text:
    BRICK HOUSE CAFE & PUB, L.L.C., and FlatHD Properties, L.L.C., Respondents, v. Stuart A. CALLAHAN d/b/a Callahan’s Body Shop, Appellant.
    No. WD 63023.
    Missouri Court of Appeals, Western District.
    Oct. 12, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2004.
    As Modified Dec. 21, 2004.

      Bruce Brandom Brown, Kearney, MO, for Appellant.
    Anthony Asher Stein, Kansas City, MO, for Respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH, and JAMES M. SMART, JR., JJ.
   PER CURIAM.

Stuart Callahan appeals an order granting a prescriptive easement over a portion of his property to Brick House Café & Pub, LLC, and FlatHD Properties, LLC (“Respondents” or collectively “Brick House”) and issuing an injunction against the construction of a fence to enclose his property. Because we determine that Brick House failed to prove by clear and convincing evidence that the use of the property by Brick House and its predecessors-in-title was adverse to Callahan and its predecessors-in-title for the entire 10-year prescriptive period, we reverse the judgment of the trial court and remand the case for disposition of the bond.

Factual Background

Callahan and Brick House own properties in Smithville, Missouri. Callahan’s property is surveyed as consisting of Lot 2 and part of Lot 1, Block 4 of the Original Plat of Smithville. Brick House’s property consists of the south parts of Lots 3 and 4 of Block 4. For convenience we will sometimes refer to the Callahan property as “Tract C” and the Brick House property as “Tract B.” Tract B and C are adjacent tracts, with each tract having a commercial building. Part of each tract consists of a broad alleyway. The property line is near the center of the alleyway.

In 1922, Collins C. Kindred and Elizabeth Kindred originally acquired both properties. For many years, the Kindred family operated a car dealership on the site, which consisted of several different buildings and a gravel alleyway running between those buildings. The title histories of the respective properties were poorly developed at trial, leaving gaps in the record of ownership. The deeds transferring title from Mr. and Mrs. Collins C. Kindred to others were not presented. The parties agree that the properties were transferred to “family” of the Kindreds. The record does not indicate when these transfers occurred or the exact identities of the transferees. The record shows only the identities of the family members who later were grantors of the respective tracts at the time of the transfers out of the family.

Callahan purchased his property in January 1996 from Holimon and Brandes, who earlier had acquired it from the Kindred family. The operators of Brick House, Ronald and Phyllis Miller, purchased their property in December 1995. Callahan operates a body repair shop on his property (“Tract C” or the “Callahan property”). The back of his shop faces the back of the building on Brick House’s property (“Tract B”) which houses a restaurant and drinking establishment called Brick House Café & Pub. Before Callahan bought Tract C, he occupied Tract B as a tenant. The record fails to reveal how long Callahan occupied Tract B.

Prior to the dispute that led to this action, the alleyway regularly had been used for many years by various people, including the prior owners of the property, their tenants, drivers of delivery vehicles and trash trucks, and customers. Brick House stores its trash dumpsters in the alleyway. There was testimony at trial that the truck drivers cannot service these dumpsters without using Callahan’s portion of the alleyway. Two other properties (to the north of Brick House) also extended into the alleyway: a Masonic lodge, which is located on the same side of the alley as the Brick House property, and a building that was formerly a theater located in between the Brick House property and the Masonic Lodge. The alleyway is in the rear of all four buildings (the Brick House restaurant, the Callahan body shop, the lodge, and the theater). The alley sits on the western part of Lot 2 and the eastern part of Lot 3 (belonging to Brick House and also the two other property owners on the northern part of Lot 3). The alleyway is approximately forty-six feet wide.

Sometime in late 1999, or in early 2000, more than five years after he purchased his property, Callahan informed Respondents of his intention to build a permanent fence along the property line separating his property from their property. The fence line would have been essentially down the middle of the alley. Callahan had several stated reasons for wanting to erect the fence, but at least part of it was related to the fact that the City of Smith-ville refused to allow Callahan to park and store his damaged body shop vehicles in the alley unless the vehicles were enclosed by a fence.

Brick House filed suit in the Clay County Circuit Court to stop Callahan from erecting the fence. Brick House claimed that such an action would cause the restaurant to close because of its reliance upon the use of the alleyway for access to its dumpsters. On June 13, 2000, the court granted a preliminary injunction. On April 2, 2001, following a trial, the court issued a permanent injunction enjoining Callahan from erecting a fence or any other type of obstacle to prevent Brick House’s use of the alleyway.

Callahan appealed to this court. Brick House Café & Pub, L.L.C. v. Callahan, 83 S.W.3d 43 (Mo.App.2002). Due to ambiguities in the trial court’s judgment making review difficult, this court declined to review the propriety of the injunction. Id. at 45. This court concluded that the trial court’s findings suggested that the injunction could be based on a prescriptive easement, an implied easement, or an easement by necessity. Id. at 47. Thus, this court remanded the case to the trial court for review and clarification of its basis for granting the injunction. Id. This court gave authority to Brick House to amend its theories and even allowed Brick House to present additional evidence. On remand, Brick House declined to specifically plead other theories beyond that of prescription, and declined to present additional evidence. The trial court allowed Respondents “to amend to conform with proof previously adduced.” The trial court then again found that Respondents were entitled to a prescriptive easement over Callahan’s portion of the alleyway and again granted a permanent injunction enjoining Callahan from preventing Respondents’ use of the alleyway. The decree again includes factual recitations suggesting elements of other easement theories, but the only theory specifically mentioned is that of a prescriptive easement.

On appeal, both parties address the issues as though the case is strictly about easement by prescription, rather that easement by any other theory.

This appeal follows.

Analysis

Murphy v. Carron governs our review of a court-tried case. 536 S.W.2d 30 (Mo. banc 1976). We must affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. See id. at 32. Because the parties failed to request specific findings, we resolve all fact issues in accordance with the result reached. Rule 73.01.

Adverse Use of Alleyway

In his first point on appeal, Callahan argues that the trial court erred in granting Respondents a prescriptive easement over his portion of the alleyway. According to Callahan, Respondents failed to establish an essential element of their claim — that the use of the alleyway was adverse for a period of ten years.

To establish a prescriptive easement over another’s property, a party must show that its use of the property has been continuous, uninterrupted, visible and adverse for a period of ten years. Whit-tom v. Alexander-Richardson P’ship, 851 S.W.2d 504, 508 (Mo. banc 1993). “That period can be reached by a single continuous, uninterrupted adverse use for ten years or more or by ‘tacking’ together several of such uses, each of which may be less than the ten years but their total amounting to ten years or more.” Johnston v. Bates, 778 S.W.2d 357, 361 (Mo.App.1989).

The law does not favor the creation of prescriptive easements. Tamko Asphalt Prods., Inc. v. Arch Assocs., 830 S.W.2d 434, 438 (Mo.App.1992). Therefore, the party seeking to acquire the prescriptive easement must establish each of these elements by clear and convincing evidence. Id.

Here, Brick House had owned its property only five years when it filed its petition. Thus, Brick House could not meet the ten-year prescription period without “tacking” onto adverse use by the prior ownership. In granting Brick House the prescriptive easement, the court found that “[Brick House] and their predecessors-in-interest have had trash trucks drive over [Callahan’s] portion of the alleyway for more than ten years.”

Under the law of prescriptive easements, the fact that the property has been used by one party and its predecessors for ingress and egress is not sufficient by itself to create a right to a prescriptive easement. In order to tack together these uses, the party seeking the declaration of the easement must show that the use (both its use and its predecessors’ use) was adverse to the claimed property rights of the other party.

Adverse use does not require a heated controversy or a manifestation of hi will. Jacobs v. Brewster, 190 S.W.2d 894, 899 (1945). Nor is it necessary that the user intend to violate the owner’s rights. Johnston, 778 S.W.2d at 362. Rather, use is adverse if it proceeds without recognition of the owner’s authority to permit or prohibit the continued use of the land. Id. Adverse use is often indirectly proved. Whittom, 851 S.W.2d at 509. There is generally a presumption of adverse use where the respective properties have been in different hands during the prescriptive period and the use has been open and continuous. See Gault v. Bahm, 826 S.W.2d 875, 881 (Mo.App.1992). However, if there is a period of permissive use during this time frame, the use is not continuously adverse. See Homan v. Hutchison, 817 S.W.2d 944, 948 (Mo.App.1991). Accordingly, the mere fact that Brick House and its predecessors used the alleyway for ingress and egress is not by itself sufficient to create a prescriptive easement. Instead, it must show that the use of the property was adverse to the interests of Callahan and its predecessors-in-title.

Tract B History

The record reflects the following as far as the title history of the Brick House property:

•According.to a recorded deed, on December 22, 1922, the property was conveyed to Collins C. and Elizabeth Kindred.
• According to testimony, of Collins F. Kindred (the son of Collins C. Kindred), at some point (some unspecified date) the property was conveyed from Mr. and Mrs. Collins C. Kindred to “family.”
• According to a recorded deed, on December 13, 1995, the property was conveyed from Collins F. and Loula Kindred, Charles and Wilma Kindred, Frances Durham, and Joan and George Beatty (Grantors) to Ronald and Phyllis Miller (Grantees).
• According to a recorded deed, in 1997, the Millers (who operate the Brick House Café) transferred title of the property to their corporation, FlatHD Properties, LLC.

Tract C History

The record reflects the following as far as the title history of the Callahan property:

•According to testimony of Collins F. Kindred, the property was acquired by Collins C. and Elizabeth Kindred around 1920.
•According to testimony of Collins F. Kindred, the property also was transferred from Mr. and Mrs. Collins C. Kindred to “family” at some unspecified point in time.
• According to a recorded deed, on April 1, 1993, part of Tract C (part of Lot 1 and all of Lot 2) was conveyed from Charles and Wilma Kindred to Holi-mon and Brandes.
• According to a recorded deed, on April 18, 1994, another part of Tract C (part of Lot 1) was conveyed from Charles and Wilma Kindred, Francis Durham, and George and Joan Beatty to Holi-mon and Brandes.
• According to recorded deeds, on January 25, 1996, the remaining part of Tract C (all of Lot 2 and part of Lot 1) was conveyed by Holimon and Brandes to Brandes, and then from Brandes to Callahan.

In sum, the Millers acquired Tract B in 1995, and Callahan acquired Tract C in 1996. We know the Kindred “family” owned the two properties before those respective dates, and we know who the grantors were on the deeds in 1995 and 1996. We also know that Brandes and Holimon owned part of Tract C for approximately three years before the transfer to Callahan.

The law requires ten years of adverse use to acquire prescriptive rights. Moss v. Ward, 881 S.W.2d 238, 241 (Mo.App.1994). Here, the ten year period on which Brick House relies included January 1990 and thereafter until Callahan acquired ownership in June 1996. Therefore, we must examine the history and usage during that period in order to see if the use of the property was “adverse” to the ownership interests of Callahan and his predecessors-in-title from January 1990 to January 2000.

All that we can discern from the above record is that at some point — presumably prior to January 1990, — Mr. and Mrs. Collins C. Kindred transferred some of the property to “family.” Until 1993, the “Kindred family” owned all of the property in question. Apparently, Tract B and Tract C were in different forms of family ownership. We know that, as for the Callahan property, in April 1993, the part of Tract C on which part of the alley sat was conveyed by Charles and Wilma Kindred (son and daughter-in-law of Collins C. and Elizabeth) to Brandes and Holimon. Thus, we assume the property was owned by Charles and Wilma for some time prior to the 1993 transfer.

As for Tract B, we know that, as of December 1995, the property was conveyed by Charles and Wilma Kindred, Frances Durham (daughter of Collins C.), Joan Beatty and George Beatty (daughter and son-in-law of Collins C.), and the Collins F. and Loula Kindred living trust. We know this only because they are listed as grantors on the deed. We know nothing about the nature of the ownership or the relative shares of ownership. The record fails to disclose why there was no attempt to offer copies of deeds by which title was acquired (or any other evidence of ownership) pertinent to the time when the property was divided, showing the respective grantees and the. dates of transfer.

Brick House argues that the above owners of Tract B (which include Charles and Wilma Kindred, who were also presumably part owners of Tract C) could have used the alley in a way that was adverse to the possessory interests of the owner of Tract C (Charles and Wilma Kindred). Brick House also suggests we can assume that the ownership was always the same from January 1990 to the respective transfer dates to Brick House and Callahan. We are not convinced that offering that assumption by inference is the same ás offering proof by clear and convincing evidence. See Tamko, 830 S.W.2d at 438. In any event, the problem here is that although the owners of Tract B, who apparently leased the property during part of the time in question to Callahan, could theoretically have used the alley in a way that was adverse to the owners of Tract C (including Charles and Wilma), the only thing we know is that the usage occurred; we have no information about whether the usage was permissive or adverse. Nor, for reasons discussed more fully below, is it clear that facts were shown that could give rise to a presumption of adverse usage.

The testimony of Collins F. Kindred that both of the properties at some point belonged to the “family” does nothing to prove that the usage was adverse. In fact, it tends to suggest that the use was permissive because of the family closeness of the property owners. Callahan seizes on this very point, contending that the predecessors-in-interest’s use of any portion of the alleyway would not be adverse if the family owned both properties, but rather would be presumed to be permissive. Callahan also is correct that from 1990 to 1993 there was overlap in ownership. Charles and Wilma Kindred had an ownership interest in both of the pertinent tracts. He argues, therefore, that Brick House cannot tack its use of the alleyway onto its predecessors’ use.

Brick House completely ignores the doctrine that the presumption of adverse usage that arises out of long and continuous use of another’s land does not apply when there is a family relationship between the owners of the respective tracts. See Tallent v. Barrett, 598 S.W.2d 602, 606 (Mo.App.1980). The proponent of the prescriptive easement can still prove that the use actually was adverse; the proponent simply does not have the benefit of a presumption in such a case.. See id. Here, as we have noted, not only was there a family relationship, but it is also possible that Charles and Wilma had a major or controlling interest in both properties during that period. The only oral testimony pertinent to ownership was that of Collins F. Kindred, who described both properties as belonging only to “family.” Mr. Kindred did not provide evidence that usage was adverse.

Because we do not have the pertinent deeds by which “family” received title from Collins C. and Elizabeth Kindred, we do not know how the respective interests of the owners of Tract B appeared. For instance, we do not know whether Charles and Wilma had a one percent interest as tenants in common with the other (apparent) owners, a ninety-five percent interest as tenants in common, or an interest in the entirety as joint tenants. Again, we know only the identities of the persons who conveyed the property out of the family. Thus, it is impossible to say that there was clear and convincing evidence of facts that would give rise to a presumption that the use by the owners of Tract B would have been adverse rather than permissive. Even though we must resolve factual disputes in accordance with the result reached, we cannot manufacture any facts that are not part of the record.

“Since a person cannot claim adversely against himself, the prescriptive period does not begin to run while the dominant and servient tracts are under the same ownership or control.” 25 Am.Jue. 2d Easements and Licenses § 49 (1996). Here, while ownership of the dominant and servient tracts was different for part of the ten-year period, the difference in ownership for the balance of the period has not been clearly demonstrated. “[A]ny doubt as to the character of the use is to be resolved in favor of the free and untrammeled use of the land.” McIlroy v. Hamilton, 539 S.W.2d 669, 673 (Mo.App.1976). Here, where the basis for a prescription of adverse usage was not shown, there is doubt as to whether use was permissive or adverse.

On appeal and in the trial below, Brick House has relied exclusively on the theory of prescriptive easement to justify the injunction. We are offered no other theory or basis on which to support the trial court ruling. However, for the reasons mentioned above, the record simply is too sparse to support a prescriptive easement.

When this court remanded the case for greater specificity as to the theory or theories supporting the injunction, the court was allowing Brick House to re-plead the case, and present additional evidence if necessary. Plaintiff was not required to elect a single theory, except to the extent theories were inconsistent with one another. See Whittom, 851 S.W.2d at 509 (error to require plaintiffs to elect between theories of prescriptive easement and common law dedication). Id. The remand directing the trial court to allow amendment of pleadings and to take additional evidence gave great latitude to Brick House to correct deficiencies in pleadings and evidence.

The testimony of Miller (operator of Brick House Café) as to his belief that the City owned the alleyway was also not helpful to a theory of prescriptive easement in view of extant authority suggesting that such a belief cannot support the adverse usage necessary to a prescriptive easement. See Rosemann v. Adams, 398 S.W.2d 855, 858 (Mo.1966) (one cannot acquire prescriptive rights if one believes the government owns the property for the benefit of the public). Accordingly, this testimony was another strike against the notion that easement by prescription was established.

On remand, Brick House chose to stick with a theory of prescription, and to abandon other potential theories of easement. For the reasons mentioned, there is no substantial evidence to support a finding of adverse usage for ten years. We have no choice but to reverse the injunction. Point I is granted.

In view of our ruling on Point I, Points II and III, which relate to the injunction, are moot.

In his final point on appeal, Callahan challenges the portion of the court’s judgment releasing Brick House from the injunction bond. Brick House filed a bond in the amount of $10,000.

Section 526.070 requires a party seeking a temporary injunction to execute a bond that secures the payment of appropriate damages in the event the injunction is dissolved. Here, our reversal of the injunction permanently enjoining Callahan from building the fence also requires reversing the portion of the judgment releasing and discharging the bond. Therefore, we reverse the judgment in its entirety. Point IV is granted. We remand for a hearing on the assessment of damages on the injunction bond. See § 526.200.

Conclusion

For the foregoing reasons, we reverse the trial court’s judgment granting the injunction. We remand the case for disposition of the bond.

      . There was another grantee, Jones, who later released his interest to the Millers.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of the CARE AND TREATMENT OF: Charles ST. CLAIR, a/k/a Charles E. St.Clair, Jr., a/k/a Junior St. Clair, Appellant.
    No. ED 83536.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 12, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 30, 2004.
    Application for Transfer Denied Jan. 25, 2005.
    Emmett D. Queener, Assistant Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty Gen., James R. Layton, Chief Deputy Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Charles St. Clair' (“defendant”), appeals from the judgment of the Circuit Court of Washington County, after a jury in the probate division found defendant to be a sexually violent predator (“SVP”) under section 632.480 RSMo 2000. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).


text:
    FIRST MISSIONARY BAPTIST CHURCH OF BALLWIN, a/k/a First Baptist Church of Ballwin, by and through its Board of Trustees, Plaintiffs, v. Richard ROLLINS, Press McDowell, John Hibbler, Loyse Clay, and Charlet Clay, et al., and Richard Rollins, Press McDowell, John Hibbler, Loyse Clay and Charlet Clay, derivatively, on behalf of the First Missionary Baptist Church of Ballwin, a/k/a First Baptist Church of Ballwin, Respondents, v. Anthony Barnes, Norma Clayton, Marva Gaylor, James Sheets, Kathy Simmons, Gary Fields, Ernest Schell, George Fulgham, Leonard White, David Lyons, and Kenneth Worsham, Appellants.
    No. ED 83880.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 19, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 9, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      Gregory F. Quinn, Quinn, Ground & Banton, L.L.P., Manchester, MO, for appellants.
    Michael P. Stephens, Roger W. Pecha, Jenkins & Kling, P.C., St. Louis, MO, for respondents.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   PER CURIAM.

Appellants, Marva Gaylor, et al. (“Gay-lor Representatives” appeal the judgment of the Circuit Court of St. Louis County in favor of respondents, Press McDowell, et al. (“McDowell Representatives”) on their motion for partial summary judgment. We reverse and remand.

On May 22, 2002, the Gaylor Representatives acted on behalf of the First Missionary Baptist Church of Ballwin (“the Church”) to file a petition for declaratory judgment and injunctive relief. The Gay-lor Representatives sought a declaration as to who had the right and authority to govern the Church and to possess and control its assets, which include the Church’s historical records, financial records, bank books, membership rosters, bank accounts, gifts, donations, and other funds. The Gaylor Representatives sought, among other things, to have the assets put in their possession and control and to prevent the McDowell Representatives from holding themselves out as the representatives of the Church.

Commerce Bank (“Commerce”) inter-pleaded and filed a third party plaintiffs answer to the Gaylor Representatives’ complaint. Commerce answered that it lacked sufficient knowledge or information to determine, among other things, which party has the right to possess and control the Church’s assets. As a result, it denied the Gaylor Representatives’ allegations pertaining to that question. Commerce then filed a motion for dismissal and order of discharge in which it asked that the suit against it be dismissed, that it be discharged from all liability with respect to the funds it interpleads into the registry of the court, and that it be awarded reasonable attorney’s fees and costs. The trial court granted Commerce’s motion, ordering it to deposit into the registry of the court the five accounts described in its petition, less its attorneys’ fees, and dismissing Commerce from the case.

The Gaylor Representatives admitted that the McDowell Representatives managed the affairs of the Church before April 13, 2002. On April 13, 2002, the Gaylor Representatives conducted a meeting at which they elected a Board of Directors and terminated the McDowell Representatives’ control of the Church. The Gaylor Representatives allege that the April 13, 2002 meeting was a long overdue annual meeting of the Church’s members at which Anthony Barnes, Norma Clayton, Marva Gaylor, and James Sheets were validly elected to the board of directors.

The McDowell Representatives, derivatively and on behalf of the Church, filed a third party petition for declaratory judgment against the Gaylor Representatives in their individual capacities. This petition sought a declaration that the April 13, 2002 election was void and that the McDowell Representatives are the proper authority to manage the affairs of the Church.

The McDowell Representatives filed a motion for partial summary judgment, maintaining the April 18, 2002 election was illegal and void. The McDowell Representatives argue the April 13, 2002 meeting was called by Gary Fields, Ernest Schell, and David Lyons, who are not listed as officers or directors in the 2001 Annual Registration Report and who also did not manage the Church’s affairs before the meeting. Further, they argue notice of the meeting did not identify the purpose of the meeting and was not provided within ten days.

The trial court granted the McDowell Representatives’ motion for partial summary judgment. In its Order and Judgment, it found “the purported election of April 13, 2002 was null, void and held for naught” and reinstated the McDowell Representatives as church leaders for all legal, financial, and other matters. The trial court also dismissed the Gaylor Representatives’ original petition without prejudice.

When reviewing a grant of summary judgment, we view the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo.banc 1993). “Our review is essentially de novo.” Id. We will uphold the trial court’s judgment if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 381. The moving party has the burden to show it has a right to judgment as a matter of law and that there is no genuine issue of material fact. Id. at 378. The moving party’s burden includes a duty to show the other party’s affirmative defenses fail as a matter of law. Northwest Plaza, L.L.C. v. Michael-Glen, 102 S.W.3d 552, 558 (MoApp. E.D.2003).

We will address the Gaylor Representatives’ second point first.

In their second point on appeal, the Gaylor Representatives argue the trial court erred in granting the McDowell Representatives’ motion for summary judgment because the Gaylor Representatives were the directors of the Church because they were properly elected at the April 13, 2002 meeting.

“If the corporation has members, all the directors, except the initial directors, shall be elected at the first annual meeting of members, and at each annual meeting thereafter, unless the articles or bylaws provide some other time or method of election ...” Section 355.326.1 RSMo. (2000). At the annual meeting, the president and chief financial officer shall report on the activities and financial condition of the corporation and the members shall consider and act on other matters raised consistent with statutory notice requirements. Section 355.231.4.

In this case, the Gaylor Representatives argue the April 13, 2002 meeting was a long overdue annual meeting because there was no other evidence of an annual meeting ever being held. The Gay-lor Representatives farther argue the Annual Stewardship/Discipleship Meetings did not qualify as annual meetings because there was no record that elections took place at these meetings. We disagree.

The Annual Stewardship/Discipleship Meetings were held every December. At these meetings, each “team leader” gave a report on his or her activities in the previous year and his or her plans for the next year. Further, the agendas from these Annual Stewardship/Discipleship Meetings contained an' entry for a report from the “Treasury Ministry,” which included the previous year’s income and expenditures as well as the projected income and expenditures for the next year. In contrast, the record shows the April 13, 2002 meeting did not include a report on the activities and financial condition of the corporation as required by Section 355.231.4.

Therefore, even if the Annual Stewardship/Discipleship Meetings do not qualify as annual meetings under Section 355.231.4, it is clear that the April 13, 2002 meeting did not qualify as an annual meeting.

Because the April 13, 2002 meeting was not an annual meeting, we will consider whether it was a proper “special meeting.” Section 355.236 provides:

1. A corporation with members shall hold a special meeting of members:
(1) On call of its board or the person or persons authorized to do so by the articles or bylaws; or
5. Only those matters that are within the purpose or purposes described in the meeting notice required by section 355.251 may be conducted at a special meeting of members. Section 355.236.

In this case, it is clear that the Board did not call the meeting, and there is no evidence that the Articles or Bylaws include provisions regarding who can call “special meetings.” Further, the notice for the meeting does not say anything about the meeting’s purpose, nor does it say the meeting is an overdue annual meeting.

Thus, the April 13, 2002 meeting was not a “special meeting” because it was not called according to the procedures set out in section 355.236. Further, because the notice for the meeting did not indicate that elections were to be held at the meeting, those elections are invalid. Sections 355.236.5 and 355.251.3(3).

Therefore, the trial court did not err in granting summary judgment on this point because the elections held at the meeting were invalid and had no legal force. Point denied.

In their first point on appeal, the Gaylor Representatives argue the trial court erred in granting the McDowell Representatives’ motion for summary judgment because the McDowell Representatives failed to prove all elements of their claim and rebut all affirmative defenses.

The Gaylor Representatives argued, as an affirmative defense, the McDowell Representatives have failed to prove that they were members of the Church’s Board of Directors. Further, the Gaylor Representatives contend the McDowell Representatives have failed to establish that they have the authority to exercise corporate powers or manage the affairs of the Church. Thus, according to the Gaylor Representatives, they are not entitled to summary judgment.

The McDowell Representatives argue the question of whether they have proven they are the proper directors has nothing to do with the validity of the Gay-lor Representatives’ election. The McDowell Representatives maintain that all they had to do was demonstrate that the election was a nullity, returning the Church to the status quo ante.

The McDowell Representatives’ motion for partial summary judgment asked for a declaration that the April 13, 2002 election was null, void, and held for naught as well as a reinstatement of the McDowell representatives as “leaders of the Church.” Their argument is that making the McDowell Representatives “leaders of the Church” reinstates the status quo ante.

The Gaylor Representatives admitted in their answer to the third party petition for declaratory relief that the McDowell Representatives “managed the affairs of the Church prior to April 13, 2002.”

However, section 355.316.1 states “[e]aeh corporation shall have a board of directors, which may also be called a board of trustees, a board of regents or a board of overseers.” Section 355.316.1. Further, all corporate powers shall be exercised and the corporation shall be managed under the authority and direction of its board. Section 355.316.2. The board of directors is elected at each annual meeting, unless the articles or bylaws provide otherwise. Section 355.326.1. If the articles and bylaws do not specify, the term for directors shall be one year. Section 355.331.1. However, if a director’s terms expires and no successor director is elected, the director continues to serve until a successor is elected, designated or appointed and qualifies or until the number of directors decreases. Section 355.331.4.

In this case, there is no evidence of a valid election occurring. The directors listed on the 2001 Annual Registration Report (“ARR”) do not coincide with the McDowell Representatives, who the parties agree were the “leaders of the Church” before the invalid election. Significantly, Press McDowell is not listed on the 2001 ARR, and of the seven directors listed on the 2001 ARR, three are not named as “leaders of the Church” in this case.

As noted above, section 355.316.1 does not provide for a body entitled “leaders of the Church” to have authority to control a not-for-profit corporation. Further, there is no evidence in the record showing the McDowell Representatives were properly elected to the board of directors. As a result, if we allowed the McDowell Representatives to be in charge of managing the Church’s affairs, we would be violating the statutes set out above.

Therefore, we find that the trial court erred in granting the McDowell Representatives’ motion for summary judgment because the McDowell Representatives failed to rebut all affirmative defenses. The Gaylor Representatives asserted as an affirmative defense that the McDowell Representatives are not members of the Church’s Board of Directors. The McDowell Representatives have not shown that they are members of the Church’s board of directors. Instead they have merely shown they were in control of the Church before the April 13, 2002 election. We cannot place the Church under the control of a body that is not its proper board of directors. Therefore, we cannot put the McDowell Representatives in control of the Church. Point granted.

In their third point on appeal, the Gaylor Representatives argue the trial court erred in awarding attorneys’ fees to the McDowell Representatives.

Missouri courts follow the “American rule,” which provides that, ordinarily, litigants must bear the expense of their own attorney’s fees. Wall USA, Inc. v. City of Ballwin, 53 S.W.3d 168, 172 (Mo.App.E.D.2001). We can award attorney’s fees to a successful litigant only where they are provided for by statute or contract, where very unusual circumstances exist such that equity demands a balance of benefits, or where the attorney’s fees are incurred due to involvement in collateral litigation. Id.

We need not consider whether one of the above circumstances exists. To be entitled to attorney’s fees the McDowell Representatives must be successful in the action. Id. Because we are reversing summary judgment, the McDowell Representatives are not the prevailing party and are not entitled to attorney’s fees. Therefore, the trial court erred in awarding attorney’s fees to the McDowell Representatives.

The judgment of the trial court is reversed and the cause is remanded so that the trial court can order a meeting to be held according to sections 355.081.1 and 355.241.1(1) to properly elect a board of directors.

      . The Gaylor Representatives include Norma Clayton, Marva Gaylor, Anthony Barnes, James Sheets, Gary Fields, Ernest Schell, George Fulgham, Leonard White, David Lyons, and Kathryn Simmons.

      . The McDowell Representatives include Richard Rollins, Press McDowell, John Hib-bler, Loyse Clay, and Charlet Clay.

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


author: ROBERT G. ULRICH, Judge.

text:
    Daryl Harry KAROLAT, Respondent, v. Jean Lynn KAROLAT, Appellant.
    No. WD 63538.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2004.

      James C. Wirken, Kansas City, MO, for appellant.

      John W. Dennis, Jr., Independence, MO, for respondent.
    Before VICTOR C. HOWARD, P.J., ROBERT G. ULRICH and PATRICIA A. BRECKENRIDGE, JJ.
   ROBERT G. ULRICH, Judge.

Jean Karolat (Mother) appeals the judgment of the trial court dissolving her marriage to Daryl Karolat (Father) and awarding sole legal and physical custody and primary residential custody of the parties’ two minor children to Father. She claims that the trial court erred in striking her pleadings and entering default judgment against her as a sanction for her failure to comply with discovery and awarding sole legal and physical custody of the children to Father. The judgment of the trial court is affirmed.

Facts

The parties were married on September 19,1988, and separated in September 2001. Two children were born of the marriage, Shania, born September 19, 1995, and Ly-sandor, born January 81, 1997. Father filed his petition for dissolution in June 2002 requesting the trial court to dissolve his marriage to Mother, divide the marital assets and debts, award him sole legal and physical custody of the children, and allow the children to relocate to the State of California, where he was then residing. With his petition, Father also filed a motion for temporary custody and a motion to appoint a guardian ad litem alleging that during the parties’ separation, Mother had not maintained the health and well-being of the children, the children were being grossly neglected in that they were living in extreme filth and poor living conditions and not attending school regularly, and Mother was perhaps suffering from a serious mental or physical illness. Thereafter, the trial court appointed a guardian ad litem.

Mother filed her answer and counter-petition in August 2002 requesting the trial court to award the parties joint legal and physical custody. In December 2002, Father sent Mother standard dissolution interrogatories, including questions about income and expenses and assets and debt, and a request for production of documents. Also in December 2002, Mother’s attorney filed a motion to withdraw as attorney of record alleging that Mother had not provided payment as agreed and had withheld vital information. The trial court granted the motion on January 6, 2003. Mother retained new counsel on January 20, 2003.

On February 10, 2003, Father filed a motion to compel discovery. Mother, however, continued to fail to respond to discovery, so Father filed a motion for sanctions on May 16, 2003. Three days later, Mother’s second attorney filed a motion to withdraw for nonpayment of fees. At a hearing on the attorney’s motion that same day, Mother told the trial court that she wished to have her attorney withdraw. The trial court, therefore, granted the motion. Also at the hearing, Mother confirmed that she possessed the discovery to be completed. The trial court informed Mother that she had ten days to deliver the completed discovery to Father’s attorney and that if she did not, she could be sanctioned. The court explained to Mother that sanctions could include striking her pleadings and permitting Father to proceed by default. The trial court also told Mother that if she desired to hire another attorney, she needed to take immediate steps because the matter had been delayed long enough and needed to be concluded. Finally, the trial court directed Mother to comply with a request by the guardian ad litem to submit to a mental examination on June 11.

On June 5, 2003, the trial court, by docket entry, struck Mother’s answer and counter-petition as sanctions for failing to comply with its order to complete discovery. Another pre-trial conference was held on July 25, 2003. At the hearing, Mother indicated that she had not retained a lawyer and confirmed that she had not completed discovery. Mother also confirmed that she submitted to a mental evaluation on June 11 but directed the doctor to withhold the report. The guardian ad litem informed the trial court that Mother had refused her entry into her home and had refused to permit her to meet the children. Despite this, Father and the guardian ad litem requested that the guardian ad litem be dismissed. The guardian ad litem explained that DFS had twice found a lack of evidence of abuse or neglect of the children although she did have some concerns regarding the living conditions of the children. The trial court dismissed the guardian ad litem and set the case on the August 21, 2003, default docket.

At the August 21, 2003, proceeding, Mother was represented by her third attorney in the case. Mother filed a motion for continuance to comply with Father’s discovery requests. The trial court denied the motion. The trial court also denied Mother’s request to cross-examine witnesses in the default proceeding. Father proceeded with his case presenting the testimony of several witnesses including himself and introducing several exhibits including photographs of Mother’s home and the childrens’ school attendance records. Mother was not allowed to cross-examine witnesses in the default proceeding. Following the hearing, the trial court entered its judgment of dissolution of marriage. Among other things, the court awarded sole legal and physical custody of the minor children to Father with specific periods of parenting time to Mother. This appeal by Mother followed.

Standard of Review

Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) governs review of a court-tried dissolution case. Robinson v. Robinson, 128 S.W.3d 543, 546 (Mo.App. W.D.2003). Thus, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32; Robinson, 128 S.W.3d at 546.

In child custody matters, the trial court is afforded even greater deference than in other areas. Robinson, 128 S.W.3d at 546. Because the trial court is in a better position to evaluate the credibility of the witnesses, the evidence and reasonable inferences that may be drawn therefrom are viewed in the light most favorable to the judgment, and contrary evidence is disregarded. Meyer v. Block, 123 S.W.3d 316, 321 (Mo.App. W.D.2003). The appellate court presumes that the trial court reviewed all of the evidence and awarded custody in light of the best interest of the child. Robinson, 128 S.W.3d at 546. An award of child custody will not be disturbed on appeal unless the appellate court is firmly convinced that the child’s welfare requires some other disposition. Meyer, 123 S.W.3d at 321 (quoting Dixon v. Dixon, 62 S.W.3d 589, 592 (Mo.App. W.D.2001)).

Sanctions

In the first point addressed on Mother’s appeal, Mother claims that the trial court erred in striking her pleadings, entering default judgment against her, and preventing her from objecting to or cross-examining Father’s evidence as a sanction for her failure to comply with discovery, specifically to answer interrogatories and to produce documents.

The imposition of sanctions for a party’s failure to participate in discovery, including an order denying the right to cross-examine witnesses and present defenses, is a matter within the discretion of the trial court. Eidson ex rel. Webster v. Eidson, 7 S.W.3d 495, 499 (Mo.App. W.D.1999). Rules 61.01(b) and (d) expressly permit a trial court to strike pleadings and enter judgment by default as permissible sanctions for failure to answer interrogatories or to produce documents. Id. Although default is a drastic punishment, it is properly invoked where a party has shown a contumacious and deliberate disregard for the authority of the court. Giesler v. Giesler, 731 S.W.2d 33, 34 (Mo.App. E.D.1987). The rendition of judgment following the striking of pleadings for failure to obey a discovery order does not come by default in the ordinary sense but is treated as a judgment upon trial by the court. Bell v. Bell, 987 S.W.2d 395, 399-400 (Mo.App. E.D.1999). Thus, when such sanctions are imposed, the principles governing the appeal relate to the discretion of the trial court to impose such sanctions that render the cause uncontested and subject to judgment. Eidson, 7 S.W.3d at 499. The exercise of the trial court’s discretion will not be disturbed on appeal unless it is exercised unjustly. Id.; Bell, 987 S.W.2d at 399. Review is limited to determining whether the trial court could have reasonably concluded as it did, not whether the reviewing court would have imposed the same sanctions under the same circumstances. Eidson, 7 S.W.3d at 499.

The record reveals that Mother willfully disregarded the authority of the trial court throughout the proceedings. Mother received Father’s standard dissolution interrogatories in December 2002. Mother did not respond to discovery so Father filed a motion to compel discovery in February 2003. After Mother’s continued failure to respond to discovery, Father filed a motion for sanctions in May 2003. At the hearing on May 19, 2003, Mother confirmed that she possessed the discovery and would complete it in ten days. The trial court encouraged her to comply with discovery and the mental examination. The court clearly outlined the consequences of failure to comply with discovery. It explained to Mother that sanctions could include striking of her pleadings and permitting Father to proceed by default. After Mother again failed to complete discovery, the trial court struck her pleadings in June 2003. Additionally, Mother admitted to the trial court that she directed the doctor who conducted her mental evaluation not to release the report. Similarly, Mother admitted that she refused the guardian ad litem access to her home or children. Mother’s conduct hindered and delayed the proceedings for six months before her pleadings were finally struck. An additional three months passed before the trial finally occurred. In the meantime, allegations were made that the children were living in poor living conditions and not attending school regularly. A trial court has an obligation to see that discovery rales are followed and to expedite litigation. Bell, 987 S.W.2d at 401. The trial court’s striking of Mother’s pleadings and entry of default judgment against her were reasonable under the circumstances. See Giesler, 731 S.W.2d at 35 (where husband failed to appear at two hearings and filed incomplete and evasive answers to interrogatories only after threatened with default, trial court’s striking of husband’s pleadings was reasonable).

Mother argues that the trial court erred in imposing the sanctions that it did because Father was not prejudiced by Mother’s failure to respond to discovery in that the discovery sought was not mandatory for proceeding on the matter and Father already knew the answers sought. Rule 56.01(b) provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action[.]” Before sanctions are imposed for failure to engage in discovery, the trial court must determine that the opposing party is prejudiced by the errant party’s non-compliance with discovery. Eidson, 7 S.W.3d at 499. The primary issues throughout these proceedings were property distribution and child custody. Evidence in the record indicated that, during the marriage and over the course of the separation, Mother received various large sums of money from Father and the sale of marital property. Mother’s failure to complete interrogatories or statements of assets and debts or income and expenses, however, prevented Father from tracing all of Mother’s savings and expenditures of funds and property in her possession. Additionally, Mother refused to release the results of her mental examination and refused to allow the guardian ad litem into her home and to meet the children impeding the guardian ad litem’s attempt to perform her duty and further hindering Father’s ability to obtain information concerning the child custody issue. Father was, therefore, prejudiced by Mother’s non-compliance with discovery.

Next, Mother argues that the trial court prejudiced her by allowing her first two attorneys to withdraw. She contends that the trial court failed to hold her counsel to any obligation of representation and allowed withdrawal of the attorneys without confirming her understanding of the effect of the withdraws, default, or sanctions. The trial court has discretion in deciding whether to allow trial counsel to withdraw. Nance v. Nance, 880 S.W.2d 341, 345 (Mo.App. E.D.1994). “Although that discretion is judicial in nature and reviewable on appeal, every intendment is in favor of the trial court’s ruling.” Id.

Mother’s first attorney was allowed to withdraw over one year before the matter was tried. That attorney requested to withdraw because Mother had not provided payment as agreed and had withheld vital information. Thereafter, Mother had ample time to hire a second attorney, and she did so. Upon the application of her second attorney to withdraw, also for nonpayment of fees, Mother appeared before the trial court and consented to the withdrawal. After dismissing the attorney, the trial court explained to Mother her obligation to complete discovery within ten days and further explained the sanctions that could be imposed if she failed to meet her obligation. Additionally, the trial court told Mother that if she desired to hire another attorney, she needed to take immediate steps to do so because the matter would proceed without further delay. The trial court, therefore, did not abuse is discretion in allowing Mother’s first two attorneys to withdraw. See Id. (where party consented to withdrawal of attorney and had been previously ordered to be prepared to proceed whether with counsel or pro se, trial court did not abuse its discretion in permitting attorney to withdraw).

Mother next complains that the trial court failed to apply lesser-suggested sanctions set forth in section 452.375.7, RSMo 2000. That statute provides that if a parent refuses to exchange information concerning the health, education, and welfare of the child with the other parent, the trial court shall order the parent to comply immediately and to pay the prevailing party a sum equal to the prevailing party’s cost associated with obtaining the requested information. § 452.375.7, RSMo 2000. While section 452.375.7 may be applicable to discovery issues, Mother cites no authority that it is the exclusive remedy for discovery violations in child custody cases. The trial court imposed sanctions for Mother’s non-compliance of discovery under Rule 61.01. As discussed above, the trial court’s imposition of sanctions under the Rule was reasonable based on Mother’s willful disregard of its order to complete discovery.

Mother’s next argument against the trial court’s imposition of sanctions against her is that the trial court failed to follow the local rules of the seventeenth judicial circuit, specifically Rule 68.10 requiring mediation in cases involving child custody, Rule 68.1 requiring attendance by parties at education sessions in cases where custody is to be determined, and Rule 68.9 requiring the use of standard opening interrogatories and request for production of documents. A litigant must object to procedural errors or be deemed to have waived objection. State v. Williams, 46 S.W.3d 35, 40 (Mo. App. E.D.2001); B.C. Nat’l Banks v. Potts, 30 S.W.3d 220, 223 (Mo.App. W.D.2000). Mother did not raise these alleged errors before the trial court, therefore, they are deemed waived.

Finally, Mother contends that the trial court erred in imposing sanctions in that it did so without a motion or notice of hearing for sanctions. Rule 61.01(b) provides, in pertinent part:

If a party fails to answer interrogatories or file objections thereto within the time provided by law ... the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just and among others the following:
(1) An order striking pleadings or parts thereof, or dismissing the action or proceeding or any part thereof, or render a judgment by default against the disobedient party.

Rule 61.01(d) provides similar sanctions for failure to produce documents upon “motion and reasonable notice to other parties.” Father filed a motion to compel discovery in February 2003. Mother continued to fail to respond to discovery, and Father filed a motion for sanctions on May 16, 2003. At a pre-trial hearing held three days later, Mother confirmed her possession of the discovery, her awareness of her obligation to comply with it, and her promise to complete it within ten days. The court emphasized to Mother that sanctions for non-compliance within ten days could include striking her pleadings and permitting Father to proceed by default. On June 5, 2003, after Mother still had not completed discovery, the trial court granted Father’s motion and struck Mother’s answer and counter-petition. At another pre-trial hearing held on July 25, 2003, Mother confirmed that she had not complied with discovery, and the trial court reiterated that it had imposed sanctions. The record indicates that the trial court imposed sanctions only after motion by Father and reasonable notice to Mother as required by Rules 61.01(b) and (d).

The trial court’s discretion to impose sanctions in this case was not unjustly exercised. The point is denied.

Award of Sole Legal and Physical Custody of Children to Father

In her two remaining points, Mother claims that the trial court erred in awarding Father sole legal and physical custody of the children. Specifically, Mother argues that public policy in this state favors joint legal custody and no evidence was presented that the parties could not function as a unit and that insufficient evidence was presented that an award of sole legal and physical custody to Father was in the best interests of the children given the sanctions imposed by the trial court and the evidence that Father had not been a part of primary care giving for several years and planned to relocate the children to California.

Joint legal custody is favored in Missouri on public policy grounds. Meyer v. Block, 123 S.W.3d 316, 324 (Mo.App. W.D.2003); § 452.375.4, RSMo, 2000. Section -452.375.4, RSMo 2000, declares “that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child ... and that it is in the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of the children[.]” To effectuate this policy, a trial court is directed to consider joint custody prior to making any award of custody. § 452.375.5, RSMo 2000; Wicker v. Ficker, 62 S.W.3d 496, 500 (Mo.App. E.D.2001). The preference for joint custody, however, is not absolute. Meyer, 123 S.W.3d at 324. It can be overcome where joint legal custody is not in a child’s best interests or in circumstances where the parents are consistently unable to agree regarding decisions relating to their child’s welfare. § 452.375.4, RSMo 2000; Meyer, 123 S.W.3d at 324.

Ultimately, child custody must be determined in accordance with the best interests of the child. § 452.375.2, RSMo 2000. The trial court shall consider all relevant factors including:

(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family dr household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian.

Id.

Substantial evidence supports the trial court’s award of sole legal and physical custody of the children to Father. Evidence was presented that Mother did not provide a clean and habitable home for the children. Mother has approximately twelve to thirteen dogs and twelve cats that live in the home. The dogs are kept in different parts of the house to keep them from fighting. Some of the cats use the jacuzzi in the master bathroom as a Utter box. On one visit to the home, Father found five or six ducks Uving in the basement. Photographs taken by Father of Mother’s home in May 2002 and the night before trial in August 2003 were introduced at trial. The photographs depicted many animals around the house and urine stains and animal feces on the floors in the house and in the basement including in the children’s play area. All of the kitchen counters were covered with dirty dishes, kitchenware, food, and trash. The laundry room floor was piled with trash, empty laundry baskets, and broken toys making it difficult to walk into the room. Bedroom floors and closets were covered with dirty clothes and toys. Bathroom counters, sinks, and floors were Ukewise cluttered with trash and dirty dishes. The floor of the garage was covered with trash including paper, straw, and empty cat food cans, bags of pet food, and kitty litter bags. Father testified that Mother’s car was also filthy because she uses it to transport feed and hay to her horses. He explained that during one visit, he cleaned several trash bags of garbage out of Mother’s car and even found mice feces and several dead mice in the car.

Additionally, several neighbors and acquaintances of Mother testified that Mother does not properly care for the children. They testified that Mother’s home is not a sanitary or healthy environment for the children; Mother does not ensure that the children eat properly; and the children are constantly ill with pink eye, ear infections, and colds.

Evidence was also offered that while in Mother’s care, the children have poor school attendance. The children’s principal testified that during the 2002-2003 school year, the children were either absent from school or tardy approximately one-third of the time and their sporadic attendance was hurting their academic progress. Additionally, the children’s teachers approached the principal regarding the lunches the children brought to school, mostly snack foods. Mother’s stated reasons to the principal for the children’s absenteeism and tardiness were lack of transportation and the need to take care of her animals. The principal testified that he informed Mother of the available bus service and hot lunch program, but Mother never took advantage of the services.

Conversely, Father testified about his home in California and introduced photographs of it into evidence. He testified that he would provide the children a clean and healthy home. Additionally, Father testified that, in his custody, the children would attend school regularly. Father has visited the school in California that his children would attend and talked to the principal. The school is in a very good school district, and it is one half block from Father’s home. The evidence further revealed that the children love Father, are excited to be with him, and Father takes good care of them when they are with him.

The evidence demonstrated that the parties have widely divergent attitudes regarding satisfying the needs of their children. Without a commonality of belief concerning the raising of the children, the trial court did not err in failing to award joint legal custody in this case. See Hankins v. Hankins, 920 S.W.2d 182, 186 (Mo.App. W.D.1996).

Additionally, the evidence supported the trial court’s award of sole physical custody of the children to Father. Mother argues that an award of sole physical custody of the children to Father was not in the children’s best interests because she had been the primary caregiver for many years while Father was often away from home for his work and because Father intended to relocate the children to California if awarded custody. Considering solely that the children have resided in Missouri their entire existence, Father’s intent to relocate the children to California where he resides and works might weigh against his receiving sole custody of the children. However, as recited above, evidence was presented that in Mother’s custody, the children were living in unsanitary and unhealthy conditions and unnecessarily and inappropriately missing a substantial amount of school. “A good environment and stable home are primary considerations in determining a child’s best interests.” Spire v. Adwell, 36 S.W.3d 28, 32 n. 1 (Mo.App. W.D.2000) (citation omitted). Evidence was offered that Father and children love and enjoy being with each other, Father maintains a clean home with adequate accommodations' for the children and is committed to satisfying their needs, and he will ensure that the children regularly attend school. The evidence supports the conclusion that the best interests of the children are better satisfied by awarding sole legal and physical custody of the children to Father. The points are denied.

The judgment of the trial court is affirmed.

HOWARD, P.J. and BRECKENRIDGE, J. concur.

      . Mother uses the phrase "primaiy residential custody” to describe the trial court’s award of sole physical custody of the children to Father with specific times of visitation for her. In this sense, the phrase has no legal significance, and this court has suggested that the designation of “primaiy” in custody cases be abandoned in favor of the joint and sole terminology. Loumiet v. Loumiet, 103 S.W.3d 332, 338-39 (Mo.App. W.D.2003). This court will, therefore, review Mother’s point as an attack on the trial court’s award of sole physical custody to Father.

      . Mother’s points relied on are addressed in a different order than presented.


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Chad A. LACK, Plaintiff-Respondent, v. Kasey PAYNE & Tony Pennington, Defendants-Appellants.
    No. 26125.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 9, 2004.
    Motion for Rehearing or Transfer Overruled Dec. 1, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      Thomas David Swindle, Swindle and Nunnery, Doniphan, MO, for Appellant.
    Douglas R. Kennedy, Kennedy, Kennedy & Robbins, L.C., Poplar Bluff, MO, for Respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Kasey Payne, a/k/a Kasey Pennington, (“Payne”) and Tony Pennington (referred to jointly as “Appellants”) appeal from the judgment of the trial court quieting title to certain real property in Chad A. Lack (“Respondent”).

In December 2000, Respondent and Payne became engaged to be married with their wedding planned for April 2001. In contemplation of their marriage, on March 14, 2001, the couple purchased thirty-nine acres of land, that also contained a home, in Ripley County, Missouri. In order to purchase the property, the couple borrowed $4,000 from Payne’s family and signed a promissory note and deed of trust for the remaining $77,600 of the purchase price. Both Payne and Respondent signed the promissory note and deed of trust, and they took title to the property as joint tenants with rights of survivorship. A couple of weeks after borrowing the money from Payne’s family, Respondent paid it back in full.

Respondent and Payne lived in the house on the property for approximately three weeks after the purchase. In the middle of May 2001, Payne left the home of her own accord and broke off the engagement with Respondent. Both parties allege that they were physically abused by the other party before the break up. Respondent lived on the property for another sixteen months, until August 7, 2002, when the house was totally destroyed by fire. During this time, Respondent made all of the payments on the property, including insurance and taxes. He was also responsible for all of the upkeep of the property. Payne testified that she spent approximately twenty hours cleaning the house, and five hours stripping wallpaper, but made no other contribution to the home. During the time that Respondent lived there, he sold approximately $11,000 worth of timber off the property and retained all of those proceeds for himself.

Soon after ending the engagement, Payne began a relationship with Tony Pennington (“Pennington”). By August of 2001, Payne was living with Pennington and they have since married. At some point after Payne moved out, Payne’s mother, Kay Hale, spoke with Respondent about removing Payne’s name from the property. Payne also desired that her name be removed from the promissory note, deed of trust, and the property. Respondent made some attempt to refinance the property in his own name, but he could not afford the cost. Therefore, when the house burned in August of 2002, both Respondent and Payne were still responsible under the promissory note and deed of trust they originally executed.

Cameron Mutual Insurance paid off the entire debt remaining on the property at the time of the fire, in excess of $77,000. Surplus proceeds from the insurance were also paid, to Respondent and Payne jointly, in the amount of $4,425.87. Respondent contacted Payne regarding the insurance proceeds and he testified that he offered her half of the proceeds if she would sign the check. Respondent claims that she refused to sign it. Payne now claims an interest in the insurance proceeds and the property itself.

Count I of this suit was Respondent’s claim against Appellants to quiet title to the property in his name. Count II was Respondent’s claim against Payne for damages for breach of her promise to marry him and for refusing to remove her name from the title to the property, and in which he also sought a judgment ordering that all of the Cameron Mutual proceeds be paid to him. Count III was a claim against Appellants in which Respondent sought an order partitioning the property, ordering that Appellants deed their interest in the property to Respondent, and ordering that the proceeds of the Cameron Mutual policy be awarded to him. Payne filed a counterclaim seeking partition of the property. Following a bench trial, the trial court entered its “Findings of Fact, Conclusions of Law, and Judgment” finding for Respondent and quieting title to the property in his name, and awarding him the entire amount of the insurance proceeds, minus $45 for Payne’s five hours spent stripping wallpaper at $9.00 per

hour, which it ordered paid to Payne. It also dismissed Respondent’s claims stated in Counts II and III, as well as Payne’s claim for partition. This appeal followed.

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

In their first point on appeal, Appellants claim that the trial court erred when it dismissed Payne’s claim for partition and quieted title to the property in Respondent. Appellants claim that Payne had an absolute right to a partition suit pursuant to Section 528.030 in that she took ownership of the property as a joint tenant with the right of sufvivorship.

Section 528.030 provides, in pertinent part: In accordance with the statute, it is clear that joint tenants have an absolute right to partition in the absence of an agreement not to do so. Stout v. Stout, 564 S.W.2d 89, 90 (Mo.App.1978). Appellants, however, cite no authority for the proposition inherent in their point relied on, that partition is required even if ownership of the property is in issue in a claim for quiet title.

In all cases where lands, tenements or hereditaments are held in joint tenancy ..., it shall be lawful for any one or more of the parties interested therein, whether adults or minors, to file a petition in the circuit court of the proper county, asking for the admeasurement and setting off of any dower interest therein, if any, and for the partition of the remainder, if the same can be done without great prejudice to the parties in interest; and if not, then for á sale of the premises, and a division of the proceeds thereof among all of the parties, according to their respective rights and interests.

It should be noted that Section 528.030 provides for partition among “parties interested therein.” Thus, partition is appropriate when the trial court is asked to divide the interests of the property where ownership is not at issue. Lemay v. Hardin, 48 S.W.3d 59, 62 (Mo.App. W.D. 2001). In the instant case, ownership was in issue by reason of Respondent’s Count I seeking a judgment quieting title to the property in himself.

Lemay is factually similar to the instant case in many ways. There, Mr. Lemay and Ms. Hardin took title to the subject property as joint tenants with the right of survivorship in contemplation of a marriage that never occurred. Id. at 60. The property was totally paid for by Mr. Le-may, but Ms. Hardin contributed to the home by painting and cleaning it. Id. at 61. Mr. Lemay filed a partition action that resulted in a judgment awarding Ms. Hardin $3,875 for her contribution, by way of services, to the purchase of the property, but awarded Mr. Lemay one hundred percent of the property. Id. Like the instant case, Ms. Hardin contended that the trial court was obligated by Chapter 528 and Rule 96.08 to order the property sold if it could not be divided in kind without prejudice, but the trial court, without dividing the property, determined who owned it. Id. Thus, the appellate court stated that “[pjartition is appropriate when the trial court is asked to divide the interests of the property where ownership is not at issue.” Id. at 62. The appellate court concluded that the trial court did not have authority, in a partition suit, to grant the relief that it did, and that to do so, a quiet title action pursuant to Section 527.150 would have been more appropriate and would have permitted the result reached by the trial court. Id. at 63-64. The case was remanded with directions to permit amendment of the pleadings to include a claim for quiet title. Id. at 64.

The trial court here referred to Anderson v. Stacker, 317 S.W.2d 417 (Mo.1958), in its judgment. There, Mr. Anderson and Ms. Stacker, in contemplation of marriage, took title to the subject property in the names of “Kenneth B. Anderson and Bertha A. Anderson, his wife.” Id. at 418. Mr. Anderson made the down payment as well as all payments on the notes secured by two deeds of trust that were executed by both he and Ms. Stacker. Id. Mr. Anderson later filed suit asking that the court determine title to the property and decree him to be the sole owner. Id. Ms. Stacker filed a counterclaim seeking partition. Id. at 418-19. The trial court entered a decree quieting title in Mr. Anderson and dismissed Ms. Anderson’s counterclaim for partition. Id. at 419. The Supreme Court of Missouri affirmed the trial court subject to an adjustment for $300 Ms. Stacker spent for repairs on the property. Id. at 421.

It is thus apparent that the premise of Appellants’ first point, i.e., that the trial court must order partition even if there is an issue about ownership is not well taken. We find no error with the trial court’s decision to quiet title to the property instead of partitioning it. Payne’s partition claim did not preclude the trial court from finding, on the merits, that title should be quieted in Respondent. Point one is denied.

In their second point, Appellants claim that the trial court erred when it found that Payne only contributed $45 towards the acquisition of the property. Appellants claim that Missouri law requires that each co-tenant who signs a note and deed of trust is to receive credit for one-half of the mortgage amount financed when determining co-tenants’ interests in a partition suit. Appellants claim that because Payne signed the note and deed of trust, she is entitled to proceeds from a partition sale according to her rights and interests in the property. Appellants appear to be assuming that they have a right to a partition sale of the property as opposed to the trial court’s judgment quieting title in the name of Respondent. Appellants then discuss several methods by which the appellate courts have apportioned property in partition actions.

Respondent claims that the principles on which Appellants rely in claiming that they are entitled to a portion of the proceeds of a partition sale were used in partition causes of action and are not applicable in quiet title actions. Respondent notes that the trial court may grant quiet title relief under both legal and equitable principles. See Massachusetts Gen. Life Ins. Co. v. Sellers, 835 S.W.2d 475, 482 (Mo.App. S.D.1992). Respondent argues that the trial court made the proper determination, within its equitable discretion, to ensure a fair and just outcome.

Appellants’ second point is not well taken. We have already determined that the trial court did not err in choosing to quiet title to the property rather than partition it. Since title was quieted in Respondent, partition would not be appropriate here. Therefore, it is irrelevant- to this case which method must be used to determine how the proceeds of a partition sale would be distributed. Appellants’ second point is denied.

In Appellants’ third point, they claim that the trial court erred when it allowed Respondent to keep the sum of $11,200, all of the proceeds from the sale of timber, and the balance of the insurance proceeds, $4,425.87, because Payne owned and was entitled to an undivided one-half interest in that timber and proceeds.

Appellants, however, fail to argue their point relied on, nor do they cite any authority in support of this point, simply reciting the appropriate standard of review. When a party fails to develop a point relied on in the argument section, it is deemed abandoned. Jansen v. Westrich, 95 S.W.3d 214, 218 (Mo.App. S.D.2003). “Under Rule 84.04(d), it is an appellant’s obligation to cite appropriate and available precedent if he expects to prevail.” Shiyr v. Pinckney, 896 S.W.2d 69, 71 (Mo.App. S.D.1995). Where there is no authority available, the party should explain the absence of citations. Id. Therefore, Appellants’ third point is deemed abandoned and denied.

Appellants filed a reply brief which attempted to remedy the errors of the original brief. Respondent moved to have the reply brief stricken, as well as pages twenty-one and twenty-two from Appellants’ initial brief. Rule 84.04(g) only allows reply briefs that do not rear-gue points covered in the appellant’s initial brief. Furthermore, “[pjoints and arguments omitted from an appellant’s initial brief may not be supplied by a reply brief.” Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo.App. E.D.2000). We grant the motion as to Appellants’ reply brief, but find it unnecessary to strike pages twenty-one and twenty-two of Appellant’s initial brief because we find Appellants’ third point relied on to be abandoned.

We affirm the trial court’s judgment quieting title in Respondent.

PREWITT and RAHMEYER, JJ., concur.

      . There is no issue on this appeal about the "dismissal" of those claims.

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

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


text:
    Shango BEY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63335.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2004.
    Mark Allen Grothoff, State Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before PATRICIA BRECKENRIDGE, P.J., JAMES M. SMART, JR., and VICTOR C. HOWARD, JJ.
   Order

PER CURIAM.

This is an appeal of a denial of a motion to vacate judgment and sentence under Supreme Court Rule 29.15. Shango Bey (also known as Stanley Boyd) was convicted of committing violence against an employee of the Department of Corrections, § 217.385, RSMo 2000.

Finding no grounds for reversal, we affirm the denial of the post-conviction motion without an evidentiary hearing. A published opinion would lack jurisprudential value.

Affirmed. Rule 84.16(b).