text:
    Jane Gerarda SLATTERY, Respondent, v. Brian Keith SLATTERY, Appellant.
    No. ED 86184.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 10, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 9, 2006.

      Susan K. Roach, Clayton, MO, for appellant.
    Mary Ann Weems, St. Louis, MO, for respondent.
   PER CURIAM.

Brian Slattery (“husband”) appeals from the amended judgment of the trial court after a bench trial. Husband contends that the trial court abused its discretion in that a number of its findings and conclusions are not supported by the evidence, and that the actions of Jane Slattery (“wife”) resulted in unnecessary costs for attorney’s fees. Husband raises eight points on appeal. We summarily deny six of these claims and find that no jurisprudential purpose would be served by an exposition of the detailed facts and law. Rule 84.16(b). We affirm in part and remand in part.

Viewed in the light most favorable to the judgment, the evidence is as follows. Husband and wife were married on October 30, 1981. During the course of the marriage, two children were born. Shannon was born on August 31, 1987. Ryan was born on November 2, 1992. Both husband and wife worked during the course of the marriage, though wife was not always employed and did not work full-time when employed. The marital income was supplemented by monetary gifts from husband’s parents. In June 2003, husband and wife separated, and wife filed a petition to dissolve the marriage.

A bench trial was held on July 16, 2004. Wife, husband, and Ryan testified, and both parties introduced a number of exhibits, which included financial documents. Wife averred that husband behaved inappropriately with the children in a number of ways. She stated that husband gambled often on the weekends. Wife testified that he hit her on several occasions. During the course of the separation, husband gave wife only $270, though he continued to pay the mortgage, paid for the utilities for part of the period, and paid for certain expenses related to the children.

Husband left wife in charge of the family finances. He gave her his paycheck to deposit and told her how much cash he wanted or needed from each check. She paid the various bills using a joint checking account. Wife stated that husband is currently living in one of the homes owned by his parents, who are there about six months out of the year.

Wife admitted that she was terminated from a job for “sexual misconduct” with a fellow employee, but stated that she was not unfaithful to husband during the marriage. Wife testified that she took $13,500 from the joint checking account in December 2002, after husband’s parents gave them $20,000 as a gift, with a view towards dissolving her marriage. She stated that she used approximately $3,000 to pay her lawyer, but that the rest was spent on the costs of living, as husband only gave her $270 since the separation. Wife testified that husband has continued to pay the mortgage payments since the separation, but that after a time he ceased to pay the utility bills without giving her any warning, with the result that she and the children were in danger of having various utility services cut off. She estimated that there was approximately $65,000 in equity in the family home, the main marital asset, which she stated was not in good condition and worth about $85,000. Wife testified that after an order of protection expired, he forced his way into the family home, causing damage to the door. She stated that she has not spoken to husband since the separation, and that he gave no notice that he wanted to enter the home for any reason. She stated that both she and husband had discussed the dissolution of marriage with Ryan.

Ryan testified at the request of husband. He stated that his father had taken him to see an R-rated movie. Ryan testified that both parents said bad things about the other parent to him, calling each other names. He said that his father told him that his mother stole money. Ryan stated that both parents discussed the dissolution with him. Ryan testified that his father told him that he did not have to listen to his mother and that he could make his own decisions on matters such as visiting with his father. Ryan stated that his father told him that if he lived with him, then husband would not have to live with Ryan’s grandparents.

Husband stated that wife was not fired from her job in May 2002 for sexual misconduct, but rather “[i]t was read as sexual behavior between two district employees on district property.” He claimed that wife committed misconduct in handling the bank accounts by taking money without his consent, but admitted that she “was the only one that took care of the checks[.]” Husband stated on cross-examination that he left his payroll checks for wife to deposit at the bank with directions to get varying amounts of cash back. He admitted that their checking account was a joint checking account, and that the $20,000 check from his parents was made out to husband and wife. He conceded that he did not need her permission to withdraw money from that account, and that she did not need his permission to do so. He stated that even after wife took some $13,000 from the joint checking account in January 2003, he continued to have her handle his payroll checks.

Husband stated that after the restraining order had expired, he picked up two disposable cameras, got a friend, and they forced their way into the family home. He testified that they opened the screen door, pushed the side door in, proceeded to the kitchen, where the door was locked, opened the lock with a paper clip, and proceeded to the first floor of the house, and took pictures of the inside of the house.

Husband expressed the opinion that the family home was worth at least $125,000. He stated that he and wife owed a bit more that $20,000 on the house. He wanted the home sold and the proceeds divided unequally in his favor. He testified that since the separation, he has directly given wife only $270 for support, but also stated that he paid for a number of other expenses. Husband paid for Ryan’s private school tuition in the period between the filing of the petition of the dissolution and the hearing. Both parties agreed that Ryan should attend private school.

Both parties filed their own Form 14s and submitted financial information. The trial court rejected the parties’ Forms 14 and compiled its own Form 14, and made findings of fact and conclusions of law in its judgment/decree of dissolution. Husband filed a motion to amend the judgment. The trial court subsequently issued an amended judgment/decree of dissolution setting forth its amended findings of fact and conclusions of law.

In its amended judgment, the trial court ordered that the marriage be dissolved. It determined that it is in Shannon’s best interest that sole legal and physical custody of her be granted to wife, and Shannon participate in counseling to try to restore her relationship with her father. The trial court also determined that it is in Ryan’s best interest that sole legal custody be awarded to wife, and that husband and wife be awarded joint physical custody with wife as the residential parent. The court ordered husband to pay wife $755 per month for child support for Shannon and Ryan. It found that husband owed wife $12,835 for child support, retroactive through December 20, 2004, and satisfied that debt by reducing the amount that wife would have owed husband in the division of marital property. Husband was ordered to continue to provide health insurance for the children. The trial court also awarded wife $750 per month as periodic, modifiable maintenance, having found that wife is capable of working full-time and making a gross monthly income of $1419.60.

The trial court also divided the marital property, awarding the family home to wife, and determining that the equity in the home was $60,000. In the property division the trial court ordered wife to pay husband $14,500, after having setoff $12,835 that the trial court determined that husband owed wife for retroactive child support. The trial court also divided the marital debt. It ordered husband to pay wife’s attorney $5,000 as a portion of wife’s legal fees, and to pay the GAL the sum of $2,610 for her fees. Husband now appeals from that judgment.

We review a judgment of dissolution as we review any court-tried case. Hoberock v. Hoberock, 164 S.W.3d 26, 30 (Mo.App.2005). This Court must affirm the judgment of the trial court unless there is no substantial evidence to support the decision, the judgment is against the weight of the evidence, or the trial court erroneously declares or misapplies the law. Id. We will not retry the case, but rather accept as true the evidence and reasonable inferences therefrom in the light most favorable to the decision of the trial court, and disregard all evidence and inferences to the contrary. Id. This Court defers to the superior ability of the trial court to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles not revealed in the transcript. Id.

In order to facilitate our analysis, we will examine husband’s seventh point relied on first. In this point on appeal, husband avers that the trial court erred by abusing its discretion in determining that husband was in arrears on child support payments in that the evidence does not support that determination.

The purpose of child support is to provide for the children’s specific needs. In re Marriage of Gerhard, 985 S.W.2d 927, 935 (Mo.App.1999). The trial court has discretion to order retroactive support dating back to the filing of the petition for dissolution. Section 452.340.1 RSMo (2000); Malawey v. Malawey, 137 S.W.3d 518, 525-26 (Mo.App.2004). Retroactive child support need not be specifically prayed for in the petition, provided that the award is consistent with the substantive allegations of the petition, is requested on the record, and is supported by the evidence. Gerhard, 985 S.W.2d at 935. It is the trial court’s function to balance the equities in determining if a party is entitled to retroactive child support, and this Court will not substitute its judgment for that of the trial court. Malawey, 137 S.W.3d at 526. Among the relevant factors under section 452.240.1 to be considered by the trial court are the following:

(1) The financial needs and resources of the child; (2) The financial resources and needs of the parents; (3) The standard of living the child would have enjoyed had the marriage not been dissolved; (4) The physical and emotional condition of the child, and the child’s educational needs; (5) The child’s physical and legal custody arrangements, including the amount of time the child spends with each parent and the reasonable expenses associated with the custody or visitation arrangements; and (6) The reasonable work-related child care expenses of each parent.

In addition, the trial court should consider whether the non-custodial parent contributed to the support of the children during the period prior to the dissolution. Malawey, 137 S.W.3d at 526.

Father made the mortgage payments and some of the utility payments, paid for health insurance for the children, and paid for the private school tuition for Ryan, but did not otherwise provide child support after the filing of the petition of dissolution. There was substantial evidence to support the trial court’s finding that mother had to expend marital assets to provide for the children and herself between June 2003 and December 2004. The trial court did not abuse its discretion in awarding retroactive child support to wife.

However, the trial court did err in its calculations of that retroactive child support. The trial court’s retroactive child support award to mother of $12,835 is the equivalent of seventeen months of child support. This would not be an issue, but as husband contends, the undisputed evidence in the record indicates that he paid the private school tuition, which is included in the trial court’s Form 14 calculations, for at least part of the period between the filing of the petition for dissolution and the December 20, 2004 judgment. In her brief on this issue, wife does not deny that husband made such tuition payments. Accordingly, the trial court should have given husband due credit for those payments in calculating the amount of retroactive child support, and erred in not doing so. Point sustained in part.

In his fourth point relied on, husband asserts that the trial court abused its discretion in its valuation and distribution of marital property and marital debt in that the valuation and distribution disproportionately favored wife and was not supported by the evidence.

A trial court divides marital property in the exercise of its sound discretion. In re Marriage of Denton, 169 S.W.3d 604, 606 (Mo.App.2005). We review the trial court’s ruling on property division for compliance with Murphy v. Carron, 536 S.W.2d 30 (Mo.1976) and for abuse of discretion. Id. The trial court abuses its discretion only if its decree is so unreasonable or arbitrary that it reflects indifference and a lack of proper judicial consideration. Id. Appellate courts will interfere with the distribution of marital property only if the division of the marital property is so heavily and unduly weighted in favor of one party that it amounts to an abuse of discretion. Id. at 609. Marital property does not need to be equally divided, but rather the division must be equitable and fair under the circumstances of the case. Id.; section 452.330.1. The owner of property is competent to testify regarding its value in a dissolution of marriage proceeding, and the trial court is free to accept or reject such testimony. Denton, 169 S.W.3d at 609. Wife and husband gave conflicting testimony regarding the value of the family home, which was the major marital property.

The distribution of property in a dissolution of marriage proceeding is governed by section 452.330.1. That statute requires the trial court to divide the marital property and marital debt “in such proportions as the court deems just after considering all relevant faetors[.]” It goes on to list a non-exclusive list of relevant factors that the court should consider.

The trial court in this case specifically declared that it made its division of property order pursuant to the guidelines set forth in section 452.330.1. Nothing in the record indicates that the trial court failed to consider these factors or misapplied them in making the property distribution. Wife has sole legal and physical custody of Shannon, and sole legal custody and primary custody of Ryan. The trial court made findings regarding the conduct of husband and wife, and regarding the economic circumstances of both spouses. Wife received the family home, for which the trial court set a valuation more in accord with wife’s testimony than husband’s, some of the personal property, and had to pay husband $14,500. This included setting off the amount that the trial court determined that husband owed wife for retroactive child support by reducing what wife would have otherwise had to pay to husband in the property distribution. While somewhat disproportionate, the property division is not inequitable or unfair, and the trial court did not abuse its discretion in valuing or dividing the marital property. However, as we discussed in our analysis of husband’s seventh point relied, the trial court awarded an incorrect amount of retroactive child support. The trial court used the amount of retroactive child support in determining an offsetting credit to wife in the distribution of the marital property. The trial court erred in calculating that credit to wife. Point sustained in part.

The judgment is affirmed as to the awards of custody, child support, attorney’s fees, and payment of the balance of the guardian ad litem fees. As to the award of retroactive child support and the proper credit related to that support in the distribution of marital property, we remand for the receipt of additional evidence concerning husband’s payment of tuition between the filing of the petition for dissolution in June 2003 and the December 20, 2004 judgment, and the determination of the amount of retroactive child support and the offsetting credit to wife in the distribution of marital property. In all other respects, the judgment is affirmed.

      . The parties have been furnished with a memorandum, for their information only, setting forth the reasons for our decision pursuant to Rule 84.16(b).

      . All further statutory citations are to RSMo (2000) unless noted otherwise.

      . The record indicates that husband paid the private school tuition through the time of the hearing, July 2004, and is silent regarding the period between the hearing and the December 2004 judgment.

      . Although husband purportedly had the family home appraised, this appraisal does not appear to be in the record.

      . The non-exclusive list of statutory factors that the shall consider includes:
      (1)The economic circumstances of each spouse at the time of the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of the children;
      (2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker;
      (3) The value of the nonmarital property set apart to each spouse;
      (4) The conduct of the parties during the marriage; and
      (5) Custodial arrangements for minor children.


source: Caselaw Access Project

author: KATHIANNE KNAUP CRANE, Presiding Judge.

license: Public Domain

text:
    William P. CHARNISKY, Contestant/Respondent, v. Richard CHRISMER, Director of Elections St. Charles County Election Authority, Contestee/Respondent, Shane Kranzberg, Intervenor/Appellant.
    No. ED 85933.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 17, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 9, 2006.

      David T. Hamilton, John A. Young, Nicholas J. Komoroski, Hazelwood & Weber LLC, St. Charles, MO, for William P. Charnisky.
    Harold A. Ellis, St. Charles, MO, for Rich Chrismer.
    Stephen A. Martin, Barklage, Brett, Martin, Wibbenmeyer & Hamill, P.C., St. Charles, MO, for appellant.
   KATHIANNE KNAUP CRANE, Presiding Judge.

This is an appeal from a judgment in a lawsuit contesting an annexation election held pursuant to Section 71.015.3 RSMo (2000) on the City of St. Peters’ proposition to annex an unincorporated area. At the time of the election, the election authority records showed one registered voter in the annexation area. The original contestant, a resident of St. Peters, filed a petition challenging that voter’s residency and qualifications to vote, and sought a recount. A second contestant intervened, claiming that he was also a resident of the area to be annexed, and requested either a recount that tabulated his ballot or a new election. After a trial on both contestants’ claims, the trial court agreed with the original contestant and ordered a recount in which the contested voter’s ballot would not be counted. The trial court denied the second contestant’s request for a new election because he had failed to show election irregularities in that his failure to vote as a resident of the annexed area was found to be caused by his failure to follow directions and not the fault of the election judges. The second contestant appeals. We affirm.

FACTUAL and PROCEDURAL BACKGROUND

In May 1998, the City of St. Peters (the City) declared its intent to annex an unincorporated area adjacent to the City known as Harvestowne. It filed a petition to annex in the Circuit Court of St. Charles County. The City filed a declaratory judgment action seeking a judgment declaring that the City met all the requirements of the law to annex the Harves-towne area, thus permitting the City to proceed with an annexation election pursuant to section 71.015. See City of St. Peters v. Winterhoff Living Trust, 77 S.W.3d 17 (Mo.App.2002) (Winterhoff I). After remand, the trial court entered a judgment permitting the City to proceed with annexation, which we affirmed. City of St. Peters v. Ronald A. Winterhoff, 117 S.W.3d 698 (Mo.App.2003) (Winterhoff II).

Thereafter, in December 2003, the City passed an ordinance and called for an election to be held on April 6, 2004, on the proposition for annexation. The City certified to the St. Charles County Election Authority (Election Authority) that there were no qualified electors in Harves-towne. Accordingly, Richard Chrismer, the Director of Elections (the Director) prepared for an annexation election at which the City voters would vote on white ballots. However, three to four weeks before the election, the Director learned that there was a qualified elector in Harves-towne, Dennis Gittemeier. After confirming Mr. Gittemeier’s address and registration, the Director prepared to conduct an election to allow votes to be cast from both the City and Harvestowne. The Director added page 10G to the vote recorder for voters who lived in Harvestowne to vote on the annexation proposition. The instructions on this page instructed voters that if they were voting on the annexation, and resided within Harvestowne, they were to use a yellow ballot.

The election on the proposition for annexation was held on April 6, 2004. Mr. Gittemeier voted against the proposition for annexation on a yellow ballot. On the day of the election, intervenor, Shane Kranzberg, transferred his voter registration to an address within Harvestowne. Mr. Kranzberg used a white ballot to vote against the proposition for annexation. On April 7, 2004, the Director announced that voters from the City cast 7,983 votes in favor of the proposition and 4,086 votes against. He announced that voters from Harvestowne cast no votes in favor and one vote against. Because no votes were cast from Harvestowne in favor of the proposition, the proposition for annexation failed. Section 71.015.

On May 4, 2004, contestant, William P. Charnisky, a registered voter in the City, filed a petition to contest the election, which he subsequently amended. He alleged that Mr. Gittemeier did not live at the Harvestowne address, which was a business office, and that Mr. Gittemeier was therefore not qualified to vote. He sought a recount and other relief.

Shortly thereafter, Mr. Kranzberg obtained leave to intervene and filed an election contest petition. He alleged that he was a resident of the annexation area, was qualified to and did vote, but his vote was not counted. In Count III, he sought a declaration that he was a resident, a recount or a new election, and other relief.

After a bench trial on Mr. Charnisky’s petition and Count III of Mr. Kranzberg’s petition, the court entered an Order and Judgment, which recited:

(1) Based on the preponderance of the credible evidence, the Court finds that Dennis Gittemeier was not a resident at 1208 Harvestowne Industrial Drive at the time of the election and, therefore, was not qualified to vote on the ballot question regarding the annexation of property by the City of St. Peters at the election held on April 6, 2004; (2) that, as a result, the Election Authority of St. Charles County is directed to conduct a recount of the ballots, pursuant to § 115.583, RSMo.; (3) in such recount, the ballot cast by Dennis Gittemeier shall not be counted pursuant to § 115.582.2, RSMo.; and (4) the Court finds, based on the preponderance of the credible evidence that Intervenor Shane Kranzberg failed to follow the instructions clearly printed upon the vote recorder utilized by the St. Charles County Election Authority and that there are not irregularities of sufficient magnitude to cast doubt on the validity of the election held on April 6, 2004 pursuant to § 115.593, RSMo., and, therefore, Inter-venor Kranzberg’s request for a new election is hereby denied.

Mr. Kranzberg appeals from this judgment.

DISCUSSION

I. Standing to Appeal

In his first point, Mr. Kranzberg challenges that portion of the trial court’s judgment that ordered a recount without Mr. Gittemeier’s ballot. He claims that the trial court could not order a recount because there was no showing of an irregularity that placed the result of the election in doubt. In his third, fourth and fifth points, he challenges the trial court’s findings that Mr. Gittemeier was not a resident.

In his petition, Mr. Kranzberg’s sole claim for relief was that his own vote should be counted; he did not allege any claim based on Mr. Gittemeier’s residence or ballot or the power of the court to order a recount on Mr. Chernisky’s claims. Further, Mr. Kranzberg affirmatively sought a recount as part of the relief in his own petition.

To bring an appeal, an appellant must have been a party to the suit and aggrieved by the judgment of the trial court. Section 512.020 RSMo (2000); Munson v. Director of Revenue, 783 S.W.2d 912, 915 (Mo. banc 1990). A party cannot assert trial court error for actions by which it was not aggrieved. Parker v. Swope, 157 S.W.3d 350, 352 (Mo.App.2005). A party is “aggrieved” when the judgment operates prejudicially and directly on his or her personal or property rights or interests and that effect is immediate and not merely a possible remote consequence. Id.; see also In re Ancillary Adversary Proceeding, 89 S.W.3d 460, 464 (Mo. banc 2002); Brentwood v. Barron Holdings Intern., 66 S.W.3d 139, 142 (Mo.App.2001).

An appellant may not challenge portions of a judgment that resolve issues solely between other parties and do not resolve the claims made by that appellant. Boatmen’s Nat. Bank v. Rogers, 352 Mo. 763, 179 S.W.2d 102, 107 (1944). Mr. Charnisky and Mr. Kranzberg were each contestants in the trial court, but neither filed pleadings against each other and each filed a separate and independent claim against the Director. When Mr. Kranz-berg came into the trial court as interve-nor, he did not raise any issue about Mr. Gittemeier’s residency or right to vote. Mr. Kranzberg is not aggrieved by that part of the judgment in favor of Mr. Char-nisky ordering a recount on the basis that Mr. Gittemeier was not a resident. See Brentwood, 66 S.W.3d at 143; White v. Kuhnert, 207 S.W.2d 839, 841 (Mo.App.1948).

Mr. Kranzberg responds that he has an interest as a citizen or resident of Harves-towne in the counting of Mr. Gittemeier’s ballot. This argument might have furnished him a basis to assert standing in the trial court to raise claims about Mr. Gittemeier’s ballot. However, he did not make any such claims in the trial court, and therefore he is not aggrieved by that part of the judgment that resolved those issues.

In this case, Mr. Kranzberg was logically and legally aggrieved only by that portion of the trial court’s judgment that denied his claim to have his own ballot counted. He has no standing on appeal to challenge that part of the trial court’s judgment granting Mr. Charnisky relief on his claims relating to Mr. Gittemeier’s ballot. Accordingly, our review is limited to the claim of error raised in Point Two of Mr. Kranzberg’s brief.

II. Denial of Relief on Mr. Kranzberg’s Petition

In his second point, Mr. Kranzberg challenges the trial court’s finding that he failed to follow the instructions of the vote recorder. He argues that this finding is not supported by substantial evidence because he “followed the mistaken directions of the election judge and the mistakes of the election judge justify a new election.” We disagree.

We review this claim under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will sustain 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. Id.

The trial court found:

[T]he Court finds, based on the preponderance of the credible evidence that Intervenor Shane Kranzberg failed to follow the instructions clearly printed upon the vote recorder utilized by the St. Charles County Election Authority and that there are not irregularities of sufficient magnitude to cast doubt on the validity of the election held on April 6, 2004 pursuant to section 115.593, RSMo....

Section 115.593 RSMo (2000) allows a court in an election contest case to order a new election if it “determines there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election.” Substantial evidence supports the trial court’s finding that Mr. Kranz-berg used a white ballot instead of a yellow ballot to vote on the annexation proposition because he failed to follow the instructions on the vote recorder, and not because he was given contrary instructions by an election judge.

Mr. Kranzberg had been registered to vote at an address that was not in Harves-towne since 2000. Before the April 6 election, Mr. Kranzberg informed the Election Authority by telephone that he was changing his address. The Election Authority sent Mr. Kranzberg a transfer sheet. Because Mr. Kranzberg’s request was made before the Election Authority learned there was a voter in Harvestowne, the transfer sheet instructed Mr. Kranzberg to use a white ballot to vote on the annexation election. However, someone from the Director’s office telephoned Mr. Kranzberg before the election and told him that if he was voting from Harvestowne, he was not to use a white ballot, but a different colored ballot.

On the day of the annexation election, Mr. Kranzberg transferred his voter registration to an address within Harvestowne. At this time the Harvestowne precinct voter ledger, which instructed the election judges on what color ballot to give each voter, had already been printed. As a result, the Harvestowne precinct voting ledger instructed the election judges to give Mr. Kranzberg a white ballot.

Mr. Kranzberg testified that he repeatedly requested a yellow ballot, but the election judge refused to give him one. However, the Director testified that if a voter had asked the election judge for a yellow ballot, the election judge was required to call the election office to determine which color ballot was to be used. Election judges are trained three times a year and as part of that training they know to contact the Election Authority if someone requests a different color ballot. No election judge from Mr. Kranzberg’s precinct called the Election Authority to report that Mr. Kranzberg had requested a yellow ballot.

Mr. Kranzberg admitted that while he was voting, he did not see all the voting instructions contained in the vote recorder. Those instructions directed Harvestowne residents to use yellow ballots to vote on annexation.

Although Mr. Kranzberg testified that he requested a yellow ballot and the election judge refused to give him one, we defer to the trial court’s determination of credibility and disregard all contrary evidence and inferences. Creech v. Creech, 992 S.W.2d 226, 229 (Mo.App.1999). There was sufficient evidence for the trial court to find that Mr. Kranzberg did not request a yellow ballot from an election judge and failed to follow the instructions in the vote recorder to use a yellow ballot. Point two is denied.

The judgment of the trial court is affirmed.

LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ., concur.

      . In its October 11, 2002 judgment on remand from Winterhoff I, the trial court had found there were no qualified electors in the area to be annexed.

      . In St. Charles County, voters use a vote recorder with punch card ballots. The left hand page of the vote recorder lists the names of the candidates and issues to be voted on.

      .The trial court granted the Director’s motion to dismiss counts I and II of Mr. Kranz-berg’s petition, which had requested similar relief and an order in mandamus on the same facts.

      . Mr. Kranzberg had also asked for a recount that included his ballot, but the Director testified that a recount could not physically be done because there was no yellow ballot to recount.

      . In addition, we deny as moot Mr. Charni-sky’s motion to dismiss Mr. Kranzberg’s appeal on the ground that the judgment ordering a recount was not final and appealable.


author: JOHN E. PARRISH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dennis M. SALNAVE, Defendant-Appellant.
    No. 26868.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 18, 2006.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 8, 2006.
    Application for Transfer Denied April 11, 2006.

      Craig A. Johnston, Asst. State Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Judge.

Dennis M. Salnave (defendant) was convicted, following a jury trial, of child molestation in the first degree, a class B felony. § 566.067. The date of the alleged offense was June 26, 2003. This court affirms.

E.S. was seven years old on the date of the charged offense. She was with defendant, her grandfather, at his residence when R.M., her mother, entered the residence. R.M. had been at the residence a few minutes earlier. At that time E.S. and defendant had been sitting in a chair watching cartoons. When R.M. returned, neither E.S. nor defendant was in the room where they were before. R.M. observed that the bedroom door was closed. R.M. opened the door. She saw E.S. lying on the bed without a shirt and with her legs spread apart. Defendant had his knees on the bed below E.S.’s feet. Defendant was fastening the right suspender strap of the overalls he was wearing. Defendant got off the bed and went into the bathroom. R.M. told her daughter to get her shirt on and go home. E.S. got dressed. Her mother took her home. E.S. was crying as they returned to their apartment.

R.M. placed a telephone call to the police reporting the incident. Officer Danny MeNew, Licking, Missouri, Chief of Police, responded. He talked to E.S. He testified, “She stated that [defendant] had removed her clothes, rubbed his thing on her. Stated, must have knocked the breath out of her, rolled her over and stuck his thing in her butt.” Chief McNew was asked if he asked E.S. where defendant had rubbed his thing on her. He answered “[y]es”; that “[s]he indicated her crotch and then also verbally said her butt.”

Defendant was taken to the police station. He was advised of his Miranda rights. After initially denying molesting E.S., defendant said he lay on top of E.S. and rubbed his penis on her vaginal area, then rolled her over and rubbed his penis on her buttocks. He wrote a statement saying he “took [his] thing out and started playing around with [E.S.], rub on her butt and vagina.”

Section 566.067 provides:

1. A person commits the crime of child molestation in the first degree if he or she subjects another person who is less than fourteen years of age to sexual contact.
2. Child molestation in the first degree is a class B felony unless the actor has previously been convicted of an offense under this chapter or in the course thereof the actor inflicts serious physical injury, displays a deadly weapon or deadly instrument in a threatening manner, or the offense is committed as part of a ritual or ceremony, in which case the crime is a class A felony.

Section 566.010(3) defines “sexual contact” as “any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.”

Defendant presents two points on appeal. Point I argues the trial court erred in failing to strike a juror for cause. Point II argues the trial court erred in refusing to give a proposed jury instruction tendered by defendant.

Point I is directed to the trial court’s failure to strike Juror Hathaway. The bases for defendant’s allegation of error were questions asked and answers given during defendant’s part of voir dire. Ms. Hathaway told the court she was “[currently teaching.” She taught kindergarten. The following questions were asked and the following answers given.

Q. All right. Anything about your involvement with children and this particular case that would prevent you from being fair and impartial?
JUROR HATHAWAY: I would hope not. I don’t know. I mean, you deal with kids and what they say and their perspective and if you weren’t to listen to them carefully, then I don’t know whether you’d be much of a teacher. So you do have things that you deal with in cases you deal with.
Q. So obviously, you have quite a bit of dealings with children on a daily basis?
JUROR HATHAWAY: Every day, yes.
Q. Knowing that, are you, you know, your relationship with children, are you more likely to tend to want to believe the child?
JUROR HATHAWAY: I don’t know. I don’t know this child. I mean, I, I deal with adults, and I believe adults too, but I deal with little kids every day and when they tell me something I have to take what they say as true.
Q. All right. Have you ever been called into a situation where you’ve got to kind of question what the child says?
JUROR HATHAWAY: That’s right.
Q. That’s something you’ve dealt with, obviously, in your personal life as well as that of a teacher?
JUROR HATHAWAY: Correct.
Q. How do you go about determining whether or not the child is telling the truth?
JUROR HATHAWAY: Ask them why they did something instead of saying did you do it. If you try to come back around, well, why did that happen and can you give me details and you try to watch their behavior and everything.
Q. One of the things, since you deal with children, one of the things you’re careful about is you don’t want to put words in the children’s mouths, is that correct?
JUROR HATHAWAY: Correct.
Q. Because, why is that? Let me ask that?
JUROR HATHAWAY: Because you want to know their side of the story. You want to be there to help them.
Q. All right, and part of that is you want to find out actually what happened from their perspective, not necessarily from your perspective, right?
JUROR HATHAWAY: Correct.

At the conclusion of voir dire, defendant’s trial attorney told the trial court he would “like to address juror number 26.” Juror No. 26 was Ms. Hathaway. Defendant’s attorney told the trial court:

She indicated that based on her experience she would tend to, I think the exact testimony was she’d have to, she thought she’d have to believe the child. When I was asking her questions based on the nature of her dealings with the children she felt, as far as her in her personal experience, she thought she had to believe the child. She didn’t go as far, though, as to say that in this particular matter, but I think how she deals with it in her personal life is an indicator of how she would address it in this particular case, Judge.

Although defendant’s trial attorney did not specifically state he was challenging the juror for cause, the trial court obviously understood that was his purpose in discussing the juror. The trial judge’s response to defense counsel’s remarks included a reference to Ms. Hathaway and another juror not being stricken. The judge characterized his understanding of Ms. Hathaway’s answers to the questions asked as expressions of the point of view of a teacher, not that she would not treat the evidence in the case fairly or believe one side’s case and not the other’s. He did not understand the answers to be that she was going to believe everything any witness in the case would say.

Point I contends the trial court’s failure to remove Ms. Hathaway from the jury was an abuse of discretion “because Hathaway did not unequivocally indicate an ability to evaluate the evidence fairly and impartially”; that “her answers suggested a bias in favor of children.” General questions asked the entire panel of prospective jurors included the state’s inquiry as to whether there was anyone who felt for any reason that he had or had not mentioned, after having time to give his questions additional thought, that he could not fairly and impartially listen to the evidence in the case and decide the case based only on the evidence and the testimony that they would hear in the courtroom. No one responded. Additionally, defendant’s trial attorney inquired whether anyone on the panel would believe what a nine-year old was saying “just because she’s saying it.” No one on the panel responded.

“Whether bias or prejudice exists is a finding of fact, the determination of which ‘is essentially one of credibility, and therefore largely one of demeanor.’ ” State v. Leisure, 749 S.W.2d 366, 372 (Mo. banc 1988), quoting Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), cert. denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). The qualification of a prospective juror is made on the basis of the entire examination, not by a single response. State v. Clayton, 995 S.W.2d 468, 475 (Mo. banc), cert. denied, 528 U.S. 1027, 120 S.Ct. 543, 145 L.Ed.2d 421 (1999). “Because the trial judge is better positioned to make that determination than are we from the cold record, doubts as to the trial court’s findings will be resolved in its favor.” State v. Smith, 649 S.W.2d 417, 422 (Mo. banc 1983). Considering the entirety of voir dire inquiry, this court finds no abuse of trial court discretion in denying defendant’s challenge for cause directed to Ms. Hathaway. Point I is denied.

Point II is directed to the allegation that the trial court refused to give an instruction tendered by defendant. The instruction was refused and numbered “Instruction No. X” and filed in the circuit court file. It stated:

Evidence has been introduced that the defendant made certain statements relating to the offense for which he is on trial.
If you find that a statement was made by the defendant, and that at that time he understood what he was saying and doing, and that the statement was freely and voluntarily made under all of the circumstances surrounding and attending the making of the statement, then you may give it such weight as you believe it deserves in arriving at your verdict.
However, if you do not find and believe that the defendant made the statement, or if you do not find and believe that he understood what he was saying and doing, or if you do not find and believe that the statement was freely and voluntarily made under all of the circumstances surrounding and attending the making of the statement, then you must disregard it and give it no weight in your deliberations.

(Emphasis added.)

The tendered instruction is from MAI-CR3d 310.06. The part of Instruction No. X that is underlined is optional language as prescribed in the Notes on Use. The trial court gave Instruction No. 6. Instruction No. 6 differed from Instruction No. X in that it did not include the language that is underlined in Instruction No. X as quoted above.

The words that are underlined appear in parentheses in MAI-CR3d 310.06. Notes on Use No. 3 to MAI-CR3d 310.06 directs, “The matter in parentheses in the second and third paragraphs should be included in the instruction if there is evidence that the defendant did not understand what he was saying or doing at the time of the statement, whether because of mental disease or defect or because of intoxication, drugged condition, or other mental incapacity, latent or induced, temporary or permanent.”

Trial was held, according to the trial court’s docket sheets, on November 10 and 12, 2004. At the close of the first day of trial, the docket sheet reflects “instruction conference held.” The next docket entry is dated November 12, 2004. It states, “Instructions read as trial continues.” The transcript of the November 12 proceedings, however, includes a statement by the trial court “that the defendant has offered instruction No. X, which is 310.06, another version of 810.06 that was submitted by the defendant Wednesday, and it’s my intention to submit to the jury instruction No. 6, 310.06 that leaves out the language in the parentheses of the MAI, and you may make your record.”

Defendant’s trial attorney told the trial court:

Your Honor, I believe the instruction, and for the record we will refer to it as instruction X, is supported by the evidence in that defendant testified that he didn’t understand what he was writing, understand what he was doing at the time he was writing this statement. I believe it’s supported by his testimony and as to that, Your Honor, I would just stand on that.

The state responded that it did not believe there was evidence that defendant did not know what he was doing; that the record did not support a basis for including the language conducive with the notes on use for the pattern instruction.

The statements that defendant asserts entitled him to have Instruction No. X read to the jury are statements defendant made to Chief McNew. He made oral statements to Chief McNew and gave a written statement. When Chief McNew arrived at defendant’s residence, defendant stated he knew he was going to get in trouble but all he was doing was wrestling around. Defendant agreed to go with Chief McNew to the police department to talk about what had occurred. After defendant initially denying molesting E.S., Chief McNew asked defendant why E.S. would lie about what had occurred. Defendant then said he was not going to blame E.S. He told Chief McNew he lay on top of E.S. and rubbed his penis on her vaginal area; that he had rolled her over and rubbed his penis on her butt. He gave a written statement that stated he “took [his] thing out and started playing around with [E.S.], rub on her butt and vagina.” Chief McNew testified that he did not help defendant with the language in the statement; that he did not suggest what defendant should write. He witnessed defendant sign the written statement.

Defendant testified at trial. He was asked on cross-examination if E.S. and her mother “just made this up.” He answered that he “couldn’t say that.” He said he did not know if he “did anything or not.” He stated he did not remember.

Defendant was shown the hand-written statement that was admitted in evidence and asked if he had written it. He answered that it looked like his handwriting. After more questioning, defendant said, “Well, I guess I did write it.” After additional questions concerning the content of the written statement, defendant added, “I remember writing, maybe writing this out at the time, but I mean I don’t remember actually doing what it says I did.” He was asked if anyone forced him to write the statement. He answered, “Oh, no, sir.”

Defendant’s testimony was that he wrote the statement. He does not question that he made the other statements that Chief McNew stated were made. What defendant argues is that he does not remember doing the acts described in those statements. Defendant’s evidence does not constitute a claim that he did not understand what he was saying or doing at the time he gave the statements because of mental disease or defect or because of intoxication, dragged condition, or other mental incapacity. What defendant claims is that he did not do the things that he admitted in his statements, a claim the jury did not find in his favor.

Defendant was not entitled to have the jury instructed in the manner set forth in Instruction No. X. “[Bjefore any party is entitled to an instruction, there must be evidence to support its submission, and absent that evidentiary basis, it is not error to refuse the submission of an instruction.” State v. Wilson, 105 S.W.3d 576, 586 (Mo.App.2003). The trial court did not err in refusing to give the instruction. Point II is denied. The judgment is affirmed.

BATES, C.J., and RAHMEYER, J., concur.

      . References to statutes are to RSMo 2000.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . § 566.010(3) was amended in 2002. Because this offense was alleged to have occurred June 26, 2003, the text of § 566.010(3), as amended in 2002, is the applicable statute.


author: PER CURIAM.

text:
    Theodore POLLARD, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64689.
    Missouri Court of Appeals, Western District.
    Jan. 24, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 2006.
    Theodore Pollard, Cameron, pro se.
    Shaun J. Mackelprang, Jefferson City, for Respondent.
    Before: JOSEPH M. ELLIS, P.J., THOMAS H. NEWTON, and LISA WHITE HARDWICK JJ.
   ORDER

PER CURIAM.

Mr. Theodore Pollard appeals the denial of his 29.15 post-conviction motion. Mr. Pollard raises four points of error in this appeal, which can be summarized into the following: (1) the motion court erred when it failed to hold a Luleff (abandonment) hearing to determine if post-conviction relief counsel (PCR) abandoned Mr. Pollard; and (2) the motion court erred when it found that Mr. Pollard had effective assistance of trial counsel.

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


text:
    Derek Q. JAMES, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 86173.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 24, 2006.
    Rehearing Denied March 9, 2006.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cecily L. Helms, Jefferson City, MO, for respondent.

      Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIAL. COHEN, J.
   ORDER

PER CURIAM.

Movant, Derek Q. James, appeals from the judgment denying his Rule 29.15 motion without an evidentiary hearing. On appeal, movant argues that his trial counsel rendered ineffective assistance by failing to object to certain questions by the prosecutor during the direct examination of a witness.

The motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k). An opinion would have no prece-dential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


author: PHILLIP R. GARRISON, Judge.

text:
    John C. LANGLOIS, Plaintiff-Respondent, v. PEMISCOT MEMORIAL HOSPITAL, d/b/a Pemiscot Memorial Health Systems, Defendant-Appellant.
    No. 26851.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 24, 2006.
    Motion for Rehearing or Transfer Denied Feb. 15, 2006.
    Application for Transfer Denied April 11, 2006.

      W. Edward Reeves, Ward & Reeves, Caruthersville, for Appellant.
    Joseph C. Blanton, Jr., Amanda D. Cochran, Blanton, Rice, Sidwell, Nickell, Cozean & Collins, L.L.C., Sikeston, for Respondent.
   PHILLIP R. GARRISON, Judge.

This appeal stems from a claim for breach of an employment contract between John C. Langlois (“Plaintiff’), and Pemis-cot Memorial Hospital, d/b/a Pemiscot Memorial Health Systems (“Defendant”), a county hospital, organized and operating under Sections 205.160 et seq. The trial court entered a judgment in favor of Plaintiff in the amount of $21,553.56. Defendant appeals, asserting that it did not authorize the contract pursuant to Section 432.070. We agree and reverse the judgment.

Plaintiff, who is a certified public accountant with extensive experience in the health care industry, was hired as Defendant’s Chief Financial Officer (“CFO”) to help improve its poor financial performance. Prior to being hired he met with Darrell Jean, Defendant’s Chief Executive Officer (“Jean”), and on September 10, 1999, Plaintiff submitted in writing, to Jean, a combination of proposed salary requirements and possible incentive bonuses. After several meetings with Jean and other members of Defendant’s Board of Trustees (“the Board”), Plaintiff, on February 8, 2000, sent a revised salary requirement and bonus package to Jean.

Plaintiff alleged that Jean presented the various options for compensation suggested by Plaintiff to the Board, which met in executive session on February 17, 2000. In its minutes, the Board discussed the search for a CFO, and they noted that Jean announced to the Board that the search “was going well,” and that he had received two resumes. The minutes reflected that it was the consensus of the Board to contact Plaintiff to verify the proposal and “if agreeable then proceed with hiring him as soon as possible.”

The employment contract was executed on Defendant’s behalf by Jean, and on February 23, 2000, was forwarded to Plaintiff, along with a cover letter announcing that the Board and Jean had “unanimously voted to employ [him] as [CFO].” The letter stated that Jean believed that the contract contained all of the provisions Plaintiff addressed in his February 8, 2000, letter. Plaintiff signed the contract on February 29, 2000, and pursuant to that contract, began employment with Defendant.

During Plaintiffs tenure as CFO, Defendant’s finances improved dramatically. In fiscal year 2000 Defendant had a net loss of $2,824,823; in fiscal year 2001 Defendant lost only $736,150, and in fiscal year 2002 Defendant posted a net profit of $1,225,138. Plaintiff received two bonus checks totaling $18,000. These checks were issued for the fiscal year ending in 2001, based upon the improvements made in Defendant’s financial position.

In late 2002, Plaintiff, citing differences with the Board, resigned his position as CFO. Because the financial conditions of the hospital continued to improve during 2002, Jean authorized the issuance of another bonus check to Plaintiff in the amount of $18,900. However, when Plaintiff attempted to deposit this check on April 17, 2003, he was notified by his bank that a “stop payment” order had been put on the check. In response to Plaintiffs inquiry as to why the check was not honored, Defendant asserted that by canceling the 2002 bonus check it was off-setting the two bonus checks Plaintiff received for fiscal year 2001, which Defendant claimed had been issued contrary to the parties’ contract.

In an attempt to collect the 2002 bonus from Defendant, Plaintiff filed his first amended petition on August 30, 2004, for, inter alia, breach of contract. Both parties waived trial by jury and the case was heard by the trial court on October 22, 2004. The trial court entered its findings of fact and conclusions of law in favor of Plaintiff and against Defendant on the breach of contract claim in the amount of $21,553.56. Defendant appeals this judgment.

In its sole point on this appeal, Defendant asserts, inter alia, that it did not authorize Jean to contract with Plaintiff in accordance with Section 432.070, which sets out the requirements for state and local governmental bodies to be bound by contractual obligations, and therefore was not obligated to pay him any bonus. We agree and reverse.

Section 432.070 provides:

No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.

We are to construe this statute strictly. United Coop., Inc. v. City of Smithville, 630 S.W.2d 255, 256 (Mo.App. W.D.1982). Strict construction of Section 432.070 “safeguards the public from needless and extravagant demands” and serves to “restrain public officials from ill-considered action and prevent[s] • • ■ fraud and speculation.” Id.

The minutes which are said to authorize Plaintiffs contract “must not be vague and uncertain but must sufficiently identify the subject matter under consideration with reasonable exactitude and specificity.” State Highway Comm’n v. City of Sullivan, 520 S.W.2d 186, 190 (Mo.App.St.L.1975); see also State ex rel. Prichard v. Ward, 305 S.W.2d 900, 902 (Mo.App.K.C.1957). This should include identification of the subject matter, an outline of the terms and the consideration to be paid under the contract. Ward, 305 S.W.2d at 902.

In City of Sullivan, the court upheld the trial court’s finding that the minute entry from the City’s Board of Alderman meeting, which purported to authorize the May- or to enter into a contract with the State Highway Commission, was vague and therefore not in compliance with Section 432.070. That minute entry stated:

The Mayor and the Board further discussed a proposal given the City by the State Highway Commission for relocating a sewer line across the new construction of I — 44 Highway with the City paying 55% of the cost and the State paying 45%. They discussed this with the engineer but, after giving it thought, feel it would be better to let the State be responsible for relocating this line. Therefore, the Motion was made by Alderman Cowan that we authorize the State to put in the line per their proposal in their letter of October 3, 1967, with the estimated cost being $17,664.12. Motion seconded by Aider-man Mattox. Motion carried.

520 S.W.2d at 189. Likewise, in Ward the court found the following minute entry to be vague and therefore did not meet the requirements of the statute:

Motion by Jackson the Mayor be authorized and instructed to enter into a contract with G.W. Prichard concerning Electric Distribution System, said contract to be subject to the approval of a legal practicing attorney and in conformity with the Manual of Practice of Civil Engineering, Seconded by Armstrong, Vote: * * *.

305 S.W.2d at 901. In both City of Sullivan and Ward, the governmental body instructed the Mayor to enter into a contract, however, in neither case was the subject matter of the contract clear. In City of Sullivan, the Board never described the “proposal,” and in Ward, the minutes only vaguely reference “a contract,” without detailing any of the terms or consideration to be paid. While the contract itself may not have to be reproduced in the record purporting to authorize it, the minutes, or other record of the proceedings, “must sufficiently identify the subject matter under consideration with reasonable exactitude and specificity.” City of Sullivan, 520 S.W.2d at 190. As noted above, this should include an outline of the terms and a description of the consideration to be paid under the contract. Ward, 305 S.W.2d at 902.

In this case the only minute entry admitted at trial was the following:

Mr. Jean indicated that the search for C.F.O. was going well. We have received resumes on David Lynn and [Plaintiff]. It was the consensus of the Board to contact [Plaintiff] to verify proposal and if agreeable then proceed with hiring him as soon as possible.

Here, it is the phrase “to verify proposal and if agreeable” that fails to adequately describe the contract. Which party’s proposal does this refer to? What are the terms? Specifically, what is the consideration to be paid under the proposal? What did the Board mean by “if agreeable”? Agreeable to Plaintiff, or agreeable to Defendant? This minute entry does not contain any terms, nor any description of the consideration to be paid under the contract. Therefore, based upon the minutes, the Board can not be said to have authorized Jean to enter into this contract with Plaintiff, as required by Section 432.070.

Plaintiff argues, and the trial court agreed, that the term “proposal” in the minutes, referenced correspondence between Jean and Plaintiff which did contain the essential terms of the contract and thus by using the word “proposal,” the Board in essence was referring to the contract as it existed in the correspondence between Jean and Plaintiff. Plaintiff relies on Burger v. City of Springfield, which he construes to hold that a series of letters containing contractual terms between the City and Burger, in conjunction with a city council resolution was sufficient to bring the contract within the requirements of Section 432.070. 323 S.W.2d 777, 781 (Mo.1959). However, that case only pertained to whether the essential terms of the contract were memorialized in writing as also required by Section 432.070. Contrary to the instant case, there the court specifically noted that there was no issue as to whether an agent of City was authorized to enter into the contract. Id. at 781.

Nevertheless, when statutorily mandated to maintain records of their proceedings, public bodies can only speak through their minutes and records. Fulton v. City of Lockwood, 269 S.W.2d 1, 5 (Mo.1954). The Board is directed by Section 205.190.7 to “hold meetings at least once a month ... [and] keep a complete record of all its proceedings.” Therefore, the letters between Jean and Plaintiff containing alleged proposals cannot be used as parol or secondary evidence to interpret the word “proposal” as it appears in the minutes. Fulton, 269 S.W.2d at 6; see also State ex rel. Nixon v. Corley, 896 S.W.2d 931, 932 (Mo. banc 1995). Such evidence is appropriate only in an action by a party to amend the minutes or other record in order to prove the authorization of a contract. Fulton, 269 S.W.2d at 6.

Based upon the record before us we can not say that the minutes of February 17, 2000, illustrate sufficient authorization by the Board of the contract to satisfy Section 432.070. As a result we are constrained to, and do, reverse the trial court’s judgment.

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

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

      . The amount and method of calculation of these bonuses was a significant issue at trial and is extensively argued on this appeal. However, for reasons discussed in this opinion, we do not address whether the bonus provision in contract was properly interpreted and applied by Defendant. The pertinent provision provides:
      [Plaintiff] will also be eligible for incentive pay based upon the net income from hospital operations as shown in the year end formal audit. The incentive will be calculated at seven percent (7%) of net operations based upon the average net operations of the preceding two (2) fiscal years and payable two weeks after final audit. This incentive provision will be capped at twenty percent (20%) of base pay in one year.

      . There is no contention made that Defendant is not a governmental body subject to Section 432.070.


author: KENNETH W. SHRUM, Presiding Judge.

text:
    Gary WENZEL, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26938.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 27, 2006.
    Motion for Rehearing and Transfer Denied Feb. 14, 2006.
    Application for Transfer Denied April 11, 2006.

      Gary Wenzel, Jefferson City, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Office of Atty. Gen., Jefferson City, for respondent.
   KENNETH W. SHRUM, Presiding Judge.

Gary Wenzel (“Movant”) sought post-conviction relief via a Rule 29.15 motion after he was convicted of manufacturing methamphetamine (§ 195.211.1). After his conviction was affirmed on direct appeal in State v. Wenzel, 119 S.W.3d 650 (Mo.App.2003), Movant timely filed a pro se motion per Rule 29.15 to vacate, set aside, or correct the judgment and sentence.

Court-appointed counsel then filed an amended motion, charging Movant’s trial lawyer rendered ineffective assistance. The motion court denied Movant’s claims following an evidentiary hearing. Movant appeals, acting pro se. Respondent’s brief requests dismissal of Movant’s appeal for failure to comply with the briefing requirements of Rule 84.04. Deficiencies in Mov-ant’s brief are of such magnitude that we are compelled to dismiss the appeal.

An account of the evidence adduced in Movant’s criminal trial is reported in Wenzel, 119 S.W.3d 650, and need not be repeated here. Suffice it to say, there was sufficient evidence presented to prove him guilty beyond a reasonable doubt of manu-factoring methamphetamine. This was found from evidence that Movant had exclusive possession of an automobile that contained a methamphetamine lab in the trunk and testimony about Movant’s conduct and appearance once the automobile was stopped.

After Movant’s conviction and sentence were affirmed, he filed a pro se Rule 29.15 motion in which he charged that both his trial lawyer and appellate counsel were constitutionally ineffective. In the amended motion, appointed counsel charged fifteen separate instances of alleged ineffective assistance by Movant’s trial lawyer. As stated before, the motion was denied. His appeal to this court followed.

Preliminarily, we note Movant has opted to proceed pro se before this court. He did this by implicitly refusing the public defender as his appellate counsel. His refusal of public defender representation apparently stems from his belief that they did not “intend[ ] to faithfully represent his interests.” Movant insisted to this court that he be appointed “private counsel” and suggested John D. Ashcroft and Janet E. Ashcroft would be acceptable to him as “competent appellate counsel in this matter.”

Although Missouri’s post-conviction law entitles an indigent movant to appointment of counsel, it does not mandate the appointment of a particular counsel or entitle a movant to reject the Missouri State Pub-lie Defender System as appointed counsel without showing justification for such rejection. Rule 29.15(e); see, e.g., State v. Boyd, 842 S.W.2d 899, 902 (Mo.App.1992) (holding, “The constitutional right to counsel does not mean that an accused is entitled to a particular attorney.”)

Movant's refusal to sign affidavits of in-digency and his comments and allegations made in documents filed with this court conclusively show he would not accept a lawyer from the public defender’s office as his post-conviction appellate counsel, yet at the same time, he has insisted he wanted a lawyer to handle his appeal and never intended to waive his entitlement to counsel. What we see in this is an attempt by Movant to play the system in the same way that a non-indigent criminal defendant does when he or she refuses to hire counsel, yet continues to insist on having a lawyer. See State v. Clay, 11 S.W.3d 706, 713 (Mo.App.1999).

Movant’s actions are unacceptable. Although Boyd and Clay dealt with an accused’s constitutional right to counsel in a criminal case, they are sufficiently analogous to support our view that Movant’s pattern of behavior in refusing to accept public defender representation without justification and his insistence on appointed counsel other than public defenders amounted to an implied waiver of his right to appellate counsel in this case.

It was Movant’s prerogative to act as he did. Having chosen that path, Mov-ant’s only choice was to file his brief pro se. However, Movant’s status as a pro se appellant does not entitle him to preferential treatment regarding procedural rules. State v. Eggers, 51 S.W.3d 927, 928[3] (Mo.App.2001); C.C.J.K ex rel. Kercher v. Jackson, 11 S.W.3d 110, 111[2] (Mo.App.2000). He is bound by the same procedures and rules as an attorney, including Supreme Court Rule 84.04 which sets forth the requirements for appellate briefs. Eggers, 51 S.W.3d at 928[2]; Jackson, 11 S.W.3d at 111.

We note that Rule 84.04 provides the standards that all must follow when proceeding with an appeal. Under that rule, a brief must contain, inter alia: (1) a concise jurisdictional statement; (2) a statement of facts; (3) points relied on; (4) an argument which substantially follows the order of the points relied on; and (5) a short conclusion stating the precise relief sought. Rule 84.04(a)(2-6). Here, Mov-ant’s brief violates nearly every provision of Rule 84.04(a).

First, Movant’s jurisdictional statement has nothing to do with his post-conviction appeal. It is a jurisdictional statement apparently copied from the brief in his direct appeal. Similarly, his four-page “statement of facts” is merely a recital of evidence adduced at his criminal trial. It is wholly devoid of any facts or evidence from the post-conviction hearing. This violates Rule 84.04(c) which mandates that an appellant’s brief have “a fair and concise statement of the facts relevant to the questions presented for determination.” (Emphasis supplied.) To be cognizable “questions presented for determination” in this appeal, the questions must relate to Movant’s post-conviction claims. Movant cannot use his post-conviction motion as a substitute for a direct appeal or to obtain a second appellate review of his claim that there was insufficient evidence to convict him. State v. Redman, 916 S.W.2d 787, 793 (Mo.banc 1996). Consequently, his statement of facts (which recounts no facts from his post-conviction hearing) is wholly deficient.

In a similar vein, Movant’s first point relied on attempts to raise a direct appeal claim, i.e., that there was insufficient evidence to support his conviction. Movant then goes down the same path in the argument part of his brief. Thus, fifteen pages of the seventeen-page argument section of his brief are devoted exclusively to his claim that insufficient evidence existed in his criminal trial to sustain his conviction. Movant simply ignores the fact that this issue was fully litigated in his direct appeal and that it cannot be relitigated in this post-conviction proceeding. Cole v. State, 152 S.W.3d 267, 269[5] (Mo.banc 2004); Boyd v. State, 86 S.W.3d 153, 159[16] (Mo.App.2002).

We look next at five pages in Mov-ant’s brief that have been denominated points “2, 3 and 4.” “Points relied on are critical and must be stated as specified in Rule 84.04(d).” Storey v. State, 175 S.W.3d 116, 126 (Mo.banc 2005). That rule requires each point to “(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Rule 84.04(d)(1).

Here, there are no “points relied on” in Movant’s brief within the meaning and context of the rule. What Movant has denominated as “points 2, 3 and 4” fail to (1) identify the ruling or action of the motion court that he challenges; (2) state concisely the legal reasons for his claims of reversible error; and (3) explain, in summary manner why, in the factual context of the case, those legal reasons support the claim of reversible error. As such, Mov-ant’s “points” preserve nothing for our review. Storey, 175 S.W.3d at 126 (quoting State v. Dodd, 10 S.W.3d 546, 556 (Mo.App.1999)).

As a general policy, however, appellate courts prefer to decide a case upon its merits, and as such, we have looked to other parts of Movant’s brief for aid in comprehending the claims of error that Movant has attempted to raise on appeal. Unfortunately, we find no help there, either in the “statement of facts” part of Movant’s brief or in the argument section thereof.

The recognized purpose for Rule 84.04(c) — the “statement of facts” rule — is to afford an immediate, accurate, complete, and unbiased understanding of the facts of the case. State v. Wahl, 89 S.W.3d 513, 515[6] (Mo.App.2002). Compliance with this rule might have shed some light on Movant’s claims of motion court error. However, as explained earlier, the part of Movant’s brief denominated “statement of facts” is devoid of any facts developed at the hearing on his post-conviction motion; consequently, it is of no help in trying to understand Movant’s claims of motion court error.

We likewise find no help in the argument section of Movant’s brief. Rule 84.04(e) prescribes that the argument must substantially follow the points relied on. The only part of Movant’s brief that arguably correlates with what he has denominated “points relied on 2, 3, and 4” consists of less than two pages.

Those pages violate every Rule 84.04(e) requirement. To begin with, there is only one argument, yet there purport to be three points relied on. As a consequence, the argument does not “substantially follow the order of ‘Points Relied On.’ ” Other violations of the rule abound as well. For instance, there is no restatement of a point relied on at the beginning of the argument and no standard of review is submitted.

Since there is only one argument for three points relied on, we cannot discern if the argument is limited to errors asserted in the points relied on. Moreover, the argument contains no page references to the post-conviction legal file or transcript. That violates Rule 84.04(i). The argument part of an appellate brief should show how the principles of law and the facts of the case interact. Carroll v. AAA Bail Bonds, 6 S.W.3d 215, 218[11] (Mo.App.1999). Movant’s argument wholly fails that test.

Movant’s statement of facts, points relied on and argument cause his brief to fall far short of compliance with Rule 84.04. Id. at 218. The deficiencies here are so substantial that, “in order to conduct any review, we would be forced to speculate not only as to the claims being raised, but as to the facts and arguments being relied on in support of the same.” State v. Nunley, 103 S.W.3d 374, 377[6] (Mo.App.2003). This we will not do. As a consequence we have no choice but to decline review. Id.

The appeal is dismissed for failure to comply with the briefing requirements of Rule 84.04.

GARRISON, J., and BATES, C.J., concur.

      . All rule references are to Supreme Court Rules (2005), unless indicated otherwise. All statutory references are to RSMo (2000), unless stated differently.

      . The only question presented by Movant’s direct appeal was whether sufficient competent evidence was adduced to support his conviction of the crime charged. 119 S.W.3d at 652.

      . Initially, Craig A. Johnston, a lawyer with the Missouri State Public Defender System, entered his appearance as Movant’s appellate lawyer in his post-conviction appeal. However, the Missouri State Public Defender System was allowed to withdraw after Movant refused to complete and deliver to that agency the affidavit of indigency required by section 600.086.

      .There is no constitutional right to counsel for post-conviction relief proceedings. Barnett v. State, 103 S.W.3d 765, 773[19] (Mo. banc 2003), cert. denied, Barnett v. Missouri, 540 U.S. 862, 124 S.Ct. 172, 157 L.Ed.2d 114 (2003). Missouri Supreme Court rules do provide, however, for the appointment of counsel in post-conviction cases. Rule 29.15(e).


text:
    Jami Jo ROSS, Plaintiff-Appellant, v. John David EVERHART, Sr., Brian Keith Everhart, Linda Schlax, and Glenda Metcalf, Defendants-Respondents.
    No. 26730.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 30, 2006.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 21, 2006.
    Application for Transfer Denied April 11, 2006.
    Lee Poppen, Kristoffer R. Barefield, La-throp & Gage L.C., Springfield, MO, for appellant.

      Robert S. Wiley, Crane, Joseph D. Woodcock, Aurora, MO, for Glenda Met-calf.
    James H. Arneson, Springfield, MO, for Brian Everhart.
    J. Martin Studer, Kimberling City, MO, for Linda Schlax.
   JOHN E. PARRISH, Judge.

Jami Jo Ross (plaintiff) appeals a declaratory judgment rendered in an action she brought against Brian Keith Everhart and Linda Schlax (collectively referred to as defendants). The petition sought determination that debts secured by real estate that would be distributed to plaintiff from a trust established by Elmer H. “Bud” Everhart (settlor) would be paid from trust assets; that the real estate would be distributed to plaintiff free of encumbrance. Plaintiff and defendants were beneficiaries of the trust.

The trial court found against plaintiff. It declared that an equitable lien would be imposed on the real estate to be distributed to plaintiff for debts secured by the real estate and for amounts the trust paid to preserve and protect the real estate prior to its distribution to plaintiff; that plaintiff took the real estate subject to encumbrances for debts incurred by settlor, as trustee, from Metropolitan National Bank (Metropolitan) and Citizens National Bank (Citizens). This court affirms in part, reverses in part, and remands with directions.

Settlor executed the Elmer H. “Bud” Everhart Trust in August 1998, together with a pour-over will. The will bequeathed all of settlor’s personal property to plaintiff and Brian Keith Everhart, set-tlor’s son. The trust was the remainder beneficiary.

The assets that were transferred to the trust at the time it was established consisted primarily of settlor’s shares of stock in Image Builders & Associates, Inc., (Image Builders) and certain real estate located on Joe Bald Road in Kimberling City, Missouri (the Joe Bald property). The trust directed the trustee to distribute $250,000 to settlor’s sister, Linda Schlax, and the Joe Bald property to plaintiff upon set-tlor’s death. Remaining assets in the trust estate were to be divided between plaintiff and Brian Keith Everhart in the proportions stated.

Settlor was named trustee. His sister and brother, Linda Schlax and John David Everhart, Sr., were named successor trustees. Settlor died on May 21, 2002, from injuries sustained in an automobile accident. Thereafter, Linda Schlax served as successor trustee. She resigned. Following her resignation as trustee, John David Everhart, Sr., served in that capacity. He resigned as trustee and in November 2003, Glenda Metcalf, Public Administrator of Stone County, Missouri, was appointed successor trustee. Ultimately, a dispute arose over payment of obligations secured by the Joe Bald property. That dispute prompted plaintiff to bring this action.

Settlor purchased the Joe Bald property in 1996. He conveyed the property to the trust in August 1998 when the trust was established. Settlor was in the process of constructing a residence on the property at that time. The residence that was being constructed was intended to be the home of settlor and plaintiff.

On March 4, 1999, settlor executed a promissory note to Metropolitan for a construction loan in the amount of $340,000. On November 29, 2001, he executed a promissory note to Citizens to establish a home equity credit line in the amount of $160,000. The loan from Metropolitan was payable by 119 monthly payments in the amount of $2,496.80, and a final payment of $300,826.29 that would be due March 4, 2009. Both promissory notes were executed by settlor in his capacity as trustee. They were secured by deeds of trust executed on behalf of the trust on the Joe Bald property.

Plaintiff and settlor moved into the residence on the Joe Bald property on Memorial Day weekend in 1999. The property was appraised July 6, 2000. The appraised value was $807,000.

Plaintiff continued to live in the residence on the Joe Bald property after set-tlor’s death. She made no payments on the Metropolitan loan or the Citizens loan; neither did she pay property taxes on the real estate or premiums for homeowners insurance. Plaintiff had been employed by Image Builders prior to settlor’s death. Her employment was terminated after he died.

The trust continued to pay the payments that became due on the Metropolitan and Citizens promissory notes. It also paid the property taxes and homeowners insurance premiums for the Joe Bald property. The trust paid $27,464.80 on the Metropolitan loan and $7,930.60 on the Citizens loan from July 2002 to May 2003. It paid the 2002 property taxes in the amount of $2,182.64 and $3,646.70 homeowners’ insurance premiums. In May 2003, John David Everhart, Sr., as trustee, ceased making payments on expenses related to the Joe Bald property and conveyed the property, as trustee, to plaintiff.

After conveying the real estate to plaintiff, Mr. Everhart requested that a successor trustee be appointed. Glenda Metcalf was appointed. The trust ceased making payments on the notes that were secured by deeds of trust on the Joe Bald property-

In July of 2003, plaintiff filed for bankruptcy pursuant to Chapter 13 of the Bankruptcy Act. Citizens initiated foreclosure proceedings. The Joe Bald property was scheduled to be sold at foreclosure in December 2003. That foreclosure was prevented by the trustee paying $19,353.87 to Metropolitan and $25,000 to Citizens. A subsequent foreclosure was scheduled to take place in July 2004. Payments were again made on the notes held by Metropolitan and Citizens from the trust in order to stop the foreclosure. Metropolitan was paid an additional $4,993.60 and Citizens an additional $10,000. At the time of trial, the trust had paid a total of $117,125.09 toward the notes secured by the Joe Bald property for principal and interest and for taxes and insurance.

Plaintiff’s first point on appeal argues that the trial court erred in determining plaintiff is responsible for repayment of the two encumbrances on the Joe Bald property that were distributed to her and in placing an equitable lien on the property; that the trial court erroneously declared and misapplied the law to the facts of the case. Plaintiff contends the trust “unambiguously provided that the property at issue was to be disbursed to [plaintiff] outright, the notes and Deeds of Trust were executed by [settlor] as Trustee of his Trust only, and the Deeds of Trust at issue were placed upon the property subsequent to the execution of the Trust bequeathing said property to [plaintiff], and therefore must be satisfied by Trust funds prior to the disbursement of the property to [plaintiff].... ”

The trial court entered written findings of fact and conclusions of law. Its conclusions of law include:

D. On its face, the trust agreement does not instruct the trustee to pay the obligations in question from trust assets other than the lake property in question. Nor does it state that the lake property is to be distributed to [plaintiff] free and clear of any debts, liens or encumbrances. The trust agreement gives the trustee the sole discretion as to the payment of certain debts and claims. The successor trustees have taken the position that the two mortgage debts in question are to be paid by [plaintiff] and should not be paid from other trust assets. Accordingly, it can be determined without resort to any extrinsic evidence that Ms. Ross takes the [Joe Bald property] subject to the encumbrances.

The Eastern District of this court addressed the question of payment of mortgages on trust property in Reisenleiter v. Reisenleiter, 926 S.W.2d 914 (Mo.App.1996).

Generally, if a settlor fails to make an express provision regarding the payments of mortgages on trust property, the settlor intends the mortgage to be paid out of trust proceeds. See § 456.810.3(2), RSMo 1994;[] Bogert, Trusts and Trustees 2d Edition Revised, § 808, 1981; Fratcher, Scott on Trusts, § 347.2,1989.

Id. at 917.

The trial court found that because the trust gave the trustee sole discretion to pay certain debts and claims, the trustee was not required to pay the encumbrances on the Joe Bald property from trust assets; that the trustee could distribute the property to plaintiff subject to the deeds of trust that encumbered the real estate. The provision of the trust agreement on which the trial court based its finding was Article IV, paragraph B. It provides:

The Trustee may, in Trustee’s sole discretion, pay any debts, claims or expenses owing by the [settlor] at the time of or arising on account of the [settlor’s] death as well as any legacies set forth in [settlor’s] Will, or any Codicil thereto, to the extent [settlor’s] estate subject to probate is not sufficient to pay any such debt, claim or legacy provided, however, that this provision shall not be construed to -vest in any creditor or any third party any right, title or interest in or to any part of the principal of the Trust Estate. All other provisions of this Agreement for the distribution of the income and principal of the Trust Estate shall, without further reference, be subject to this paragraph.

The trust provision on which the trial court relied does not relate to the debts secured by the deeds of trust that encumber the Joe Bald property. Those debts were debts of the trust, not debts of set-tlor. Settlor executed the promissory notes and the deeds of trust as trustee, not individually. Each document denotes the maker or grantor to be “ELMER H. EV-ERHART, TRUSTEE OF THE ELMER H. EVERHART TRUST DATED AUGUST 5, 1998.” The authority granted the trustee by Article IV, paragraph B, does not apply to the debts that encumbered the Joe Bald property in that those debts were not debts “owing by the [set-tlor].” They were debts of the trust. They were payable from trust assets. Reisenleiter, supra.

This court has found no authority, nor have the parties cited any, for construction of provisions of a trust in circumstances in which there are directions for distribution of property encumbered as security for trust indebtedness without directives in the trust document regarding responsibility for payment of the indebtedness. However, the rules of construction are generally the same for construing both wills and trusts “always keeping in mind that ‘[t]he paramount rule of construction in determining the meaning of a trust provision [to which all technical rules must give way], is that the intent of the grantor is controlling.’ ” Blue Ridge Bank & Trust Co. v. American Ass’n of Orthodontists Foundation, 106 S.W.3d 543, 548 (Mo.App.2003), quoting A.G. Edwards Trust Co. v. Miller, 59 S.W.3d 550, 552 (Mo.App.2001).

Section 474.450 addresses distributions of encumbered property in decedents’ estates. It distinguishes between indebtedness incurred prior to the execution of a will and indebtedness incurred after the execution of a will. It states:

1. A charge or encumbrance upon any real or personal property, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not deemed a revocation of any will, relating to the same property, previously executed.
2. When any property is specifically devised and at the time of the testator’s death is subject to a mortgage, pledge, or other lien created prior to the execution of the will or created by a mortgage, pledge, or other lien executed after the execution of the will as a renewal, or extension, or refinancing of the debt created prior to the execution of the will, the devisee shall take the property so devised subject to the charge or encumbrance unless the will provides expressly or by necessary implication that such mortgage be otherwise paid, but if the mortgage, pledge or other lien was created after the execution of the will the devisee shall take the property exonerated from the encumbrance unless it appears from the terms of the loan agreement or from the circumstances surrounding the loan transaction that the testator intended that the encumbrance should be paid out of the encumbered property rather than from his general estate. [Emphasis added.]

The encumbrances placed on the Joe Bald property to secure indebtedness to Metropolitan and Citizens were created by deeds of trust executed subsequent to the establishment of the trust and subsequent to the direction that the property be distributed to plaintiff upon settlor’s death. The liens created by the deeds of trust were not created as part of the refinancing of debts created prior to the establishment of the trust. Absent the appearance from the terms of the loan documents or the surrounding circumstances that settlor intended the encumbrances to be paid from the encumbered property rather than from other trust assets, applying the principles of construction set forth in § 474.450.2, plaintiff would take the Joe Bald property free from encumbrance.

The trial court found that the circumstances surrounding the incurring of the debts evidenced settlor’s intent that those encumbrances be paid out of the encumbered property. The trial court reached that conclusion on the bases that “[i]f set-tlor had intended that the lake property be distributed to [plaintiff] free and clear ... he could have so stated”; that settlor had “mentioned” to his sister that “[plaintiff] would have an equity in the property of $400,000-$500,000 which would enable her to live comfortably upon sale of the property”; and that “[settlor] told his sister that he had given enough to [plaintiff] and her family.”

The trial court’s conclusion that failure to state that the indebtedness should be paid from assets other than the Joe Bald property connotes that payment was not to be made from other trust assets is not consistent with Missouri law. Such a conclusion is contrary to the principles established in § 474.450.2 that differentiate between debts acquired prior to execution of a testamentary document and those acquired after execution of such a document. As previously noted, generally the same rules apply to construing trusts as construing wills. Blue Ridge Bank and Trust Co., supra.

Further, the trial court’s conclusion was based on matters outside the four corners of the instrument the trial court was to construe. “[A]bsent any ambiguity in the terms of a legal instrument, the intent of its maker, including the intent of a testator or the settlor of a testamentary or inter vivos trust, is to be ascertained from the four' corners of the instrument without resort to parol evidence as to that intent.” Commerce Bank, N.A. v. Blasdel, 141 S.W.3d 434, 444 (Mo.App.2004). “[B]ecause the [settlor] is presumed to know the legal effect of the language used in the trust instrument, extrinsic evidence, including the [settlor’s] own statements, regarding the [settlor’s] intentions is normally inadmissible.” Id.

Trust assets consisted primarily of the Joe Bald property and shares of stock in Image Builders. There were three shareholders in Image Builders prior to settlor’s death. They had a stock purchase agreement. It provided that upon the death of a shareholder, the surviving shareholders would purchase the deceased shareholder’s shares of stock. It set the purchase price of the shares to be acquired as the value of “the then life insurance policies purchased by [Image Builders] on the lives of Gerald Beard, Dave Everhart, and [settlor].” Ten per cent of the price was to be paid in cash. The balance was to be represented by a promissory note payable in equal installments over a term not to exceed ten years. The purchase price for the shares of stock settlor included in the trust was agreed upon as $650,000 as part of the settlement of Count II of the petition for declaratory judgment. See n. 1, supra. The trust was paid $15,000 in July 2004 and $135,000 the day of trial. The balance was payable to the trust. The trust was provided substantial assets with which to meet the demands placed upon it.

Defendants contend the agreement to structure the payment of the purchase price for settlor’s stock over ten years was indicative of an intent that the trust would not pay it debts prior to distribution of the Joe Bald property. Although payment of the purchase price over a period of ten years complicates distribution, it does not require the conclusion that settlor intended plaintiff to have responsibility for payment of the debts secured by the Joe Bald property. Rather, it evidences intent for the trust to continue for the time the other shareholders of Image Builders were required to pay the balance of their note. The trust could make payments on the debts secured by the Joe Bald property each year as it received the payments for the Image Builders shares. The payments due each year from the Image Builders shareholders include interest at a rate of prime plus one percent.

Another factor on which the trial court relied was that settlor had applied for a life insurance policy as “mortgage protection” at one point; that he ultimately declined the policy. The application included a notation: “Note: [Settlor] and his fiancé, [plaintiff], have built a home together which is valued at over $500,000. The mortgage on this home is $350,000. This policy is intended to provide mortgage protection for [plaintiff] in the event of [set-tlor’s] untimely death. This is why fiancé is the beneficiary.”

Although settlor ultimately declined the policy, he subsequently purchased a $250,000 policy that was paid to the trust, a $300,000 policy payable to Image Builders, and a $50,000 policy payable to plaintiff. The trial court concluded that the application for the $350,000 policy evidenced that settlor did not intend for the mortgage to be paid from trust assets. Equally and perhaps more compelling, would be the explanation that the $250,000 policy was to pay the distribution to be paid to settlor’s sister and the additional policies were to fund other financial responsibilities of the trust, including obligations to Metropolitan and Citizens.

The intentions of settlor are to be gleaned from the trust instrument and not from the resulting distributions achieved pursuant to its terms. Boone County Nat. Bank v. Edson, 760 S.W.2d 108, 111 (Mo. banc 1988); Commerce Bank, N.A. v. Blasdel, supra, at 445. Plaintiff is entitled to distribution of the Joe Bald property exonerated from encumbrance. The trust is responsible for payment of the debts secured by the property. The trust was not, however, responsible for the maintenance of the property after its distribution. It is entitled to reimbursement from plaintiff for taxes and insurance paid after that time.

Point I is well-taken. The judgment is reversed as to its determination that the property is distributed to plaintiff subject to payment of the encumbrances secured by it. The judgment is affirmed as to the determination that plaintiff is responsible for insurance and property taxes subsequent to distribution of the property.

Point II argues that the trial court erred in considering and relying upon extrinsic evidence to determine settlor’s intentions “because such evidence was inadmissible in that the [settlor’s] intent could unambiguously be determined by reference to the trust instrument, or alternatively, by reference to the terms of the loan agreement and the circumstances surrounding the loan transaction (as directed by RSMo. § 474.450), therefore rendering all other extrinsic evidence of the [settlor’s] intent inadmissible.” Point II is rendered moot by reason of the disposition of Point I.

The judgment is reversed as to the determination that plaintiff shall take the Joe Bald property subject to encumbrances securing debts owed Metropolitan and Citizens. It is reversed as to the imposition of an equitable lien for those purposes. The part of the judgment declaring plaintiff liable to the trust for property taxes and insurance paid on and for the Joe Bald property since its distribution to plaintiff is affirmed. The case is remanded. The trial court is directed to enter judgment consistent -with this opinion.

RAHMEYER and GARRISON, JJ., concur.

        . Plaintiff also sought declaratory judgment against Image Builders & Associates, Inc. in Count II of the petition she filed. Count II was settled and dismissed pursuant to a stipulation by the parties. The disposition of Count II is not a part of this appeal.

      . The trust stated that the remainder of the trust estate was to be divided "into separate shares, creating one such separate share for [plaintiff], if living, equal to one-quarter (1/4) of the Trust Estate, and creating a separate share equal to three-quarters (3/4) of the Trust Estate for [settlor’s] son, BRIAN KEITH EV-ERHART, if living.”

      . Mr. Everhart is identified in the trial transcript as “David Everhart;” however, when asked to state his full name, he replied, "John David Everhart, Sr.”

      . On August 4, 2004, the trust bank account had a balance of $114.05. On the day of trial the trust received a check from Image Builders as part of the settlement of Count II, see n. 1, supra, in the amount of $135,000. Image Builders executed a promissory note in the amount of $500,000, payable to the trust, in ten installments of $50,000 plus interest in addition to the amount paid the date of trial.

      . § 456.810.3(2), RSMo 1994, was in effect at the time the trust in the case before this court was executed and at the time of settlor's death. That statute was repealed in 2001; however, the language in it is now found at § 469.453.1(3). See Mo.Laws 2001, H.B. No. 241, § A.

      . Unless stated otherwise, references to statutes are to RSMo 2000.