical shock, Mr. Whelan had problems with concentration and focus adversely affecting his ability to pursue education or work. On cross-examination, Mr. Whelan testified that he was an “average” student in school.

In response to this evidence, Missouri Public Service presented evidence that Mr. Whelan had a history of minimal achievement in his educational endeavors. This evidence included Mr. Whelan’s high school transcript that showed he primarily received Cs and Ds in high school, and his class rank upon completion of high school was 80th out of 81 students.

Mr. Whelan raised the issue of his ability to complete vocational training. As support for his claim of damages, Mr. Whelan offered evidence that he was unable to concentrate, learn, and complete such training and obtain a new job due to the electrical shock and resulting injuries. Evidence of his ability to concentrate and learn before he sustained the injuries for which he initiated the action and for which he claimed a resultant diminished capacity was relevant. His high school grades constitute an academic record of several years that are an indicator, although neither comprehensive nor conclusive, reflecting on his learning ability while attending high school, a period prior to his injuries. The evidence was, therefore, logically and legally relevant. The point is denied.

The portion of the trial court’s judgment determining liability is affirmed, and the portion of the judgment awarding damages is reversed. The case is remanded for a new trial on the issue of damages.

SMART and ELLIS, JJ., concur.


text:
    COCA-COLA USA, A DIVISION OF the COCA-COLA COMPANY, a Delaware Corporation, also d/b/a Coca-Cola Fountain, Appellant-Respondent, v. WOODS QUALITY SERVICE CORPORATION, et al., Respondent-Appellant.
    Nos. WD 63455, WD 63664.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Keith A. Cutler, Kansas City, MO, for Appellant/Respondent.
    Timothy J. Murphy, Co-Counsel, Kansas City, MO, for Appellant/Respondent.
    Matthew J. Hamilton, Pleasant Hill, MO, for Respondent/Appellant.
    Before: LOWENSTEIN, P.J., SMART, J. and EDWIN H. SMITH, C.J.
   ORDER

PER CURIAM.

This is an appeal from a breach of contract action and counterclaim tried to a jury. The judgment on the verdict was in favor of each party. Both sides appealed. Affirmed. Rule 84.16(b).


author: LISA WHITE HARDWICK, Judge. HAROLD L. LOWENSTEIN, Judge.

text:
    Rosemary GRIFFITH, Respondent, v. Timothy GRIFFITH, Appellant.
    No. WD 63954.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.

      Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

Timothy Griffith appeals from a judgment increasing his child support payment and denying his motion to terminate child support. He contends the trial court erred, as a matter of law, in failing to emancipate his daughter, Alison. We reverse and remand.

Factual and PROCEDURAL BACKGROUND

The marriage of Timothy Griffith (Father) and Rosemary Griffith (Mother) was dissolved on September 6, 1988. The dissolution judgment awarded the parties joint legal custody of their two minor children, Jason and Alison, with physical custody to Mother. Father was ordered to pay $850 per month in child support until Jason was emancipated, at which time he was ordered to pay $425 per month for the remaining unemaneipated child, Alison, born November 14, 1984. The judgment was later modified to increase Father’s child support to $798 per month.

On March 28, 2003, Father filed a motion to terminate child support because Alison was 18 years old, had graduated from high school, and had failed to provide him a transcript or other official documentation to indicate she was attending college. Father contended Alison was emancipated and no longer eligible for child support pursuant to Section 452.340. Mother denied the allegations and filed a counter motion seeking an increase in child support.

Father, Mother, and Alison testified at trial. The evidence was undisputed that Alison graduated from high school in May 2002, at the end of her junior year when she was seventeen years old. She had earned three college credits while still in high school. She earned six hours of credit at Maple Woods Community College in the fall 2002 semester, during which time she celebrated her eighteenth birthday. In the spring 2003 semester, Alison worked fifteen to twenty hours a week as a personal trainer and enrolled in a college course for only three credit hours, but did not receive credit for the course. The following summer session, she earned six hours of college credit; and in the fall 2003, an additional twelve hours.

Following a hearing on the motions, the circuit court determined that Alison’s failure to complete twelve hours of college credit during the spring 2003 semester was a temporary interruption because she clearly intended to re-enroll for full-time attendance in the fall 2003. The court denied Father’s request to declare Alison emancipated but abated the child support from January to May 2003, during the semester when she did not earn any college credits. The court also granted Mother’s motion to modify and increased Father’s child support obligation to $1,161 per month, effective February 1, 2004. The judgment awarded Mother $2,200 in attorney’s fees.

Father appeals the child support determination but does not challenge the award of attorney’s fees.

STANDARD OF REVIEW

Our review of a- trial court’s judgment on a motion to terminate child support is limited to determining whether the judgment is supported by substantial evidence, is against the weight of the evidence, or it erroneously declares or applies the law. Garrison v. Garrison, 147 S.W.3d 925, 928 (Mo.App.2004). We must view the evidence in a light most favorable to the judgment, giving deference to the trial court’s credibility determinations. Id. No deference is owed, however, to questions of law, which we review de novo. Gordon v. Gordon, 924 S.W.2d 529, 535 (Mo.App.1996).

' Emancipation

In his sole point on appeal, Father contends the trial court erred as a matter of law in failing to emancipate Alison based on her failure to complete twelve hours of college credit in the semester following her eighteenth birthday. Father argues the court was required to terminate the child support obligation for Alison, pursuant to Section 452.340, because there was no evidence of manifest circumstances that prevented her from continuing her college education in the spring 2003 semester.

Section 452.340 provides in relevant part:

3. Unless the circumstances of the child manifestly dictate otherwise and the court specifically so provides, the obligation of a parent to make child support payments shall terminate when the child:
(5) Reaches age eighteen, unless the provisions of subsection 4 or 5 apply;
5. ... If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-two, whichever occurs first.

This statute creates a presumption that child support will terminate if the child does not maintain the credit hours and grades unless the trial court finds the child’s circumstances manifestly dictate otherwise. “Manifest circumstances are those situations beyond a child’s control.” Perry v. Perry, 114 S.W.3d 865, 868 (Mo.App.2003).

Courts have included the “manifest circumstances” requirement as an element in determining whether emancipation occurs when a child’s college attendance is interrupted. Id. A court may find that a parent’s support obligation shall continue if all of the following elements are present: (1) the interruption from enrollment is temporary; (2) there is an evident intent to re-enroll; and (3) there are manifest circumstances which prevented continuous enrollment. Harris v. Williams, 72 S.W.3d 621, 624 (Mo.App.2002).

The parties do not dispute that the first two elements were established at trial. The issue on appeal is whether “manifest circumstances” existed requiring Alison to work and thereby preventing her from completing any course work in the spring 2003 semester. The court made no finding of “manifest circumstances.” In fact, in ordering abatement of child support for that semester, the trial judge stated, “I don’t know what the circumstances were.”

The Harris and Perry cases illustrate that the key issue in determining manifest circumstances is whether a financial roadblock to post-secondary education is beyond the control of the child. If the child had alternative means of funding, or failed to explore reasonable alternatives, the situation is not deemed beyond her control, for manifest circumstances are those which arise from an external factor causing the child to be unable, as opposed to unwilling, to afford timely pursuit of her education. Garrison, 147 S.W.3d at 929-30.

Wife argues on appeal that it was necessary for Alison to work during the spring 2003 semester in order to pay for her future educational expenses. However, there is nothing in the record to support this contention, even when the evidence is viewed in a light most favorable to the judgment.

The evidence at trial established that Alison was living at home with her Mother during the relevant period. Father was current on his child support. Father had also established a “gift for minors” account that was to be used for Alison’s education, pursuant to the dissolution decree. Alison met with Father periodically to withdraw money from the account to pay for her tuition and books, and the account had a balance of $2,800 at the time of trial. There is no evidence to indicate Alison did not have sufficient resources to pay her educational expenses or that she had to work, for reasons beyond her control, in order to continue her education. The record does not support a finding of manifest circumstances.

Father established a prima facia case for emancipation by presenting evidence that Alison failed to complete twelve hours of college credit during the first semester following her eighteenth birthday. Mother failed to overcome the presumptive emancipation with evidence of manifest circumstances that prevented Alison from continuing her college education for reasons beyond her control. Pursuant to Section 452.340, the trial court was mandated to terminate Father’s child support obligation as of January 2003, when Alison was emancipated by virtue of her failure to enroll for the minimum amount of college credit.

The child support award must be vacated because the trial court erroneously applied the law in determining that Alison’s temporary interruption from college and clear intent to re-enroll were sufficient grounds to deny Father’s motion to terminate child support. We acknowledge the harshness of this result but the statutory requirement of “manifest circumstances” leaves no alternative in light' of the evidence presented.

The judgment is reversed as to the child support award and the cause remanded to the trial court for determination of any refund due to Father as a result of child support overpayments beyond the January 2003 emancipation date, as available under Section 452.370.4. The award of attorney’s fees to Mother is unchallenged and will not be disturbed, as the trial court had discretion to award such fees upon consideration of the relevant factors in Section 452.355.1, regardless of whether Mother was the prevailing party. Morton v. Myers, 21 S.W.3d 99, 109 (Mo.App.2000).

Mother’s motion for attorney’s fees on appeal is denied.

BRECKENRIDGE, J. concurs.

LOWENSTEIN, J. concurs in part and dissents in part in separate opinion.

HAROLD L. LOWENSTEIN, Judge.

A recent social commentary laments a system that allows the arithmetic by which things are counted to become more important than the things being counted. The same can be said here by strictly complying with the statute at hand. By strictly adhering to Section 452.340.5, Missouri citizens can be assured that it will be unnecessarily difficult for this young woman to become a nurse. No one can quibble with the conclusion that the record does not contain direct evidence explaining Daughter’s “lost semester” in the spring of 2003. One can quibble, however, with the conclusion that the legislature intended to deny support to a student who graduated from high school early, began taking college courses immediately thereafter, and worked fifteen to twenty hours per week, while living with her mother. Application of the statute results in Daughter’s emancipation and is counterproductive to all concerned. Although the statute must be followed, it should be amended. For this reason, I concur in the result of emancipation but dissent on appellate costs and attorney’s fees.

The law sets forth three requirements for determining whether a child is excused from completing the requisite number of college hours per semester. Here, the “manifest circumstances” requirement has not, on its face, been satisfied; however, this should not end the inquiry.

Beyond the surface, there are intangible facts that cry out for affirming the judgment. This case involves a mother who works as a nurse for the county and makes $8,100 per month. Although Father grosses more than $159,000 a year, he pays less than $800 per month in child support, and has set up an account for his daughter with a balance of less than $3,000. Daughter lives at home with Mother and works fifteen to twenty hours per week. She has consistently demonstrated a pattern of being a serious student. Daughter took six hours of college-level courses during her last year in high school, three hours the following summer, and another six hours during the fall semester in which she turned 18. Daughter wants to be a nurse, a profession not easily entered into nor filled to overflowing.

Strict compliance with the statute results in Daughter no longer receiving support from Father. It will be more difficult for Daughter to afford the costs of attending college, resulting in one less potential nurse. The trial court issued a sensible and fair judgment by abating support for the semester when Daughter enrolled in only one class but wallowed in the morass of algebra. The court’s approach would not lead to a squandering of Father’s money. Instead, it would support Daughter, who, rather than giving up after a disastrous semester, continued with college, completed twelve hours during the fall semester, and had enrolled for twelve additional hours the semester the motion was heard.

Careful planning would have allowed algebra to be postponed until a more feasible time. Mother and Daughter, however, like many in their situation, did not have the resources to carefully plan so as to avoid termination of child support. Here, the decision to take less than the necessary number of hours following Daughter’s 18th birthday resulted in terminating her support for college. Other than algebra, Daughter has received B’s in all courses taken while in high school or at college.

The legislature seemingly intended the law to extend the period during which child support is owed beyond the time a child turns 18, so as to allow a reasonable, steady, and inevitable march toward advanced education. Here, this purpose has been thwarted. Daughter started the march before most, but because she unfortunately stumbled during a critical semester, all child support has been terminated.

The facts of each case are different. Suffice it to say, this is not a case where the child quit during the semester because of problems with a boyfriend, Draper v. Draper, 982 S.W.2d 289, 294 (Mo.App.1998), or of a mistaken idea as to prerequisites for taking a course, Meuschke v. Jones, 134 S.W.3d 783, 788-89 (Mo.App.2004). The trial court should have been free to infer that Daughter was a diligent student who sought the benefits of higher education and was on a path at a relatively young age to graduate, and that she was not merely plodding through an easy curriculum to scam Father out of money.

The legal system survives by allowing trial judges to make fair and reasonable decisions. This is precisely what the trial judge did in this case. If the law as written; i.e., the language stating “circumstances manifestly dictate,” must result in the drastic remedy of emancipation, then the legislature should rewrite Section 452.340 so that a trial judge is not compelled to reach such a conclusion.

The general assembly could amend the present language to exempt a child, who for instance, graduates from high school early and takes college credit while working, from being penalized when a temporary blip in college course work occurs. Language permitting a trial judge to abate support during a period when steady and earnest college education is evident would be welcomed. For example, the legislature could insert the following provision: “When the judge is firmly convinced on the evidence that the child has pursued a path of continuous attendance and will continue to do so, then the court may, instead of declaring the child emancipated, enter a judgment abating support for a period of up to five months.” Consequently, the all- or-nothing decision would be avoided. If such an amendment would lead to children taking more college credits in high school, working fifteen to twenty hours a yveek, both before and after turning 18, and picking themselves up after stumbling over a difficult course, then so be- it. The policy of this state is to encourage children to pursue higher education. Perry v. Perry, 114 S.W.3d 865, 868 (Mo.App.2003).

Mother’s attorney’s fees and costs should be awarded by this court for her appellate expenses. While part of her efforts have now been held for naught, Mother’s position on the emancipation issue has merit and considering the relevant factors, she should not have to accept the burden of those costs and fees here. Morton v. Myers, 21 S.W.3d 99, 108-09 (Mo.App.2000).

I, therefore, most reluctantly concur with the majority opinion on the issue of emancipation. I would award mother reasonable fees for her attorney and for costs on appeal.

      . Although Mother argues Father waived any claim for repayment by failing to raise it at trial or in his point on appeal, such relief is a statutory consequence of Father prevailing on his motion to terminate child support under Section 452.370.4. Because Mother failed to notify Father of Alison’s emancipation, the statute provides that she is liable to Father for any child support he paid after the date of emancipation, plus interest.


text:
    STATE of Missouri, Respondent, v. James McCAW, Appellant.
    No. ED 83970.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 5, 2005.
    Application for Transfer to Supreme Court Denied May 16, 2005.
    Michael A. Gross, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

James McCaw (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of three counts of felony stealing, in violation of Section 570.030, and one count of felony receiving stolen property, in violation of Section 570.080. The trial court found Defendant to be a prior and persistent offender, subject to an extended term of imprisonment, and sentenced Defendant to four consecutive seven-year terms, to be served consecutively to a sentence Defendant was serving from a conviction in federal court.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no jurisprudential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . All subsequent statutory references are to RSMo 2000, unless otherwise noted.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Ricky A. BLAKE, Defendant/Appellant.
    No. ED 84411.
    Missouri Court of Appeals, Eastern District, Division Five.
    April 5, 2005.
    Rehearing Denied May 16, 2005.
    Linda Lemke, Assistant Attorney General Jefferson City, MO, for respondent.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Before MARY K. HOFF, P.J., KATHIANNE KNAUP CRANE, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Defendant, Ricky A. Blake, appeals from the judgment entered on his conviction by a jury of trafficking drugs in the first degree, in violation of section 195.222 RSMo (2000), and possession of a controlled substance, in violation of section 195.202 RSMo (2000). The trial court found defendant to be a prior drug offender and sentenced him to concurrent terms of 20 years imprisonment and 7 years imprisonment, respectively.

No error of law appears and 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 is affirmed in accordance with Rule 30.25(b).