text:
    STATE of Missouri, Respondent, v. Stanley D. PENN, Appellant.
    No. ED 84686.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 23, 2005.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Stanley D. Penn (hereinafter, “Defendant”) appeals from the judgment entered after a jury found him guilty of distribution of a controlled substance, Section 195.211 RSMo (2000) , and sale of a controlled substance, Section 195.211. The trial court sentenced Defendant to two concurrent six year terms of imprisonment. Defendant raises two points on appeal, claiming his right not to testify was violated and the trial court’s failure to act sua sponte resulted in manifest injustice.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

The judgment is affirmed pursuant to Rule 30.25(b).

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Peggy PURCELL, Appellant, v. JEROME L. HOWE, INC., Respondent.
    No. ED 85585.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 23, 2005.
    Kristin Whittle Parke, St. Louis, MO, for appellant.
    Thomas 0. McCarthy, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Peggy Purcell appeals from the trial court’s judgment dismissing her petition against Jerome L. Howe, Inc. alleging employment discrimination under the Missouri Human Rights Act for lack of subject matter jurisdiction.

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


text:
    STATE of Missouri, Respondent v. Timothy O’BANNON, Appellant.
    No. ED 85395.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 23, 2005.
    Robert W. Lundt, St. Louis, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Defendant, Timothy O’Bannon, appeals from the judgment entered after a jury found him guilty of burglary in the second degree. The trial court sentenced defendant, as a prior and persistent offender, to four years imprisonment.

No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 30.25(b).


text:
    Eileen M. TURLEY, Respondent, v. Edward F. TURLEY, Appellant.
    No. ED 85340.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 23, 2005.
    Francis James Murphy III, St. Louis, MO, for appellant.
    Nathan S. Cohen, Clayton, MO, for respondent.

      Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant Edward F. Turley (“Husband”) appeals from the trial court’s judgment denying his motion to modify spousal maintenance. The marriage of Husband and Eileen M. Turley (‘Wife”) was dissolved by a decree of dissolution of marriage entered on December 7, 2000 (“Decree”). On appeal, Husband asserts the trial court erred in denying his motion to modify because: (i) Wife failed to obtain gainful employment after three years; and (ii) a decrease in his salary constituted a change in circumstances justifying a modification of the Decree. We disagree and affirm the trial court’s judgment.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment was supported by substantial evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the general principles of law. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Jamarr MACK, Appellant.
    No. ED 84317.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 23, 2005.
    Michelle Murphy Rivera, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, C.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Jamarr Mack (“Mack”) appeals from the trial court’s judgment after his conviction by a jury of one count of tampering in the first degree, Section 569.080, RSMo 2000, two counts of unlawful use of a weapon for carrying a concealed weapon, Section 571.030.1, and one count of possession of under thirty-five grams of marijuana, Section 195.202. Mack was sentenced to the Missouri Department of Corrections to four years on the tampering count, four years each for the unlawful use of a weapon counts and one year for the possession count, all sentences to run consecutively. On appeal, Mack argues the trial court erred in allowing the State to present evidence of his membership and association with the gang “26 Mad in the penalty phase of his trial because this violated his First Amendment rights to freedom of thought, speech, ideas and association, and to due process of law and fair sentencing.

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

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


text:
    Tracy M. ATKINSON, n/k/a Tracy M. Dinella, Appellant, v. Douglas D. ATKINSON, Respondent.
    No. ED 85768.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 23, 2005.
    Melissa A. Featherston, Clayton, MO, for appellant.
    Benicia A. Baker-Livorsi, St. Charles, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Tracy M. Atkinson (hereinafter, “Mother”) appeals from the trial court’s judgment denying her motion to set aside a consent judgment entered into with Douglas Atkinson. Mother raises four points on appeal, claiming the trial court abused its discretion in failing to set aside the consent judgment because: (1) Mother was unable to understand the proceedings pursuant to her emotional distress; (2) the trial court lacked sufficient evidence to enter an order eliminating child support; (3) there was insufficient evidence to support the trial court’s judgment ordering Mother to pay college expenses for one of her children; and (4) the trial court failed to create a record with respect to attorneys’ fees.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the trial’s court judgment did not constitute an abuse of discretion. Preferred Laser Services, Inc. v. Abate, 117 S.W.3d 678, 680 (Mo.App. E.D.2003). The three motions taken with the case are denied. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).


author: GLENN A. NORTON, Chief Judge.

text:
    Warren MARSHALL, Claimant/Appellant, v. IMMACULATE DIVERSIFIED SERVICES, INC., and Division of Employment Security, Respondents.
    No. ED 86342.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 23, 2005.
    William Marshall, St. Louis, pro se.
    Cynthia A. Quetseh, Jefferson City, MO, for respondent.
    Immaculate Diversified Services, Inc., St. Peters., pro se.
   GLENN A. NORTON, Chief Judge.

Warren Marshall (Claimant) appeals from a decision by the Labor and Industrial Relations Commission (Commission) dismissing his application for review as untimely. We dismiss the appeal for lack of jurisdiction.

On January 27, 2005, a deputy with the Division of Employment Security (Division) determined that Claimant was disqualified for waiting week credit and unemployment benefits because he was discharged for misconduct connected with work. Claimant appealed to the Appeals Tribunal, which affirmed the deputy’s determination. On February 28, 2005, the Appeals Tribunal mailed its decision to Claimant. On April 12, 2005, the Division received Claimant’s faxed application for review by the Commission. The Commission dismissed the application because it was not timely filed.

Section 288.200.1 RSMo.2000 provides that a claimant has thirty days from the mailing of the Appeals Tribunal’s decision to file an application for review with the Commission. If an application for review is faxed, it is deemed filed on the date the Division’s fax machine receives it. Douglas v. Burlington Coat Factory, 160 S.W.3d 422 (Mo.App. E.D.2005)(citing 8 C.S.R. 20-4.010(l)(Q). Here, the Appeals Tribunal mailed its decision on February 28, 2005. Claimant’s application for review by the Commission was due thirty days later, on March 30, 2005. Section 288.200.1. Because Claimant did not fax his application for review until April 12, 2005, it was untimely.

This Court has a duty to examine our jurisdiction sua sponte. Douglas, 160 S.W.3d at 422. In an unemployment case, the timely filing of an application for review is jurisdictional and requires strict compliance. Id. We issued an order to Claimant directing him to show cause why this appeal should not be dismissed for lack of jurisdiction. Claimant has not filed a response. Claimant’s failure to timely file an application for review divests both the Commission and this Court of jurisdiction. Id. at 423. Accordingly, Claimant’s appeal must be dismissed.

Claimant’s appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE, J. and BOOKER T. SHAW, J., concur.


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent, v. Jerry PECK and Mary Ann Peck, Appellants, Shane Michael Bakalar, Defendant.
    No. WD 64645.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.

      Russell Clark Purvis, Kansas City, for Appellant.
    Keith Joseph Schieber, St. Joseph, for Respondent.
    Shane Michael Bakalar, pro se, for Defendant.
   RONALD R. HOLLIGER, Presiding Judge.

Jerry and Mary Ann Peck appeal a trial court declaratory judgment in favor of American Family. The Pecks allege that the trial court erred in declaring that a homeowner’s insurance policy issued by American Family did not cover an off road accident involving a three wheel recreational vehicle that caused the death of their son, Devon Peck. We hold (1) that the policy language provides coverage for ATV’s that are not subject to motor vehicle registration, (2) ATV registration is not the same as motor vehicle registration, and (3) the vehicle involved in this accident was not subject to motor vehicle registration and was, therefore, covered under the Policy. Accordingly, we reverse.

Facts

On the evening of October 14, 2001, Shane Bakalar was operating a three-wheeled Honda motorized vehicle near North Platte High School in Platte County, Missouri. Devon Lee Peck was a passenger on the vehicle when an accident occurred from which he sustained fatal injuries. At the time of the accident Baka-lar was not the owner of the vehicle, but he was insured by a homeowner’s insurance policy issued by American Family Mutual Insurance Company (American Family).

The parents of Devon Peck (the Pecks) filed an action for wrongful death against Bakalar in the Circuit Court of Platte County, Missouri. Ultimately judgment was taken against Bakalar in the amount of $500,000 pursuant to Section 537.065, RSMo.

Prior to the entry of judgment against Bakalar, American Family filed a Petition for Declaratory Judgment seeking a judicial determination of whether the homeowner’s policy issued to Bakalar provided coverage for the accident. American Family took the position that the policy did not provide coverage because an exclusion to the policy specifically excepted coverage for injuries resulting from the use of any motorized vehicle “subject to motor vehicle registration.” American Family argued that the vehicle driven by Bakalar was an all terrain vehicle (ATV) and, therefore, subject to motor vehicle registration under Missouri law.

The Pecks, conversely, disputed that the vehicle was within the statutory definition of an ATV and claimed that the wording of the policy was ambiguous. Alternatively, in the event that the vehicle was an ATV, the Pecks claimed that ATV registration, as required under Missouri law, was categorically different than the exclusion for “motor vehicle registration” found in the policy.

At the hearing, Bakalar testified that the vehicle he was driving the night of the accident did not have a horn, turn signals, rear view mirror, or a speedometer. Ba-kalar testified that he had only been in possession of the vehicle for approximately 24 hours prior to the accident and that he had driven the vehicle several times on public highways during that time. Testimony was also admitted that the vehicle had a manual transmission, was 50 inches or less in width, and weighed less than 600 pounds. The vehicle had three low-pressure tires with knobby tread that were designed for off-road use.

The trial court found in favor of American Family and the Pecks now appeal.

Discussion

Generally, we review court-tried cases under the standard set forth in Murphy v. Carron and will affirm the judgment unless it is against the weight of the evidence, it is not supported by substantial evidence, or it erroneously declares or applies the law. 536 S.W.2d 30, 32 (Mo. banc 1976). “In a court-tried declaratory judgment action, however, interpretation of an insurance policy is a question of law, and the trial court receives no deference where resolution of the controversy is a question of law.” Auto. Club Inter-Ins. Exch. v. Medrano, 83 S.W.3d 632, 637 (Mo.App. 2002). The disposition of this case turns on the interpretation of certain exclusionary language from the insurance policy issued to Bakalar. The exclusion excepts liability for bodily injury or property damage resulting from the use of any vehicle “subject to motor vehicle registration.” The exclusion and its corresponding exception read in relevant part:

We will not cover bodily injury or property damage arising out of the ownership, supervision, entrustment, maintenance, operation, use, loading or unloading of any type of motor vehicle, motorized land conveyance or trailer, except:
We will provide specific coverage on only the following types owned or operated by or rented or loaned to any insured:
(3) a motorized land conveyance including a motorized bicycle, tricycle or similar type of equipment designed principally for recreational use off public roads, which is not subject to motor vehicle registration and is:
(a) not owned or leased by an insured

(Emphasis added). It is undisputed that Bakalar was not the owner of the vehicle involved in the crash. What is in dispute is how to classify the vehicle in question and whether the vehicle was “subject to motor vehicle registration.” The policy leaves the term undefined.

American Family argues that the vehicle Bakalar was driving at the time of the accident is clearly within the statutory definition of an ATV, Section 301.010(1), RSMo 2000, and that ATV’s are required to be registered with the Department of Revenue. See Section 301.707, RSMo 2000. American Family claims that the statutorily required registration of ATV’s renders the vehicle “subject to motor vehicle registration” and, thus, excluded from coverage by the express terms of the policy.

The Pecks argue in response that the vehicle does not qualify as an ATV under the statutory definition. They argue further that, even if it does qualify as an ATV, such vehicles are not specifically removed from coverage by the exclusion and that ATV registration is categorically different than motor vehicle registration under Missouri law.

First we turn to the classification of the instrumentality in question, and then we will discuss whether it was subject to motor vehicle registration.

Classifying the vehicle

The Pecks argue that the three-wheeled vehicle driven by Bakalar, which was controlled with handlebars and equipped with low-pressure, knobby tread, tires “designed specifically for off road use,” is not an ATV. The Pecks then argue by extension that, as a non-ATV, the vehicle is not subject to the ATV registration requirement. See Section 301.707, RSMo 2000. This argument is based on an overly narrow reading of the statutory definition of an ATV; it reads:

“All-terrain vehicle,” any motorized vehicle manufactured and used exclusively for off-highway use which is fifty inches or less in width, with an unladen dry weight of six hundred pounds or less, traveling on three, four or more low pressure tires, with a seat designed to be straddled by the operator, and handlebars for steering control[.]

Section 301.010(1), RSMo 2000 (emphasis added). The Pecks aver that since Baka-lar testified that he operated the vehicle on a public highway several times, the vehicle necessarily does not fit within the plain meaning of the statutory definition of an ATV because it was not used exclusively off the highway.

American Family responds that the vehicle in question is clearly an ATV because it falls squarely within the definition being less than 50 inches in width, less than 600 pounds, and is designed for use by a straddled operator who controls it with handlebars. American Family argues, and we agree, that the Pecks’ reliance on the statute’s peculiar literal wording to support such an argument is absurd because any motorized vehicle, including this one, which lacked rear taillights, a horn or directional signals, can be illegally driven on a public roadway. It would be illogical to allow such flaunting of the law to redefine the nature of the vehicle. Practically speaking, however, it ultimately matters little (for the purposes of this case anyway) whether this vehicle fits within the statutory definition of an ATV for at least two reasons: (1) even if it is an ATV, as American Family claims, the vehicle is not “subject to motor vehicle registration” as contemplated by statute and the policy, and (2) if it’s not an ATV, the vehicle clearly falls within the term motorized land conveyance from the exception to the exclusion. In other words, ATV or not, the vehicle is not subject to motor vehicle registration. We discuss (1) below; as for (2), it is self evident that this vehicle has a motor and is used on land. The word “conveyance” will be given its plain and ordinary meaning, Mo. Employers Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 625 (Mo.App.2004), as “[a] means of conveying, esp. a vehicle for transportation.” AMERICAN HERITAGE DICTIONARY 304 (3d ed.1993). Thus, the vehicle in question is clearly a “motorized land conveyance.”

In sum, the three-wheeled vehicle at issue is not excluded from coverage by its vehicular classification because the policy exclusion does not specifically exempt ATV’s and, regardless, the vehicle fits into the term “motorized land conveyance” from the exception to the exclusion. Thus, the only remaining issue is whether bodily injury resulting from the operation of this vehicle was not covered by the policy because the vehicle was “subject to motor vehicle registration.” If the vehicle is subject to motor vehicle registration, then the trial court properly found that coverage did not exist.

For ease of analysis, we will assume for the remainder of this discussion that the vehicle is indeed an ATV as American Family claims.

ATV’s are not “subject to motor vehicle registration” as contemplated by the policy and Missouri law

The Pecks allege that the term “subject to motor vehicle registration” is ambiguous and, therefore, should be construed against American Family in favor of insurance coverage. The Pecks initially appear to argue that since the term is not specifically defined in the Policy it is, ipso facto, ambiguous. This is not the law regarding ambiguity in insurance contracts. The fact that a term remains undefined in a policy does not necessarily render it ambiguous, see State Farm Mut. Auto. Ins. Co. v. DeCaigney, 927 S.W.2d 907, 910 (Mo.App.1996), and courts should take care not to create ambiguities where none exist. Mansion Hills Condo. Ass’n v. Am. Family Mut. Ins. Co., 62 S.W.3d 633, 637 (Mo. App.2001). “An ambiguity arises where there is a duplicity, indistinctness, or uncertainty in the meaning of the words used in an insurance contract.” Nichols, 149 S.W.3d at 625. When interpreting an insurance contract, we read the contract as a whole and determine the intent of the parties, giving effect to that intent by enforcing the contract as written. Id. Language is ambiguous if it is reasonably open to different constructions and the language used will be viewed in the meaning that would ordinarily be understood by the layperson that bought and paid for the policy. Lincoln County Ambulance Dist. v. Pac. Employers Ins. Co., 15 S.W.3d 739, 743 (Mo.App.1998). A term may be deemed ambiguous in the context of one insurance policy, and not ambiguous in another. De-Caigney, 927 S.W.2d at 910. If a term appearing in an insurance contract is not otherwise defined, an appellate court is free to give a reasonable construction to the term, applying general contract principles and resolving doubts in favor of the insured. Mansion Hills, 62 S.W.3d at 638. Since the policy exclusion invokes state law provisions regarding vehicle registration, we will look to the controlling statutes, state regulations, and the policies behind them in construing the meaning of the term “subject to motor vehicle registration” and evaluating any resulting ambiguity.

The crux of American Family’s assertion that Bakalar’s vehicle is subject to motor vehicle registration rests on American Family’s reading of Section 301.707, which requires all ATV’s operated in the state to be registered with the Department of Revenue. It straightforwardly provides: “No person shall operate an all-terrain vehicle within the state unless the all-terrain vehicle has been registered with the Department of Revenue.” Section 301.707.1, RSMo 2000. American Family points to Section 301.707 and argues that the ATV Bakalar drove was, therefore, clearly “subject to motor vehicle registration.” At first blush American Family’s position seems appealing; however, upon closer examination of Missouri statutes, clear distinctions emerge between registering a motor vehicle for the purposes of legally driving on a public highway and registering an ATV. While both forms of registration are recorded with the Department of Revenue, we believe the policy language in dispute refers to the former.

The general purpose behind motor vehicle registration requirements is to identify vehicles in relation to their owners. See generally Jay M. Zitter, Annotation, What Constitutes Farm Vehicle, Construction Equipment, or Vehicle Temporarily on Highway Exempt from Registration as Motor Vehicle, 27 A.L.R.4th 843 Section 2. This is especially important when motor vehicles are involved in accidents resulting in damage or injury. Id. In addition to providing for ATV registration, Chapter 301 of the Missouri statutes also governs the registration of motor vehicles to be driven on the public highways. Section 301.020.1 requires that every owner of a motor vehicle to be driven on the public highways must annually file an “application for registration” with the Director of Revenue. This application must contain, among other things, a description of the vehicle, the name of the manufacturer, the vehicle identification number, and the vehicle’s horsepower. Section 301.020.1(1), RSMo 2000. Missouri law further requires that all motor vehicles, prior to registration, pass an “inspection of their mechanism and equipment.” Section 307.350.1(3), RSMo 2000. This inspection is for the purpose of ensuring that the vehicle is in compliance with all of the relevant equipment regulations from Chapter 307 that apply to roadworthy vehicles but not to ATV’s. Additionally, prior to completion of motor vehicle registration, the owner of the motor vehicle must prove compliance with Missouri’s financial responsibility law, which generally requires some kind of liability insurance coverage on the vehicle. Section 303.025, RSMo 2000. Upon completion of motor vehicle registration the owner of the vehicle receives license plates from the Department of Revenue that must be appropriately displayed in accordance with the law. Section 301.130, RSMo 2000.

ATV registration is controlled by Section 301.707 et seq. Sections 301.709 and 301.711 detail the requirements to complete ATV registration. The process involves merely filling out a form describing the vehicle and paying a ten-dollar fee. Few of the above-described procedures apply to ATV registration and the process is utterly dissimilar from the practice of registering a motor vehicle to be driven on the public highways. Chapter 301 makes the distinction by implication between ATV’s and motor vehicles by assigning different registration protocols for the two distinct vehicular creatures.

The Missouri Code of State Regulations also offers useful insight on the alleged similarity of ATV registration and motor vehicle registration. Chapter 12 reveals that it is indeed possible to register an ATV as a motor vehicle in the event that the ATV’s character is completely altered. 12 CSR 10-23.428(1) declares that “[a]n all-terrain vehicle (ATV) is not a motor vehicle and may not be operated on the streets and highways.... ” If an ATV is modified to pass a vehicle examination and otherwise become fit to be driven on a public roadway, the regulation requires that it “must be retitled as a motor vehicle and appropriately registered” prior to being used as such. 12 CSR 10-23.428(1)-(2). The obvious implication of this provision is that any previous registration (presumably as an ATV) is insufficient to legally permit the vehicle to be driven on the public highways. The regulation goes on to enumerate the steps that need be taken to register a road-worthy ATV which, conspicuously, mirror the requirements to register a motor vehicle. Only after these steps are taken may an ATV be legally driven on the public roadways.

After careful review of these statutes and regulations, we find that the undefined Policy term “subject to motor vehicle registration” does not include registering an ATV under Section 301.707. Taking guidance from the statutes, we find its plain meaning, as understood by a layperson, invokes the process of registering a vehicle to be driven on the public roadways of this State. An unmodified ATV, like the one at issue in this case, simply cannot be registered as a motor vehicle and, thereby, permitted to be legally driven on public roadways. We recognize that American Family points us to non-controlling case law equating the two types of registration. See Safeco Ins. Co. of Am. v. Clifford, 896 F.Supp. 1032 (D.Or.1995). We note this contrary precedent and decline to follow it, finding other authority on the issue to be a more commonsense and persuasive approach. See Concord Gen. Mut. Ins. Co. v. Woods, 175 Vt. 212, 824 A.2d 572 (2003) (ATV was not subject to motor vehicle registration even though the insured occasionally operated it on public roads and registered it as an ATV with the commissioner of motor vehicles); MacLean v. Hingham Mut. Fire Ins. Co., 51 Mass. App.Ct. 870, 750 N.E.2d 494 (2001) (ATV, while subject to “environmental registration,” was not subject to motor vehicle registration and, thus, fell within an exception to the exclusion of insurance policy); Pelter v. Dep’t. of Tramp., 663 A.2d 844 (Pa.Cmwlth.1995) (registration of ATV with the State did not confer authority to operate it on highways nor require compliance with financial responsibility law and, therefore, was not the same as motor vehicle registration).

Nor are we persuaded by American Family’s reference to Ferguson v. Gateway Insurance Co., 151 S.W.3d 911 (Mo. App.2004) (holding that a horse-drawn buggy was not a motor vehicle for purposes of uninsured motorist coverage), or Meeks v. Berkbuegler, 632 S.W.2d 24 (Mo. App.1982) (holding that a dune buggy being operated off-road was not an uninsured motor vehicle). The issue here is not whether the ATV was a motor vehicle or came within the definition of an uninsured motor vehicle of an automobile liability policy. Rather, the question is whether the ATV was subject to “motor vehicle registration” under Missouri law. These cases simply do not aid in that analysis.

Similarly, we are not persuaded by American Family’s argument equating ATV registration to motor vehicle registration simply because both are administered by the Department of Revenue. Construing the policy’s language to provide or deny coverage based upon the administrative agency that receives and processes the registration is a tortured interpretation that we resist entertaining here. The more reasoned approach, the one we have chosen, is to decide whether registering a motor vehicle for operation on a public highway and registering an ATV is the same thing; for the purposes of the insurance policy at issue, we find that they are not. It is illogical to equate the two types of registration in light of the statutes and regulations reviewed above.

Finally, American Family also appears to argue that since ATV’s have previously been held to be within the broad statutory definition of a “motor vehicle,” see Rice v. Fire Ins. Exch., 946 S.W.2d 40 (Mo.App. 1997), that ATV’s are necessarily subject to motor vehicle registration. This argument is also unpersuasive. Section 301.010.33, defines “motor vehicle” broadly as “any self-propelled vehicle not operated exclusively upon tracks, except farm tractors.” To be sure, the vehicle at issue likely falls within this broad description. However, simply because a vehicle with a motor is considered within the broad statutory definition of a “motor vehicle” does not mean that it is “subject to motor vehicle registration.” See Stonger v. Riggs, 85 S.W.3d 703 (Mo.App.2002) (riding lawnmower was “motor vehicle” where mower was used on the street); Covert v. Fisher, 151 S.W.3d 70 (Mo.App.2004) (golf cart was motor vehicle when driven on public highway). In neither of these cases would anyone reasonably argue that the “motor vehicles” at issue were subject to the motor vehicle registration procedures required of road worthy vehicles (nor could they qualify to be so) even though they were technically within the broad statutory definition of a motor vehicle. The term motor vehicle can be used in many contexts; the relevant question here is not whether this ATV is a motor vehicle, but whether it is subject to motor vehicle registration. We conclude that it is not.

As such, the vehicle Bakalar was driving at the time of the accident that resulted in Devon Peck’s death was not “subject to motor vehicle registration” as the term is used in the policy issued to him. Therefore, the vehicle falls within the exception to the exclusion and coverage exists under the policy.

The judgment is reversed and remanded with directions to enter judgment in favor of the Plaintiffs.

ROBERT G. ULRICH, Judge, and JOSEPH M. ELLIS, Judge, concur.

      . This characterization comes directly from the owner’s manual admitted as an exhibit during trial.

      . The Pecks provide this court with the dictionary definition for the word exclusive: [alp-pertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out; debarring from interference or participation; vested in one person alone. Apart from all others, without admission of others to participation. BLACK’S LAW DICTIONARY 564 (6th ed.1990).

      . Indeed, the statute’s use of the words "used exclusively for off-highway use” in conjunction with Bakalar’s admission that he drove on the highway, is the Pecks' only support for their assertion that Bakalar’s vehicle is not an ATV. The reality is that driving an unmodified ATV on the highway is a class C misdemean- or, see Section 304.013, RSMo 2000, and such illegality cannot support the Pecks’ argument that Bakalar's vehicle does not qualify as an ATV.

      . Holding that an ATV was subject to motor vehicle registration under Oregon law within the meaning of the policy despite that ATV registration was controlled by a separate chapter of the Oregon Revised Statutes. The plain language of the statutes suggested that ATV’s were to be registered the same way as other motor vehicles.


text:
    Rae Ann LOWE, Appellant, v. DEFENSE LOGISTICS AGENCY, Defendant, Division of Employment Security, Respondent.
    No. WD 64686.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.
    Pro se Appellant.
    Ninion S. Riley, Jefferson City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
   Order

PER CURIAM.

Rae Ann Lowe appeals from an order of the Labor and Industrial Relations Commission. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


author: ROBERT G. ULRICH, J.

text:
    STATE of Missouri, Respondent, v. Sherron WILSON, Appellant.
    No. WD 64074.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.

      Irene C. Earns, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: EDWIN H. SMITH, C.J., HAROLD L. LOWENSTEIN and ROBERT G. ULRICH, JJ.
   ROBERT G. ULRICH, J.

Sherron Wilson appeals from his convictions for violence to an offender housed in a department correctional center, section 217.385, RSMo 2000, and second degree assault, section 565.060, RSMo 2000, and concurrent sentences of ten and seven years imprisonment. He claims that the trial court abused its discretion in sua sponte dismissing a venireperson, who was deaf, based on the court’s inability to accommodate the venireperson’s disability. The judgment of convictions is affirmed.

Mr. Wilson was an inmate at the Fulton Reception and Diagnostic Center when he was charged with violence to an offender housed in a department correctional center and second degree assault for assaulting Robert Anderson, another inmate, by hitting him repeatedly with a piece of concrete and by striking him in the head with his fist. As a result of the assault, the victim suffered numerous abrasions, lacerations, and avulsions of the soft tissue area of his face and scalp, and a first-degree burn on the left side of his neck. At the trial in November 2003, during voir dire, the trial court sua sponte struck a venireman on the ground that Mr. Wilson was entitled to a fair and impartial panel capable of hearing all the evidence and the court could not accommodate the venireman’s hearing disability by providing an interpreter that day for a trial. Mr. Wilson was ultimately convicted of the charged crimes and sentenced, and this appeal followed.

In his sole point on appeal, Mr. Wilson claims that the trial court abused its discretion in sua sponte dismissing the deaf venireman based on the court’s inability to accommodate the venireperson’s disability. Mr. Wilson contends that the trial court’s action violated his right to a jury selected without discrimination as guaranteed by the Equal Protection Clauses of the United States and Missouri Constitutions. He also contends that the trial court’s action violated the venireperson’s entitlement to equal protection.

The Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution provide that an accused is entitled to a fair and impartial jury. Edgar v. State, 145 S.W.3d 458, 462 (Mo.App. W.D.2004). Additionally, the Equal Protection Clause of the Fourteenth Amendment prohibits a state from discriminating against prospective jurors on the basis of race or gender at any stage of the jury selection. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although Mr. Wilson claims that the trial court’s action in dismissing the deaf venireman violated his and the venireman’s equal protection rights, this case is decided on statutory grounds.

Within constitutional limits, a state may regulate the qualification of jurors. Strauder v. West Virginia, 100 U.S. 303, 309-10, 25 L.Ed. 664 (1879). Indeed, Missouri statutes regarding juror qualifications and accommodations in court proceedings for hearing impaired persons provide greater protection regarding the jury selection process than the federal and state constitutions. A defendant is entitled to a full panel of qualified jurors before he makes his peremptory challenges. State v. Stewart, 859 S.W.2d 913, 916 (Mo. App. E.D.1993). A trial court has broad discretion in determining the qualifications of potential jurors and, specifically, whether a deaf person can provide reasonable jury service. State v. O’Neal, 718 S.W.2d 498, 502 (Mo. banc 1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 702 (1987); State v. Clark, 110 S.W.3d 396, 402-03 (Mo.App. W.D.2003). The trial court is in a better position to determine the qualifications of prospective jurors, and doubts as to the trial court’s findings will, therefore, be resolved in its favor. Clark, 110 S.W.3d at 403; Allen v. Grebe, 950 S.W.2d 563, 566 (Mo.App. S.D.1997). Thus, a trial court’s ruling on a challenge for cause will not be disturbed on appeal unless it constitutes a clear abuse of discretion and a real probability of injury to the complaining party. State v. Feltrop, 803 S.W.2d 1, 7 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991); O’Neal 718 S.W.2d at 502; Clark, 110 S.W.3d at 403.

Section 494.425, RSMo 2000, lists individuals disqualified from jury service. Subsections 5 and 9 disqualify the following persons from serving as a petit or grand juror:

(5) Any person unable to read, speak and understand the English language;
(9) Any person who, in the judgment of the court or the board of jury commissioners, is incapable of performing the duties of a juror because of mental or physical illness or infirmity.

§ 494.425(5) & (9), RSMo 2000. The language of these subsections suggests that a substantial hearing impairment could result in a juror being ineligible to participate on a petit or grand jury. State v. Bost, 820 S.W.2d 516, 517-18 (Mo.App. W.D.1991).

In this case, before the beginning of voir dire, the trial court noted that one of the veniremen was deaf and that a sign language interpreter had been contacted to assist in voir dire. The prosecutor moved to strike the deaf venireman arguing that the presence of an interpreter during deliberations would constitute a thirteenth juror and that a deaf person’s socialization is such that “[tjheir common understandings are not the same as other jurors.” The trial court overruled the prosecutor’s motion to strike.

Two sign language interpreters appeared to work voir dire. Both interpreters testified under oath regarding their qualifications as interpreters. The interpreters explained to the court that ideally, two interpreters were needed for the proceeding because of the length of the proceeding and the intensity of the questioning. They also informed the court that only one interpreter would be available for that afternoon and that because she would not have a second interpreter to support her, she would not be able to interpret for more than an hour by herself. One interpreter further explained that she knew the venireman was the Assistant Superintendent of the Missouri School for the Deaf, that he spoke intelligibly, that he was more than adequately adept in one-on-one conversations, but that he would require an interpreter for full understanding in a situation such as a trial. The trial court, however, sua sponte struck the venireman for the sole reason that the defendant was entitled to a fair and impartial panel capable of hearing all the evidence and the court could not accommodate the venireman’s disability by providing a second interpreter that afternoon for a trial.

Section 476.753, RSMo 2000, governs interpreters or aids for deaf persons in court proceedings. It directs that the court or county must provide an interpreter for a deaf juror. § 476.753.1(1), RSMo 2000. Specifically, the statute provides in pertinent part:

1. A designated responsible authority shall provide, based on a deaf person’s expressed needs, auxiliary aids and services to interpret the proceedings to a deaf person and, if a deaf person gives testimony or other communication, to interpret the deaf person’s testimony or other communication when:
(1) A deaf person is a party, juror or witness at any stage of any judicial or quasi-judicial proceeding in this state or in its political subdivisions, including, but not limited to, any civil proceeding, criminal proceeding or administrative hearing. ...

Id. Section 476.756, RSMo 2000, provides the process by which the court or county appoints an interpreter:

No qualified interpreter shall be appointed or auxiliary aids and services provided, pursuant to section 476.753, unless the designated responsible authority and the deaf person make a preliminary determination that the qualified interpreter or auxiliary aids and services are able to interpret effectively, accurately and impartially the statement of the deaf person and interpret the proceedings effectively, accurately and impartially to the deaf person.

The trial court has considerable discretion in determining whether an interpreter is needed and in selecting the interpreter. State v. Givens, 719 S.W.2d 25, 27 (Mo. App. W.D.1986); Kley v. Abell, 483 S.W.2d 625, 628-29 (Mo.App.1972).

Nothing in the record indicates that the venireman was unable to read, speak, and understand the English language; only that his inability to hear prevented him from understanding the spoken word in a situation like a trial without an interpreter. The trial court did not find that the venireman was unqualified to serve as a juror because of his deafness. Instead, the court apparently determined that the venireman was qualified to serve as a juror with the aid of an interpreter and that the interpreters were qualified to interpret the proceeding for him. Such finding was not an abuse of the trial court’s discretion. See, e.g., State v. O’Neal, 718 S.W.2d 498, 502 (Mo. banc 1986)(trial court did not abuse its discretion in refusing to strike a venireperson with a hearing problem where trial court questioned venireperson and was satisfied that the hearing problem would not interfere with venireperson’s ability to sit as a juror); Allen v. Grebe, 950 S.W.2d 563, 566 (Mo.App. S.D.1997)(trial court did not abuse its discretion in refusing to strike venireman with hearing problem where record revealed that venireman did not appear to have trouble understanding questions posed to him and that courtroom was equipped with an amplification system for the witnesses).

Upon such finding, the question presents whether section 476.753 mandates that the trial court provide the venireman with an interpreter. Section 476.753.1(1), RSMo 2000, states that it applies if the deaf person is a “party, juror or witness at any stage of a judicial or quasi-judicial proceeding.” (emphasis added). Because a venireman is a potential juror and not yet a juror, the question is whether the section applies to venirepersons. Custom and logic support that it does. Indication is that this statute was intended by the legislature to be comprehensive and inclusive. Section 476.753, RSMo 2000, along with related statutory provisions, was “designed to provide compliance with the requirements of the Americans With Disabilities Act.” MISSOURI Bench Book — Civil § 95.11 (2002). Missouri has a “broad statutory scheme” designed to insure “that interpreters will be available to assist deaf persons in virtually every judicial or administrative setting where such a person may be a witness, a party, or an accused.” 22A, William A. Schroeder, Missouri Practice, Missouri Evidence § 604.1 (2nd ed.2000). The venire is a stage of a judicial proceeding; it is the earliest stage of a trial. It leads to the voir dire process, through which a jury is selected. State v. Walton, 899 S.W.2d 915, 919 (Mo.App. W.D.1995); State v. Peters, 582 S.W.2d 323, 325 (Mo. App. W.D.1979). Finally, logical analysis of section 476.753.1(1) is that the legislature intended to include venirepersons. All jurors are selected from the venire panel. Thus, one is always a venireperson before becoming a juror. If deaf individuals are excluded from the process at the venire stage because section 476.753.1(1) does not apply to them and they are not afforded adequate auxiliary aids or services, they will never become jurors and will not be provided the protections of section 476.753.1(1) at the trial stage. In order for section 476.753.1(1) to have meaning at the trial stage so that hearing impaired citizens can participate in the justice system as the legislature intended, it must also protect deaf individuals at the venire stage of the proceeding. Section 476.753 applies to venires.

Upon learning that one of two interpreters would not be available later that afternoon, the trial court summarily struck the venireman because it could not accommodate his disability for a portion of that day. Once the trial court determined that the deaf venireman was qualified to serve as a juror with the aid of an interpreter, however, section 476.753 did not give the trial court any discretion regarding accommodating the venireman. Rather, it compelled the trial court, the designated responsible authority here, to provide an interpreter. Because the trial court failed to accommodate the venireman after making a preliminary determination that the venireman was qualified to serve as a juror, it violated its duty under section 476.753.

Reversal of the convictions and granting a new trial are not necessary in this case, however. The record demonstrates that the deaf venireman was juror No. 27. The record further demonstrates that other than the prosecutor’s initial unsuccessful attempt to strike the deaf venireman, no challenges for cause were proposed by either the State or the defense, and no alternate jurors were chosen. Section 494.480.2(2), RSMo 2000, provided six peremptory challenges for the State and six for the defendant. The fully qualified venire panel from which each party exercised six peremptory strikes and, thus, from which the jury was selected, consisted of venirepersons numbers 1 through 24. Even had the court accommodated the deaf venireman as section 476.753.1(1) required, juror No. 27 could not have been selected to serve as a juror in this case because he would not have been among the venirepersons from which the jury was ultimately selected. Thus, the trial court’s failure to comply with section 476.753 does not require a new trial. The judgment of convictions is, therefore, affirmed.

SMITH, C.J. and LOWENSTEIN, J. concur.

      . The subsections were revised in 2004 and now provide:
      (5) Any person unable to read, speak and understand the English language, unless such person's inability is due to a vision or hearing impairment which can be adequately compensated for through the use of auxiliary aids or services;

      (8) Any person who, in the judgment of the court, is incapable of performing the duties of a juror because of mental or physical illness or infirmity. The juror or the juror’s personal representative, may provide the court with documentation from a physician licensed to practice medicine verifying that a mental or physical condition renders the person unfit for jury service for a period of up to twenty-four months.
      § 494.425(5) & (8), RSMo Cum.Supp.2004.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    James W. NEELY, Respondent, v. Terri B. NEELY, Appellant.
    No. WD 64075.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.
    Ghristopher C. Fink, Cameron, MO, for appellant.
    George A. Pickett, Plattsburg, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Terri B. Neely (Wife) appeals the trial court’s judgment denying her motion to set aside the judgment dissolving her marriage to James W. Neely (Husband) as it relates to child support and the division of marital property. The appeal is dismissed for lack of a final judgment.

On October 22, 2002, following Husband’s filing a petition for dissolution of the parties’ marriage, Husband and Wife entered into a marital settlement agreement. In the settlement agreement, the parties agreed to joint legal and physical custody of the parties’ two minor children, with Husband designated as the primary residential custodian, and each party receiving equal parenting time. The agreement provided that neither party would pay child support, but Husband was to pay all of the children’s daycare expenses, medical insurance, and uninsured medical expenses. In addition, the agreement also provided for the distribution of the parties’ marital property.

Following a November 5, 2002, hearing on Husband’s petition, the trial court ruled from the bench that the marriage was irretrievably broken and ordered the marriage dissolved. The court also ruled that legal and physical custody of the children was awarded to both Husband and Wife; no child support would be awarded; Husband was to maintain health insurance on the children; and that maintenance was waived. The court further found that the property settlement agreement presented to the court was not unconscionable and, therefore, approved the agreement. Thereafter, the trial court entered a formal judgment dissolving the parties’ marriage and ordering the parties to fully comply with the terms of the settlement agreement.

On September 29, 2003, Wife filed a five-count motion. In Count I, Wife sought to have the judgment set aside as to child support, under Rule 74.06(a), for inadvertence and mistake because neither party submitted a Form 14, the trial court did not calculate its own Form 14, and the court failed to consider the factors for awarding child support set forth in section 452.340, RSMo 2000. In Count II, Wife sought to have the judgment set aside as to the division of marital assets, under Rule 74.06(b), based on Husband’s fraud. In Count III, Wife sought to modify child custody based on a continuing and substantial change in circumstances since the judgment of dissolution. In Count IV, Wife sought to modify child support. Finally, in Count V, Wife sought to have Husband held in contempt for his contumacious and willful failure to abide by the terms of the joint parenting agreement.

On December 8, 2003, Husband filed an answer to Wife’s five-count motion and filed a counter-motion to modify the judgment with respect to child custody and child support and a counter-motion for contempt. On March 16, 2004, a hearing was held by the trial court on Counts I and II of Wife’s motion to set aside the judgment with respect to child support and the division of marital property. Prior to hearing any testimony, Husband orally moved that Wife’s Counts I and II be dismissed for failure to state a claim. In particular, Husband argued that Wife’s motion was an improper collateral attack on the trial court’s judgment. Husband claimed that Rule 74.06 is not a proper vehicle to collaterally attack a judgment and, instead, Wife should have filed an appeal. In response, Wife argued that allegations in her motion asserted a ease for fraud and were proper under Rule 74.06. After hearing arguments from both parties on Husband’s oral motion, the trial court took the matter under advisement and concluded the hearing without adducing any evidence on the merits of any of the parties’ outstanding motions.

On March 24, 2004, the court entered a “Judgment” denying Wife’s motion to set aside the judgment. The trial court did not rule on Wife’s motion to modify child custody, motion to modify child support, or motion for contempt. The trial court also made no ruling on Husband’s counter-motion to modify child custody and child support or counter-motion for contempt. On April 21, 2004, Wife filed this appeal from the March 24, 2004 judgment.

This court has a duty to examine, sua sponte, the finality of the trial court’s March 24, 2004, judgment because this court’s jurisdiction extends only to appeals from a final judgment. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997); Section 512.020, RSMo Cum.Supp.2004. Without a final judgment, an appellate court lacks jurisdiction, and the appeal must be dismissed. Gibson, 952 S.W.2d at 244. A final judgment must resolve all issues in a case and leave nothing for future determination. Id.

Rule 74.01(b), however, recognizes an exception to the final judgment rule for cases involving multiple claims or multiple parties. Id. Rule 74.01(b) provides, in pertinent part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, ... the court may enter a judgment as to one or more but fewer than all of the claims ... only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims ... shall not terminate the action as to any of the claims[.]

Rule 74.01(b) “applies to dissolution matters including motions to modify child custody provisions of dissolution decrees.” In re Marriage of Boyd, 786 S.W.2d 626, 626 (Mo.App.1990). See also Houttuin v. Houttuin, 780 S.W.2d 711, 713 (Mo.App. 1989) (“policy against piecemeal appeals applies to the various issues in domestic relations actions, as it does to other types of litigation”).

The record before this court reflects no action taken by the trial court on Wife’s motion to modify child custody, motion to modify child support, or motion for contempt. Nor does the record reflect that the trial court took any action on Husband’s counter-motion to modify child custody and child support or counter-motion for contempt. The trial court’s March 24, 2004, judgment, however, does not use the express language of Rule 74.01(b) “there is no just reason for delay” of Wife’s appeal. Hennelly v. Hennelly, 795 S.W.2d 614, 615 (Mo.App.1990). In the absence of such a determination, the judgment is not final and this court is without jurisdiction. Id. Accordingly, this court must dismiss the appeal.

The appeal is dismissed.

All concur.

      . Wife claimed fraud of Husband resulted in the division of marital property, twenty percent to Wife and eighty percent to Husband, which was inequitable. For example, the agreement stipulated that Wife would transfer her ownership interest in the family residence and four other pieces of real estate, to Husband. Wife also agreed to transfer her ownership interest in seven vehicles to Husband (including a utility trailer, a 1984 RV trailer, a 2001 Ford pickup, a 1994 Ford Tempo, a Model A, an MG Midget (in parts), and a 1950 Chevrolet pickup), and Husband agreed to transfer his ownership interest in a 2001 Mazda to Wife. The agreement further stipulated that Husband's interest in his retirement plan, a deferred compensation plan, and an account valued at approximately $220,000, would remain Husband’s sole property. Finally, various other accounts, all with unspecified amounts, were also allocated between the parties.

      . In addition, "[e]ven with the designation that there is no just reason for delay, a judgment must also dispose of one entire claim or a distinct judicial unit.” In re Marriage of Boston, 104 S.W.3d 825, 831 n. 7 (Mo.App. 2003). “Claims are separate if they require proof of different facts and the application of distinguishable law.” Id.


text:
    Nathaniel J. STEPHENS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64359.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.
    Ruth Sanders, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before SMART, P.J., HOLLIGER and HARDWICK, JJ.
   ORDER

PER CURIAM.

Nathaniel Stephens appeals the denial of his Rule 29.15 motion after an evidentiary hearing. Upon review of the parties’ briefs and the record, we find no error and affirm the judgment. We have provided the parties with a Memorandum explaining the reasons for our decision, because a published opinion would have no prece-dential value. Rule 84.16(b).


text:
    Michael L. BEATTIE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64463.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.
    Susan L. Hogan, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Michael L. Beattie appeals the denial, after an evidentiary hearing, of his Rule 24.035 motion for postconviction relief. Mr. Beattie sought to vacate his convictions for the class A felony of murder in the second degree, section 565.021, RSMo 2000, and the class D felony of endangering the welfare of a child in the first degree, section 568.045, RSMo 2000, respectively. He claims that his guilty plea was unknowing, unintelligent, and involuntary because plea counsel misled him regarding the sentence the court would impose. The judgment of the motion court is affirmed. Rule 84.16(b).


author: JAMES M. SMART, JR., Judge.

text:
    In the Interest of T.M.E., Plaintiff; Juvenile Officer, Respondent, Missouri Division of Family Services, Respondent, v. K.L.E. (Mother), Appellant, J.F.E. (Father), Appellant.
    Nos. WD 64787, WD 64788.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.

      Mark A. Goodwin, Richmond, for Appellant K.L.E.
    James Armin Rust, Richmond, for Appellant J.F.E.
    J.D. Gorham, Richmond, attorney and Guardian ad Litem for Plaintiff T.M.E.
    James Carey Thompson, Richmond, for Respondent Juvenile Officer.
    Gary Lee Gardner, Asst. Attorney General, Jefferson City, for Respondent Missouri Children’s Division.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
   JAMES M. SMART, JR., Judge.

Appellants K.L.E. and J.F.E. appeal the juvenile court’s judgment terminating their parental rights to their daughter, T.M.E. They assert various points of error, most of which relate to the sufficiency of the statutorily required findings. We affirm.

Background

T.M.E. (Daughter) was born to K.L.E. (Mother) and J.F.E. (Father) in August 2002. In February 2003, when Daughter was almost six months old, she was admitted to Children’s Mercy Hospital, because, among other things, she was having difficulty breathing. Daughter was placed in protective custody with the Division of Family Services (DFS) after doctors discovered multiple fractures throughout her body.

DFS, the Ray County Sheriffs Department, and the State Technical Assistance Team (STAT) began a child abuse investigation. Six months later, Father pleaded guilty to felony child abuse. He later pleaded guilty in another jurisdiction to first-degree assault on Daughter while in that jurisdiction. Father was sentenced to concurrent ten-year prison terms on each conviction. Mother pleaded guilty to first-degree child endangerment for failing to protect Daughter from the abuse. She was sentenced to five years’ probation.

Daughter continued in protective custody while DFS worked with Mother on a plan aimed at reunification. The parents originally were permitted weekly visitation with their daughter, but that was terminated following Mother’s guilty plea. DFS sent Father notes from support team meetings and copies of treatment plans, but offered him no reunification services after he was incarcerated. About thirteen months after DFS took Daughter into protective custody, the Juvenile Officer filed a petition to terminate both parents’ parental rights. A bench trial was held. Both parents were present and represented by counsel.

The court heard evidence from a pediatrician and child abuse expert at Children’s Mercy Hospital who examined the child, a child abuse investigator with STAT, DFS employees who worked with the parents on reunification, and Mother’s mental health counselor. Mother and Father also testified. The court took judicial notice of the underlying juvenile case record and the parents’ criminal cases.

The trial court terminated Father’s parental rights based on his felony convictions for inflicting serious bodily injury on the child and the court’s own findings of abuse. The court terminated Mother’s parental rights based on findings of abuse, neglect, and failure to rectify harmful conditions. The court found that the terminations were in the child’s best interests and were “reinforced” by the public policy underlying section 211.038.

Both parents appeal.

Standard of Review

Before terminating parental rights, the trial court must find by clear, cogent, and convincing evidence that one or more grounds for termination exists under subsections 2, 3, or 4 of section 211.447, and that termination is in the child’s best interests. § 211.447.5; In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). Clear, cogent, and convincing evidence is that which instantly tilts the scales in favor of termination when weighed against the evidence in opposition and leaves the fact finder with the abiding conviction that the evidence is true. In the Interest of A.S.W., 137 S.W.3d 448, 453 (Mo. banc 2004). One ground, if properly pleaded and proven, is sufficient to support a judgment for termination of parental rights when termination is in the best interest of the child. S.M.H., 160 S.W.3d at 362.

Whether statutory grounds have been proven is reviewed pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), under which we must affirm the judgment unless no substantial evidence supports it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. In the Interest of P.L.O., 131 S.W.3d 782, 788-89 (Mo. banc 2004). We review the court’s best-interest determination for an abuse of discretion. Id. at 789. We defer to the trial court on questions of witness credibility and view conflicting evidence in the light most favorable to the judgment. In the Interest of K.A.W., 133 S.W.3d 1, 11-12 (Mo. banc 2004).

Findings of Abuse and Neglect

The primary reasons for termination as to both Mother and Father related to the physical abuse of the child. There was ample evidence of abuse in the record and the testimony presented at trial. Dr. Michael Moran, a pediatrician and expert on child abuse, testified about his examination of Daughter at Children’s Mercy. He discussed the nature and extent of her injuries. The doctor stated that Daughter’s breathing difficulties when she was admitted to Children’s Mercy raised concerns about a possible brain injury. X-rays revealed numerous fractures of various ages in her head, arms, ribs, and legs. She also had bruising in her mouth. According to Dr. Moran, Daughter’s injuries were considered non-accidental and were consistent with acts of child abuse. He discussed the causes of the injuries, some of which he described as “snap-type” fractures. He opined that the fractures in her right forearm were “healing fractures” caused by a “force” coming across the forearm bone. The child had five fractures on the right side and three fractures on the left side of her ribs where the ribs join the sternum. These would have been caused by acute compression of the chest or a blow to the chest. She also had sustained an elongated fracture on the left side of her skull caused by “blunt force trauma.” Dr. Moran said Daughter had several fractures near the joints in her arms and legs that were the result of having been shaken violently. Many of Daughter’s fractures were older and had gone untreated. She would have been in extreme pain as a result of these injuries. This would have been evident to Mother or anyone who handled her.

STAT investigator Dan Stewart testified about his interviews with Mother and Father. Mother told him that she thought Father might have treated Daughter too roughly. In Mother’s written statement, she admitted that the child cried more than usual after being left with Father. Mother told Stewart she had confronted Father more than once, but she never reported any suspicions to any healthcare providers who saw the child prior to DFS intervention. Mother frequently alluded to the possibility of abuse by Father, in her interview, but then consistently backed away from it. For example, Mother stated that Father had compressed the child’s chest, but then said she thought it was to get Daughter to breathe.

While Daughter was in DFS custody, Mother and Father both pleaded guilty to felonies associated with her abuse. Father pleaded guilty in Ray County to the class B felony of child abuse, § 568.060. The allegation was that Father committed cruel and inhuman punishment upon Daughter by striking her with his hand and/or shaking her, causing her multiple rib fractures and serious emotional injury. He later pleaded guilty in Jasper County to the class A felony of first-degree assault, § 565.050. The allegation there was that Father caused serious physical injury to Daughter by striking and shaking her. Mother pleaded guilty in Ray County to endangering the welfare of a child in the first-degree, § 568.045, a class D felony. The allegation against Mother was that she created a substantial risk to the life, body, and health of Daughter by failing to protect her from acts of physical abuse inflicted by another, by misrepresenting to medical personnel the nature and extent of the child’s injuries, and by overmedicating her.

The court terminated Father’s parental rights based on his two separate felony convictions for inflicting serious bodily injury on the child. See § 211.447.2(3)(d). The court also based termination on its own finding that Father had committed severe and recurrent acts of physical abuse and repeatedly inflicted serious bodily injury on the child. See § 211.447.4(2)(c).

Section 211.447.4(2) permits the juvenile officer or DFS to file a petition to terminate parental rights when it appears that the child has been abused or neglected. The statute requires the court, in determining whether to terminate under that subdivision, to consider and make findings as to four factors. The court is required to make findings as to all the factors, but a termination based on abuse may be justified by the existence of only one factor. In the Interest of 184 S.W.3d 58, 68 (Mo.App.2004); In the Interest of A.S.O., 52 S.W.3d 59, 67 (Mo.App.2001).

Here, the court made findings on all four factors with regard to Father. The court found a basis for termination only in paragraph (c), severe and recurrent acts of physical abuse. The court further found that termination was in the child’s best interest, in that she should not be returned to Father’s care to risk further abuse.

As with Father, the court found sufficient grounds for termination of Mother’s parental rights under section 211.447.4(2). The court made the required findings on all the factors and found grounds to terminate Mother’s parental rights under paragraphs (c), severe or recurrent acts of physical abuse, and (d), repeated or continuous failure to provide for the child. The court found no grounds under paragraphs (a) or (b).

Pursuant to paragraph (c), the court found that the child had been the victim of severe acts of physical abuse by another under circumstances indicating that Mother knew or should have known that such acts were being committed. The court found that Mother had actual knowledge of the abuse, and acknowledged such in her guilty plea. The court concluded that Mother’s failure to protect the child provides a legal basis to consider termination of her parental rights. The court’s findings are supported by the evidence. The child had numerous fractures of varying ages throughout her body. These fractures would have caused extreme pain, which would have been evident to anyone who handled her.

There was also additional evidence that Mother could not be counted on in the future to protect her daughter from potential abuse. She was, at the time of trial, living with a boyfriend at the residence of her boyfriend’s father. The boyfriend’s father was known to DFS to have a “history” of maltreatment of children.

The court found that Daughter also had been neglected within the meaning of paragraph (d) in that Mother had shown repeated or continuous failure to provide for the child’s physical, mental, or emotional health and development. This finding was supported by the juvenile case record and the evidence adduced at trial.

DFS Caseworker Misty Williams testified that Mother had been unsuccessful in achieving her service plan goal of maintaining stable employment and appropriate housing. At the time of trial, Mother remained unemployed with no assets or income with which to support herself or her child.

The caseworker also said that Mother did not request additional visitation. Mother did not offer any support for the child while the child was in DFS custody. Although DFS informed Mother that she could contact DFS at any time, Mother neglected to request any information about her child’s well-being for over a year. Mother acknowledged her failure to contact DFS. Her reason was that she did not think DFS would tell her anything. She also said she was never asked by DFS to pay child support for Daughter.

Counselor William Campbell, who conducted twenty-two counseling sessions with Mother, testified that while Mother had made some progress in getting back on her feet and being a productive individual, she had “slipped some” in establishing a stable home environment and steady employment. He could not estimate when Mother would demonstrate stability in those areas.

The court found that Mother is physically able to provide support — and would be financially able to do so had she maintained a better employment history — but that “she had taken no steps, nor does it appear that she will be taking steps, to be in a position to provide for the minor child.” The support provided even when the child was in the parents’ custody was sporadic, with numerous job changes and frequent changes of residence. The court also found that Mother did have the opportunity to request information on the child and to offer support for the child. The fact that Mother went over a year without doing so shows a failure to provide care for the minor child’s physical, mental or emotional health and development, the court stated. The court concluded that it is in Daughter’s best interests that Mother’s parental rights be terminated.

The court found, with regard to both Mother and Father, that the decision to terminate was “reinforced” by section 211.038. That statute, enacted in 2004, prohibits the court from reuniting a child with a parent who has pleaded guilty to certain felonies, including sections 568.060 (child abuse) and 568.045 (endangering the welfare of a child). The court stated that while the statute does not specifically refer to termination of parental rights, it shows a strong public policy against returning a severely and criminally abused child to the parents involved in the abuse.

The trial court properly terminated the parents’ rights under section 211.447.4(2). The court made the appropriate statutory findings as required by that subdivision. The court’s findings of abuse and neglect are supported by clear, cogent and convincing evidence. We find no abuse of discretion in the court’s judgment that termination is in the child’s best interests.

Rehabilitation

Father and Mother both argue that the court erred in terminating their parental rights under section 211.447.4(2) because the Juvenile Officer failed to submit sufficient evidence to prove that each could not be “rehabilitated” to perform his or her parental duties. Citing In the Interest of K.A.W., 133 S.W.3d 1 (Mo. banc 2004), both argue that the court erred in failing to make findings as to their predicted future conduct before terminating their parental rights.

Father’s sole point on appeal challenges the Juvenile Officer’s failure to present evidence of Father’s conduct or state of rehabilitation at the time of termination. Father relies on the following quotation for support:

Courts have required that abuse or neglect sufficient to support termination under section 211411-1(2) be based on conduct at the time of termination, not just at the time jurisdiction was initially taken. Similarly, courts have required that a failure to rectify sufficient to support termination under section 2114174(3) be based on a determination that conditions of a potentially harmful nature continued to exist as of the termination, rather than a mere finding that conditions that led to the assumption of jurisdiction still persisted.

K.A.W., 133 S.W.3d at 10 (internal citations omitted) (emphasis added). Father’s reliance on this language is misplaced. The court specifically stated that it was not relying on a “failure to rectify” as a basis for termination of Father’s parental rights. Section 211.447.4(3) was not one of the grounds.

Father also argues, based on this quote, that the court could not terminate his rights under section 211.447.4(2) without evidence as to whether he was amenable to rehabilitation or willing to cooperate with DFS in reunifying at the time of termination. Father also argues that he never abused the child in the first place. Father essentially argues that the Juvenile Officer was required to submit evidence to prove that Father would continue to physically abuse his daughter if given the chance.

When a parent has committed severe and recurrent acts of abuse toward his child, logic and life experiences dictate the presumption that an unreformed parent will continue to be a threat to the welfare of the child for the foreseeable future. The abuse here was severe and recurring. It was not isolated to a particular incident or time. There are no factors presented here that would suggest that Father has repented and reformed or otherwise recovered from the tendency to the moral lapses and the lack of self-control that allowed him to give vent to his rage against his helpless daughter. There is a legitimate presumption under these circumstances, in the absence of contrary evidence, that Father is not rehabilitated in his ability to function as a parent.

K.A.W. is not contrary. In that case, the court, in reviewing the record as to the mother’s efforts to place her children for adoption, found there was no evidence that the proposed placements were abusive or that they indicated a likelihood of future harm. Id. at 13. The only expert witness, one hired by DFS, found that the mother’s difficulties in parenting were not abnormal, that she appeared to be an adequate parent, and that he saw “no evidence that her parental rights should be terminated.” Id. at 13-14. There was also evidence that Mother complied with the service plan and that the services helped. Id. at 14. The court thus held the trial court erroneously terminated parental rights. In this case, in contrast, Father’s rights were terminated for severe and recurrent acts of physical abuse which caused cruel and prolonged suffering to the child. In such a case, there is no need to discuss “whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time.”

Mother also contends that the court erred in terminating her parental rights under section 211.447.4(2) because the Juvenile Officer failed to prove that she could not be rehabilitated to perform her parental duties. She argues that the trial court erred in failing to make findings on her past conduct and her predicted future conduct. Citing K.A.W., 133 S.W.3d at 9-10, Mother says a parent’s past behavior can support termination “only if it is convincingly linked to predicted future behavior.” Mother also says the court failed to make findings as to how her instability in residence and employment has affected or will affect her ability to care for Daughter, citing In the Interest of C.F.C., 156 S.W.3d 422 (Mo.App.2005).

We disagree. The court made appropriate findings as to Mother’s past behavior and predicted future conduct relevant to abuse and neglect, and those findings were supported by the evidence. Mother’s relevant behavior is her failure to protect her daughter from abuse and her failure to provide for the child when physically able to do so.

The court also made findings about Mother’s predicted future conduct in these areas. For example, the court specifically found that Mother “had taken no steps, nor does it appear that she will be taking steps, to be in a position to provide for the minor child.” (Emphasis added.) The court found little likelihood that potentially harmful living conditions will be soon remedied so that the child can be returned to Mother in the near future. Mother was without means of providing a stable and safe home. Nor is there any evidence that she would correct her behavior in the future to provide a safe home environment for the child. The evidence of Mother’s inability or unwillingness to effectively parent was “convincing.”

Neither of the cases cited by Mother involved the types of severe and recurring acts of physical abuse that Mother permitted to take place without intervening. C.F.C. involved “failure to rectify” and various forms of neglect, none of which involved severe physical abuse of the child. See 156 S.W.3d at 428-29. In K.A. W., as already discussed, there were no severe and recurrent acts of physical abuse, and no criminal failures to protect the child.

Finally, as the court noted, in section 211.038 the General Assembly has removed from the court the discretion to reunite Mother or Father to child because they have both been convicted of offenses precluding reunification. All of these factors left the court with no reasonable alternative but to terminate parental rights.

Mother’s Guilty Plea Admissions

Mother argues in Point III that the court erred in basing its decision to terminate under section 211.447.4(2) on her admissions in her criminal trial. She complains that neither the factual basis for the plea nor her admissions were made a part of the record in this case. According to Mother, the following finding shows that the court relied on her factual admissions at her plea hearing:

[Mother] acknowledged her knowledge of the physical abuse in her guilty plea to the felony of endangering the welfare of a child which contained an element that she “acted in a manner that created a substantial risk to the life, body and health of’ the minor child. Mother further acknowledged her knowledge of the physical abuse when she pled guilty to the felony of endangering the welfare of a child which contained an element that she “misrepresented to medical personnel the nature and extent of the child’s injuries.”

Mother says the court also used the factual basis of her plea when ruling under section 211.447.4(3)(a) that she admitted to “overmedicating the child.” She says the court erred in its rulings because the factual admissions she made at her guilty plea were not made a part of the record in this case and, thus, were improperly used against her. Mother cites no authority to support her contention that the factual basis for a guilty plea in a related felony prosecution must be admitted into evidence before a termination court can properly consider it. According to Mother, only a certified copy of her felony conviction was admitted into evidence and she testified only that she had entered a guilty plea, but went no further.

We disagree with the underlying premise of Mother’s argument. The findings about which Mother complains are based on the actual charges to which she pleaded guilty. The trial court took judicial notice of her felony conviction for child endangerment, which included certified copies of the information, the guilty plea, and the sentence and judgment. Those documents were made a part of the record in this case. The charge in the information to which Mother pleaded guilty alleged that she

committed the Class D Felony of ENDANGERING THE WELFARE OF A CHILD IN THE FIRST DEGREE, ... in that ... the defendant, either acting alone or knowingly in concert with others, acted in a manner that created a substantial risk to the life and body and health of T.E. ... by failing to protect T.E. from acts of physical abuse inflicted by another, by misrepresenting to medical personnel the nature and extent of the child’s injuries and by over medicating the child.

(Emphasis added.) Mother testified at the termination hearing that she had pleaded guilty, that the conviction was for the events surrounding Father’s abuse of Daughter, and that her plea was voluntary. There is nothing in the court’s judgment with regard to this issue that is not included in the record of this case. Point denied.

Failure to Rectify Harmful Conditions

The trial court found another ground to terminate Mother’s parental rights in her failure to rectify harmful conditions, pursuant to section 211.447.4(3). Mother’s first and second points relate to the sufficiency of the court’s findings under that subdivision.

When a court finds grounds to terminate under subdivision (3), it is required to make findings on the four factors listed in paragraphs (a-d) of that subdivision. Paragraph (a) requires specific findings on “the terms of the social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms.” § 211.447.4(3)(a). Paragraph (b) mandates findings on the “the success or failure of the efforts of the juvenile officer [or] the division ... to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child.” § 211.447.4(3)(b). In identical findings of fact under (a) and (b), the court discussed the services DFS had provided and Mother’s participation in those services, including her successes and failures in achieving her goals. The court concluded that paragraphs (a) and (b) supported termination, but found no basis for termination under paragraphs (c), a mental condition, or (d), a chemical dependency.

Mother says in Point I that the court’s findings as to paragraph (a) do not sufficiently specify the terms of the plan or the extent to which she complied with the terms. She argues in Point II that the court’s findings as to paragraph (b) also are inadequate. Mother also finds fault with the court making verbatim findings as to both (a) and (b).

We acknowledge that the court’s findings as to this ground for termination are not a “model for future judgments.” See A.S.O., 52 S.W.3d at 65. Nevertheless, we conclude that the court’s findings are “minimally sufficient” to explain the court’s rationale, see id., and “specific enough” to assure us that the court considered the required factors in its decision to terminate, see C.F.C., 156 S.W.3d at 427. Sufficient evidence supports this ground for termination.

Even if the court made inadequate findings on Mother’s failure to rectify under section 211.447.4(3), it would not require reversal in this case. In the case Mother primarily relies upon, A.S.O., 52 S.W.3d 59, the court’s failure to make the appropriate findings on “failure to rectify” was critical because it constituted the only legitimate basis for termination there. Here, the court terminated Mother’s rights on the grounds of abuse and neglect, pursuant to section 211.447.4(2). The failure to rectify was an additional ground of termination. Where a trial court finds multiple statutory grounds for termination, the appellate court need not decide whether sufficient evidence supports each finding. In the Interest of J.K., 38 S.W.3d 495, 499 (Mo.App.2001). We will affirm the trial court’s judgment if termination is supported under any of the subdivisions of section 211.447.4, and if termination is in the child’s best interests. K.A.W., 133 S.W.3d at 16. We have already determined that the court properly terminated Mother’s parental rights under subdivision (2) of section 211.447.4. One ground is sufficient to support termination of parental rights. 160 S.W.3d at 862. It is clear that termination is in the child’s best interests, regardless of the findings on “failure to rectify.” Mother’s Points I and II are denied.

Conclusion

For the foregoing reasons, the judgment is affirmed.

HOWARD and NEWTON, JJ., concur.

      . That subdivision provides in relevant part that a petition to terminate parental rights shall be filed by the juvenile officer or the division when "[a] court of competent jurisdiction has determined that the parent has ... [cjommitted a felony assault that resulted in serious bodily injury to the child or to another child of the parent.” § 2U.447.2(3)(d).

      . Those section 211.447.4(2) factors are:
      (a) A mental condition ... which renders the parent unable to knowingly provide the child the necessary care, custody and control;
      (b) Chemical dependency which prevents the parent from consistently providing nec-essaiy care, custody and control of the child and which cannot be treated ...;
      (c) A severe act or recurrent acts of physical ... abuse toward the child ... by the parent ... or by another under circumstances that indicate the parent knew or should have known that such acts were being committed toward the child ...; or
      (d) Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education ... or other care and control necessary for the child’s physical, mental, or emotional health and development^]

      . Section 211.447.6 requires the court, when terminating under subdivisions (2) and (3) of subsection 4 to make findings on the listed factors "when appropriate and applicable.” Those factors, often referred to as the "best interests” factors, are:
      (1) The emotional ties to the birth parent;
      (2) The extent to which the parent has maintained regular visitation or other contact with the child;
      (3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division ... ;
      (4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;
      (5) The parent’s disinterest in or lack of commitment to the child;
      (6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;
      (7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.
      While the judgment does not specifically list the court’s findings as to these factors, the court’s determinations with regard to most of these factors can be found therein. Neither Mother nor Father raises the issue of any lack of specific findings under subsection 6. Moreover, in view of Section 211.038, RSMo. 2004 Supp., it was not an abuse of discretion to conclude that termination was in the child’s best interests.


text:
    Stacy L. ALLEN (Formerly Parsons), Respondent, v. Steven R. PARSONS, Appellant.
    No. WD 64371.
    Missouri Court of Appeals, Western District.
    Aug. 23, 2005.
    Dennis J. Campbell, Kansas City, MO, for Appellant.
    Craig D. Ritchie, St. Joseph, MO, for Respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Father appeals judgment modifying joint custody decree, based on sufficiency of the evidence. Affirmed Rule 84.16(b).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In re the MARRIAGE OF Teresa M. DEMORROW and Vincent L. Demorrow. Teresa M. Demorrow (Moore), Petitioner-Respondent, v. Vincent L. Demorrow, Respondent-Appellant.
    No. 26366.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 24, 2005.

      Daniel E. Leslie, Union, for appellant.
    Steven Privette, Kelly Michael Bosser-man, Willow Springs, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Vincent L. Demorrow (“Father”) appeals a custody modification award granted in favor of Teresa M. Demorrow (Moore) (“Mother”). The Circuit Court of Howell County dissolved Father and Mother’s marriage in April 2003. The court entered a judgment, pursuant to the agreement of the parties, which awarded the parties joint legal and physical custody of the child and designated the Father’s address as the principal residence for the child. Three months after the court dissolved the marriage, Mother moved to modify the custodial arrangement. Mother argued that a continuing and substantial change in circumstances and the discovery of circumstances unknown at the time the court entered the dissolution decree warranted the modification.

These circumstances included an increase in the child’s weight due to poor nutrition, a decrease in the child’s academic performance, a change in the child’s temperament in which the child became continuously argumentative and rude, the filthiness of Father’s home and his failure to provide guidance with personal hygiene, Father’s propensity to view pornographic material and his failure to prevent the child from viewing pornography, Father’s willingness to leave the child at home alone for extended periods of time, and Mother’s ability to provide the child with a stable and moral home.

Father denied all of Mother’s allegations. He also filed a counter-petition to modify in which he alleged that a modification of child support was warranted due to the increase of the cost of supporting the child since the court dissolved the marriage. Significantly, Father made no allegations concerning the conduct of Mother in his pleadings. At the time of the initial setting, Father orally requested that the court appoint a guardian ad litem (GAL). The court noted, “after reviewing the pleadings and the statute, Section 452.423, the court concludes that a GAL must be appointed.”

At the evidentiary hearing, after three of Mother’s witnesses testified, the GAL asked to be excused from the hearing; he stated that he believed he had fulfilled his duties as the GAL and that he had not found any evidence of abuse or neglect. Both parties consented to the dismissal, and the court excused the GAL from the hearing. The GAL was not present for two of the Mother’s witnesses nor the testimony of Father.

The trial court subsequently entered a judgment granting Mother’s request to modify the custodial plan. The court made complete findings concerning the fact that no evidence was adduced at the original trial regarding any concerns Mother had with Father having custody of the child. The court based the change in custody on the evidence which indicated Mother learned, after the divorce, that Father had sexually explicit pictures of men, women and younger girls in his personal file and that Father’s step-daughter had discovered those photographs on the computer. The court expressed concern that Father left the child alone overnight more than once and on the days when Father worked, the child, who was ten years of age, had to get herself out of bed in the morning and fix her own breakfast. The court noted behaviors such as Father calling Mother several times after the divorce to request that she take the child from his home because he was fed up and had had enough, which directly reflected on Father’s maturity and judgment as a parent. It is from this judgment that Father appeals.

Appellant argues in Point I that the trial court erred by excusing the GAL during the hearing. We note that Father requested the GAL, then agreed to the dismissal of the GAL, and failed to raise any error in the dismissal prior to the end of the trial or in any post-trial motion. As such, he has failed to preserve this issue for appellate review. Keling v. Keling, 155 S.W.3d 830, 833 (Mo.App. E.D.2005). Pursuant to Rule 84.13(c), however, we could review issues not preserved in the trial court to determine if plain error was committed affecting substantial rights which resulted in a manifest injustice or a miscarriage of justice. In re Marriage of Campbell, 868 S.W.2d 148, 151 (Mo.App. S.D.1993). We find no manifest injustice or a miscarriage of justice and thus decline plain error review.

We find no manifest injustice because all of the allegations of abuse or neglect were against Father. The purpose of the mandatory appointment of a GAL is to protect children who may have been abused or neglected and not to benefit either of the parties in a dissolution proceeding. Rombach v. Rombach, 867 S.W.2d 500, 502 (Mo. banc 1993). The trial court changed the custody of the minor child from Father to Mother and placed protections for the benefit of the child in the parenting plan regarding the exposure of any sexually explicit/pornographic pictures or materials to be in the home when the child was present and leaving the child alone for extended periods during the day or overnight. We cannot envision how a manifest injustice was done when the GAL was dismissed after reporting his opinion that there was nothing that rose to the level of abuse or neglect in the allegations against Father when the child has been properly protected by the court’s decision.

In so finding, we are aware of the contrary conclusion in Keling, when Mother raised allegations of abuse against Father. 155 S.W.3d at 832. A GAL was appointed by the court to represent the interests of the child; however, less than three weeks later she sought to be released, stating that she could not substantiate the allegations of neglect or abuse after interviewing Husband, Wife, and child. Id. The trial court subsequently granted custody to the alleged abuser “due to the ‘history of domestic violence’ between Husband and Wife and their failure to communicate concerning the children.” Id. The Eastern District of this Court, after noting that Wife failed to preserve the point for appeal because it was not presented to or expressly passed on by the trial court, nevertheless elected to review the point on appeal for plain error; it subsequently found manifest injustice because the GAL did not have the opportunity to examine or cross examine witnesses supporting a claim of abuse or neglect. Id. at 833. Specifically, the Court noted the GAL had not interviewed the child’s therapist, who stated that she saw signs of trauma in both children as a result of Husband’s behavior. Id. at 834. As noted in this case, there were no allegations of abuse or neglect against Mother. We fail to see how a further investigation by the GAL would have assisted Father or the child. We decline plain error review and deny Point 1.

Father’s second point avers trial court error in changing custody because there were no facts presented that had arisen since the prior judgment or dissolution that were unknown to the court at the time of the dissolution justifying a change in residence for the minor child. In his argument, Father claims that he had child pornography in his possession at the time of the divorce so the court could not consider any “moral misconduct” of that nature. Additionally, Father claims that Mother presented no evidence that the child’s mental, physical, economic, or social wellbeing was affected by Father’s conduct regarding pornography.

We note and defer to the specific factual findings the court made regarding its lack of knowledge of the concerns Mother had prior to the grant of the dissolution. Mother testified that Father assured her that though he had been involved with child pornography prior to the divorce, he would no longer do so after the dissolution. Mother discovered that Father’s assurances were false. Without going into graphic detail, we find there was substantial evidence to support all of Mother’s allegations, in addition to Father’s possession of child pornography, to warrant a change in custody based on the change of circumstances in the home of the child. Point II is denied.

The judgment is affirmed.

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

      . All rule references are to Missouri Court Rules (2005), unless otherwise specified.

      . Father does not even argue any manifest injustice to the child or to himself with the dismissal of the GAL, he simply argues that the GAL could not be dismissed. We do not take issue with any cases cited by Father to support a proposition that a GAL must be appointed when there are allegations of abuse and neglect; however, the issue before us is whether Father is entitled to plain error review of his claim that the GAL should not have been dismissed after the appointment by the court.