author: ROBERT G. ULRICH, Presiding Judge.

text:
    Steven Mark ROGERS, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
    No. WD 65039.
    Missouri Court of Appeals, Western District.
    Feb. 21, 2006.

      Nicole L. Loethen, Jefferson City, MO, for Appellant.
    Jeffrey S. Eastman, Gladstone, MO, for Respondent.
    Before: ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JJ.
   ROBERT G. ULRICH, Presiding Judge.

The Director of Revenue, State of Missouri, appeals from the trial court’s judgment ordering the reinstatement of the driving privileges of Steven Mark Rogers. The Director contends that the trial court erred in setting aside the revocation of Mr. Rogers’ license because Mr. Rogers’ conditional consent to take a chemical test was a refusal under section 577.041. The point is granted, and the judgment is reversed.

Facts

On October 10, 2003, Steven Rogers was arrested for driving while intoxicated. The arrest resulted from a traffic stop and the observations of the arresting officers, Officers Aric Bowzer and Charles Falkiner. The issue in this case does not involve the circumstances leading up to the arrest; the issue stems from the events that occurred after Mr. Rogers was taken to the Macon Police Department and asked to take a breath test to determine his blood alcohol level.

While Mr. Rogers and Officer Falkiner have differing recollections of the events that transpired upon their arrival at the police station, the facts, as determined by the trial court and in the light most favorable to the judgment, are as follows. At the police department, Mr. Rogers stated his consent to take the breath test. Officer Falkiner then set up the machine, which determines blood alcohol content through a breath test. Once the machine was set up, Mr. Rogers stated that he would not take the test until he went to the restroom. Officer Falkiner informed Mr. Rogers that if he did not take the test before the machine “times out,” it would be counted as a refusal to take the test. Mr. Rogers stated: “I’m not refusing. I just need to go to the bathroom first.” Officer Falkiner also had Officer Bowzer come into the room and inform Mr. Rogers that his actions would be deemed a refusal. Officer Falkiner then set the machine up again in order to give Mr. Rogers another opportunity to take the test. Mr. Rogers continued to state that he would not take the test until he was allowed to use the restroom. The machine timed out a second time, and Officer Falkiner informed Mr. Rogers that he was counting that as a refusal.

On October 29, 2003, the Director of Revenue notified Mr. Rogers that his driver’s license would be revoked for one year, beginning November 16, 2003, pursuant to section 577.041, for refusing to take the breath test. On November 14, 2003, Mr. Rogers appealed the revocation of his driver’s license to the Macon County Circuit Court and a preliminary order was entered.

Trial was held on December 20, 2004. During the trial, both Officer Falkiner and Mr. Rogers testified. The Circuit Court ordered the Director to reinstate Mr. Rogers’ license. It found:

I have no doubt that the officer did what he was supposed to and mark the boxes in the checklist that he went through all of those steps. I have no doubt there was a machine there. I have no doubt he set it up, but I don’t think it’s a refusal. I have no doubt that Mr. Rogers was probably obnoxious to the officer, which might be an understatement, but I also have no doubt that probably Mr. Rogers needed to use the restroom. And I don’t see that it would have been a big problem, since it only takes two minutes to set up the machine and it times out after two minutes, to let him use the restroom.
And under those circumstances, I don’t think there was a refusal, and so. I will make the injunction permanent.

The trial court’s judgment states, in part, “Court finds in favor of [Mr. Rogers] in that he did not refuse the breath test.”

The Director’s timely appeal followed.

Standard of Review

The trial court’s judgment must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, the trial court erroneously declared the law, or the trial court erroneously applied the law. Driskell v. Dir. of Revenue, 169 S.W.3d 187, 189 (Mo.App. S.D.2005). The evidence and all reasonable inferences drawn therefrom are viewed in the light most favorable to the trial court’s judgment and all contrary evidence and inferences are disregarded. Richardson v. Dir. of Revenue, 165 S.W.3d 236, 237 (Mo.App. S.D.2005). The trial court weighs witness credibility and may accept or reject all, part, or none of any witness’s testimony. Ruth v. Dir. of Revenue, 143 S.W.3d 741, 744 (Mo.App. S.D.2004). If the evidence is admitted or un-controyerted so that the only issue is the legal effect of the evidence, there is no need to defer to the trial court’s judgment. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).

Analysis

“Issuance of a driver’s license is no more than a personal privilege; however, once granted, the license may not be revoked arbitrarily but only in the manner and on the grounds provided by law.” Sparling v. Dir. of Revenue, 52 S.W.3d 11, 13 (Mo.App. E.D.2001). Section 577.020 provides that any person who drives on Missouri’s public highways has impliedly consented to a chemical test to determine the content of alcohol or drugs in his or her blood. § 577.020.1; Johnson v. Dir. of Revenue, 168 S.W.3d 139, 141 (Mo.App. W.D.2005). If a person has been arrested for driving while intoxicated and refuses to submit to a chemical test to determine the person’s blood alcohol or drug content as allowed by section 577.020, that person’s driver’s license must be revoked for one year pursuant to section 577.041. § 577.041.3; Kotar v. Dir. of Revenue, 169 S.W.3d 921, 924 (Mo.App. W.D.2005). The person must be informed of the consequences of failing to submit to a chemical test; if this is done and the driver refuses to submit to a chemical test, then the officer loses the authority to administer a chemical test as “none shall be given.” § 577.041.1; Borgen v. Dir. of Revenue, 877 S.W.2d 172, 175 (Mo.App. W.D.1994). A person whose driver’s license has been revoked for failure to submit to a chemical test may petition for a hearing in the county in which the arrest or stop occurred. § 577.041.4; Kotar, 169 S.W.3d at 924. At this hearing, the trial court is authorized to determine only the following: (1) whether the driver was arrested; (2) whether the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and (3) whether the driver refused to submit to an authorized chemical test as requested. Driskell, 169 S.W.3d at 189; § 577.041.4. The Director of Revenue bears the burden of proving these three elements by a preponderance of the evidence in order to make its prima facie case. Driskell, 169 S.W.3d at 189; Mings v. Dir. of Revenue, 165 S.W.3d 524, 525 (Mo.App. W.D.2005). If the Director fails to meet this burden as to any one of the elements, the circuit court must order the Director to reinstate the person’s driver’s license. Driskell, 169 S.W.3d at 189. Once the Director establishes a prima facie case, the driver may rebut the case or an element by a preponderance of the evidence. Brown v. Dir. of Revenue, 164 S.W.3d 121, 125 (Mo.App. E.D.2005). On appeal, the circuit court’s judgment is reviewed and not the Director’s administrative order. Driskell, 169 S.W.3d at 189.

The first two elements are not disputed; the only issue in this case is the third element of the prima facie case, whether Mr. Rogers refused to submit to an authorized chemical test as requested.

A “refusal” for purposes of this section, means declining of one’s own volition to take a chemical test authorized by § 577.020 when requested by an officer to do so. A refusal occurs, in response to a request by an officer to submit to a chemical test, by expressly saying, “I refuse” or using similar language; by remaining silent; or by not blowing into the Breathalyzer. A qualified or conditional consent or refusal is considered a refusal for purposes of § 577.041.4(3), except where a driver qualifies a refusal on his or her having an opportunity to contact an attorney, as provided in § 577.041.1.

Roberts v. Wilson, 97 S.W.3d 487, 493 (Mo.App. W.D.2002)(internal citations omitted). See also Borgen, 877 S.W.2d at 175 (stating that a request for a test calls for an affirmative response from the defendant by either word or deed and anything that is not an affirmative response is a refusal within the meaning of the statute and that: “It is now well established that a ‘refusal’ is the intentional failure to do what is necessary so that a chemical test of a driver’s blood alcohol content can be performed.”). The Missouri Supreme Court has defined a refusal in the following manner:

There is no mysterious meaning to the word “refusal.” In the context of the implied consent law, it simply means that an arrestee, after having been requested to take the breathalyzer test, declines to do so of his own volition. Whether the declination is accomplished by verbally saying, “I refuse,” or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make any difference. The volitional failure to do what is necessary in order that the test can be performed is a refusal.

Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo.1975). The refusal does not have to be a knowing refusal, and if the driver is confused or unclear as to the consequences of refusal, he or she has an affirmative duty to seek clarification. See, e.g., Giesler v. Dir. of Revenue, 139 S.W.3d 216, 218 (Mo.App. E.D.2004)(stating that the refusal does not have to be a knowing refusal in order for licensure revocation to occur); Johnson, 168 S.W.3d at 142 (holding that once a driver has been advised of his rights under the implied consent law, the driver has an affirmative duty to inform the officer that he does not understand his rights or the consequences of refusing to submit to a chemical test; if the driver refuses without conveying that he does not understand his rights, his actions are deemed a refusal).

Of particular relevance in this case is the rule that “[a] qualified or conditional consent or refusal is considered a refusal, except where a driver qualifies a refusal on his having an opportunity to contact an attorney, as provided in § 577.041.1.” Kotar, 169 S.W.3d at 925. See also Sweatt v. Dir. of Revenue, 98 S.W.3d 926, 929 (Mo.App. S.D.2003)(stating: “A qualified or conditional assent is a refusal under the statute.”). The clear rule is that a conditional or qualified consent is a refusal. The exception explicitly expressed in section 577.041.1 is when the driver conditions consent upon having the opportunity to speak with an attorney.

While Mr. Rogers and Officer Falkiner disagree about many of the details of what occurred the night of the arrest, both agree that Mr. Rogers’ consent to take a chemical test was conditioned upon his being allowed to use the restroom. There was much discussion at trial regarding when Mr. Rogers first requested to use the restroom and whether his need was genuine. Mr. Rogers ae-knowledges, in his brief, that his consent was conditioned “upon his desire to relieve himself of accumulated bodily fluids.” He argues that it was reasonable to assume that he genuinely needed to use the restroom. The trial court found that Mr. Rogers “probably ... needed to use the restroom” and stated that allowing Mr. Rogers to use the restroom before taking the test would not have been a “big problem.” Whether Mr. Rogers’ request to use the restroom was sincere and whether his use of the rest room would have inconvenienced Officer Falkiner is irrelevant under section 577.041. The test is not one of reasonableness or whether the need is genuine; the rule is clear, and section 577.041 expresses one exception. Mr. Roger’s response was a conditional consent and, as it in no way involved the opportunity to speak with an attorney, was a refusal under section 577.041. Missouri cases have established the rule that, except as otherwise provided by the statutory regime, conditional or qualified consent is a refusal, despite the reasons for or the motive behind the qualification. See, e.g., Zimmerman v. Dir. of Revenue, 72 S.W.3d 634 (Mo.App. S.D.2002)(driver’s conditional statement “I don’t really want to [take the chemical test] but if you want me to I will” deemed a refusal); Williams v. Lohman, 996 S.W.2d 127 (Mo.App. W.D.1999)(driver’s refusal to take a blood test was a refusal under the statute, even though driver refused because he disliked needles and claimed to have contracted hepatitis at a hospital 35 years prior from an infected needle).

“The legislature was undoubtedly aware of the deaths and carnage caused daily on the highways in this country by automobile drivers who have been chinking. For that reason the legislature has enacted the implied consent law and the provision that a person’s driver’s license will be suspended for one year on refusal to take a chemical test to determine the alcohol or drug content in the blood.” Cartwright v. Dir. of Revenue, 824 S.W.2d 38, 41 (Mo.App. W.D.1991). The legislature has determined that the threat posed by intoxicated drivers is severe enough to warrant the current rule. “Neither the legislature nor any other official body could anticipate all of the events which occur or words which would be spoken in connection with requesting one to take the breathalyzer test.” Deimeke, 528 S.W.2d at 766. Because of this, a clear rule has emerged. A qualified or conditional consent is a refusal, with the exception of the statutorily mandated opportunity to consult with an attorney. § 577.041.1. All drivers, including Mr. Rogers, are informed of this before being asked to submit to a chemical test. Mr. Rogers was informed that conditioning his consent on being able to use the restroom would be counted as a refusal; he chose to refuse the test. Police officers should not be asked to evaluate conditions placed upon consent to determine their reasonableness or sincerity. “For the statute to have any meaning, a police officer must be able to rely upon the objective fact of refusal without regard to a suspect’s subjective intentions.” Cartwright, 824 S.W.2d at 40 (quote marks and citation omitted).

When a driver has been arrested for driving while intoxicated, the completion in a timely fashion of a chemical test to determine the driver’s blood alcohol content is imperative. “The state is entitled to a timely test to detennine the driver’s blood alcohol content. Because alcohol is water soluble and the human body endeavors to remove it from the blood, the state’s interest is to avoid unnecessary delay before the test is administered.” Wall v. Holman, 902 S.W.2d 329, 331 (Mo.App. W.D.1995). Requiring law enforcement personnel to evaluate conditions placed upon consent for their reasonableness and genuineness frustrates this interest. Further, a rule allowing conditions placed upon consent as long as they are reasonable or genuine harms the interests of drivers. With the current rule, a driver knows exactly what the consequences of his actions will be. If he conditionally consents, it is deemed a refusal and his license will be revoked for one year. If reasonable and genuine conditions were permitted, the driver could not be certain whether the condition he places upon his consent would ultimately be judged reasonable or sincere. Whether his condition amounts to a refusal or a valid condition would not be finally determined until some later time. If what the driver believes is a reasonable and sincere condition is determined to be unreasonable or insincere, he will suffer the consequences of a revoked license. The current rule solves this dilemma in that any condition placed upon consent, with the exception of the statutorily created opportunity to speak with an attorney, is a refusal.

A clear rule is thus beneficial to both the State and drivers. In the case of a driver indicating a need to use the restroom, the testing instrument only takes a couple minutes to set up and requires only seconds to take the test. The delay caused by taking the test is not one of great length. The driver’s use of the restroom would not be unduly delayed by taking the test.

Moreover, a law enforcement officer who permits the driver to use the restroom before taking the test may jeopardize the test’s validity. The Code of State Regulations requires law enforcement to observe the driver for the fifteen-minute period preceding the administration of the test. Mo.Code. Regs. Ann. tit. 19, § 30.060 (2005). The fifteen-minute period is “critical to determining whether in fact an individual has driven while illegally intoxicated.” Carr v. Dir. of Revenue, 95 S.W.3d 121, 129 (Mo.App. W.D.2002). This is because, “in order to insure the veracity and precision of this testing device does not become undermined, it is imperative for the police to follow minimum administrative guidelines in observing the driver before the test is given.” Id. If a driver were allowed to use the restroom before taking the test, the fifteen-minute period would have to be restarted after the driver used the restroom or the law enforcement officer would have to observe the driver within the restroom, a situation that is not desirable for either party. If the driver were allowed to use the restroom during the fifteen-minute period, the test results may be invalid and inadmissible. See, e.g., Id. at 125-30 (Court affirmed reinstatement of driver’s license where driver was allowed to use the restroom immediately before test was taken because the failure to follow the fifteen-minute observation period requirement rendered the test results untrustworthy.).

The rule is not that law enforcement officers may never allow a driver to use the restroom before administering the test. Such instances occur. Law enforcement may allow the driver to use the restroom and then begin the fifteen-minute observation period and administer the test. Each case is unique and the officer will have to judge each situation and determine how to proceed. Given the importance of a timely test, the officer may legitimately want to administer the test as soon as possible. The officer may view the request to use the restroom as a stalling tactic and want to administer the test before allowing the driver to use the restroom for that reason. See, e.g., Christensen v. Dir. of Revenue, 128 S.W.3d 171, 175 (Mo.App. S.D.2004)(driver, who was allowed to use the restroom before taking the test, used the opportunity to stall). So while a police officer may allow the driver to use the restroom before starting the fifteen-minute observation period and administering the test, the driver does not have a right to use the restroom before the test is administered. Section 577.041.1 conveys upon the driver the opportunity to speak with an attorney, not the right to use the restroom, before the test is administered. As noted, supra, there are several legitimate bases for this.

Mr. Rogers relies upon Carlin v. Pennsylvania, 739 A.2d 656 (Pa.Commw.Ct.1999), for the proposition that conditioning consent upon being able to use the restroom is not a refusal where the state regulations do not prohibit using the restroom and the driver actually needs to use the restroom. This court rejects Carlin. The rule in Missouri is that a conditional or qualified consent is a refusal. The only exception allowed by the statute pertains to situations where the driver conditions the consent upon having the opportunity to speak with an attorney. The Missouri legislature may create additional exceptions, but this court will not.

Conclusion

The rule in Missouri is that a qualified or conditional consent to submit to a chemical test is a refusal under section 577.041. The only exception is where the driver conditions consent upon having an opportunity to speak with an attorney as provided by section 577.041.1. Mr. Rogers’ conditional consent was a refusal, and the trial court’s judgment reinstating his driver’s license is reversed.

All concur.

      . To. function properly, once initiated, the machine takes approximately two minutes to prepare itself to operate. If not used within two minutes after "setting up,” the machine "times out,” and must again go through the process.

      . Mr. Rogers testified that he did not know what Officer Falkiner was referring to when he stated that the machine had already timed out. He further testified that he told Officer Falkiner he had consumed a large amount of liquid prior to his arrest and that he could not get a deep enough breath to take the test without using the restroom. He stated that at no time did he ever see a breathalyzer machine in the room. Mr. Rogers stated that Officer Falkiner never read to him from a sheet of paper or checked off items in his presence. As noted, infra, the trial court stated that it had no doubt Officer Falkiner read the implied consent warnings to Mr. Rogers, that a testing machine was in the room, and that Officer Falkiner set up the machine. Thus, Mr. Rogers' testimony to these facts is not taken as fact in this case, despite the fact that the judgment below was in Mr. Rogers’ favor.

      . Section 577.020, RSMo Cum.Supp.2004, states, in relevant part:
      1.Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.020 to 577.041, a chemical test or tests of the person’s breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person’s blood pursuant to the following circumstances:
      (1) If the person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition; ...

      . Section 577.041, RSMo Cum.Supp.2004, states, in relevant part:
      1. If a person under arrest, or who has been stopped pursuant to subdivision (2) or (3) of subsection 1 of section 577.020, refuses upon the request of the officer to submit to any test allowed pursuant to section 577. 020, then none shall be given and evidence of the refusal shall be admissible in a proceeding pursuant to sections 565.024, 565.060 or 565.082, RSMo, or section 577.010 or 577.012. The request of the officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person's license shall be immediately revoked upon refusal to take the test. If a person when requested to submit to any test allowed pursuant to section 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney. If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal. In this event, the officer shall, on behalf of the director of revenue, serve the notice of license revocation personally upon the person and shall take possession of any license to operate a motor vehicle issued by this state which is held by that person. The officer shall issue a temporary permit, on behalf of the director of revenue, which is valid for fifteen days and shall also give the person a notice of such person's right to file a petition for review to contest the license revocation.
      2. The officer shall make a certified report under penalties of perjury for making a false statement to a public official. The report shall be forwarded to the director of revenue and shall include the following:
      (1) That the officer has:
      (a) Reasonable grounds to believe that the arrested person was driving a motor vehicle while in an intoxicated or drugged condition; or

      (2) That the person refused to submit to a chemical test;

      3. Upon receipt of the officer’s report, the director shall revoke the license of the person refusing to take the test for a period of one year; or if the person is a nonresident, such person's operating permit or privilege shall be revoked for one year; or if the person is a resident without a license or permit to operate a motor vehicle in this state, an order shall be issued denying the person the issuance of a license or permit for a period of one year.
      4. If a person’s license has been revoked because of the person's refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred. The person may request such court to issue an order staying the revocation until such time as the petition for review can be heard. If the court, in its discretion, grants such stay, it shall enter the order upon a form prescribed by the director of revenue and shall send a copy of such order to the director. Such order shall serve as proof of the privilege to operate a motor vehicle in this state and the director shall maintain possession of the person’s license to operate a motor vehicle until termination of any revocation pursuant to this section. Upon the person’s request the clerk of the court shall notify the prosecuting attorney of the county and the prosecutor shall appear at the hearing on behalf of the director of revenue. At the hearing the court shall determine only:
      (1) Whether or not the person was arrested or stopped;
      (2) Whether or not the officer had:
      (a) Reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; or

      (3) Whether or not the person refused to submit to the test.
      5. If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive.

      . This right to speak to an attorney is not constitutionally mandated. The General Assembly has granted the right. Christensen v. Dir. of Revenue, 128 S.W.3d 171, 175 (Mo.App. S.D.2004).

      . Section 577.033 provides, "Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusing to take a test as provided in sections 577.020 to 577.041 shall be deemed not to have withdrawn the consent provided by section 577.020 and the test or tests may be administered.” Mr. Rogers does not claim that his expressed need to use the rest room constituí-ed or caused injury to his person to the extent that he was then "in a condition rendering him incapable of refusing to take a test.” See Nace v. Director of Revenue, 123 S.W.3d 252, 259 (Mo.App. W.D.2003).


source: Caselaw Access Project

license: Public Domain

text:
    In the Interest of D.K.S.; Plaintiff Juvenile Officer; Missouri Department of Social Services, Children’s Division, Respondents, v. S.S. (Presumed Father); N.S. (Natural Mother); Appellants John Doe (Putative Father), Defendant.
    Nos. WD 65526, WD 65564.
    Missouri Court of Appeals, Western District.
    Feb. 21, 2006.
    Matthew C. Price, Camdenton, MO, for Appellant, S.S.
    Laurie Himes, Versailles, MO, for Appellant, N.S.
    John Doe, pro se.
    William F. Washburn, Eldon, MO, for Respondent, Juvenile Officer.
    William R. Kennedy, Jefferson City, MO, for Respondent, Missouri Children’s.
    Kevin C. Shelton, Lake Ozark, MO, Attorney & Guardian for Plaintiff, D.K.S.
    Before JAMES M. SMART, P.J., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.
   S.S. and N.S. appeal the judgment of the trial court terminating their parental rights to D.K.S. S.S. presents four points on appeal. He complains that: (1) the trial court erred in finding clear and convincing evidence existed that he committed severe or repeated acts of sexual abuse toward D.K.S.; (2) the trial court erred in finding clear and convincing evidence existed that he committed severe or repeated acts of physical abuse toward D.K.S.; (3) the trial court erred in finding clear and convincing evidence existed that he failed to provide D.K.S. with adequate food, clothing, shelter, or education; and (4) the trial court erred in finding clear and convincing evidence that the conditions that led to the juvenile court’s assumption of jurisdiction still persisted and/or that continuing conditions of a potentially harmful nature were shown to exist. N.S. also presents four points on appeal. She complains that: (1) the trial court erred in terminating her parental rights under § 211.447.4(2)(c); (2) the trial court erred in terminating her parental rights under § 211.447.4(2)(d); (3) the trial court erred in terminating her parental rights under § 211.447.4(3); and (4) the trial court erred in terminating her parental rights under § 211.447.4(6). Because at least one statutory ground supporting termination of parental rights is supported by substantial evidence and is not against the weight of the evidence, the judgment terminating parental rights is affirmed. Rule 84.16(b).


author: PER CURIAM.

text:
    Marwan CHEBARO, Appellant-Respondent, v. Sara LODIGENSKY, et al., Respondent-Appellant, David Mandelbaum, Respondent-Appellant.
    Nos. WD 64492, WD 64493, WD 64517.
    Missouri Court of Appeals, Western District.
    Feb. 21, 2006.
    Mary-Corinne Corley, Kansas City, MO, for Appellant.
    Kevin Glynn, Kansas City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JR., JJ.
   Order

PER CURIAM.

David Mandelbaum appeals the judgment entered against him in the civil suit brought by Marwan Chebaro related to Chebaro’s interest in a restaurant. Mr. Chebaro also appeals the judgment seeking a remand for a trial on punitive damages. 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).


text:
    STATE of Missouri, Respondent, v. Billy J. COLEMAN, Appellant.
    No. WD 64580.
    Missouri Court of Appeals, Western District.
    Feb. 21, 2006.
    Irene C. Earns, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before: JAMES M. SMART, P.J., ROBERT G. ULRICH and PAUL M. SPINDEN, JJ.
   ORDER

PER CURIAM.

Billy Coleman appeals his conviction for second-degree burglary, section 569.170, RSMo 2000, and sentence as a prior offender to seven years imprisonment. He claims that the trial court (1) abused its discretion in admitting into evidence a box cutter found in his jacket and (2) erred in overruling his motion for judgment of acquittal and submitting the case to the jury because the evidence was insufficient to support the conviction.

For the reasons set forth in the memorandum provided to the parties, the judgment of conviction is affirmed. Rule 30.25(b).


text:
    Frederick W. FAUROT, III, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. WD 64780.
    Missouri Court of Appeals, Western District.
    Feb. 21, 2006.
    Sarah E. Reichert, Assistant Attorney General, Jefferson City, MO, for appellant.
    Francis C. Cline, Jr., Columbia, MO, for respondent.
    Before ULRICH, P.J., BRECKENRIDGE and SMART, JJ.
   ORDER

PER CURIAM.

The Director of Revenue appeals the judgment of the circuit court setting aside the director’s one-year revocation of Frederick W. Faurot’s driver’s license. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


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

text:
    David T. NGUYEN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64795.
    Missouri Court of Appeals, Western District.
    Feb. 21, 2006.

      Jeannie Marie Willibey, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for Respondent.
    Richard A. Starnes, Asst. Attorney General, Jefferson City, MO, joins on the briefs for Respondent.
    Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.
   JAMES M. SMART, JR., Judge.

David Nguyen appeals the denial of his Rule 24.035 motion in which he sought to vacate his convictions of two counts of first-degree assault and two counts of armed criminal action. Nguyen’s motion charged that there was no factual basis to support his plea. We affirm.

Procedural and Factual Background

David Nguyen, appellant, was indicted on July 12, 2002, for two counts of first-degree assault, § 565.050, and two counts of armed criminal action, § 571.015. On November 3, 2003, Nguyen entered an Alford plea pursuant to the charges and a plea agreement.

At the plea hearing, the State laid out the plea agreement of fifteen years for each of the four counts with the sentences to run concurrently. The defendant was then sworn and questioned by the court. When asked if he knew what an Alford plea was, Nguyen replied, “An Alford plea is enough evidence to convict me but I’m not the shooter.” The court then proceeded to inquire whether or not Nguyen understood the plea agreement of concurrent sentences for all four counts. Next, the court questioned Nguyen’s intelligence and competence level both at the time of the events and at the hearing, with which the court was satisfied. Finally, the court informed Nguyen of his rights with regard to his counsel and his right to trial, and Nguyen indicated he understood.

Once the court completed its questioning, Nguyen’s counsel began questioning. Through the questioning, Nguyen’s discussions with his counsel were developed to demonstrate Nguyen’s understanding of the options he had with regard to pleading guilty compared to going to trial. Nguyen’s counsel examined possible defenses that could be raised and why they would not work. After completing those questions, Nguyen’s counsel and the State developed the evidence.

On June 16, 2002, Nguyen attended a party celebrating Father’s Day and the birthday of Dung Bui, one of the victims. That party was in a parking lot at 3616 Independence Avenue, Kansas City, Missouri. Nguyen attended the party with a friend, Ngon Nguyen (“Ngon”). While at the party, Nguyen and Ngon got into a fight with Bui and Em Cu Luong. Nguyen and Ngon were then asked to leave the party, and they left.

After leaving the party, Nguyen and Ngon went to Ngon’s brother’s house. At his house Nguyen and Ngon collected guns and told him they were going back to the party. Ngon’s brother then called people at the party to warn them that Nguyen and Ngon were returning.

Shortly thereafter, Nguyen and Ngon pulled into a parking lot adjacent to the party in a black Chevy truck. Eight to ten shots were then fired out of the passenger side of the truck, the side on which Nguyen was sitting. No one from the party shot back at the truck.

Two people were injured from the shooting. Hau Dung was one of the victims. He was shot in the forehead and survived but spent about three weeks in the hospital recovering. During that time, Mr. Dung had a craniotomy and lobectomy, in which part of his brain was removed. The other victim, Dung Bui, was shot in the leg.

The investigators, after collecting shell casings from the parking lot and taking photographs, went to Nguyen’s house. At his house, a gun was recovered. Some of the shell casings from the parking lot were determined to have been fired from the gun. Nguyen admitted that he fired one of the guns. He did not admit that any of the bullets fired by him actually hit either of the victims.

Based upon the facts presented at the hearing, Nguyen stated that because of the strong likelihood he would be convicted it would be in his best interest to plead guilty and accept the plea bargain. He understood a jury could also find him not guilty, but he felt taking the plea bargain was in his best interest. ,

The court accepted Nguyen’s plea as made freely, voluntarily, and intelligently, and it found him guilty of the crimes charged. The court found that a factual basis for the charges was established. In accordance with the plea agreement, the court sentenced Nguyen to fifteen years for each count with the sentences to be served concurrently.

Nguyen timely filed a Rule 24.035 motion for post-conviction relief on December 23, 2003. His petition alleged that a sufficient factual basis was not established at his plea hearing because his plea did not acknowledge that he was aware of the victim’s presence at the time of the shooting. Specifically, he alleges that the facts did not establish that he shot at the victims with the purpose of causing death or serious physical injury. On October 8, 2004, the motion court entered its judgment with findings of fact and conclusion of law denying Nguyen’s claim.

Standard of Review

Appellate review of a motion court’s decision in a 24.035 action is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k). Findings and conclusions are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Black v. State, 151 S.W.3d 49, 54 (Mo. banc 2004). On review, the motion court’s findings and conclusions are presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).

Analysis

Nguyen’s only point on appeal is that the motion court clearly erred in denying his Rule 24.035 motion because there was an inadequate factual basis to support his pleas. Nguyen argues that facts were not presented to allow the trial court to determine whether he understood the nature and elements of the charges, the victim’s proximity to Nguyen, and whether he had the intent to cause serious physical injury. We disagree.

Under North Carolina v. Alford, 400 U.S. 25, 38-39, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a defendant may enter what is, in effect, a guilty plea, even though the defendant protests that he or she is innocent of the crime charged. Here, Nguyen obtained a negotiated sentence without admitting guilt by entering an Alford plea. He admitted only that the evidence against him would be extensive and would be likely to result in his conviction. Now, he wishes to collaterally attack his Alford plea on the basis that there was an insufficient admission of guilt.

There is a factual basis requirement for a guilty plea. Rule 24.02(e) provides that “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” As we stated in Daniels v. State, 70 S.W.3d 457, 460-61 (Mo.App.2002):

A defendant is not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists. State v. Morton, 971 S.W.2d 335, 340 (Mo.App.1998). “A factual basis is established if the defendant understands the facts recited by the judge or the prosecutor” at the guilty plea proceeding. Id. A defendant, however, should express “an awareness of the nature and elements of the charge to which he or she pleads guilty.” Vann v. State, 959 S.W.2d 131, 134 (Mo.App.1998).
“ ‘[A] trial court is not required to explain every element of a crime to which a person pleads guilty’ so long as the defendant understands the nature of the charge.” State v. Taylor, 929 S.W.2d 209, 217 (Mo. banc 1996), quoting Beaver v. State, 702 S.W.2d 149, 150 (Mo.App. S.D.1985). “[I]t is not necessary that the movant admit to, or even believe, the veracity of the elements of the charges against him in order for his guilty plea to be valid.” Bird v. State, 657 S.W.2d 315, 316 (Mo.App. E.D.1983). Our focus “is on whether the plea was made intelligently and voluntarily, not whether a particular ritual is followed or every detail explained.” Holloway v. State, 989 S.W.2d 216, 219-20 (Mo.App. W.D.1999), overruled on other grounds by State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999).

Our courts have stated that in reviewing a motion for post-conviction relief filed pursuant to Rule 24.035, an Alford plea is not treated differently from a guilty plea. See, e.g., Smith v. State, 141 S.W.3d 108, 111 (Mo.App.2004). This is obviously true with a claim of ineffective assistance of counsel. See, e.g., Jenkins v. State, 788 S.W.2d 536, 537-38 (Mo.App.1990). When the claim for which the prisoner seeks relief does not assert ineffective assistance, but instead asserts that there is an inadequate factual basis for the plea, the court necessarily takes into account the fact that with an Alford plea there is an explicit refusal to acknowledge guilt, or perhaps an affirmative protest of innocence. The defendant may still, however, voluntarily, understanding^, and unequivocally make the choice to enter the plea. The record shall show the various factual elements necessary to constitute the offense, and should show that the defendant understood the elements. See State v. Hunter, 840 S.W.2d 850, 864 (Mo. banc 1992) (citing North Carolina v. Alford, 400 U.S. at 38-39, 91 S.Ct. 160). The plea must represent an intelligent choice by the defendant among alternative courses of action. Alford, 400 U.S. at 31, 91 S.Ct. 160. An Alford plea is legally and practically a form of a guilty plea. See id. at 37, 91 S.Ct. 160; Watkins v. State Bd. Of Regis. For Healing Arts, 651 S.W.2d 582, 583 (Mo.App.1982).

In this case, Nguyen made an Alford plea. He freely, voluntarily, and intelligently made his plea by acknowledging to the trial judge that he understood what was meant by an Alford plea and that pleading guilty was a better alternative than going to trial. The court accepted the plea after facts were presented related to the elements of the offenses.

“[I]n order to be found guilty of first-degree assault for attempting to' kill or attempting to cause serious physical injury, one must, with the purpose of committing that offense, take a substantial step toward committing it.” State v. Whalen, 49 S.W.3d 181, 186 (Mo. banc 2001). “A ‘substantial step’ is conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.” Id. (quoting State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999)). At the plea hearing, it was clear that if there were a trial, the State would have sought to prove the elements of first-degree assault. Nguyen was in a fight at the party. He left the party, went to his house, retrieved guns, returned to the party, and fired at least one gun multiple times toward people at the party. These facts would satisfy the elements of a submissible case of first-degree assault.

Nguyen argues that the Supreme Court stated in Whalen that a “person will not be guilty of purposely causing or attempting to cause such injury if the person is unaware of the likely presence of the injured person at the time the person acts.” Whalen, 49 S.W.3d at 187. We fail to see that Whalen has application to this case. Nguyen knew Bui was present at the party; he had just been in a fight with him. He knew others were present as well.

Nguyen also suggests that this case is like England v. State, 85 S.W.3d 103 (Mo.App.2002), which also, like Whalen, was not an Alford case. In that case, this court held that the facts did not support England’s guilty plea for first-degree assault by attempting to kill when he acknowledged he fired a gun randomly into the victim’s house. Id. at 109. Here, the State was prepared to show that there was nothing random about the shooting in this case.

Nguyen’s plea was made freely, voluntarily, intelligently, and unequivocally. The facts presented showed that Nguyen knew the nature and elements of the charges, and that he chose to make an Alford plea to accept the sentence while not admitting that any shot he fired actually hit either victim. Nguyen knew the State was prepared to show that Nguyen left the party and returned with guns for the purpose of shooting at the party, and that he participated in the shooting. Nguyen acknowledged that the State had evidence of these basic facts. There was a factual basis for the plea.

Conclusion

The judgment of the motion court is affirmed.

ULRICH and HARDWICK, JJ., concur.

      . All statutory references are to the Revised Statutes of Missouri, 2000, unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Duane L. GAYE, Appellant.
    No. WD 64893.
    Missouri Court of Appeals, Western District.
    Feb. 21, 2006.
    Irene C. Earns, Public Defender, Columbia, MO, joins on the briefs for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Asst. Attorney General, Jefferson City, MO, joins on the briefs for Respondent.
    Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM.

Duane Gaye appeals his conviction by a jury of committing violence against an employee of the Department of Corrections, for which he was sentenced to six years.

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 30.25(b).


text:
    Joseph L. PORRAS, Appellant v. STATE of Missouri, Respondent.
    No. WD 64743.
    Missouri Court of Appeals, Western District.
    Feb. 21, 2006.
    Dimitra Y. Massey, Esq., Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Esq., Jefferson City, MO, for Respondent.
    Before LOWENSTEIN, P.J., ELLIS and NEWTON, JJ.
   ORDER

PER CURIAM.

Joseph Porras (Appellant) appeals the court’s denial of his motion under Rule 29.15 without an evidentiary hearing. The judgment is affirmed. Rule 84.16(b).


text:
    Jermaine ATKINS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 86108.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 21, 2006.

      Amanda R. Schehr, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Jayne T. Woods, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J. .
   ORDER

PER CURIAM.

Jermaine Atkins (“Movant”) appeals from motion court’s judgment denying his Rule 24.035 motion for post-conviction relief. In his sole point relied on, Movant argues that the motion court erred when it denied Movant’s post-conviction motion without an evidentiary hearing. Movant claims that his attorney failed to investigate his claim of innocence. Movant further argues that the motion court should have vacated his judgment or granted Movant an evidentiary hearing. Movant contends that had his attorney investigated his claim of innocence, Movant would have refused to plead guilty and would have insisted on a trial. We find no error and affirm.

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

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

      . All rule references are to Mo. Rules Crim. P. 2004 unless otherwise indicated.


text:
    William Jay THOMAS, Appellant, v. Sandra Jo THOMAS, Respondent.
    No. ED 86015.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 2006.
    Neis C. Moss, Jr., Clayton, MO, for appellant.
    Jane E. Tomich, St. Charles, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

Husband, William Jay Thomas, appeals from the trial court’s judgment dissolving his marriage to Wife, Sandra Jo Thomas. We have reviewed the parties’ briefs and the record on appeal. No error of law appears. No jurisprudential purpose would be served by an exposition of the detailed facts and law. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


author: SHERRI B. SULLIVAN, J.

text:
    Joseph Patrick WALSH, Petitioner/Respondent, v. Donna Sue WALSH, Respondent/Appellant.
    No. ED 85978.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 21, 2006.
    Brenda Renee Wall-Swedberg, Lancaster, MO, for Appellant.
    Paul Rick Jackson, Kirksville, MO, for Respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Donna Sue Walsh (Wife) appeals from a Judgment and Decree of Dissolution of Marriage (Judgment). Wife argues that the trial court erroneously declared and applied the law in its determination of child custody and visitation in the Judgment. We reverse and remand.

Factual and Procedural Background

Wife and Joseph Patrick Walsh (Husband) were married in July 1991. Four children were born of the marriage, one each in 1992, 1994, 1995, and 1997. In January 2002, the parties separated, and Husband filed a Petition for Dissolution of Marriage (Petition). Subsequently, Wife filed an Answer to the Petition.

In October 2004, a trial on the Petition was had. At trial, Wife testified that she lived with Rick Johnson (Johnson) and that they have a child together. Johnson testified that he and Wife began living together after Wife separated from Husband, that they have a child together, and that he plans on marrying Wife. Johnson also testified that he pled guilty to an offense of having sexual intercourse with a twelve-year-old female when he was about twenty-one years old and that he served several years in the Minnesota penal system for his conviction. Wife testified that she was aware of Johnson’s conviction.

In December 2004, the trial court entered its Judgment dissolving the parties’ marriage. The court awarded sole legal and sole physical custody of the parties’ children to Husband. The court also denied visitation to Wife. The court based its custody and visitation orders on the application of Sections 452.375.3 and 452.400.1 RSMo Cum.Supp.2004 and concluded that because Johnson resided with Wife and was a person as described in the statutes, the court was prohibited from awarding custody or visitation to Wife. Further, although the parties submitted, at the court’s request, proposed findings regarding the factors set out in Section 452.875.2, which addresses the best interests of the child, the court did not consider the factors in its Judgment. The court also did not adopt a parenting plan, although the parties submitted proposed parenting plans.

Wife filed a motion for new trial, which the trial court overruled. Wife appeals from the Judgment.

Standard of Review

The standard for reviewing a judgment of dissolution is the same for reviewing any court-tried action. Bullard v. Bullard, 929 S.W.2d 942, 944 (Mo.App. E.D.1996). The judgment must be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Discussion

Wife raises three points on appeal. In her first point, Wife argues that the trial court erred in applying the 2004 amended version of Sections 452.375 and 452.400 RSMo rather than the 1998 version to determine child custody and visitation because the case was filed in January 2002.

The statute in effect at the time a petition commencing an action is filed is the applicable statute. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). This is so even if the case is tried after the effective date of the amended statute. Hoskins v. Box, 54 S.W.3d 736, 740 (Mo.App. W.D.2001). Husband filed his Petition in January 2002, and thus, the 2000 version of Sections 452.375 and 452.400 RSMo are the applicable statutes in this case.

Section 452.375.3 RSMo 2000 provides:

The court shall not award custody of a child to a parent if such parent has been found guilty of, or pled guilty to, a felony violation of chapter 566, RSMo, when the child was the victim, or a violation of chapter 568, RSMo, except for section 568.040, RSMo, when the child was the victim.

Section 452.400.1 RSMo 2000 provides in relevant part:

The court shall not grant visitation to the parent not granted custody if such parent has been found guilty of or pled guilty to a felony violation of chapter 566, RSMo, when the child was the victim, or a violation of chapter 568, RSMo, except for section 568.040, RSMo, when the child was the victim or an offense committed in another state, when the child is the victim, that would be a felony violation of chapter 566, RSMo, or chapter 568, RSMo, except for section 568.040, RSMo, if committed in Missouri.

Chapter 566, RSMo, is entitled “Sexual Offenses.” Chapter 568, RSMo, is entitled “Offenses Against the Family.”

In its Judgment, the trial court clearly relied on the 2004 amended version of Sections 452.375 and 452.400 RSMo to determine child custody and visitation. In its application of these statutes, the court based its determinations on “any person residing with such parent,” specifically, Johnson residing with Wife and the admissions at trial revealing that Johnson was convicted of an offense that “would be a crime under Section 566.032 RSMo,” first-degree statutory rape.

Accordingly, in applying the 2004 amended version of Sections 452.375 and 452.400 RSMo, rather than the 2000 version, which was the controlling law at the time Husband filed his Petition, to determine child custody and visitation in the Judgment, the trial court erroneously declared and applied the law. Wife’s point one on appeal is granted.

In light of our ruling on her point one on appeal, Wife’s points two and three on appeal are moot, as they address alternative arguments if the 2004 statute was applicable.

Conclusion

The Judgment of the trial court is reversed as to child custody and visitation and the cause is remanded to the trial court to determine child custody and visitation based on the applicable statutes in effect at the time the Petition commencing the action was filed.

NANNETTE A. BAKER, P.J., and ROBERT G. DOWD, JR., J., concur.

      .Section 452.375.3 RSMo Cum.Supp.2004 provides in relevant part:
      In any court proceedings relating to custody of a child, the court shall not award custody or unsupervised visitation of a child to a parent if such parent or any person residing with such parent has been found guilty of, or pled guilty to, ... an offense committed in another state when a child is the victim, that would be a felony violation of chapter 566, RSMo, except for section 566.034, RSMo, ..., if committed in Missouri. ...
      (emphasis added).
      Section 452.400.1 RSMo Cum.Supp.2004 provides in relevant part:
      The court shall not grant visitation to the parent not granted custody if such parent or any person residing with such parent has been found guilty of or pled guilty to ... an offense committed in another state when a child is the victim, that would be a felony violation of chapter 566, RSMo, except for section 566.034, RSMo, ..., if committed in Missouri....
      (emphasis added).

      . We note that Husband did not file a Respondent's brief.

      . Although there are exceptions to the presumption that statutes operate prospectively, we conclude that none applies here. See Hoskins, 54, S.W.3d at 739-740. Further, the 2004 amendments to Sections 452.375.3 and 452.400.1 RSMo affect substantive rights because they provide a new ground under which a court is required to deny a parent child custody or visitation.


text:
    Susan Richann SHIRRELL, Appellant, v. Eric Leon SHIRRELL, Respondent.
    No. ED 85935.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 2006.
    Michael A. Gross, St. Louis, MO, for appellant.
    Diane C. Howard, Cape Girardeau, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

The mother, Susan Shirrell (now Susan Scott), appeals the judgment of the Circuit Court of Cape Girardeau County modifying joint legal and physical custody of the two minor children of her marriage to the father, Eric Shirrell, and ordering her to pay the full fee awarded the guardian ad litem. We have reviewed the parties’ briefs and the record on appeal and find no error.

An opinion would have no precedential value. The parties have been provided with a memorandum, for them information only, setting forth the reasons for this decision.

The trial court’s judgment is affirmed. Rule 84.16(b)(5).


text:
    Daniel W. FOSTER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86607.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 2006.
    Daniel W. Foster, Charleston, MO, appellant pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

Daniel W. Foster appeals from the denial of his motion to re-open his original Rule 29.15 motion for post-conviction relief. We have reviewed the parties’ briefs and the record on appeal, and find no error. All pending motions before this court are denied. An opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b)(5).


text:
    Genevieve WOLF, Employee/Respondent, v. ST. LOUIS COUNTY, Employer/Appellant, and Division of Employment Security, Respondent.
    No. ED 86328.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 2006.
    Carl W. Becker, Clayton, MO, for appellant.

      Marilyn Green, Cynthia Quetsch, Jefferson City, MO, Charles W. Bobinette, St. Louis, MO, for respondents.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. - MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

The employer, St. Louis County, appeals from an order of the Labor and Industrial Relations Commission finding the claimant, Genevieve Wolf, eligible for unemployment benefits. The order of the Labor and Industrial Relations Commission is supported by competent and substantial evidence on the whole record. A written opinion reciting the detañed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order. We affirm the order of the Labor and Industrial Relations Commission pursuant to Rule 84.16(b)(4).


text:
    Thomas J. ERBLAND, Jr., Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 86262.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 2006.
    Timothy Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP . CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Thomas J. Erbland, Jr., appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are not clearly erroneous, and an extended opinion 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 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Kendrick W. ASKEW, Defendant/Appellant.
    No. ED 86160.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 21, 2006.

      Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fiehter, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P. J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Kendrick W. Askew (Defendant) appeals from the trial court’s denial of Defendant’s motion to withdraw his guilty pleas and the judgment and sentence imposed after Defendant pleaded guilty to: 1) one count of second-degree murder, in violation of Section 565.021; 2) three counts of armed criminal action, in violation of Section 571.015; and 3) two counts of first-degree assault, in violation of Section 565.050. The trial court sentenced Defendant to concurrent terms of twenty years on the conviction for murder, twenty years on each of the convictions for armed criminal action, and fifteen years on each of the convictions for assault, all of which were to be served concurrently with a sentence Defendant already was serving in Cause No. 981-768.

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

      . All statutory references are to RSMo 1994, unless otherwise indicated.


author: NANNETTE A. BAKER, Presiding Judge.

text:
    ST. CHARLES COUNTY, Missouri, Respondent, v. “A JOINT BOARD OR COMMISSION” and North East Community Action Corporation, Appellants.
    No. ED 85506.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 21, 2006.

      D. Keith Henson, Louis, MO, for appellant.
    Joann Leykam, St. Charles County Counselor’s Office, St. Charles, MO, for respondent.
   NANNETTE A. BAKER, Presiding Judge.

A Joint Board or Commission (“Joint Board”) and North East Community Action Board (“NECAC”) appeal from a judgment of the trial court sustaining St. Charles County’s motion for summary judgment. First, NECAC claims that the trial court erred in entering judgment in favor of St. Charles County because the St. Charles County Cooperative Agreement (“Agreement”) executed on October 24, 1978 was valid and enforceable. Second, NECAC alleges that the trial court erred in entering judgment in favor of St. Charles County because NECAC is the proper administrative agency for the Agreement. Third, NECAC argues that the trial court erred in not applying the doctrine of estoppel to St. Charles County’s claims because the Agreement is a valid contract. We find no error and affirm.

Background

St. Charles County Court held a meeting on October 24, 1978 and adopted a resolution (“Resolution”) specifically authorizing the Presiding Judge of the County Court to enter into a cooperative agreement pursuant to Section 70.010. Section 70.010 is the only referenced authorization for the county to enter into an intergovernmental agreement. The Resolution also authorized North East Community Action Public Housing Agency (“North East Community”) to be designated as the administrative agency to act for and on behalf of St. Charles County.

Subsequently, St. Charles County executed an Agreement dated October 24, 1978, which joined the county with eleven other counties to cooperate in applying for Section 8 housing assistance from the United States Department of Housing and Urban Development (“HUD”). The Joint Board, previously established, was functioning as a signatory agency pursuant to the agreements previously executed by the other eleven counties. The Presiding Judge of the St. Charles County Court, on behalf of the county, executed the Agreement. The Agreement designated the Presiding Judge and the County Clerk of Lincoln County as the signatories to act on behalf of all of the undersigned counties for the purposes of applying for housing assistance and executing leases and contracts with HUD. The Agreement designated North East Community as the administrative agency to assist the counties and the joint boards in all necessary functions to successfully provide better housing for low income families.

In April 1980, North East Community was dissolved. NECAC, originally called North East Community Action Agency, incorporated in January 1981 and amended its name to its present name on April 2, 1982. Since January 1981, NECAC has functioned as the administrative agency for each of the agreements and all twelve counties, including St. Charles County.

On September 28, 1993, the Joint Board approved a resolution changing the signatory county from Lincoln County to Pike County. HUD approved the change from Lincoln County to Pike County on November 3, 1993. On February 16, 1999, Joe Ortwerth (“Ortwerth”), St. Charles County Executive, sent a letter to Donald Patrick (“Patrick”), Executive Director of NE-CAC. Ortwerth told Patrick that St. Charles County wanted to assume administrative oversight for its own Section 8 vouchers. Ortwerth further stated that the letter was not meant to terminate any obligations of NECAC, St. Charles County or HUD, but was a request for NECAC to “consider transferring the administrative responsibilities of Section 8 vouchers in [St. Charles] county to St. Charles County Government.” In response, NECAC passed a resolution on March 23, 1999, stating that:

this agency will fully support the St. Charles County Government effort to establish their [sic] own Public Housing Authority and will extend complete cooperation and technical assistance in helping the County obtain their [sic] goal, however, it remains this Agency’s position not to transfer administrative responsibility of current NECAC Section 8 Housing Assistance Program activities operated in the County upon such request ...

On February 21, 2002, Pike County, as the signatory county, entered into a contract with NECAC to administer the Section 8 housing program.

Standard of Review

This Court reviews summary judgment essentially de novo because the propriety of summary judgment is purely an issue of law. Wilkes v. St. Paul Fire and Marine Ins. Co., 92 S.W.3d 116, 120 (Mo.App. E.D.2002). The record is reviewed in the light most favorable to the party against whom judgment was entered, and that party is given the benefit of all reasonable inferences from the record. Id. Evidence presented in support of the motion is taken as true unless contradicted by the non-moving party’s response to the motion. Id. The moving party bears the burden of proving that it is entitled to judgment as a matter of law and that no genuine issues of material fact exist. Id. A genuine issue exists where the record contains competent materials which evidence two plausible, but contradictory, accounts of essential facts. Id. A genuine issue is not an argumentative, imaginary, or frivolous dispute. Id. Grantor must establish that there is no genuine dispute as to those material facts upon which she would have had the burden of persuasion at trial. Id.

A defending party may establish a right to judgment by showing facts that negate any one of the elements of claimant’s claim. Trotter’s Corp. v. Ringleader Rests., Inc., 929 S.W.2d 935, 939 (Mo.App. E.D.1996). If the movant meets this burden, the non-movant may not rest upon the mere allegations or denials of its pleading, but its response shall set forth specific facts showing that there is a genuine issue for trial. Id.

Valid and Enforceable Contract

In its first point, NECAC claims that the trial court erred in entering judgment in favor of St. Charles County because the Agreement was a valid and enforceable contract. NECAC argues that the Resolution authorizing the presiding judge of the court to enter into the Agreement with the other counties was within the scope of the St. Charles County Court’s power. Further, NECAC alleges that the Agreement, when signed, met the requirements of Section 432.070.

The Resolution passed contained five sections. Section 4 authorized the presiding judge and the county clerk to “make, execute and enter into a cooperative agreement pursuant to Section 70.010 RSMo., as amended, between this county and the [eleven other] counties ...” In 1978, Section 70.010 stated in its entirety:

Two or more, not exceeding ten, contiguous counties may join in performing any common function or service, including the purchase, construction and maintenance of hospitals, almshouses, road machinery and any other county property and may join in the common employment of any county officer or employee common to each of the counties. The county commissions shall administer the delegated powers and allocate the costs among the counties, (emphasis added).

When St. Charles County purported to join the other eleven counties in the Agreement, it became the twelfth county in the joint venture. Additionally, the Agreement signed by the Presiding Judge states that it is made “pursuant to the provisions of Chapter 70.010 to 70.220 RSMO as amended ...” though the Resolution granted the Presiding Judge the authority to enter into a cooperative agreement pursuant only to Section 70.010.

The trial court found that the Agreement was made with counties in excess of the number allowed by the referenced statute and that the Agreement contained a claim to authority under additional sections of the statute. Therefore, the trial court held that the Presiding Judge “went beyond the authority given him by the County Court” and his act in signing the Agreement was ultra vires, making it void and unenforceable. We agree.

“An agreement which produces no legal obligation is occasionally called a void contract.” Richaed A. LoRD, Williston on ContRacts, Section 1.20 at 49 (4th ed.1990). “If an agreement is void, it cannot be a contract, for the law will neither give a remedy for its breach, nor recognize as a duty its performance.” Id.

It is well settled law in Missouri that a contract made with a municipality in violation of the requirements in Section 432.070 is void. See Aquamsi Land Co. v. City of Cape Girardeau, 346 Mo. 524, 142 S.W.2d 332, 337 (1940); Needles v. Kansas City, 371 S.W.2d 300 (Mo.1963); Muncy v. City of O’Fallon, 145 S.W.3d 870, 873 (Mo.App. E.D.2004). Due to the fact that municipalities represent the public, the courts unhesitatingly should enforce compliance with all mandatory provisions of the statutes intended to protect municipalities and their inhabitants. Id. A contract is void where the public agency fails to follow proper procedures and exceeds its statutory authority. Miller v. Missouri Dept. of Transp., 32 S.W.3d 170, 176 (Mo.App. W.D.2000) (emphasis added). An ultra vires contract in its strict and true conception is one which is not within the power of the municipality to make. Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874, 879 (1943). “A contract of a corporation which is ultra vires, in the proper sense — that is to say, outside the object of its creation as defined in the law of its organization, and therefore beyond the powers conferred upon it by the Legislature — is not voidable only, but wholly void, and of no legal effect.” Id. The objection to the contract is not merely that the corporation ought not to have made it, but that it could not make it. Id. The contract cannot be ratified by either party, because it could not have been authorized by either. Id. No performance on either side can give the unlawful contract any validity, or be the foundation of any right of action upon it. Id. It is ultra vires for a Missouri municipality to incur a liability not within the scope of its corporate powers or one not expressly authorized by law. Id. at 882. A contract made in violation of the statute is void rather than voidable. Gill Constr., Inc. v. 18th & Vine Auth., 157 S.W.3d 699, 708 (Mo.App. W.D.2004). A contract is void where the public agency fails to follow proper procedures and exceeds its statutory authority. Miller, 32 S.W.3d at 176.

In the case before us, the Resolution authorized the Presiding Judge to sign an agreement only pursuant to Section 70.010. Thus, his act of signing an agreement pursuant to additional sections was outside his scope of authority, and therefore an ultra vires act. Additionally, the provisions of Section 70.010 authorize only ten counties to enter into a cooperative agreement to perform a common function or service. St. Charles County was the twelfth county to enter into the existing Agreement to administer Section 8 housing applications. Accordingly, we agree that these acts render the Agreement void and unenforceable.

The trial court provided additional findings that the Presiding Judge’s signature on the Agreement was an ultra vires act. First, the trial court noted the lack of an end date or term of years in the Agreement, commenting that neither the minutes of the meeting nor the Resolution itself showed that the County Court intended to enter into an agreement in perpetuity. Second, the trial court noted the inclusion of an essential term allowing participating counties to reallocate authorized housing units to other participating counties if a county withdrew from the Agreement. The court felt that this was a material term of the Agreement, not authorized in the minutes nor in the Resolution and its inclusion rendered the Agreement void and unenforceable. We find that the inclusion of counties in excess of the statute and the expanded authority under Chapter 70 are sufficient to render the Agreement void ab initio and unenforceable. Under de' novo review, it is unnecessary for us to review the court’s additional findings. This point is denied.

Proper Administrative Agency

In its second point relied on, NECAC claims that the trial court erred in entering judgment in favor of St. Charles County because NECAC is the proper administrative agency for the October 24, 1978 Agreement since North East Community has been dissolved and replaced in its function by NECAC. Further, NECAC argues that St. Charles County never objected to the substitution of NECAC as the administrative agency for the Agreement, and its claim to the contrary is barred by laches and waiver. Additionally, NECAC claims that Pike County, in its capacity as signatory county, entered into a written formal contract with NECAC on February 21, 2002, appointing NECAC as the administrative agency under the Agreement.

In the first point, we found that the contract is void ab initio. Accordingly, this point is now moot and we decline to discuss it further.

Estoppel

In its third point, NECAC alleges that the trial court erred in not applying the doctrine of estoppel to St. Charles County’s claims that the Resolution did not authorize the Agreement because St. Charles County Court had the power and authority to enter into the Agreement even if the Resolution constituted an irregular exercise of that power.

The fact that a municipality has received the benefit of a performance by the other party does not make the municipality liable either on the theory of ratification, estoppel or implied contract. Gill Constr., Inc., 157 S.W.3d at 708. “A municipality ... is not estopped by an act or contract which is beyond the scope of its corporate powers ... The doctrine of estoppel may not be applied against a municipal corporation ... under a contract which is void.” Donovan, 175 S.W.2d at 881 (quoting 31 C.J.S., Estoppel, p. 427, Section 143). Cities cannot be made liable, either on the theory of estoppel or implied contract, by reason of the accepting and using the benefits derived from void contracts. Donovan, 175 S.W.2d at 881. A void contract is a nullity, not even subject to ratification. Ellis v. Williams, 312 S.W.2d 97, 105 (Mo.1958).

In Union Mkt. Merchants Assoc. Inc. v. City of St. Louis, the Merchants Association attempted to use a 1978 lease-back agreement as its claim for relief and its defense against the City’s cancellation of the lease. 643 S.W.2d 72, 73 (Mo.App. E.D.1982). The court noted that the 1978 agreement, upon which was based the City’s liability resulting in the alleged credit, was not authorized by any municipal ordinance and was therefore a nullity. Id. Since the contract was a nullity and unenforceable, the court held that the City could not be liable. Id. Although the court noted that estoppel was not pleaded, it cited Donovan in holding that a municipality cannot be estopped by acts or contracts which violate statutory provisions. Id.

Similarly, in the case before us, the Agreement as it was written was not authorized by the Resolution, and is therefore a nullity. Because the Agreement is a nullity, it is unenforceable and St. Charles County cannot be held hable. The doctrine of estoppel cannot be applied to a null and void contract under Missouri law. This point is denied.

We affirm the judgment of the trial court.

ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J., concur.

      . All statutory references are to RSMo.1978, unless otherwise indicated. The current version of this statute is substantially similar.

      . In 1978, Section 432.070 read:
      No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.

      . Statutory reference is to RSMo.2004.


text:
    Theresa BREEDEN, et al., Respondents, v. HOGAN TRANSPORTS, INC., Appellant.
    No. ED 85731.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 2006.

      Christopher A. Allen, St. Louis, MO, for appellant.
    Roger K. Rea, St. Charles, MO, for respondents.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. . MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

In this personal-injury action, defendant Hogan Transports, Inc. appeals from the trial court’s judgment denying Hogan Transports’ motion to set aside a default judgment. The trial court found that Hogan Transports sufficiently alleged a meritorious defense, but failed to demonstrate good cause for Hogan Transports’ default. We have reviewed the parties’ briefs and the record on appeal. The record does not convincingly demonstrate that the trial court abused its discretion in denying Hogan Transports’ motion. An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for this order. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. James M. MYERS, Defendant/Appellant.
    No. ED 85688.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 21, 2006.
    Craig Johnston, Columbia, MO,’ for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Victor J. Melenbrink, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J.; LAWRENCE E. MOONEY and BOOKER T. £HAW, JJ.
   ORDER

PER CURIAM.

. The defendant, James Myers, appeals his conviction in the Circuit Court of St. Charles County of three counts of felonious restraint in violation of section 565.120 RSMo. (2000), three counts of armed criminal action in violation of section 571.015, and one count of unlawful use of a weapon in violation. of section 571.030. In two points on appeal, the defendant claims insufficient evidence and erroneous admission of his withdrawn guilty plea. Finding no error, we affirm.

We have reviewed the parties’ briefs and the record on appeal. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been provided with a memorandum, for their information only, setting forth the reasons for this order.

We affirm the trial court’s judgment pursuant to Rule 30.25(b).


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Teri McCALLUM, Respondent. v. Craig D. McCALLUM, Appellant.
    No. ED 85653.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 21, 2006.

      Michael A. Gross, Clayton, MO, for Appellant.
    Charles P. Todt, Tonya D. Fifer, Lisa M. Fuller, The Todt Law Firm, P.C., Clayton, MO, for Respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Craig D. McCallum (“Husband”), appeals the second amended dissolution judgment (“the second amended judgment”) of the Circuit Court of St. Louis County. On November 12, 2002, after a bench trial, the trial court entered an amended judgment (“the first amended judgment”) dissolving the marriage of Husband and Respondent, Teri McCallum (“Wife”). Subsequently, we reversed in part and affirmed in part the first amended judgment and remanded the case for further proceedings. Upon remand, the trial court ordered Husband to pay Wife $195,407 as reimbursement for money due under the first amended judgment, found that the original maintenance award did not need to be modified, and increased Husband’s child support obligation. We affirm.

Husband and Wife were married in 1985. Two children were born of the marriage: a son born in 1987 and a daughter born in 1990 (collectively “the two minor children”). In November of 2000, Wife filed a petition for dissolution of marriage.

A bench trial was held in October of 2001. On November 12, 2002, the trial court entered the first amended judgment dividing the marital property of Husband and Wife. The trial court awarded Husband $769,689 or 50.3% of the marital property and $760,378 or 49.7% of the marital property to Wife. The trial court specified that Wife was to receive $142,377 from the parties’ Bank of America brokerage and money manager accounts (collectively “the Bank of America accounts”), and $53,030 from the parties’ American Express financial services account (“the American Express account”).

The trial court awarded joint legal custody of the two minor children to both parents and primary physical custody to Wife. Husband was imputed income of $280,000 per year, and Wife was imputed income of $24,000 per year. Wife was awarded maintenance in the amount of $5,500 per month. Husband was also ordered to pay child support to Wife for the two minor children in the amount of $1,673 per month.

On January 8, 2003, Wife filed a motion to modify the first amended judgment praying, inter alia, that the trial court recalculate Husband’s child support obligation as the result of purported substantial and continuing changes. On September 15, 2003, Husband filed an amended motion to modify the first amended judgment praying, inter alia, that the trial court substantially decrease his maintenance obligation to Wife and reduce or abate his child support obligation.

In an opinion dated November 25, 2003 (“McCallum I ”), we reversed in part the first amended judgment of the trial court because the date of valuation of the marital assets divided was not reasonably proximate to the date of distribution of the assets. See McCallum v. McCallum, 128 S.W.3d 62, 67 (Mo.App. E.D.2003). In McCallum I, we indicated that the trial court heard evidence concerning valuation of marital property during the October 2001 bench trial and then valued the marital property in July of 2002, but the property division did not become effective until the November 12, 2002 first amended judgment was entered. Id. We also reversed the trial court’s award to Wife of $5,550 per month in maintenance so that the trial court, upon remand, had a full range of options. Id.

In July of 2004, pursuant to our remand of the case, the trial court held a hearing. At the same time, evidence was received on Husband and Wife’s motions to modify. In the second amended judgment, entered on November 23, 2004, the trial court ordered Husband to pay Wife $195,407 as reimbursement for money due under the first amended judgment. The trial court denied both Husband and Wife’s motions to modify maintenance by finding that the award to Wife of $5,550 per month in maintenance was still appropriate. However, the trial court granted Wife’s motion to modify child support by increasing Husband’s child support obligation to $2,435 per month for the two minor children. This appeal by Husband followed.

In reviewing this bench-tried case, we must affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. McCallum, 128 S.W.3d at 65. We view the evidence and the reasonable inferences therefrom in the light most favorable to the prevailing party. Id. We recognize the superior position of the trial court to judge the credibility and sincerity of witnesses. Krost v. Krost, 133 S.W.3d 117, 119 (Mo.App. E.D.2004). The trial court may accept all, part, or none of the testimony of a witness. Id.

In his first point on appeal, Husband claims the trial court erred in ordering him to pay Wife $195,407 as part of its distribution of marital assets.

If a spouse secretes or squanders marital property in anticipation of a divorce, the court has the authority to order reimbursement. Loomis v. Loomis, 158 S.W.3d 787, 791 (Mo.App. E.D.2005).

In the second amended judgment, Husband was ordered to pay Wife $142,377 to reimburse her for her interest in the Bank of America accounts and $53,030 for her interest in the American Express account for a total of $195,407. This was the same amount Wife was awarded, but never received, under the two accounts in the first amended judgment. The trial court found that Husband transferred or squandered the funds from the accounts “in anticipation of a final judgment awarding these funds to Wife.”

As indicated in the facts section above, in McCallum I we remanded this case to the trial court because the date of valuation of the marital assets divided was not reasonably proximate to the date of distribution of the assets. McCallum, 128 S.W.3d at 67. We stated that to distribute property without regard to market fluctuations would be illogical. Id. at 66.

At the hearing on remand, it was established that the values of the Bank of America accounts and the American Express account were substantially lower in November of 2002 than they were at the time of the October 2001 bench trial when evidence as to the valuation, of marital assets was received by the trial court. Thus, Husband claims that the award of $195,407 was not properly premised on the value of the marital property at the time of distribution of the property in November of 2002. However, Husband provided no evidence during the hearing on remand that the substantial reduction of the account balances was due to market forces.

Recent evidence indicates that, subsequent to the October 2001 hearing, Husband withdrew large sums of money from the Bank of America accounts and the American ■ Express account in order to make business investments. For example, in November and December of 2001, Husband transferred $64,000 from the Bank of America money manager account for investment in Ocean Walk Properties. In March of 2002, Husband transferred $150,000 from the same account to Penny Lefcowitz (an investor in Ocean Walk Properties). In May of 2002; Husband transferred $39,250 from the same account for investments in Flush Entertainment, World Entertainment, and Twilight Entertainment. -Husband also admitted at the July 2004 hearing that he closed out the American Express account and transferred the money to another account.

The trial court did not find credible Husband’s testimony that he received no return on some of the business investments he made with the money withdrawn from the accounts. There is substantial evidence indicating that the depletion of the Bank of America accounts and American Express account was the result, not of market fluctuation, but of Husband’s secreting or squandering of the assets in anticipation of dissolution. Therefore, the trial court did not err in ordering Husband to pay Wife $195,407 as part of its distribution of marital assets. Point denied.

In his second point on appeal, Husband asserts the trial court erred in reentering its original maintenance award of $5,500 per month in favor of Wife.

We review maintenance awards for an abuse of discretion. Bonenberger v. Bonenberger, 108 S.W.3d 729, 733 (Mo.App. E.D.2003). We will uphold the trial court’s maintenance award unless the amount of maintenance awarded is patently unwarranted or is wholly beyond the means of the spouse ordered to pay. Id. For purposes of making a maintenance determination, the trial court may consider both the past and present earnings of a spouse. Schroeder v. Schroeder, 924 S.W.2d 22, 27 (Mo.App. E.D.1996). In certain situations, the court may impute income to a spouse according to what he could earn by use of his best efforts to gain employment suitable to his capabilities. Id.

Husband argues that, to the extent the maintenance award of $5,500 per month is premised on the finding that Husband should still be imputed annual income of $280,000, the maintenance award was not supported by substantial evidence. Wife agrees that it is still appropriate to impute income of $24,000 a year to her despite the fact that she was unemployed at the time of the July 2004 hearing.

In the five year span from 1996 through 2000, the average annual income for Husband was in excess of $800,000. In 1998, Husband earned $213,020 even though he was not employed for part of that year. At the time of the October 2001 bench trial, Husband was employed as a Senior Vice President for Business Development at Protégé Group, earning an annual salary of $150,000, with the expectation of a bonus of $130,000 or more. At the time of the hearing upon remand in July of 2004, he was working for VistaWiz for a salary of $80,000 per year.

However, the trial court noted that throughout his career Husband has always earned income from business ventures and that salary has not always been his primary source of income. Husband admits that he has made investments throughout his career and it has worked out well, so that is what he continues to do. In addition to his current employment, Husband has invested substantial sums of money into certain companies, including Ocean Walk Properties. Furthermore, the trial court found that Husband failed to establish that he used “all reasonable efforts to generate the income imputed to him at the time of the 2002 dissolution judgment.” Thus, the trial court did not err in finding that Husband failed to establish substantial and continuing changes such that the continuation of the original maintenance order is unreasonable. Point denied.

In his third point on appeal, Husband contends the trial court abused its discretion in granting Wife’s motion to modify his child support obligation.

We will affirm the trial court’s judgment on a motion to modify child support absent a manifest abuse of discretion. Spencer v. Spencer, 126 S.W.3d 770, 772 (Mo.App. E.D.2004). A trial court may consider both past and present earnings in determining the ability of a non-custodial parent to pay child support. Hogrebe v. Hogrebe, 727 S.W.2d 193, 195 (Mo.App. E.D.1987).

In the first amended judgment, the trial court awarded Wife child support for the two minor children in the amount of $1,673 per month. In the second amended judgment, the trial court increased Husband’s child support obligation to $2,435 per month for the two minor children.

As indicated in the analysis of the previous point on appeal, the decision to continue to impute income of $280,000 per year to Husband is supported by evidence in the record. Additionally, before the second amended judgment was entered, Husband and Wife stipulated that Husband would no longer receive visitation credit for purposes of calculating child support. This stipulation caused a substantial change in the amount of monthly child support Husband has to pay Wife. Therefore, the trial court did not abuse its discretion in granting Wife’s motion to modify Husband’s child support obligation. Point denied.

Based upon the foregoing, we affirm the judgment of the trial court.

GEORGE W. DRAPER III, J. and KENNETH M. ROMINES, J., concur.