author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Gail Ellen WINTER, Petitioner-Appellant, v. George Wayne WINTER, Respondent-Respondent.
    No. 26267.
    Missouri Court of Appeals, Southern District, Division One.
    July 13, 2005.

      John J. Podleski, Crandall & Podleski, Carthage, for appellant.
    Jerry L. Reynolds, Reynolds & Conway, P.C., Springfield, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Gail Ellen Winter (‘Wife”) appeals from a Judgment and Decree of Dissolution of Marriage entered by the circuit court of Jasper County. She contends that the trial court erred in characterizing certain property as non-marital, in dividing marital property, and in requiring her to provide health insurance benefits for George Wayne Winter (“Husband”). We affirm in part and reverse and remand in part.

Wife and Husband were married on October 14, 1972, and separated on July 27, 2001. Both children born of the marriage were emancipated at the time of the dissolution. During the marriage, Husband farmed land with his father until his father’s death in 1993, after which time he farmed on his own. Wife worked as a high school teacher.

The standard of review in court-tried cases is well established. We will affirm the judgment of the trial court unless “there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The first three points on appeal revolve around the trial court’s characterization and division of four tracts of real property and certain items of personal property. The fourth point deals with a health insurance policy which the trial court ordered Wife to maintain on Husband.

In Wife’s first point, she claims that the trial court erred by determining that four parcels of real estate, aside from some marital contributions, were the non-marital property of Husband. Wife argues that tracts 1 and 2 were conveyed to her and Husband jointly during the marriage and are therefore presumptively marital. She also claims that tracts 3 and 4, previously titled in Husband’s name alone, became marital because Husband conveyed them to him and Wife jointly, thereby transmuting them from non-marital to marital. She argues that these conveyances created a presumption, which Husband did not rebut, that the property became marital.

The identification of property as marital or separate is in the broad discretion of the trial court. Selby v. Selby, 149 S.W.3d 472, 482 (Mo.App. W.D.2004). “When the characterization of property depends on an assessment of witness credibility, we will defer to the trial court’s credibility determinations.” Id. Section 452.330.2 creates a presumption that all property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution is marital, regardless of whether title is held individually or jointly. Section 452.330.3; Selby, 149 S.W.3d at 483. This presumption can be overcome, however, by showing that the property was acquired by one of the exceptions listed in Section 452.330.2. Section 452.330.3; Selby, 149 S.W.3d at 483. The exceptions applicable to this case are “(1) Property acquired by gift, bequest, devise, or descent; [and] (2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent.” Section 452.330.2. These exceptions must be proven by clear and convincing evidence. Stidham v. Stidham, 136 S.W.3d 74, 79 (Mo.App. W.D.2004).

We first address tracts 3 and 4, 120 acres in Barton County and 157 acres in Jasper County, respectively. Husband inherited these tracts in his name only when his father died. Approximately four years later, in 1997, Husband suffered a stroke and a severe infection which required his hospitalization for several weeks. Wife testified that while he was hospitalized, Husband wanted deeds prepared to put the land in both his and Wife’s name so that if anything happened to him, Wife could avoid probate. To this end, Wife contacted J.D. Pahlow (“Pahlow”), a friend of Husband’s and owner of a title insurance company. Pahlow came to the hospital and brought with him two deed forms, both of which listed Husband and Wife as grantees, and were signed by them in Pah-low’s presence. One of the daughters of Husband and Wife videotaped the signing. The tape clearly shows that at least one of the deeds did not contain a legal description when signed. In fact, Pahlow admitted at trial that the deed intended for tract 4 contained no legal description when it was signed, and that it was added by him at a later time. While there was evidence that the deed for tract 3 was complete when signed, Wife was impeached with her deposition testimony that the legal description in it was also missing when signed. She also testified that, after signing blank forms Husband never delivered to her “another deed that was, in fact, signed, filled out, notarized, completed[.]”

Pahlow apparently maintained possession of the deeds for a period of time. He did not remember who picked up the deeds from him, though Wife testified that he called her and asked her to pick them up. She testified that she took the deeds home and asked Husband what he wanted to do with them and he told her to record the deeds. Wife recorded the deeds in October and November of 2000. Husband testified at trial that he had no memory of signing any documents at the hospital, that he did not tell Wife to record the deeds, and that he did not receive the deeds from Pahlow. He learned later, during the course of the litigation, that the deeds had been recorded and he then recorded documents purporting to revoke the deeds.

There is uncontradieted evidence that Husband received ownership of tracts 3 and 4 through inheritance from his father. Property acquired by devise or descent is not marital property, even if acquired during the marriage. Section 452.330.2(1). Accordingly, these two tracts could only become marital property if Husband transmuted the property through the deeds while he was in the hospital.

When separate property is placed in the joint names of both spouses, a presumption is created that the property becomes marital and clear and convincing evidence is required to show that a gift was not intended. Montgomery v. Montgomery, 18 S.W.3d 121, 124 (Mo.App. S.D.2000). Clear and convincing evidence “ ‘refers to evidence which instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder’s mind is left with an abiding conviction that the evidence is true.’ ” Id. (quoting In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo.App. S.D.1995)). “The trial court may be clearly convinced of the affirmative of a proposition even though it has contrary evidence before it, and evidence in the record that might have supported a different conclusion does not necessarily demonstrate that the trial court’s determination is against the weight of the evidence.” In re Marriage of Gilmore, 943 S.W.2d 866, 870-71 (Mo.App. S.D.1997). Self-serving testimony that a spouse did not intend a gift is entitled to little weight when that spouse caused separate property to be transferred to the spouses jointly. Montgomery, 18 S.W.3d at 124.

The trial court found that these tracts were the non-marital property of Husband because he inherited the land from his father. In its findings of fact regarding these parcels, the trial court found that Pahlow had been summoned to the hospital by Wife to prepare the deeds to these tracts in order to transfer title from Husband to Husband and Wife, and that the documents prepared by Pahlow consisted of one blank deed form and one deed form either partially or completely filled out; “[s]uch documents were taken by [Pahlow] and completed and notarized at a later time”; and, “[t]here was no testimony that [Husband] delivered completely executed documents to anyone.” See Rhodes v. Hunt, 913 S.W.2d 894, 900 (Mo.App. S.D.1995) (a deed must be delivered to be valid); West v. Witschner, 428 S.W.2d 538, 544 (Mo.1968) (a deed, delivered without a legal description and with no authority to fill out that description, is inoperative). The trial court obviously concluded that the deeds were not effective to convey these properties to Husband and Wife’s joint names, and thus did not transmute these parcels from separate to marital property.

Appellate review is limited to those issues raised in the point relied on. Lasker v. Johnson, 123 S.W.3d 283, 289 (Mo.App. W.D.2003). In her point relied on, as it regards these tracts, Wife states,

The Trial Court erred in deciding that [tracts 1, 2, 3, and 4], which were jointly titled in the names of the parties as Husband and Wife at the time of trial were mostly the separate non-marital property of Husband because the law assumes a gift to the marital estate when a party transfers separate property into joint names. This was an abuse of discretion and against the weight of the evidence.... Deeds on [tracts 3 and 4] transferring title from Husband alone to Wife and Husband were recorded in 2000. Husband failed to show an exception to the presumed gift because he could not “trace” his alleged non-marital contribution to these jointly held properties.

In the argument section of her brief, Wife gives a recitation of the events occurring in the hospital and afterward. Her contention under this point starts with the assumption that the deeds were valid, and her only argument is that Husband did not rebut the presumption resulting when separate property is placed in the joint names of spouses. Her point relied on and the argument supporting it are devoid of any contention, or of citation to any authority, attacking the trial court’s obvious conclusion that the deeds relied upon by Wife were ineffective to convey these tracts to the joint names of Husband and Wife. Without effective deeds, the presumption upon which Wife relies would not arise. The Appellant has the burden of demonstrating error. Clance v. Clance, 127 S.W.3d 716, 719 (Mo.App. W.D.2004). Wife did not bear this burden and this part of her first point is denied.

Tract 1 is a seventy-two-acre tract in Barton County which Husband and Wife bought in 1988. Wife testified at trial that she and Husband, along with another couple, purchased 160 acres of farmland and then immediately divided it into separate tracts of approximately eighty acres each. The deed conveying the eighty acre tract involved here was to “[Husband] and [Wife].” The purchase price for Husband and Wife’s portion of the 160 acres was $24,500. Husband testified that his father gave “us” $8,000 for the down-payment. At the time of the judgment, the mortgage on the property had been paid down to $13,000.

The trial court found that tract 1 was the non-marital property of Husband, subject to a marital interest. The trial court valued the tract at $42,000, and found that the marital interest in the tract was one-third of that amount, $14,000, which it divided equally between Husband and Wife. Thus, it appears that the trial court determined that the source of one-third of the tract was a gift from Husband’s father (the $8,000 down payment of the $24,500 total) and approximately one-third of the value of the property was still owed on the mortgage on the property ($13,000), leaving one-third of the $42,000 value of the property as a marital investment ($14,000). It assigned the debt on the property to Husband, though it did not specifically assign the corresponding one-third value of this property in any of its schedules. Wife does not challenge the valuation of the property at $42,000. She argues that this tract was originally acquired by them jointly and that Husband failed to satisfy his burden of proving that one of the exceptions to the presumption of marital property applied to it.

Though Missouri courts follow the source of funds rule for determining whether property is marital or separate, this rule did not abolish the theory of transmutation. McAllister v. McAllister, 101 S.W.3d 287, 293 (Mo.App. E.D.2003). A strong presumption in favor of a gift to the marriage is created when property is jointly titled at acquisition. Absher v. Absher, 841 S.W.2d 293, 295 (Mo.App. E.D.1992). Such is true even if one spouse furnished all of the consideration. Stephens v. Stephens, 842 S.W.2d 909, 914 (Mo.App. S.D.1992). In Tracy v. Tracy, 791 S.W.2d 924, 927 (Mo.App. S.D.1990), this court quoted with approval language from Conrad v. Bowers, 533 S.W.2d 614, 622 (Mo.App.St.L.1975), which stated,

... We believe, rather, that the general assembly intended that all property acquired subsequent to the marriage taken in joint names of husband and wife is marital property subject to division upon dissolution, unless (1) it is shown that the property acquired subsequent to the marriage was acquired in exchange for property acquired prior to the marriage and (2) it is shown by clear and convincing evidence that the transfer was not intended as a provision for a settlement upon or as a gift to the other spouse, (emphasis in original.)

It appears from this language that when property is jointly titled at purchase, as here, the party claiming that property as separate property must prove that it was acquired by one of the methods listed in Section 452.330.2 and that there was no intention of a gift to the other spouse. As this property was jointly titled in the names of Husband and Wife, a strong presumption was created that a gift to the marital estate was intended. Absher, 841 S.W.2d at 295.

Husband stated, “The down payment was given to us by my father to put on it.” He introduced no documents indicating that the money was actually given to him alone, although he later testified that his father helped him with the down payment. The trial court apparently believed that Husband’s testimony showed that his father provided the $8,000 down payment on the property, and this made part of the property non-marital. There does not appear to us to be clear and convincing evidence that the $8,000 down payment, or any down payment that was made, was a gift from Husband’s father to Husband only. Husband’s own testimony describes the down-payment as “given to us.” This testimony, in spite of the fact that he later stated that his father helped him alone with the down payment, does not make clear that the down payment was strictly a gift to him and not a gift to Husband and Wife. Furthermore, the debt of $13,000, secured by a deed of trust on this property, was in the names of both Husband and Wife. Husband also presented no evidence at trial to rebut the presumption of a gift to the marriage by titling the property in the names of both spouses. There was not clear and convincing evidence that the property was acquired by gift to Husband from his father or in exchange for property acquired by him by gift from his father. Nor was there clear and convincing evidence that a gift to the marital estate was not intended. Therefore, we find that the trial court erred in determining that only one-third of the value of tract 1 was marital. The character of the property in its entirety is marital.

Tract 2 consists of forty acres and a residence in Barton County where Husband and Wife lived throughout the marriage. Husband’s parents originally owned the property but allowed Husband and Wife to live there. Wife testified that Husband inherited a certificate of deposit worth $30,000 when his father died and that the $30,000 was used to buy his mother, Glenna Winter, a house in Jasper, Missouri. She also testified that they put other money into that house beyond the money Husband inherited. The record shows a deed for a tract of land in Jasper County, Missouri, to Husband and Wife dated May 21, 1993. It also shows a contract between Glenna Winter, the sole owner of tract 2, and Husband and Wife, owners of the land in Jasper, where the latter land, valued at $30,000, was exchanged for tract 2, also valued at that time at $30,000. Husband and Wife also took title to tract 2 jointly.

Husband testified that he inherited the $30,000 CD from his father and that the money was used to buy his mother a house. He disputed Wife’s claim that they put some of their own money into his mother’s house. He also testified about improvements that were made to tract 2 during the time that Husband and Wife resided there, including the construction of several sheds, all but one of which was built by Husband’s father. The farmhouse where Husband and Wife lived was also substantially improved through the labor of Husband and others.

The trial court determined that tract 2, which it valued at $75,000, was the separate property of Husband, subject to a marital investment of $10,000. It found that the source of funds for the property was the $30,000 CD Husband inherited from his father which was used to purchase the house in Jasper, Missouri for Husband’s mother. It stated that, “Regardless of the fact the attorney who prepared the documents prepared the deeds in the name of [Wife] and [Husband], the source of funds for the purchase of the 40 acres and residence was the $30,000 Certificate of Deposit inherited by [Husband] from his father.” It found that all of the sheds on this property, save one, were provided by Husband’s father and that the residence was remodeled with funds from Husband’s father and labor by Husband and others. It found that the marital interest in the property was $10,000.

Though there is clear evidence that the source of funds for the marital home was Husband’s inheritance, Husband presented no evidence to rebut the presumption of a gift created when the property was acquired from his mother and titled jointly. In his brief he claims that the trial court could have found from the evidence that he had no intent to make a gift of the property, but he fails to point out which evidence substantiates his claim. Husband had the burden of proof in rebutting the presumption of a gift. Schroeder v. Schroeder, 924 S.W.2d 22, 28 (Mo.App. E.D.1996).

Husband also cites Willyard v. Willyard, 719 S.W.2d 91, 93 (Mo.App. E.D.1986), for the proposition that the trial court could implicitly find that there was no intent on the part of Husband to make a gift. However, in that case there was evidence before the trial court that the husband did not intend to make a gift of the property and also an admission by the wife that she viewed the property as the husband’s. Id. No such evidence of intent was present here. Furthermore, Wife testified that Husband never told her that the property was his separate property or was anything other than joint property. The trial court erred in finding that tract 2 was the separate property of Husband with a $10,000 marital interest. Rather, tract 2 should have been declared to be marital.

Wife’s first point is granted as to tracts 1 and 2, but denied as regards tracts 3 and 4.

In Wife’s second point, she claims that twenty brood cows, a 1982 7720 JD combine and head, a 400 Case tractor, and a 970 tractor with loader were improperly characterized as Husband’s non-marital property. She contends that these items should have been classified as marital property as all of them were acquired during the marriage and Husband failed to prove by clear and convincing evidence that those items were his separate property-

Husband argues that the evidence established that he obtained these items either through gift or inheritance from his father. He cites D.K.H. v. L.R.G., 102 S.W.3d 93 (Mo.App. W.D.2003), in support of his contention that the trial court could determine that the property discussed in this point was separate property. There, the trial court determined that certain property was the non-marital property of the wife. Id. at 97. The wife testified at trial that she purchased property with funds she inherited, and that she and her husband together had not saved enough money to cover the purchase of the property at that point in their marriage. Id. at 97-98. Wife’s testimony also included, however, her statement that she “presumed” the funds for the purchase came from inherited funds but could not say so “for certain.” Id. at 98. She could also not produce documents to support her testimony. Id. The appellate court deferred “to the trial court’s decision to accept [the wife’s] testimony that she used her inheritance to purchase [the property].” Id. In doing so, however, it also found that there was other evidence to support her claim, namely that, although the husband was primarily responsible for financial matters during the marriage, he had no recollection of whether they had saved enough money from his earnings to purchase the property, and that he was not involved in its purchase and thought it was not a good idea. Id. The court also noted that the property was not jointly titled, that it did not find the husband’s argument regarding spending and payment of taxes from the inherited funds convincing, and it found clear and convincing evidence that the property was purchased using inherited funds and was separate property. Id. at 98-99.

Here, the trial court found the twenty brood cows, as well as the JD combine and head, came to Husband by gift or inheritance from his father; and that he inherited the 400 Case tractor and 970 tractor with loader. It valued the brood cows at $7,000, the combine and head at $14,000, the 400 Case tractor and loader at $1,000, and the 970 tractor w/loader at $3,000.

As to the twenty brood cows, there is sufficient evidence to support the trial court’s determination. Husband testified that he inherited the twenty brood cattle when his father died and that those cattle were old and “in the upper 20’s” at the time of trial. Wife agreed that he inherited cattle. The trial court did not err in finding that these cows were Husband’s separate property.

Regarding the 400 Case tractor, Husband testified that he inherited it from his father. Wife stated that this tractor was Husband’s father’s and “became ours with the transferring of the estate.” She believed it was covered by a bill of sale from Husband’s father to “[her] and [her] husband.” In 1982 and as part of his estate planning documents, Husband’s father executed a bill of sale. The bill of sale did not, as Wife appears to claim in her testimony, purport to transfer items to Husband and Wife, but rather it did so to Husband alone. However, the bill of sale clearly states that Husband’s father

for and in consideration of the sum of ⅜ * *Ten Dollars and Other Valuable Consideration* * ⅜ ... the receipt of which is hereby acknowledged, by these presents does bargain and sell unto the said [Husband] ... All farm machinery and equipment, per itemized list attached, together with all shop tools, located on the premises of Grantor’s farm located North and East of Jasper, Missouri.

The Case 400 tractor is included on the itemized list. There was no testimony at trial regarding whether the bill of sale was effective upon Husband’s father’s death or at the time of execution, so we can only assume that it was effective at the time of execution. In either event, it would have been effective during the marriage.

The trial court stated, in its decree, that “[Husband] received his father’s farm equipment ... through gift or inheritance by way of Bill of Sale delivered to [Husband] before his father’s death or gift from [Husband’s father] to [Husband].” It found that he inherited the 400 Case tractor from his father. Husband gave only conclusional testimony that he inherited the tractor. Conclusional statements offered to prove the character of property have been found not to constitute clear and convincing evidence to rebut the presumption of marital property. In re Marriage of Reed, 762 S.W.2d 78, 88 (Mo.App. S.D.1988). Furthermore, the bill of sale shows that it, and other items not at issue in this appeal, were purchased from Husband’s father for “Ten Dollars and Other Valuable Consideration.” No testimony was presented regarding the character of the funds or other consideration used to complete this purchase. Husband had the burden of overcoming the presumption that property acquired subsequent to marriage is marital by clear and convincing evidence. In light of the bill of sale, we find that he did not carry this burden as regards the 400 Case tractor. This tractor was improperly characterized as Husband’s non-marital property. We accept its value at $1,000 as determined by the trial court.

Regarding the 970 tractor with loader, Husband listed it as his separate property on his amended form DR-1 and valued it at $8,000. Wife testified that she and Husband bought this tractor, and that it was worth $4,000. However, her testimony shows some confusion on her part as to which tractor this is, as there were three different tractors. Husband, in his testimony, did not specifically refer to the 970 tractor with loader, though he gave testimony regarding a 2094 Case tractor, which he admitted was marital and is not at issue in this appeal, and the 400 Case tractor. The 970 tractor with loader is referred to in two of the documents received in evidence, Husband’s amended form DR-1 and Husband’s “Exceptions to DR-1 Form Filed by [Wife] Regarding Existence or Character of Property.” In the exceptions it states, “970 Case tractor & loader; [Husband’s] non marital from George less trade.”

The trial court must have found that Husband inherited the 970 tractor based on this statement in his exceptions to Wife’s DR-1. Husband gave no testimony at trial from which the trial court could have reached the conclusion that Husband inherited this tractor. The statement in Husband’s exception to Wife’s DR-1 does not constitute clear and convincing evidence that the 970 tractor was non-marital. It does not state that the Husband inherited it, nor does it state that- it was a gift from Husband’s father. The phrase “[Husband’s] non marital from George less trade” could also imply that Husband purchased it from his father. We find that the trial court erred in determining that this tractor was Husband’s separate property. Wife has not contested the trial court’s valuation of this tractor on appeal, so we accept that its value is $3,000.

The final piece of property at issue under Wife’s second point is the 1982 JD 7720 combine and head (“combine”). The trial court found that Husband’s father purchased the combine and made the payments until his death. - The only evidence as to the manner of acquisition of the combine was testimony by the parties. Wife testified that the combine was purchased during the marriage, in 1985, by she and Husband, and she believed that a promissory note for it was executed to a bank or other lending institution. No such note was made a part of this record, however. Husband testified as follows regarding the combine:

Q. Okay. Do you claim — Do you claim all or any part of that as non-marital property?
A. My father helped me with the down payment, and when he died and we sold his house, I paid it off with his money too. It come [sic] from the house sale.
Q. How much — How much of the—
A. Would be 100 percent.
Q. So actually the — the—
A. And it was used in his and my farming operation too.
Q. Okay. So your — your father paid the down payment, and then it’s paid off with your inheritance from your father?
A. Uh-huh.

He did not have any documentary evidence to support his testimony, however.

From this testimony, the trial court could have concluded that Husband’s father provided the down payment on the combine, and that it was paid off with proceeds from Husband’s inheritance from his father. This testimony is not clear as to what the “100 percent” referred to by Husband represents. In context it appears to refer to the balance remaining on the note for the combine at the time that the proceéds were used to pay it off. However, Wife’s testimony establishes that the combine was acquired in 1985, and Husband’s father died in 1993. Wife’s testimony indicates that she and Husband executed a promissory note on the combine, and, we presume, made the payments on the combine during the approximately eight years prior to the death of Husband’s father. We find that Husband has not presented clear and convincing evidence that the entire value of the combine is non-marital property. We remand to the trial court for it to determine the marital and non-marital portions of the combine, valued at $14,000.

Wife’s second point is denied as to the twenty brood cattle, but granted as to the 400 Case tractor, the 970 tractor with loader, and 7720 JD Combine and head.

In her third point, Appellant challenges the division of marital property. The division of the property is inequitable, according to her, because the property referred to in points one and two should have been classified as marital instead of non-marital. She argues that by reason of these errors in classification, Husband received the vast majority of the marital property.

Section 452.330.1 provides that the trial court shall set aside to each spouse his or her non-marital property and then “divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors.... ” It is not necessary that this division be equal, but only fair and equitable under the circumstances. Bohon v. Bohon, 102 S.W.3d 107, 109-10 (Mo.App. W.D.2003).

The trial court awarded marital property to Wife valued at $57,106.32 and marital debts totaling $10,797.67, leaving wife with a net value of marital property of $46,308.65. It awarded Husband marital property valued at $69,265 and debts of $19,100, leaving a net value of $50,165. Further, the trial court ordered an equalization payment from Husband to Wife of $21,905 in order to balance the distribution of marital property. The equalization payment added to Wife’s net value gives an amount of $68,213.65 and subtracted from Husband’s gives an amount of $28,260. Wife did not challenge the trial court’s valuation of any of the property on appeal, therefore we will accept the trial court’s valuations.

The trial court set aside non-marital property of Wife valued between $289,616 and $476,273. The bulk of this non-marital property, and the reason why its value was not determined more exactly, is that Wife has a retirement account through the Public School Retirement System of Missouri valued at between $285,891 and $472,548. As this value determination was not challenged, we accept the value of this account as determined by the trial court. The trial court set aside non-marital property of Husband valued at $381,899.

We have determined that the trial court erred in finding that there was a marital interest in tract 1 of only one-third ($14,-000) of its $42,000 value, and have determined that it is entirely marital in character. We also determined that tract 2, valued at $75,000, the 970 tractor with loader, valued at $3,000, and the 400 Case tractor, valued at $1,000, were improperly characterized as Husband’s non-marital property. We have also determined that at least some portion of the value of the 1982 7720 JD combine and head is marital. This mischaraeterized property has a total value of $121,000, not including some portion of the $14,000 value of the combine. We remand to the trial court for it to consider a just and equitable division of the marital property in light of our determinations and the factors contained in Section 452.330.1.

In her final point, Wife claims the trial court erred in ordering her to maintain health insurance for Husband through her employer because it was without authority to do so, especially since maintenance was not awarded to Husband. She claims that Federal COBRA law only allows for Husband’s coverage to be maintained for three years following dissolution.

Wife appears to be arguing that Husband should only be allowed to maintain health insurance through Wife’s employer for three years, and not indefinitely. She cites Rich v. Rich, 871 S.W.2d 618 (Mo.App. E.D.1994), in support of her contention that the trial court cannot order health insurance to be continued without an award of maintenance. There, the trial court ordered the husband to maintain health insurance for the wife as a limited form of maintenance through the COBRA program. Id. at 622. The wife complained of the termination of the insurance after three years and the court of appeals found no error as the COBRA law provides that the husband may maintain the coverage for up to three years. Id. at 624.

Husband contends that the parties explicitly agreed that Wife would maintain Husband through her insurance so long as he paid the premium to her in advance of its being due. He cites Mason v. Mason, 873 S.W.2d 631, 634 (Mo.App. E.D.1994), for the proposition that the trial court can order one party to maintain health insurance for another party despite a waiver of maintenance where there is an explicit agreement to provide insurance for the other party. Husband also argues that the COBRA law is not applicable because the parties followed the procedure required by the insurer to maintain Husband on Wife’s insurance “without going on COBRA.”

During the trial, both parties gave testimony with regard to health insurance. Wife had maintained Husband on her health insurance, though he had been paying the premium. Wife testified that it was fine with her if the trial court ordered that health insurance be kept in place if Husband paid the premium. She also testified that it was important that Husband maintain health insurance because of his history of diabetes and stroke. Husband stated that he needed to maintain insurance through Wife and asked the court to specifically order that it be continued at his expense. A discussion was then held by the attorneys and the court.

THE COURT: Could I inquire on that? Is that a type of COBRA extension, or is that peculiar to the retirement system and their insurance provisions?
MR. PODLESKI [Wife’s attorney]: I’m assuming it’s a COBRA, Judge. I don’t know anything about the—
THE COURT: Mr. Reynolds [Husband’s attorney]?
MR. REYNOLDS: I contacted the general counsel’s office and there’s some confusion over the information, but I’ve — At one time we were told that he would continue on the policy uninterrupted, and then there — then there was later a question as to whether that would be a COBRA after the dissolution case was actually entered. So to be honest with the Court, it’s really unknown, but at least I know — they told me to request the policy continue by court order, and it’s my belief that the policy will continue by court order and not even be on COBRA. COBRA only lasts about a year and a half.
MR. PODLESKI: It’s three years on a divorce.
MR. REYNOLDS: And — And three years. But if — And sometimes there’s more — The premium can change on a COBRA substantially. So it — it’s certainly preferable if we can continue the existing policy by court order. It would be much preferable to just relying on COBRA.
THE COURT: Any edification on that?
MR. PODLESKI: No, Judge. The only thing that I would ask, and I think my client says yes, that she didn’t have any problem with that. She — [Husband] has been reimbursing her. She’d been paying the premium initially, or — are they deducted from your check?
[Wife]: Deducted.
MR. PODLESKI: They’re deducted. If the Court was going to enter such an order, we would want it very clear that she wasn’t a loan company for him and she wasn’t to carry him, and if he didn’t — if he fell as much as 30 days behind, and that wasn’t to be encouraged, but if he didn’t — you know, for example, if he was 15 days behind, her obligation was — was ended and the insurance could be terminated.
MR. REYNOLDS: We would — We don’t want her to be a loan. We would even agree to pay it in advance.
THE COURT: Okay. Thank you.
MR. PODLESKI: That’s — That would probably be a great way to do it, Judge. If it’s not paid in advance, then she can cancel it.

In its judgment and decree, the trial court found that Husband had no other source of insurance coverage except through the continuation of the current policy through Wife’s employer. It ordered that the policy should continue in full force and effect “for as long as [Wife] may legally retain such policy of insurance.” It also ordered Husband to pay all premiums to Wife in advance of the due dates. We note that, although Wife complains of this portion of the judgment on appeal, it appears to us that she agreed to maintain Husband on the policy so long as he paid the premiums in advance, without limiting the length of time during which she would accept such an arrangement. An appellant cannot take a position on appeal contrary to the position taken at trial. Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 682 (Mo.App. S.D.2002).

Wife is correct in noting that COBRA coverage can extend for a maximum of three years from the date of dissolution. 42 U.S.C.A. § 300bb-2(2)(A)(iii); 42 U.S.C.A. § 300bb-3(3) (2003). The trial court’s order only states that Wife shall maintain the policy for as long as she may legally retain the policy. It appears, then, that if Husband is to receive his health insurance through COBRA, then the judgment and decree only obligate Wife to maintain him on the policy for three years, as this is the length of time prescribed by law. However, if Wife is to maintain Husband through some other arrangement through her insurer, and not under COBRA, then she is obligated to maintain that policy indefinitely.

In Mason, the trial court ordered the husband to pay the insurance premiums for the wife. 873 S.W.2d at 634. The appellate court found that even though insurance is a form of maintenance and that the parties had waived maintenance, the parties’ agreement “set insurance apart from other forms of maintenance.” Id. In Rich, the trial court ordered the husband to maintain wife’s status as a covered dependent on his medical insurance through the COBRA program as a form of limited maintenance. 871 S.W.2d at 622. By law, this coverage would terminate after three years. Id. at 624. That case does not state whether the husband paid the premiums or whether the wife forwarded the premiums to the husband. However, here Husband pays his own premiums for insurance coverage, in advance, to Wife. This does not appear to us to be a form of maintenance, but a method for maintaining health insurance on an individual who could be uninsurable otherwise. There is no evidence that Wife bears a financial burden by carrying Husband on her insurance where he pays the premium. As Wife agreed to the arrangement contained in the judgment and decree, whether it be through COBRA or another arrangement with her insurer, we deny her fourth point.

The judgment and decree is reversed as to the classification as marital or non-marital of the property discussed in this opinion, as well as the division of marital property. The case is remanded to the trial court for further proceedings as to those issues, consistent with this opinion. The judgment and decree is affirmed in all other respects.

PREWITT and RAHMEYER, JJ., concur.

      . Murphy interpreted the provisions of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2004).

      . In lieu of providing the legal descriptions of the property, we will adopt the trial court’s numbering of the tracts as tract 1, 2, 3, and 4.

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

      . Acknowledgement, except in limited circumstances, is not necessary for a deed to be valid between the parties. Robb v. N.W. Elec. Power Coop., 297 S.W.2d 385, 389 (Mo.1957).

      . Husband and Wife earlier deeded an eight acre portion of the eighty acres to their daughter and her husband, resulting in tract 1 totaling seventy-two acres.

      . It appears that the trial court intended that tract 1, other than the marital contribution, be the non-marital property of Husband, as it stated in the judgment and decree. However, Schedule 4, the non-marital property of Husband, only includes one-third of the value of the land.

      . There is no issue raised in this appeal about whether the twenty brood cows referred to in the judgment are the same twenty brood cows that Husband inherited or received by gift from his father. We note that other cattle were found to be marital property and divided by the trial court. Wife raises no issue with regard to the marital cattle.

      . This is presumably Husband's father.

      . The total value of the non-marital property set aside to Husband in Schedule 4 of the judgment incorrectly reflected the apparent findings of the trial court in that it only accounts for $14,000 of value in tract 1. The judgment and decree, however, awards Husband all of tract 1, subject to a marital investment of $14,000. Thus, based on that finding, the value of the non-marital portion of that land set aside to Husband would have been $28,000, resulting in a total value of $381,899.

      . No issue was raised on this appeal concerning uncertainty of the decree in this regard.

      . Husband’s motion to dismiss the appeal is denied.


source: Caselaw Access Project

author: NANCY STEFFEN RAHMEYER, Judge.

license: Public Domain

text:
    Phyllis RICE, Appellant, v. THREE RIVERS HEALTHCARE and Division of Employment Security, Respondent.
    No. 26565.
    Missouri Court of Appeals, Southern District, Division One.
    July 14, 2005.
    William B. Gresham, Poplar Bluff, for Appellant.
    Marilyn Green, Cynthia Quetsch, Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Phyllis Rice (“Claimant”) appeals the decision of the Labor and Industrial Relations Commission (“the Commission”) affirming the decision of the Missouri Division of Employment Security Appeals Tribunal (“appeals tribunal”) that Claimant did not show good cause for fading to participate in her scheduled hearing.

Claimant filed an initial claim for unemployment insurance benefits that was effective February 22, 2004; however, on March 10, 2004, a determination was made that Claimant was disqualified from benefits because she had voluntarily quit work with the employer on February 18, 2004, without good cause attributable to her work or her employer. Claimant appealed the determination of the deputy to the appeals tribunal and she received notice that a telephone hearing was scheduled for April 27, 2004, at 9:30 a.m. The notice stated in bold letters: “Claimant, we will use the phone number below unless you call 877-881-9162.” Claimant’s home telephone number was listed in the box below the above statement. The notice further provided that Claimant must read the instructions printed on the back and call in her phone number each time the hearing is scheduled. It also clearly stated that: “Your case may be dismissed if you fail to provide an accurate telephone number.” Finally, the notice on the back instructed that:

If your telephone number does not appear on the front of this notice and you do not report your telephone number by calling the toll-free number on the front, you will not be called for the hearing. It is your responsibility to report a telephone number where you can be reached promptly. The referee will not wait for you to be located or paged. The referee will only dial twice if the provided number is busy or is answered by an answering machine or voice mail.

Claimant’s attorney also received the same notice except no telephone number was listed. Claimant’s attorney did not follow the directions on the front of the notice or the bold instruction on the back. The appeals tribunal called Claimant’s home telephone number at the scheduled time and as routine procedure called a second time, five minutes later, yet did not reach Claimant. Claimant’s attorney did not call the appeals tribunal until 9:40 a.m. Claimant failed to participate in the scheduled healing and therefore, the case was dismissed by order of the appeals tribunal. On May 27, 2004, Claimant requested reconsideration of that order and the order was set aside.

The following day, a second hearing was held to consider whether Claimant had good cause for failing to participate in the initial hearing setting on April 27, 2004 and to take evidence on the merits of her case. Claimant acknowledged at the hearing that she received notice of the initial hearing which indicated her home telephone number would be used unless she called the number provided. She also acknowledged that she did not telephone the appeals tribunal to provide a different telephone number even though she knew that she had made arrangements to meet at her attorney’s office to participate in the hearing. On September 1, 2004, the Commission affirmed the decision of the appeals tribunal and adopted its decisions. This appeal followed.

Claimant appeals the decision stating the Commission abused its discretion and acted without or in excess of its powers and that the decision is not supported by competent and substantial evidence in that Claimant acted in good faith and reasonably under all circumstances.

On review of the Commission’s decision, we are governed by section 288.210 which, in pertinent part, states we may:

modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.

See also Wester v. Missouri Dept. of Labor and Industrial Relations, 134 S.W.3d 757, 758 (Mo.App. S.D.2004). Also, under section 288.190.3, “[i]n any [administrative] case wherein the appellant, after having been duly notified of the date, time, and place of the hearing, shall fail to appear at such hearing, the appeals tribunal may enter an order dismissing the appeal.” The appeals tribunal must therefore render decisions only after affording parties a reasonable opportunity for a fair hearing. Brawley & Flowers, Inc. v. Gunter, 934 S.W.2d 557, 560 (Mo.App. S.D.1996). “This requires reasonable and substantial compliance with principles of due process of law.” Id.

Here, because Claimant does not dispute that she was notified of the date, time and place of her initial hearing, the Commission did not err in dismissing Claimant’s appeal for failing to show good cause for her failure to participate in the original setting of her claim. Both Claimant and her attorney were negligent in following the instructions given to participate in the initial hearing. Claimant failed to follow the clearly stated directions that would have enabled her to present evidence. She, therefore, cannot claim she was denied a reasonable opportunity for a fair hearing. Claimant was not denied due process. The Commission, therefore, did not act without or in excess of its powers.

The Commission did not err in determining that Claimant’s failure to read the notice properly was not good cause for her to miss her telephone hearing and, subsequently, dismiss her appeal for failure to appear. See Jenkins v. Manpower on Site at Proctor and Gamble, 106 S.W.3d 620, 625 (Mo.App. W.D.2003). We, therefore, affirm the Commission’s decision.

GARRISON, P.J., and PREWITT, J„ concur.

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


author: PER CURIAM.

text:
    Dorise ROBINSON, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. ED 84248.
    Missouri Court of Appeals, Eastern District, Division One.
    July 19, 2005.
    James Clifton Robinson, St. Peters, MO, for appellant.
    Cheryl Ayn Caponegro Nield, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J„ BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Dorise Robinson (“Driver”), a school bus driver, appeals from the trial court’s judgment suspending her driving privileges for one year for her refusal to take or failure to pass a drug test. On appeal, Driver argues the trial court erred in suspending her driving privileges because: (1) federal law did not require her to submit to a drug test under the circumstances; and (2) even if federal law did require her to submit to a drug test, her conduct did not constitute a refusal under federal law.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. No precedential or jurisprudential purposes would be served by an opinion restating the detailed facts and the principles of law. The parties have been furnished with a memorandum for their purposes only explaining the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    Keri LUTZENBERGER and Vicki Kenamond, Appellants, v. Patricia MUSGRAVE, Respondent.
    No. ED 85192.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 19, 2005.
    David C. Knieriem, Richard W. Fischer Clayton, MO, for appellant.
    Kyler L. Humphrey, Clayton, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, C.J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Keri Lutzenberger and Vicki Kenamond (“Appellants”) appeal from a Motion for Summary Judgment granted to Patricia Musgrave (“Grantor”) on Appellants’ Petition for Accounting, Other Relief and Breach of Fiduciary Duty. Appellants claim that the trial court erred in entering Summary Judgment in favor of Grantor because as contingent beneficiaries of the trust, Appellants stated a claim for breach of fiduciary duty, for an accounting and because the court may not have had the complete trust before it on which to base its decision.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


author: SHERRI B. SULLIVAN, J.

text:
    Eda M. JOHNSON, Plaintiff/Appellant, v. George H. COOK and Patricia S. Cook, Defendants/Respondents.
    No. ED 85285.
    Missouri Court of Appeals, Eastern District, Division One.
    July 19, 2005.

      Ronald R. Fralicx, Warrenton, MO, for appellant.
    George H. Cook & Patricia S. Cook, Wright City, MO, pro se.
   SHERRI B. SULLIVAN, J.

Introduction

Eda M. Johnson (Appellant) appeals from a trial court judgment in favor of George H. Cook (Mr. Cook) and Patricia S. Cook (Mrs. Cook) (collectively Respondents), husband and wife, and against Appellant on her Petition for Specific Performance and Breach of Contract (Petition) regarding a purported real estate transaction. We affirm in part and reverse and remand in part.

Factual and Procedural Background

In January 2001, Appellant purchased a 9-acre parcel of real estate from Respondents for $43,000. Appellant built a house and now lives on the property. Adjacent to the 9 acre parcel is a 3.68-acre parcel of real estate also owned by Respondents. Around the time Appellant purchased the 9-acre parcel, Appellant and Mr. Cook discussed Appellant having the right of first refusal to purchase the 3.68-acre parcel, which Mr. Cook also was interested in selling.

Mr. Cook employed Appellant as an independent contractor from May 2001 until August 2002. Appellant earned commissions for soliciting clients to file siding claims. In December 2001, Mr. Cook was doing business as a sole proprietor using the name Magic Marketing.

On December 11, 2001, Appellant entered into an Agreement to Sell Real Estate (the Agreement) with Respondents as “Seller” and Appellant as “Buyer.” Paragraph one of the Agreement states: “LEGAL DESCRIPTION of real estate located in WARREN County, State of MISSOURI:” ‘WARREN” and “MISSOURI” are handwritten. Nothing is written, typed or referred to in the space after the colon following “MISSOURI.”

The Agreement includes a purchase price of $27,000 cash, with a deposit of $500 to be held in trust by Mr. Cook, and a handwritten closing date of “asap.” The Agreement is signed by Appellant and Mr. Cook. The Agreement is not signed by Mrs. Cook.

On October 9, 2002, Appellant filed a two-count petition (the Petition) against Respondents. Count I sought specific performance of the Agreement. Count II sought damages for breach of contract. Each count also included a prayer “for such other relief as the court may deem proper.”

Among the exhibits submitted into evidence by Appellant at trial on the Petition were the following. Exhibit E was a Boundary Survey prepared for Mr. Cook in January 2001 indicating two neighboring parcels of land in Warren County, Missouri, one labeled Parcel “A” and the other labeled Parcel “B.” Parcel “A” is the property Appellant purchased from Respondents in January 2001. Parcel “B” is the property intended as the subject matter of the Agreement.

Exhibit B was a receipt for a wire transfer on December 27, 2001 from Appellant to “Magic Marketing, Inc.” in the amount of $12,000. According to Appellant, the wire transfer was a payment towards the purchase price of the property under the Agreement, and she wired it to the Magic Marketing account because Mr. Cook did not have his personal checking account number available. Appellant testified that the $12,000 came from the proceeds, $68,000, from the sale of her house in California on December 26, 2001, and that she offered to pay Mr. Cook in full for the property but he said he did not need all of the money at that time. According to Mr. Cook, in December 2001, Magic Marketing was at risk of shutting down for two to three weeks and having to lay off everybody until an investor provided additional capital. Mr. Cook testified that Appellant asked him how much money was needed to sustain the company until the investor provided the additional capital and that he indicated about $12,000 to $15,000. Mr. Cook stated that because she thought it was “an opportunity of a lifetime,” Appellant offered to loan the company $12,000 from the California house sale proceeds.

Exhibit C was a personal check dated December 31, 2001 from Appellant to “George Cook” in the amount of $5,500. The check contains a notation of “Land.”

The trial court entered a judgment in favor of Respondents and against Appellant. The parties did not request findings of fact. As to Count I, the court concluded that the Agreement violates the statute of frauds because the Agreement does not have Mrs. Cook’s signature, who owns the property with Mr. Cook, and therefore the Agreement is void as to Mrs. Cook and unenforceable as to Mr. Cook. The court also concluded that the Agreement is void for vagueness because it does not contain a legal description of the property or a date for performance. As to Count II, the court concluded that the count is based on “common law breach over the sale of the land and it, too, violates the statute of frauds.”

Appellant filed a Motion to Amend Judgment and/or Motion for New Trial, which the trial court denied. Appellant appeals from the trial court’s judgment.

Standard of Review

In a court-tried case, we will affirm the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We accept the evidence and inferences favorable to the prevailing party and disregard all contrary evidence. Mullenix-St. Charles Properties, L.P. v. City of St. Charles, 983 S.W.2d 550, 555 (Mo.App. E.D.1998). Because the parties did not request findings of fact, and the trial court did not make specific findings of fact, we consider all controverted fact issues as having been found in accordance with the result reached. Rule 73.01(c). We independently evaluate the trial court’s conclusions of law. Mullenix-St. Charles Properties, L.P., 983 S.W.2d at 555. We defer to the trial court’s superior ability to assess the credibility of witnesses. Flooring Systems, Inc. v. Staat Constr. Co., 100 S.W.3d 835, 837 (Mo.App. E.D.2003).

Discussion

Appellant raises five points on appeal. In her first point, Appellant argues that the trial court erred in not ordering specific performance of the Agreement because the Agreement is legally enforceable against Respondents and Appellant was at all times ready, willing and able to perform.

The statute of frauds prohibits an action to be brought “upon any contract made for the sale of lands ... unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.” Section 432.010.

Whether a writing satisfies the statute of frauds is a question of law. Ahrens v. Dodd, 863 S.W.2d 611, 613 (Mo.App. E.D.1992). To satisfy the statute of frauds, a writing must contain the essential terms of the contract, including the parties, the subject matter, the consideration or price, and the promises on both sides. Id. The subject matter, i.e., the real property to be conveyed, need not be fully and accurately described as long as the writing affords means whereby identification may be made perfect and certain by parol evidence. Id. The writing must be a guide to find the property and must contain sufficient particulars to point out and distinguish the tract from any other. Fox v. Courtney, 111 Mo. 147, 20 S.W. 20, 21 (1892). The description cannot be supplied altogether by parol evidence. Id. A writing is insufficient where parol evidence is necessary to supply the description, or part thereof, to determine and to define the property and to show the intention and agreement of the parties as to the property. Shy v. Lewis, 321 Mo. 688, 12 S.W.2d 719, 721 (1928).

Appellant concedes in her brief that the Agreement did not contain the legal description of the property intended as the subject matter of the real estate sale. The Agreement contains neither a description of the property nor any reference or means by which to guide a party to any extrinsic evidence from which the property can be found and identified.

Appellant argues that although the Agreement did not contain the legal description of the property, her testimony and Mr. Cook’s testimony at trial identified the property intended as the subject matter of the Agreement. However, if a writing contains no description or an insufficient description, then oral evidence is not admissible to aid the writing. Shy, 12 S.W.2d at 721.

Further, the Agreement is not signed by Mrs. Cook. Mr. Cook testified that although Mrs. Cook became aware that he signed the Agreement, he never got permission from her to sell her interest in the 3.68-acre parcel and she never gave him authority in uniting to negotiate on her behalf for the sale of the parcel. He stated that Mrs. Cook was adamant about not selling any more land to Appellant.

Therefore, because the Agreement does not include an essential term, namely, a description of the subject matter, and because the Agreement is not signed by Mrs. Cook, see Austin & Bass Builders, Inc. v. Lewis, 359 S.W.2d 711, 715 (Mo. banc 1962), it is barred by the statute of frauds.

Appellant also argues that barring the Agreement by application of the statute of frauds would perpetrate a fraud. One equitable exception to the statute of frauds is to prevent perpetration of a fraud by application of the bar of the statute. Lederle v. Lederle, 916 S.W.2d 423, 428 (Mo.App. E.D.1996). This exception requires the party seeking enforcement of the contract to prove, at a minimum: (1) the performance of acts which constitute cogent evidence of the existence of the contract; (2) the terms of the contract by means of clear, cogent, unequivocal and convincing testimony; and (3) such a change in the party’s position as a result of the acts done in reliance on the contract that to permit the other party to avoid enforcement of the contract would result in a gross injustice. Id. This exception is rigidly scrutinized and sparingly invoked; relief will be denied if there is doubt as to whether there has been a meeting of the minds or full understanding of the terms sought to be enforced. Id.

We conclude that this exception is not applicable because Appellant has not proven the terms of the Agreement, specifically the date for performance or closing date, by means of clear, cogent, unequivocal and convincing testimony. The Agreement includes a handwritten closing date of “asap.” Appellant testified that subsequent to signing the Agreement, she inquired of Mr. Cook when the closing was going to take place and he responded that it was supposed to be in February but since Appellant would be out of town for work, he would postpone it. Appellant claims that although she continually asked Mr. Cook when the closing was going to take place, he never informed her of a closing date. Mr. Cook testified that Appellant and a bank loan officer were to set the closing. Mr. Cook also testified that he and Appellant agreed on closing dates and that Appellant was to arrange those times with the title company, but she never did. This conflicting testimony does not prove the terms of the Agreement, specifically the date for performance or closing date, by means of clear, cogent, unequivocal and convincing testimony.

We also note that a neighbor of Appellant and Respondents testified that in the spring of 2002, he heard a conversation between Appellant and Mr. Cook during which Appellant stated that she was “short the money” for the land because she had to give some money to her son.

Accordingly, because the statute of frauds bars enforcement of the Agreement and because the prevention of a perpetration of a fraud exception does not apply, Appellant’s point one on appeal is denied.

In her second point on appeal, Appellant argues that the trial court erred in concluding that enforcement of the Agreement was barred by the statute of frauds because the doctrine of partial performance applies to require enforcement.

Another equitable exception to the statute of frauds is where there has been partial performance in furtherance of the agreement. Mika v. Cent. Bank of Kansas City, 112 S.W.3d 82, 89 (Mo.App. W.D.2003). A party may avoid the bar of the statute of frauds if the party has performed acts that, in themselves, are evidence of the existence of a contract to convey. Ahrens, 863 S.W.2d at 614. The acts must have been done in reliance on the contract, and the positions of the parties must have been so materially changed that it would be grossly unjust to allow the other party to rely on the statute of frauds. Id. If partial performance is established, the party asserting a contract exists may introduce parol evidence of the verbal terms of the contract. Id. If by such parol evidence the complete, definite, fair contract to convey that has been pleaded is proved by clear, cogent, unequivocal, and convincing testimony, such party is entitled to relief. Id. Again, this exception is rigidly scrutinized and sparingly invoked; relief will be denied if there is doubt as to whether there has been a meeting of the minds or full understanding of the terms sought to be enforced. Mika, 112 S.W.3d at 89.

There is no dispute that Appellant paid Mr. Cook $6,000 ($500 deposit on December 11 plus $5,500 check on December 31) towards the purchase price of the property under the Agreement. There is a dispute as to whether the $12,000 wire transfer was for payment on the property. Nonetheless, part payment of the purchase price of real estate, by itself, does not constitute partial performance. Gillespie v. Pulsifer, 655 S.W.2d 123, 126 (Mo.App. W.D.1983).

Appellant also identified the following acts in support of her partial performance argument. In March 2002, Appellant began building her house on the 9-acre parcel in a location that would allow a driveway to be built on the 3.68-acre parcel that would give her more direct access to a road than the existing driveway. Appellant cites to Mr. Cook’s testimony stating that she used the land and to a letter, submitted into evidence at trial by Appellant, written in August 2002 by Mr. Cook to Appellant in which Mr. Cook states that Appellant had part of the land graded and large white oak trees removed and sold without Mr. Cook’s permission, put up fence posts, which Mr. Cook had removed, erected a steel corral for training horses, placed large bales of hay on the land, and moved the property markers.

We conclude that the acts identified by Appellant do not sufficiently prove partial performance of the Agreement to remove it from the operation of the statute of frauds. Although it may not be as convenient as she prefers, Appellant has ingress and egress to her house without the building of a new driveway on the 3.68-acre parcel. Additionally, other than her own testimony, Appellant presented no evidence of an actual decrease in the value of her property due to her not obtaining the 3.68-acre parcel to build a new driveway. She also presented no evidence of the value of any alleged improvements she made to the 3.68-acre parcel. In fact, Mr. Cook’s letter to Appellant states that Appellant’s actions on the 3.68-acre parcel devalued the land and caused damage that cannot be repaired. Under these circumstances, we conclude that the acts identified by Appellant as indicating partial performance under the Agreement did not so materially change her position that it would be grossly unjust to allow Respondents to rely on the statute of frauds.

Even if the acts identified by Appellant establish partial performance, we must still examine whether Appellant proved the terms of the contract by clear, cogent, unequivocal and convincing testimony. As discussed above, Appellant did not prove the date for performance or closing date by means of clear, cogent, unequivocal and convincing testimony, and therefore, she is not entitled to relief under the partial performance exception.

Accordingly, because the statute of frauds bars enforcement of the Agreement and because the partial performance exception does not apply, Appellant’s point two on appeal is denied.

In her third point on appeal, Appellant argues that the trial court erred in concluding that no breach of contract occurred and in awarding no damages to Appellant because Respondents had materially breached the Agreement in that they failed to close on the property.

If a contract violates the statute of frauds, and therefore a party is unable to obtain specific performance, then a party cannot recover damages for breach of the contract. Austin & Bass Builders, Inc., 359 S.W.2d at 715. As discussed under Appellant’s point one and two on appeal, the Agreement violates the statute of frauds and therefore is unenforceable. Thus, Respondents cannot be held to have breached the Agreement by not closing on the property, and accordingly, Appellant is not entitled to damages for any alleged breach. Appellant’s point three on appeal is denied.

We address Appellant’s fourth and fifth points on appeal together as they essentially argue that the trial court erred in not awarding Appellant $18,000 because equity requires restitution be made to her in the amount of the payments she made on the property for her to be made whole.

Mr. Cook testified that he received from Appellant $6,000 ($500 deposit on December 11 plus $5,500 check on December 81) towards the purchase price of the property under the Agreement. However, he has not returned the money because he thinks Appellant should “pay for the damages that she did on the land and for using the land which was a small amount and [he’d] pay her the difference.” Mr. Cook also testified that Appellant should be reimbursed the $12,000 from Magic Marketing not him, as the money was a loan to the company not a payment on the property. Again, Appellant argues that the $12,000 was a payment on the property. Further, the August 2002 letter written by Mr. Cook to Appellant indicates that Appellant sold the trees that she had cleared from the property and that a survey company would be hired at a cost to reset the property markers that Appellant had moved.

We agree that equity may entitle Appellant to restitution for all, some, or none of the money that she paid towards the property, with appropriate interest from the date of payment to the date of judgment of restitution. See Jones v. Linder, 247 S.W.2d 817, 826 (Mo.1952). Therefore, we remand the case to the trial court to determine the total amount that Appellant paid towards the purchase price of the property and what amount, if any, Appellant is entitled to be reimbursed, taking into consideration the factors discussed above. If necessary, the trial court may receive additional evidence to make its determinations.

Conclusion

The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion. In all other respects, the judgment of the trial court is affirmed. Costs on appeal shall be split by the parties.

GARY M. GAERTNER, SR., P.J., and LAWRENCE E. MOONEY, J., concur.

      . All rule references are to Mo. R. Civ. P.2005, unless otherwise indicated.

      . Respondents did not file a brief with this Court.

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

      . Where land is held by the entirety, the husband and the wife hold it not as separate individuals but as one person, and neither one acting alone can adversely affect the other’s interest. Niehaus v. Mitchell, 417 S.W.2d 509, 514 (Mo.App.1967).

      . The bank loan officer testified that in November 2001, Appellant applied for a loan "in the twenty thousands” and that Appellant qualified for the loan, but that Appellant never provided title work to the loan officer during the six-month active period of the loan application so the application was closed.


text:
    Victoria L. VOSS, Respondent, v. Bernard J. VOSS, Appellant.
    No. ED 84962.
    Missouri Court of Appeals, Eastern District, Division One.
    July 19, 2005.
    Sally Irene Slipian, St. Louis, MO, for appellant.
    Jack Charles Hauser Jr., Clayton, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Bernard J. Voss (“Father”) appeals from the trial court’s judgment of dissolution from Victoria L. Voss (“Mother”). Father raises four points on appeal. First, Father argues the trial court misapplied the law in dividing the marital property and apportioning the marital debt because it resulted in Mother receiving a substantially larger portion of the net marital assets. Second, Father claims the trial court erred in awarding Mother maintenance because the amount is wholly beyond his ability to pay. Third, Father alleges the trial court abused its discretion in ordering him to pay Mother’s attorneys’ fees given the trial court’s apportionment of the marital debt. Finally, Father argues the trial court’s judgment with respect to child custody fails to make written findings on each of the factors enumerated in Section 452.375, RSMo 2002.

We have reviewed the briefs of the parties, the transcript, and the legal file submitted on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


author: LISA WHITE HARDWICK, Judge.

text:
    STATE of Missouri, Respondent, v. Anthony D. DRISKELL, Appellant.
    No. WD 63742.
    Missouri Court of Appeals, Western District.
    July 19, 2005.

      Sarah W. Patel, Esq., Kansas City, MO, for Appellant.
    Deborah Daniels, Esq., Jefferson City, MO, for Respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

Anthony Driskell was convicted by jury on two counts of possessing a controlled substance in violation of § 195.202, RSMo 2000. On appeal, he challenges the sufficiency of the evidence to support his convictions.

Our review is limited to a determination of whether there was sufficient evidence from which a trier of fact could have found Driskell guilty beyond a reasonable doubt. State v. Bristol, 98 S.W.3d 107, 111 (Mo.App.2003). We must accept as true all of the evidence and inferences favorable to the State and disregard all evidence and inferences to the contrary, giving great deference to the trier of fact. Id.

The State charged Driskell with possession of a controlled substance with intent to deliver (methamphetamine), § 195.211; possession of a controlled substance (marijuana), § 195.202; and possession of drug paraphernalia (syringe), § 195.233. Viewed in a light most favorable to the State, the evidence at trial established the following facts.

On the evening of May 10, 2003, Driskell was sitting in the driver’s seat of a vehicle parked at a gas station in Sedalia, Missouri. His companion, Summer Newland, was outside the vehicle washing the car windows. Police officers approached Dris-kell pursuant to an outstanding warrant for an unrelated traffic violation. Driskell was arrested and taken into custody.

Upon checking Department of Revenue records, the officers learned Driskell co-owned the vehicle with Paula Edwards. During a search of the vehicle, the officers opened the middle console (between the, driver and passenger seats) and found a plastic pouch. Inside the pouch was a cigarette package that held four plastic baggies of methamphetamine powder, one baggie containing marijuana, and a syringe. Testing later confirmed that the officers recovered 3.66 grams of methamphetamine and 3.51 grams of marijuana.

After all evidence was presented, the circuit court denied Driskell’s motion for judgment of acquittal. The jury found Driskell guilty on the marijuana possession charge and on the lesser included offense of methamphetamine possession. Driskell was acquitted on the charge of possessing drug paraphernalia.' The circuit court sentenced him, as a prior and persistent offender, to concurrent prison terms of five years for possession of methamphetamine and one year for possession of marijuana. The court denied Driskell’s motion for judgment of acquittal notwithstanding the jury verdict.

In his sole point on appeal, Driskell contends the circuit court erred in overruling his motions for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that he knowingly possessed the marijuana and methamphetamine found in his vehicle.

Section 195.202.1 provides that it is unlawful for any person to possess or have under his control a controlled substance. Unlawful possession occurs when:

[A] person, with the knowledge of the presence and nature of a substance, has actual or constructive possession of the substance. A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it.

§ 195.010(32).

To convict Driskell under this statute, the State had to prove that: (1) he knew the drugs were in the vehicle; and (2) he exercised control over the drugs through actual or constructive possession. Bristol, 98 S.W.3d at 111. Both the knowledge and control elements may be proved by circumstantial evidence. Id.

The State contends Driskell had actual possession of the drugs because they were found in the console next to his driver’s seat and “within his easy reach and convenient control.” However, actual possession cannot be established without proof that the defendant had “knowledge of the presence and nature” of the drugs. § 195.010(32). The mere fact that Driskell was seated next to the closed console does not indicate that he was aware of the contraband hidden therein. Because the evidence was insufficient to show actual possession, the State was required to prove that Driskell constructively possessed the methamphetamine and marijuana found in his vehicle.

Constructive possession arises when additional facts buttress an inference of the defendant’s knowledge of the presence of a controlled substance. Bristol, 98 S.W.3d at 111. Particularly in cases where there is joint access to a vehicle, the State must present evidence of “some incriminating circumstance” to establish the defendant’s knowledge of and control over the drugs. Id. Such evidence may include statements or actions indicating consciousness of guilt, routine access to the place where the drugs were found, commingling of the drugs with the defendant’s personal belonging, a large quantity of drugs, or the drugs were in plain view. State v. Johnson, 81 S.W.3d 212, 215 (Mo.App.2002).

Driskell was the driver and an owner of the vehicle, but he did not have exclusive control of the area where the drugs were found. The vehicle’s co-owner, Paula Edwards, presumably had access to console area, as well as Driskell’s companion, Summer Newland, who was washing the vehicle’s windows when the police arrived on the scene. Based on this shared control and access to the vehicle, further evidence was necessary to connect Driskell with the drugs. Bristol, 98 S.W.3d at 111.

The State contends Driskell demonstrated consciousness of guilt by making a “flippant comment” to the arresting officer and by concealing the drugs inside a cigarette package, a plastic pouch, and the console. The comment occurred when the officer told Driskell he was under arrest for possession of a controlled substance. Driskell asked, “What is a controlled substance?” The inquiry was reasonable in light of the fact that the officer did not specify the type of drugs involved in the charges. The State offers no explanation as to why the question should be considered flippant or indicative of Driskell’s guilt. Nor does the concealment of the drugs suggest his guilt, in the absence of evidence that Dris-kell actually hid them or knew they were inside the closed console.

The State also argues the syringe found in Driskell’s car indicated his knowledge of the presence and nature of the illegal drugs. The syringe, however, was not in plain view and was recovered from the cigarette box, inside the plastic pouch, in the same closed console as the drugs. The evidence failed to establish that Driskell was aware of the syringe and, thus, did not provide an inference that he knew about the drugs.

The State’s only remaining argument is that Driskell’s routine access to the console as an owner and driver of the vehicle was sufficient to prove his knowledge of the hidden drugs. While a defendant’s proximity to the contraband may be an incriminating factor under a totality of circumstances analysis, it alone does not prove the defendant knowingly possessed the drugs in a joint access situation. Id.; see also State v. West, 21 S.W.3d 59, 65 (Mo.App.2000). Constructive possession also cannot be inferred from the defendant’s mere ownership of the vehicle when passengers or co-owners had equal access. Johnson, 81 S.W.3d at 216.

The State’s evidence fell short of proving Driskell had knowledge of the methamphetamine and marijuana hidden in the console of his vehicle. No drugs or paraphernalia were found in plain view, and the concealed drugs were of such small quantity that they were stuffed inside a cigarette package and then tucked inside a slim package pouch, such as that used for insurance documents. None of Driskell’s personal belongings were commingled with the drugs. Moreover, there was no evidence of incriminating statements or conduct, as Driskell did not appear nervous, nor make any suspicious movements or attempt to flee when the officers approached him sitting in the driver’s seat. The State failed to show Driskell had any awareness the illegal drugs were hidden in his car.

The evidence was insufficient to prove beyond a reasonable doubt that Driskell had actual or constructive possession of the controlled substances in violation of Section 195.202.1. Accordingly, the circuit court erred in denying the motions for judgment of acquittal on the Count I conviction for possession of methamphetamine and the Count II conviction for possession of marijuana. The judgment of convictions is reversed.

All concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Edward C. BOOTH, Appellant.
    No. WD 63795.
    Missouri Court of Appeals, Western District.
    July 19, 2005.
    Amy M. Bartholow, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.

      Before THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN, and PATRICIA A. BRECKENRIDGE, JJ.
   ORDER

PER CURIAM:

Mr. Edward C. Booth appeals his conviction for trafficking cocaine in the second degree, Section 195.228, RSMo.(2000). A published opinion would serve no jurisprudential value, so we choose to issue this decision by memorandum to the parties. We affirm. Rule 30.25(b)


author: VICTOR C. HOWARD, Judge.

text:
    DeJuan THOMPSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64214.
    Missouri Court of Appeals, Western District.
    July 19, 2005.
    Andrew A. Schroeder, Appellate Defender, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   VICTOR C. HOWARD, Judge.

Appellant DeJuan Thompson (“Thompson”) appeals from a judgment in the Circuit Court of Jackson County denying his Rule 29.15 motion for post-conviction relief. In his sole point on appeal, Thompson claims the motion court clearly erred in denying his motion without granting an evidentiary hearing, because Thompson claimed that his counsel failed to call a witness in Thompson’s defense and because a conflict of interest existed. For the following reasons, the judgment of the motion court is reversed.

Background

Thompson was charged, by indictment, with (1) robbery in the first degree in violation of section 569.020, RSMo 1994, and (2) armed criminal action in violation of section 571.015, RSMo 1994. The State adduced the following evidence against Thompson at a jury trial on November 28 and 29, 2000.

Around 9 p.m. on October 17, 1999, Frances Newton (“Newton”) pulled into the parking lot of her apartment complex located at 8513 Holmes Road in Kansas City. Newton was driving a beige 1999 Chevrolet Malibu, which was a rental car that Newton was using while her car was being repaired. Newton parked in a space across from her building, exited the car, and started walking across the lot. Newton waited outside for a few minutes. While she was waiting, a teal Ford Escort or Mercury Tracer pulled up next to her. There were five occupants in the car, and one of the occupants asked Newton if she knew where Apartment Number 72 was located. Newton told them she did not know where the apartment was and waited for the car to pass. The driver and one of the rear-seat passengers then exited the car, and it appeared as though the two men were trading seats. One of the men, who Newton identified at trial as Thompson, met Newton as she was walking toward her apartment door. The man told Newton to drop her purse and keys, which she did. Newton saw that the man was holding a gun. The man then told Newton to pick up her keys. As Newton was picking up her keys, the man said, “ ‘Don’t make me shoot you.’ ” Newton then looked at the man, and he told her, “ ‘Don’t look at me. I’ll blow your f* * *ing brains out.’ ” The man held the gun close to Newton’s temple, then lowered the gun and told Newton to go back to her car and unlock it. Newton walked back to her car and unlocked it. The man then told Newton to step away from the car. Newton stepped away, and the man entered the car. The man then told Newton to leave without looking back. Newton walked toward her apartment and heard her car drive away.

Newton called the police from a neighbor’s apartment and described the robber as a black male around 25 years old, about six feet two inches tall, and weighing about 190 pounds with a medium build. A pickup order was issued for the car.

The following evening, October 18, 1999, Kansas City Police Officer John Cress (“Cress”) saw a car that matched the description of the car stolen from Newton in the vicinity of Gregory and Prospect. Cress determined that the car was the stolen Chevrolet Malibu and began to follow the car. The car drove off at a high rate of speed. Cress followed the car, observed five black males riding inside the car and requested backup. Cress activated his emergency lights at 85th Street and Prospect. The chase ultimately ended at 85th Street and 71 Highway when the driver lost control of the car and drove onto an embankment. The occupants of the car attempted to flee on foot, but all five occupants were caught and arrested. Thompson was one of the five arrested occupants.

Newton viewed a videotaped lineup and identified Thompson as the man who robbed her at gunpoint. Newton also identified Joe Finch (“Finch”) as having been present when the robbery occurred.

The jury found Thompson guilty of robbery in the first degree and armed criminal action. On February 8, 2001, the trial court sentenced Thompson to concurrent terms of thirty years for robbery in the first degree and fifteen years for armed criminal action.

Thompson appealed his convictions, which were affirmed by this court on June 18, 2003. Thompson timely filed a pro se Eule 29.15 motion on May 11, 2001. On December 15, 2003, post-conviction counsel filed an amended Eule 29.15 motion. On April 22, 2004, the motion court denied Thompson’s motion without an evidentiary hearing. This appeal follows.

Standard of Review

Our review of the motion court’s denial of Thompson’s Eule 29.15 motion is “limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.” Eule 29.15(k). “The findings and conclusions are clearly erroneous only if the appellate court is left with the definite impression that a mistake has been made.” Cole v. State, 152 S.W.3d 267, 268 (Mo.banc 2004).

Discussion

In his sole point on appeal, Thompson claims the motion court clearly erred in denying his motion without granting an evidentiary hearing, because Thompson claimed that his counsel failed to call a witness in Thompson’s defense and because a conflict of interest existed.

In support of his point on appeal, Thompson argues that he pleaded factual allegations, which if proven, would warrant relief and are not refuted by the record. Thompson claims he alleged that his trial counsel was deficient, in that he failed to contact and call Finch as a defense witness at trial. Thompson argues that Finch was willing and available to provide testimony that would have had a reasonable probability of changing the result of the trial.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), sets forth the two components required to establish an ineffective assistance of counsel claim:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

The Missouri Supreme Court recently set forth a four-part test that a movant must satisfy in order to show that the failure to present testimony of a witness was ineffective assistance of counsel. Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004) (citing State v. Harris, 870 S.W.2d 798, 817 (Mo.banc 1994)), provides:

To prevail on a claim of ineffective assistance of counsel for failure to call a witness, a defendant must show that:
(1) trial counsel knew or should have known of the existence of the witness,
(2) the witness could be located through reasonable investigation,
(3) the witness would testify, and
(4) the witness’s testimony would have produced a viable defense.

In Williams v. State, 8 S.W.3d 217, 218 (Mo.App. E.D.1999), the movant was convicted of several crimes, including first-degree burglary and receiving stolen property. The movant filed a Rule 29.15 motion alleging ineffective assistance of counsel for failing to call a witness who would have testified that the movant did not steal the victim’s van. Id. at 219. The movant argued that the “testimony would have rebutted an essential element of the crime of receiving stolen property.” Id. The movant “alleged that the [witness’s] testimony as to the thief s identity would have contradicted [the victim’s] account, which ... was the primary evidence adduced by the State to establish [movant’s] knowledge he possessed stolen property.” Id. at 220. Williams held that the motion court clearly erred by refusing to grant the mov-ant an evidentiary hearing, and the case was remanded for an evidentiary hearing to allow the movant an opportunity to prove his allegations. Id.

In the instant case, Thompson made the following allegations in his amended Rule 29.15 motion:

(1) “Movant told trial counsel that Mr. Finch was the only occupant of the car on October 17, 1999, who he considered to be a friend and who he believed would be willing to explain to a jury what really happened on said date.”
(2) “Movant told trial counsel that Mr. Finch could be located at the Jackson County Jail[.]”
(3) Finch “would testify ... if called to the stand.”
(4)Finch would testify that: “Around 9:00 p.m. on October 17, 1999, Mr. Finch and Movant (along with two other men) were occupants of a car that was being driven by Henderson Brown. When Mr. Brown approached the victim, Frances Newton, in an apartment complex parking lot at 8513 Holmes Road, Mr. Brown directed Movant, while handing him a gun, to ‘get out and rob that woman.’ Movant refused. Before Movant was able to say anything more, Mr. Henderson got out of the car and robbed Ms. Newton himself. Prior to Mr. Henderson pulling into the parking lot, there had been no discussions about anyone committing a robbery.”

The instant case is on point with Williams. Thompson properly pleaded all of the requisite allegations for a claim of ineffective assistance of counsel for failure to call a witness. Furthermore, Thompson alleged that Finch’s testimony would have provided a viable defense to the offenses of robbery in the first degree and armed criminal action. Because Thompson’s allegations are not refuted on the record, it was impossible for the motion court to determine that Thompson did not receive ineffective assistance of counsel without an evidentiary hearing. Therefore, the motion court clearly erred in denying Thompson an evidentiary hearing.

Conclusion

For the foregoing reasons, the judgment of the motion court is reversed and remanded for an evidentiary hearing.

ELLIS, P.J., and SPINDEN, J., concur.

      . The alleged conflict of interest is not at issue in this opinion because we decide the appeal on other grounds.

      . We note that Missouri courts have also applied two-part and three-part tests to determine whether failure to call a witness constitutes ineffective assistance of counsel.