author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In re the Marriage of Roger Bradley CLARY, Petitioner-Respondent, v. Tracy Marie (Clary) ORELLANA, Respondent-Appellant.
    No. 26546.
    Missouri Court of Appeals, Southern District, Division One.
    July 29, 2005.

      Russell A. Ward, Joplin, for Appellant.
    Carrie E. Martsching, Kansas City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Tracy Marie (Clary) Orellana (“Mother”) appeals from a grant of custody awarding the custody of twin daughters to Roger Bradley Clary (“Father”). Mother’s initial point challenges the lack of statutorily mandated findings. We agree and reverse for the necessary findings.

Any doubt regarding whether the trial court is required to make specific written findings in a custody modification case was laid to rest by the Missouri Supreme Court’s decision in Speer v. Colon, 155 S.W.3d 60 (Mo. banc 2005). Because the parties had not agreed to the custodial arrangement, the trial court was required to include in its judgment written findings on the relevant factors based on the public policy in section 452.375.4 and the factors listed in section 452.375.2(1). Id. at 61-62. A claim that custody was not changed because the parties in this case were still designated joint physical custodians is to no avail. Written findings are necessary unless the parties have agreed to a custodial arrangement, which includes the residence address for the child. Buchanan v. Buchanan, No. 86662, 167 S.W.3d 698, 699, 2005 WL 1620477, at *3 (Mo. banc July 12, 2005), 2005 Mo. LEXIS 236, at *11. While these may be sub-issues of custody, if they are contested, the court must resolve the issue. Id.

We add an additional note that even if findings were not mandated by section 452.375.2, meaningful findings in this case would have been necessary for a resolution of this case because we found little in the evidence to support the trial court’s judgment. See In re Marriage of Cluck, 121 S.W.3d 271, 272-73 (Mo.App. S.D.2003) (finding that the appellate court was unable to review the decree because of the lack of meaningful findings). The trial court in this case signed the judgment proposed by Father; Mother did not submit a proposed judgment. In the judgment, the court made one finding:

Respondent relocated the primary residence of the minor children from Joplin, Missouri to Carthange [sic], Missouri without providing the required notice to Petitioner or obtaining his consent as required by Section 452.377 RSMo. did [sic] not provide notice of the new address and therefore is grounds for an automatic change in custody pursuant to Section 452.410 RSMo.

This finding alone is totally unsupported, both factually and legally, and cannot be the basis for a modification of custody. Section 452.410 does not mandate an automatic change in custody for failure to provide the required notice of section 452.377. In fact, section 452.410 indicates that the court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and the modification is necessary to serve the best interests of the child. There is no provision for an automatic change in custody.

Likewise, section 452.377 does not mandate an automatic change in custody for a failure to provide notice of a proposed relocation. Section 452.377.5 states:

The court shall consider a failure to provide notice of a proposed relocation of a child as: (1) A factor in determining whether custody and visitation should be modified; (2) A basis for ordering the return of the child if the relocation occurs without notice; and (3) Sufficient cause to order the party seeking to relocate the child to pay reasonable expenses and attorneys fees incurred by the party objecting to the relocation.

The facts of this case indicate why an automatic change in custody is unfeasible. The parties were awarded joint physical custody in the dissolution and, because the children were not in school, alternated almost equal periods of visitation; therefore, Father was a person to whom section 452.377 applied. Father had an equal duty to provide notice in writing by certified mail of any proposed relocations of his own. Father moved to Miami, Oklahoma, to live with his girlfriend in June 2003, without providing any notice to Mother and then in September to Grandview, Missouri, “to obtain employment and reside with his mother. At Mother’s request, the parties agreed to a change in the visitation schedule due to the substantial distance between Joplin and Grandview. Father did not file a motion to modify based on that change in the visitation schedule caused by his move. Mother’s move, from Joplin, Missouri, to Carthage, Missouri, however, caused no change in the original visitation schedule. Under the court’s reasoning, custody would have changed on three occasions of the three moves and yet no custodial plan would have been in place for either parent. Such a result is untenable. Clearly, the one finding in the decree is not supported by the evidence and is a misapplication of the law.

There are no other findings to warrant the custodial plan which the court put into place. We, therefore, reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

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

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of L.P.G.
    No. ED 84557.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 2, 2005.

      William P. Grant, Clayton, MO, for Appellant.
    Allan F. Stewart, Clayton, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and MARY K. HOFF, J., and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Patrick M. Gately (Father) appeals from the trial court’s judgment and decree of adoption establishing Father’s biological son, L.P.G. (Son), as the child of Robert Paul Hendrickson and Karen Landers Hendrickson.

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 would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b).

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


author: JOSEPH M. ELLIS, Judge.

text:
    Jeff MILLER, Respondent, v. Patrick Michael O’BRIEN, Respondent, and State Automobile Mutual Insurance Company, Appellant.
    No. WD 64230.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.

      Robert W. Cockerham, T. Michael Ward, Brown & James, P.C., St. Louis, MO, for appellant.
    J. Kirk Rahm, Warrensburg, MO, for respondent Miller.
    Collin C. Theis, Kansas City, MO, for respondent O’Brien.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

State Automobile Mutual Insurance Company (“State Auto”) appeals from a summary judgment entered in the Circuit Court of Johnson County in favor of Jeffery Miller in an equitable garnishment action he filed against State Auto and Patrick O’Brien to satisfy the unsatisfied portion of a judgment Miller obtained in a personal injury action against O’Brien. In the equitable garnishment action, Miller claimed that O’Brien was entitled to insurance coverage under an insurance policy issued by State Auto to O’Brien’s employer, Holden Animal Clinic, Inc. The trial court found that no material facts were in dispute, that O’Brien was an insured under the policy, that the accident was covered, and that Miller was entitled to judgment as a matter of law. For the following reasons, we reverse the trial court’s judgment.

On November 5, 2001, O’Brien was driving his truck to work at the Holden Animal Clinic when his truck left the road and struck Miller, who was walking alongside the road. Miller sustained significant injuries from this accident. On December 27, 2001, Miller filed a personal injury action against O’Brien and the Holden Animal Clinic in the Circuit Court of Johnson County, and on April 11, 2003, Miller obtained a judgment against O’Brien for $430,760.36 in that action.

At the time of the accident, Holden Animal Clinic was covered by a Business Owners Liability insurance policy issued by State Auto. After Miller obtained his judgment against O’Brien, he filed an equitable garnishment action against State Auto and O’Brien pursuant to § 379.200. After all three parties filed motions for summary judgment, the trial court granted the motion for summary judgment filed by Miller and entered its judgment against State Auto, finding that O’Brien was an “insured” under the State Auto policy and that the accident was covered by the policy. State Auto appeals from that judgment.

“The propriety of summary judgment is purely an issue of law which we review de novo on the record submitted and the law.” Pratt v. Seventy-One Hawthorne Place Assocs., L.P., 106 S.W.3d 608, 611 (Mo.App. W.D.2003) (internal quotations omitted). “Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law.” Missouri Employers Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 623 (Mo.App.W.D.2004). We will affirm the grant of summary judgment if the movant was entitled to judgment based on any ground raised in the summary judgment motion and supported by the record. Id.

State Auto raises one point on appeal; however, that point contains two distinct claims of error on the part of the trial court. Grouping multiple allegations of error in a single point relied on that do not relate to a single issue violates Rule 84.04(d). In re D.L.W., 133 S.W.3d 582, 584 (Mo.App. S.D.2004). A point relied on should contain only one issue, and parties should not group multiple contentions about different issues together into one point relied on. Woodson v. City of Independence, 124 S.W.3d 20, 25 (Mo.App.W.D.2004). However, while State Auto’s point relied on is deficient in this respect, the various claims of error are addressed separately within the argument and are clearly expressed. We, therefore, choose to review these claims of error despite this shortcoming in the point relied on. See Id.

In the first argument advanced, State Auto contends that, as a matter of law, O’Brien cannot properly have been found to be an “insured” as that term is defined in the policy. State Auto asserts that non-owned auto liability coverage under the policy was limited to partners and executive officers of Holden Animal Clinic and did not extend to ordinary employees.

Numerous provisions in the Busines-sowners Liability Coverage Form and two endorsements modifying that form are relevant to this inquiry. The “Who Is An Insured” section of the “Businessowners Liability Coverage Form” states that “[e]ach of the following is also an insured ... [y]our ‘employees’, other than either your ‘executive officers’ ... or your managers ..., but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.” Accordingly, under this provision, O’Brien would qualify as an additional insured so long as he was acting within the scope of his employment or was performing duties related to the animal clinic. The “Exclusions” section of the “Businessowners Liability Coverage Form”, however, states: “This insurance does not apply to ... g. ‘Bodily injury or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading and unloading.’ ” Thus, under the base policy form, no coverage would be afforded for any damages resulting from an automobile accident involving any insured, including O’Brien.

The “Businessowners Liability Plus Endorsement” states that it modifies the insurance provided under the “Businessown-ers Liability Coverage Form”. In relevant part, the “Businessowners Liability Plus Endorsement” states:

Section C. Who Is an Insured, paragraph 2.a. is replaced by the following:
a. Your “employees” or volunteer workers, other than either your “executive officers” ... or your managers ..., but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these “employees” is an insured for:
(1) “Bodily injury” or “personal injury”:
(a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), or to a co-employee” or co-volunteer worker while that co-“employee” or co-volunteer worker is either in the course of his or her employment or performing duties related to the conduct of your business;
(b) To the spouse, child, parent, brother or sister of that co-“employee” or co-volunteer worker as a consequence of paragraph (l)(a) above;
(c) For which there is any obligation to share damages with or repay someone else who must pay damage because of the injury described in paragraphs (l)(a) or (b); or
(d) Arising out of his or her providing or failing to provide professional health care services. However, if you have “employees” who are pharmacists in your retail drugstore operation, they are insured with respect to their providing or failing to provide professional health care service.
(2) “Property damage” to property:
(a) Owned, occupied or used by,
(b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your “employees” or volunteer workers, any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company).

The only change made to the “Busines-sowners Liability Coverage Form” by this provision was to change section 2.a.(l)(d) to provide coverage to employee pharmacists involved in the insured’s “retail drugstore operation” rather than those employed in the insured’s “retail druggist or drugstore operation”. The “Businessown-ers Liability Plus Endorsement” also provides that paragraph l.g.(2) of Section B. Exclusions is to be replaced to state:

This exclusion does not apply to:

(2) A watercraft you do not own that is:
(a) Less than 51 feet long; and
(b) Not being used to carry persons or property for a charge;

The “Businessowners Liability Plus Endorsement” also adds language to paragraph k of Section B. Exclusions to provide that paragraphs (3), (4) and (6) of the exclusion do not apply to property damage arising out of the use of elevators.

Finally, the “Hired Auto and Non-Owned Auto Liability” endorsement provides that it modifies the insurance provided in the Businessowners Policy. That endorsement states:

NON-OWNED AUTO LIABILITY
The insurance provided under the Bu-sinessowners Liability Coverage Form, Paragraph A.l. Business Liability, applies to “bodily injury” or “property damage” arising out of the use of any “non-owned” auto” in your business by any person other than you.

The endorsement defines a “Non-Owned Auto” as “any ‘auto’ you do not own, lease, hire or borrow which is used in connection with your business. However, if you are a partnership, a ‘non-owned auto’ does not include any ‘auto’ owned by any partner.” The “Hired Auto and Non-Owned Auto Liability” endorsement goes on to state:

For insurance provided by this endorsement only:
1. The exclusions, under the Busines-sowners Liability Coverage Form, Paragraph B.l. Applicable to Business Liability Coverages, other than exclusions a., b., d., f. and i. and the Nuclear Energy Liability Exclusion, are deleted and replaced by the following:
2. WHO IS AN INSURED in the Bu-sinessowners Liability Coverage Form, Paragraph C., is replaced by the following:
Each of the following is an insured under this endorsement to the extent set forth below:
a. You;
b. Any other person using a ‘hired auto’ with your permission;
c. For a ‘non-owned auto’, any partner or ‘executive officer’ of yours, but only while such ‘non-owned auto’ is being used in your business; and
d. Any other person or organization, but only for their liability because of acts or omissions of an insured under a., b. or c. above.
None of the following is an insured:
(2) Any partner or ‘executive officer’ for any ‘auto’ owned by such partner or officer or a member of his or her household;
(4) The owner or lessee (of whom you are a sublessee) of a ‘hired auto’ or the owner of a ‘non-owned auto’ or any agent or ‘employee’ of any such owner or lessee; ...

In its “Judgment as to Summary Judgment”, the trial court found that (1) O’Brien was an “insured” as defined under the liability plus endorsement because he was an employee performing duties in relate to the clinic at the time of the accident, (2) the truck was a “non-owned auto” as defined in the “Hired Auto and Non-Owned Auto Liability” endorsement, and (3) the auto exclusion in the base policy had been deleted by the “Hired Auto and Non-Owned Auto Liability” endorsement. The court found that the definition of an “insured” contained in the liability plus endorsement replaced the definition of “insured” contained in the “Hired Auto and Non-Owned Auto Liability” endorsement because the copyright date on the liability plus endorsement was later in time than that on the “Hired Auto and Non-Owned Auto Liability” endorsement and because the ambiguity created by the two definitions should be construed in favor of coverage. State Auto challenges these findings, asserting that the policy is not ambiguous and that O’Brien was clearly not an insured for purposes of the “Hired Auto and Non-Owned Auto Liability” endorsement.

“The general rules for interpretation of contracts apply to insurance policies.” Heringer v. American Family Mut. Ins. Co., 140 S.W.3d 100, 102 (Mo.App.W.D.2004). “The cardinal rule for the courts in interpreting a contract, including an insurance policy, is to effectuate the parties’ intent at the time of contracting.” Bailey v. Federated Mut. Ins. Co., 152 S.W.3d 355, 357 (Mo.App.W.D.2004).

“The language used in an insurance policy is to be given its plain meaning.” Farm Bureau Town & Country Ins. Co. v. Barker, 150 S.W.3d 103, 105 (Mo. App.W.D.2004). “The plain meaning of the words and phrases used in an insurance policy is not determined in isolation, but with reference to the context of the policy as a whole.” Id. at 105-06. “[I]n the absence of the existence of an ambiguity, appellate courts must enforce the policy as written, giving the language of the policy its ordinary meaning.” Trans World Airlines, Inc. v. Associated Aviation Underwriters, 58 S.W.3d 609, 622 (Mo.App.E.D.2001); See also Heringer, 140 S.W.3d at 102 (“If an insurance policy is unambiguous, it is enforced as wiitten absent a statute or public policy requiring coverage.”). “We do not apply rules of construction unless a contract’s language is ambiguous.” Bailey, 152 S.W.3d at 357.

“Whether an insurance contract is ambiguous is a question of law.” Barker, 150 S.W.3d at 106. “The provisions of an insurance policy are ambiguous when, due to duplicity, indistinctness, or uncertainty in the meaning of the words used, the policy is reasonably open to different constructions.” Id. “To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy.” Heringer, 140 S.W.3d at 103. “[C]ourts are not authorized to pervert language or exercise inventive powers for the purpose of creating an ambiguity when none exists.” Barker, 150 S.W.3d at 106 (internal quotations omitted).

As noted supra, the court found that the separate definitions of an “insured” found in the liability plus endorsement and the “Hired Auto and Non-Owned Auto Liability” endorsement created an ambiguity in the policy. The court then deemed the definition found in the liability plus endorsement to have replaced that contained in the “Hired Auto and Non-Owned Auto Liability” endorsement based upon the principle that ambiguities should be construed in favor of coverage and on the fact that the copyright date on the liability plus endorsement was later in time than the “Hired Auto and Non-Owned Auto Liability” endorsement. The trial court found that O’Brien was an “insured” as defined in the liability plus endorsement because he was an employee performing duties related to the clinic at the time of the accident and that the truck he was driving was a “non-owned auto” as defined in the “Hired Auto and Non-Owned Auto Liability” endorsement. The court also found that the auto exclusion in the base policy had been deleted by the “Hired Auto and Non-Owned Auto Liability” endorsement.

The trial court’s interpretation of the policy, however, is not consistent with the plain language of the policy. The Busines-sowners Liability Coverage Form defines “who is an insured” under the policy. The liability plus endorsement specifically replaces the language in “Section C. Who Is an Insured, paragraph 2.a.” of the Bu-sinessowners Liability Coverage Form, making some subtle changes to the definition of an insured under the policy. Thus, the liability plus endorsement modified the definition of an insured contained in a specific portion of the base policy form.

The express language of the “Hired Auto and Non-Owned Auto Liability” endorsement, on the other hand, provides a different definition of “who is an insured” from the definition provided in the base policy “for insurance provided by this endorsement only ”. The language contained in the definition specifically states, “Each of the following is an insured under this endorsement ...” (emphasis added). Accordingly, the endorsement clearly provides that “who is an insured” under the endorsement differs from “who is an insured” under the base policy.

Regardless of when the liability plus endorsement was drafted or copyrighted or where it was placed in the order of the forms comprising the policy, the language of that endorsement cannot be read to intend for its definition of “who is an insured” to supplant the definition provided for in the “Hired Auto and Non-Owned Auto Liability” endorsement. The language of the liability plus endorsement was clearly limited to replacing a specific portion of the language in the base policy and did not purport to alter any language contained in any other endorsement. The “Hired Auto and Non-Owned Auto Liability” endorsement clearly and plainly contains its own definition of “who is an insured” with regard to who is covered by the supplemental insurance provided by that endorsement. Neither the liability plus endorsement nor the “Hired Auto and Non-Owned Auto Liability” endorsement is reasonably open to the interpretation afforded by the trial court that the definition of “who is an insured”, as modified by the liability plus endorsement, was meant by the parties to supplant the definition of “who is an insured” in the “Hired Auto and Non-Owned Auto Liability” endorsement. Accordingly, the provisions of the policy defining “who is an insured” for purposes of the coverage afforded under the “Hired Auto and Non-Owned Auto Liability” endorsement is not ambiguous, and the trial court erred in finding to the contrary.

O’Brien simply does not fall within the parameters of “who is an insured” as set forth in the “Hired Auto and Non-Owned Auto Liability” endorsement since he is not a named insured, a partner or executive officer of a named insured, or a person using a “hired auto” with the insured’s permission. In fact, as the owner of the “non-owned auto” involved in the accident, the endorsement specifically excludes him from being considered an insured. In this regard, the endorsement states: “None of the following is an insured: ... The owner or lessee ... of a ‘hired auto’ or the owner of a ‘non-owned auto’ or any agent or ‘employee’ of any such owner or lessee.” (emphasis added). As O’Brien does not qualify as an insured under this endorsement, the endorsement does not afford coverage to pay the judgment entered against O’Brien in favor of Miller.

In similar fashion, the trial court also erred in finding that the auto exclusion contained in the Businessowners Liability Coverage Form was deleted for all purposes by the “Hired Auto and Non-Owned Auto Liability” endorsement. The language of the endorsement specifically provides that the auto exclusion (among others) is deleted “[fjor insurance provided by this endorsement only.” This plain language does not provide for the auto exclusion to be generally removed from the policy and is only applicable to coverage provided under the “Hired Auto and Non-Owned Auto Liability” endorsement.

Furthermore, “[t]he plain meaning of the words and phrases used in an insurance policy is not determined in isolation, but with reference to the context of the policy as a whole.” Barker, 150 S.W.3d at 105-06. “Thus, in determining the meaning of the words and phrases of an insurance policy, ‘the court will not isolate ambiguous phrases, but will read the policy as a whole giving every clause some meaning if it is reasonably able to do so.’ ” Id. at 106 (quoting Mazzocchio v. Pohlman, 861 S.W.2d 208, 210-11 (Mo.App. E.D.1993)).

The coverage provisions of the “Hired Auto and Non-Owned Auto Liability” endorsement would be rendered meaningless if the deletion of the automobile exclusion were read to apply to the base policy. The endorsement specifically states that “[t]he insurance provided under the Busines-sowners Liability Coverage Form, Paragraph A.l. Business Liability, applies to ‘bodily injury' or ‘property damage’ arising out of the use of any ‘non-owned auto’ in [the named insured’s] business by any person other than [the named insured].” To read the deletion of the auto exclusion as applying to all of the coverage provided by the base policy, as opposed to just the coverage provided by the “Hired Auto and Non-Owned Auto Liability” endorsement, would provide the insured with coverage for “bodily injury” or “property damage” resulting from an automobile accident involving any vehicle driven by the insureds or anyone else and would not be limited to hired or non-owned automobiles operated by persons other than the named insureds. This would render meaningless the language of the endorsement providing coverage for bodily injury or property damage arising out of the use of a non-owned automobile in the insured’s business by a person other than the insured. Such was clearly not the intent of the language contained in the “Hired Auto and Non-Owned Auto Liability” endorsement.

Having determined that O’Brien was not, as a matter of law, an insured under the policy for the purposes of the automobile accident, we need not address State Auto’s remaining claims of error.

The trial court’s judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

All concur.

      . The jury also awarded Miller’s wife $10,000.00 in her claim for loss of consortium.

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

      .The court also denied State Auto’s motion for summary judgment and motion to dismiss.


text:
    Kara JONUSAS, Respondent, v. Vytas JONUSAS, Appellant.
    No. WD 63608.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.

      Sandra Grant Hessenflow, Kansas City, MO, for appellant.
    Terry E. Morgan, Overland Park, KS, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   JOSEPH M. ELLIS, Judge.

Vytas Jonusas (“Husband”) appeals from a judgment entered in the Circuit Court of Jackson County dissolving his marriage to Kara Jonusas (“Wife”). Specifically, Husband challenges the trial court’s finding that a salary of $150,000 per year should be imputed to Husband and its award of $2,537 in child support and $1,500 per month in maintenance to Wife. Husband further challenges the judgment, asserting that the trial court improperly failed to properly divide the assets and debts of the marriage. For the following reasons, the appeal is dismissed.

Husband and Wife were married on April 22, 1995. Four children were born to the couple: Alexandria, born December 22, 1993; Claudia, born October 17, 1995; Zachary, born November 8, 1996; and Jacob, born July 15,1998.

Husband and Wife separated on January 1, 2001, and two years later, on January 27, 2003, Wife filed her Petition for Dissolution of Marriage. In her petition, Wife asked the court to dissolve the marriage, to award the couple joint legal custody of the children, to award her sole physical custody of the children, to divide the marital property and debts, and to award child support and maintenance. Husband timely filed an answer and counter-petition.

Shortly before trial, Husband’s counsel was granted leave to withdraw as counsel for Husband, and, subsequently, Husband tried the case pro se. The case was heard by the trial court on September 5, October 10, and November 5, 2008.

On November 10, 2003, the trial court issued its Judgment of Dissolution of Marriage. In addition to dissolving the parties’ marriage, the trial court awarded joint legal custody of the children to Husband and Wife, but named Wife them sole physical custodian with visitation granted to Husband. The trial court imputed $150,000 per year in salary to Husband and ordered Husband to pay $2,537 per month in child support. The court also ordered Husband to pay Wife $1,500 per month in maintenance for a period of three years. Husband brings three points on appeal from that judgment.

Before addressing any of Husband’s points on appeal, however, we must consider whether the judgment of the trial court is final and appealable. Husband has raised issues related to the finality of the trial court’s judgment both in his third point and in a separate motion to this court. Moreover, “the finality of a judgment is a jurisdictional prerequisite and it is the duty of this court sua sponte to determine its jurisdiction.” Crawford v. Crawford, 31 S.W.3d 451, 453 (Mo.App.W.D.2000). ‘When a trial court’s judgment is not final, an appellate court lacks jurisdiction, and the appeal must be dismissed.” Michel v. Michel, 94 S.W.3d 485, 488 (Mo.App. S.D. banc 2003); see also McCord v. McCord, 75 S.W.3d 854, 856 (Mo.App.W.D.2002); Crawford, 31 S.W.3d at 453.

When entering a decree of dissolution, Section 452.330.1 provides that the trial court “shall set apart to each spouse such spouse’s nonmarital property and shall divide the marital property and marital debt in such proportions as the court deems just.” In so doing, “the trial court must make specific findings as to whether each asset before the court is marital property subject to division, is non-marital property to be set aside, or is property over which the dissolution court has no control.” Tank v. Tank, 109 S.W.3d 188, 189 (Mo.App.E.D.2003). The court is then required to set apart to each spouse each spouse’s non-marital property and to divide the marital property and debt as it deems just. McAllister v. McAllister, 101 S.W.3d 287, 293 (Mo.App.E.D.2003); Michel, 94 S.W.3d at 488. Moreover, “ ‘[t]he trial court must make a distribution of marital property that is definite and capable of enforcement.’ ” McCord, 75 S.W.3d at 856 (quoting Crawford, 31 S.W.3d at 453). ‘Without such findings, this Court cannot adequately determine whether the division of property is just.” Tank, 109 S.W.3d at 189.

“Countless decisions hold that a trial court, not fully dividing the property of the dissolution participants, does not exhaust its jurisdiction; consequently, such decrees are not final judgments from which an appeal can be taken.” Michel, 94 S.W.3d at 488. Hence, a dissolution decree is not final and appealable unless it disposes of all of the marital property and debts. Id.

In their respective petitions for dissolution, both Husband and Wife averred that the parties had accumulated marital property and marital debts over the course of the marriage and requested that the court divide all of the marital property and debts in a fair and equitable manner. At trial, Wife introduced into evidence a statement of marital and nonmarital assets and debts, and, while testimony related to the marital property was sparse, testimony was offered by the parties about bank accounts held by the couple during the marriage and debts that had been incurred during the course of the marriage. Despite the parties’ request that the court divide the marital property and debts and evidence indicating the existence of at least some marital property and marital debts, in its decree of dissolution, the only reference made by the trial court to the couple’s marital property and debts was a finding that “[t]he marital property has been equitably distributed by the parties.”

That finding does not satisfy the trial court’s obligation to equitably divide all of the couple’s marital property and debts in a manner that is definite and capable of enforcement. The judgment references only the marital property. No findings were made related to any of the debts that were testified to at trial as having been incurred during the course of the marriage, either dividing those debts or declaring them to be nonmarital or nonexistent. Accordingly, the judgment cannot be viewed as having divided all of the marital debts as required by § 452.330.1. Garrett-Oliver v. Oliver, 113 S.W.3d 698, 698 (Mo.App. S.D.2003). Because the trial court made an incomplete finding by not dividing all of the marital assets and debts, “the trial court has not exhausted its jurisdiction, it has not disposed of all issues, and its judgment is not a final judgment from which an appeal can be taken.” Michel, 94 S.W.3d at 489.

Moreover, the portion of the judgment related to marital property is neither definite nor is it capable of enforcement, and it is insufficient to allow this Court to review the fairness of the distribution. Accordingly, the lack of definiteness in the judgment related to what marital property was awarded to each spouse likewise results in a failure of the judgment to properly distribute the marital property and warrants dismissal of the action. See Hird v. Hird, 872 S.W.2d 605, 606 (Mo.App.W.D.1994).

For the foregoing reasons, we must dismiss Husband’s appeal. Teeter v. Teeter, 114 S.W.3d 882, 883 (Mo.App.S.D.2003); Bird, 872 S.W.2d at 606. ‘“The effect of this dismissal is to recognize the jurisdiction of the trial court to enter a new judgment covering the entire ease.’ ” McCord, 75 S.W.3d at 858 (quoting Crawford, 31 S.W.3d at 453). Because the trial court has not been divested of jurisdiction, that court retains control over every phase of the case so that it may correct errors, or, in its discretion, modify or set aside orders or judgments until its jurisdiction is extinguished by the judgment becoming final and appealable. Reynolds v. Reynolds, 109 S.W.3d 258, 270 (Mo.App.W.D.2003). “Either or both of the parties will then have the right to appeal the circuit court’s new decree of dissolution.” Livingston v. Livingston, 58 S.W.3d 687, 689 (Mo.App.W.D.2001).

The appeal is dismissed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

All concur.

      ."Until § 452.330.1 was amended in 1998, trial courts were not statutorily obligated to allocate marital debts because debts incurred during marriage were not marital property.” Michel v. Michel, 94 S.W.3d 485, 488 (Mo. App. S.D.2003). "However, the 1998 amendment to the statute requires a trial court to divide ‘the marital property and marital debts.’" Id. (emphasis in original). "The 1998 amendment to § 452.330.1 is a clear, unmistakable expression of the legislative intent to make the division of marital debts an issue in a dissolution case much like it had previously made the division of marital property an issue in such litigation.” Id. Hence, “a dissolution decree can only be final and appealable if it disposes of marital debts.” Id. at 489.

      . Because it is impossible to review the fairness of the division or to even ascertain the extent of the property and debt assigned to each spouse under the judgment, this Court would likewise be unable to fully review the propriety of the maintenance award because "in determining the amount of maintenance the trial court necessarily must consider the property division.” Elrod v. Elrod, 144 S.W.3d 373, 381 (Mo.App.S.D.2004).

      . In Hird v. Hird, 872 S.W.2d 605, 605 (Mo.App.W.D.1994), the trial court found that the wife had liquidated $41,718.10 in assets and either gave the money to her husband or kept it herself, depending upon whose testimony was to believed. The judgment stated that the court could not determine who was in possession of that money. Id. The trial court awarded half of that money to husband and half to wife, ordering whoever was in possession of the money to convey half of the money to the other spouse. Id. at 605-06. This Court held that this money remained undivided and un-disposed because the trial court’s judgment could not be enforced. Id. at 606.


text:
    Phillip DEMAY, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85677.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 2, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Movant, Phillip Demay, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. On appeal, movant alleges his guilty plea was involuntary because his counsel failed to locate, interview, and endorse three witnesses.

The trial court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri ex rel. Clay CROWE, Respondent, v. MISSOURI STATE HIGHWAY PATROL, Appellant.
    No. WD 64374.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.

      Charles S. Birmingham, Assistant Attorney General, Jefferson City, MO, for appellant.
    Timothy W. Van Ronzelen, Jefferson City, MO, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   JOSEPH M. ELLIS, Judge.

The Missouri State Highway Patrol appeals from a judgment entered in the Circuit Court of Cole County reversing the Highway Patrol’s suspension of Sergeant Clay Crowe for eight hours without pay. For the following reasons, we reverse the circuit court’s decision and order the suspension reinstated.

The facts surrounding the underlying incident are essentially undisputed. On February 5, 2003, Sgt. Crowe was serving as sniper for the SERT team in Troop D of the Highway Patrol when he was dispatched to assist Dallas County deputies in serving a high-risk arrest warrant on Jim Payne, who was wanted on numerous arrest warrants and was believed to be armed and dangerous. Sgt. Crowe took up a position outside of the house where Payne was thought to be located in order to provide cover to the deputies serving the warrant. After the house was surrounded, Deputy Harold Thieson attempted to contact Payne using the loud speaker on his patrol car. Eventually, Payne’s sister-in-law, Zoe Huber, the owner of the residence, came out of the back door of the house and spoke with Deputy Thieson. Ms. Huber told the deputies that Payne was in the house but that he refused to come out. She also told the deputies that Payne was not armed.

Deputies then entered the house. Shortly thereafter, Deputy Bobby Sharp waved Sgt. Crowe to the rear of the house and informed Sgt. Crowe that Payne was in the house and was pointing a handgun in his mouth. Deputy Sharp asked Sgt. Crowe to provide cover for the deputies inside. After being unable to find a window that did not have the blinds drawn, Sgt. Crowe entered the house through the back door. Sgt. Crowe saw two deputies at the end of a hallway. Beyond the deputies, Sgt. Crowe could see Payne sitting in a chair in the living room with a handgun in his mouth. Sgt. Crowe heard Payne threatening to take his own life and refusing to comply with the Deputies’ repeated requests that he put down his weapon. At one point, Payne stated that he was not going back to prison and told the deputies, “I wish you guys would just go ahead and kill me.”

Sgt. Crowe and a deputy then asked Ms. Huber to talk to Payne. Ms. Huber was unsuccessful in convincing Payne to put down his gun. As Ms. Huber was leaving the house, Sgt. Crowe asked her if Payne was capable of taking his own .life. She responded that she felt sure he was very capable of doing so.

Sgt. Crowe then slowly crossed the room, in plain sight of Payne, and took up a position by the stove, where he had a clear view of Payne’s profile. Sgt. Crowe asked deputies to make sure no one was on the west side of the house, which would be in his line of fire. Sgt. Crowe observed Payne close his eyes and place the weapon in his mouth. Payne then began to take deep, deliberate breaths and appeared to be squeezing the trigger tighter with his right thumb.

Sgt. Crowe then attempted to talk with Payne in an effort to get him to put down his gun and asked Payne if he had children. After Payne said he had a son, Sgt. Crow offered to get Payne’s son on the phone. Payne responded that he did not want his family involved in what he was about to do. Eventually, Payne stopped responding to Sgt. Crowe. Shortly thereafter, Payne then tilted his head back, closed his eyes and started stroking the gun with his hand while the barrel was in his mouth and his thumb was on the trigger. Payne then began to visibly apply more pressure to the trigger of the weapon.

Believing that Payne was in immediate danger of killing himself, Sgt. Crowe fired one round from his rifle from a distance of approximately 13' 6" in an attempt to disarm Payne. The round struck the handgun along with Payne’s right hand in the webbing between his thumb and forefinger. The shot dislodged the gun from Payne’s hand and sent it flying across the room. Deputies them rushed Payne and restrained him. Payne was examined by paramedics at the scene and was subsequently treated at the hospital for a superficial wound to his hand.

Pursuant to Highway Patrol policy, the shooting was investigated and the report was forwarded to the Use of Force Review Board, which is empowered to examine the evidence that was collected, further investigate the incident, to classify the use of force as justified or unjustified, and, if the use of force is determined to be unjustified, to recommend disciplinary action. Subsequently, the Review Board issued its report in which it found that Sgt. Crowe “decided on a plan of action he was not trained for, that involved considerable risk, which did not rise to the level of using deadly force and created considerable liability for himself and the Highway Patrol. The use of force was not justified and Sergeant Crowe will receive a suspension of pay for eight hours.... ”

Sgt. Crowe appealed the Review Board’s recommendation of discipline. Subsequently, Superintendent Roger Stottle-myre affirmed the Use of Force Review Board’s decision and suspended Crowe for eight hours without pay. In rendering that decision, the Superintendent stated: “Sergeant Crowe, as a supervisor, must realize his actions were not in compliance with Patrol rules and regulations. Even though this incident did not cause the loss of life, by not following established policy and practices, it could have easily had a disastrous outcome.”

Sgt. Crowe filed a Petition for Writ of Certiorari in the Circuit Court of Cole County seeking review of this non-contested administrative decision pursuant to § 536.150. The case was tried to the court on June 17, 2004. That same day, the trial court entered its judgment, finding that Crowe’s “use of force with respect to Mr. James Payne was justifiable” and concluding that the Highway Patrol’s “imposition of discipline upon [Crowe] for that use of force is unlawful, unreasonable, arbitrary and capricious, and an abuse of discretion.” The court ordered the Highway Patrol to rescind the discipline imposed, to remove any mention of the discipline from Crowe’s personnel file, and to return any salary that had been withheld from Crowe as a result of the discipline imposed.

On appeal from the circuit court’s judgment, the Highway Patrol contends that the trial court erred in ordering it to rescind Sgt. Crowe’s suspension. The Highway Patrol argues that the trial court improperly substituted its discretion for the discretion legally vested in the Superintendent and that the Superintendent could not be found to have abused his discretion in issuing the eight-hour suspension of Sgt. Crowe.

The parties concede, as they must, that Sgt. Crowe’s suspension was the result of a non-contested administrative action and that the trial court properly reviewed the matter pursuant to § 586.150. “[T]he role of the circuit court on review of an administrative decision in a noncontested case is more encompassing than on a review of a contested case.” State ex rel. Rice v. Bishop, 858 S.W.2d 732, 735 (Mo.App.W.D.1993). “In non-contested cases the circuit court conducts a de novo review in which it hears evidence on the merits of the case, makes a record, determines the facts, and decides whether, in view of those facts, the [administrative officerj’s decision is unconstitutional, unlawful, unreasonable, arbitrary, capricious, or otherwise involves an abuse of discretion as set out in section 536.150.1.” State ex rel. Stewart v. Civil Serv. Comm’n of St. Louis, 120 S.W.3d 279, 283 (Mo.App. E.D. 2003). “The circuit court does not defer to facts found or credibility assessed by the agency and need not conform doubtful evidence to the agency’s decision.” Missouri Nat’l Educ. Ass’n v. Missouri State Bd. of Educ., 34 S.W.3d 266, 274 (Mo.App. W.D. 2000). “[T]he trial court determines the evidence and renders judgment from that evidence.” Legal Communications Corp. v. St. Louis County Printing & Publ’g Co., 24 S.W.3d 744, 750 (Mo.App.E.D.2000). The circuit court is to determine the evidence and, on the facts as found, adjudge the validity of the administrative decision. Rice, 858 S.W.2d at 736.

However, the “sweep of adjudicative prerogative accorded a circuit court by § 536.150.1 is foreshortened where the review involves the exercise of discretion.” Id. “The provision in § 536.150.1, that in such a judicial inquiry ‘the court shall not substitute its discretion for discretion legally vested’ in the administrative officer confines the judgment to ‘exclusively legal considerations.’ ” Id.; see also Missouri Nat’l Educ. Ass’n, 34 S.W.3d at 280. “It thereby takes care that the court not infringe on an authority reserved to the legislative or executive branches.” Rice, 858 S.W.2d at 736.

“In a noncontested case, this court reviews the judgment of the trial court and not the agency, and thus the standard of review is the same as in any other court-tried case.” Hundley v. Wenzel, 59 S.W.3d 1, 5 (Mo.App.W.D.2001). “Thus, the scope of appellate review is governed by Rule 73.01 as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).” Missouri Nat’l Educ. Ass’n, 34 S.W.3d at 274-75. The trial court’s judgment will be affirmed “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.” Legal Communications Corp., 24 S.W.3d at 750. “Accordingly, the appellate court reviews the circuit court’s judgment to determine whether its findings that the agency decision was or was not unconstitutional, unlawful, unreasonable, arbitrary, capricious, or the product of an abuse of discretion rests on substantial evidence and correctly declares and applies the law.” Missouri Nat’l Educ. Ass’n, 34 S.W.3d at 275.

Sgt. Crowe maintains, as he did before the trial court, that his actions conformed to the provisions of the general order in that it was reasonable to believe that Payne was about to shoot himself and that the uncontroverted evidence established that he fired his rifle in an attempt to defend Payne’s life. Sgt. Crowe further asserts that he could not properly be disciplined by the Superintendent if his actions did not violate the provisions of the general order on the use of force.

Pursuant to his legislatively granted authority, the Superintendent issued a General Order addressing the use of force by members of the Highway Patrol. General Order No. 01-04-0897 addressing the use of force states that the policy of the Highway Patrol is “[t]o place the highest value on human life and the safety of the public and Patrol employees, thereby using only the amount of force which is reasonable and necessary to accomplish lawful purposes.” The General Order provides that, when force is necessary, enforcement personnel are to use only the force necessary to effect lawful objectives. With regard to the use of deadly force, the General order dictates:

Officers are authorized to use deadly force against persons, including fleeing felons, only when they reasonably believe such action is in defense of human life (including their own) or in defense of any person in immediate danger of serious physical injury or death.

The General Order further states that:

[w]hen the use of force is authorized, officers should consider a progressive range of options for which they have been trained or equipped. Officers are not restricted to these options, nor must they use them in a particular sequence. Available options include:
1. Professional presence of the officer or a Patrol canine
2. Tactical communication including verbal dialogue, requests, instructions, and commands
3. Tire deflation devices, to encourage the safe stopping of fleeing vehicles
4. Physical force which causes little or no pain, such as using empty hands
5. OC aerosol
6. Level I of the lateral vascular neck restraint and the shoulder pin restraint
7. Physical force which causes moderate or greater pain
8. Chemical irritants such as tear gas, CN, and CS
9. Immediate force, including physical strikes and Levels II and III of the lateral vascular neck restraint and the shoulder pin restraint
10. Strikes using an approved baton, contact by a Patrol canine, SERT bean bag rounds, and similar force impact
11. Deadly force.

The General Order goes on to provide that “[t]he decision to use a firearm must be based on facts and the totality of circumstances known to the officer involved at the time.”

The trial court found that, under the facts, Sgt. Crowe’s use of his weapon was justifiable, and, on that basis, the court concluded that the suspension was “unlawful, unreasonable, arbitrary and capricious, and an abuse of discretion.” Thus, the trial court’s decision appears to have rested upon a determination that Sgt. Crowe could not be suspended if the shooting was justifiable and the general order on the use of force was not violated. To the extent the trial court so concluded, it erred as a matter of law.

With regard to the powers granted to the Superintendent, Section 43.030.2 provides that “[t]he superintendent of the Missouri state highway patrol shall ... [hjave command of the patrol and perform all duties imposed on the superintendent and exercise all of the powers and authority conferred upon the superintendent by the provisions of this chapter and the requirements of chapter 650, RSMo.” Section 43.120.1 states that “[t]he superintendent shall prescribe rules for instruction and discipline and make all administrative rules and regulations.” Finally, Section 43.150 sets forth the procedures for discipline of the members of the highway patrol and provides, in pertinent part, that “[n]o hearings shall be required in the case of reprimands or suspensions of three days or less which may be imposed at the discretion of the superintendent.” (emphasis added).

Thus, regardless of whether Sgt. Crowe’s use of force was justifiable and/or in compliance with the general order on the use of force, the Superintendent’s authority to issue a suspension of three days or less was not restricted to such instances. In contrast to suspensions for more than three days, which may only be imposed “for cause” after a formal charge has been made and a hearing has been conducted before a six-member board, suspensions of three days or less “may be imposed at the discretion of the superintendent” and do not require a hearing. § J/,3.150.1. “It is an act of judgment typically prompted by the public interest in a disciplined and effective police force, and other such extra-legal considerations, that determine the exercise of such a discretion.” Rice, 858 S.W.2d at 736. This is precisely the type of discretion granted by the legislature to an administrative officer for which the trial court cannot substitute its own discretion under § 536.150.1. Id. at 738.

Because the trial court is prohibited from substituting its discretion for that legally vested in the Superintendent, the trial court’s review should have been confined to the “exclusively legal considerations” of whether the suspension was unconstitutional, unlawful, unreasonable, arbitrary, capricious, or otherwise involved an abuse of discretion. Id. at 736. Thus, the trial court was limited to determining whether the Superintendent could properly have suspended Sgt. Crowe under the facts as found by the court.

At trial, the Highway Patrol introduced into evidence deposition testimony from the Superintendent; Sergeant Carl Land, who provides training to highway patrol personnel; and Lieutenant Robert Roth-rock, the team commander of Sgt. Clay’s SERT team. All three testified that the decision to pull the trigger under the circumstances facing Sgt. Crowe posed significant risks. They indicated that the bullet might have struck Payne somewhere other than the hand, that a ricochet was possible, and that the bullet from Sgt. Crowe’s gun could have caused Payne’s weapon to discharge or caused Payne to involuntarily pull the trigger. The Superintendent noted that “as many times as not [Payne’s] gun is going to go off.” The Superintendent testified that officers are not trained to use deadly force to protect an individual who is threatening suicide because the risks involved cannot be justified. Sgt. Land and Lt. Rothrock testified that officers are trained to maintain cover and attempt to negotiate in situations like this, and Sgt. Land stated that Sgt. Crowe exercised poor judgment and put himself at risk in deciding to cross the room in plain view of Payne to get into position to make the shot. Sgt. Crowe did not present any evidence to contradict the foregoing testimony.

Thus, even assuming that Sgt. Crowe reasonably believed that Payne was about to kill himself, that he had a legitimate chance of disarming Payne, and that he acted in a heroic and selfless manner, there were still sufficient reasons for the Superintendent to have determined that Sgt. Crowe exercised poor judgment and acted in a manner that was not consistent with Highway Patrol training in taking the shot and, therefore, to have exercised his discretion to suspend Sgt. Crowe. The trial court’s determination that the suspension was unlawful, unreasonable, arbitrary, capricious, and the product of an abuse of discretion is not supported by substantial evidence on the record and is against the weight of the evidence. The Superintendent’s imposition of an eight-hour suspension without pay was well within the legally vested discretion afforded to him by § 43.150.1, and the trial court had no authority to substitute its own discretion for that of the Superintendent. Rice, 858 S.W.2d at 738.

The judgment of the trial court is reversed, and the cause is remanded to the trial court with directions to enter judgment affirming the decision of the Superintendent.

All concur.

      . Indeed, most of the facts surrounding the incident are established by a joint stipulation of facts filed by the parties, though additional evidence was presented to the trial court.

      . In determining whether the use of force was reasonable, the applicable General Order issued by the Superintendent of the Highway Patrol sets forth the following guidelines:
      The reasonableness of a particular use of force will be reviewed from the perspective of a reasonable officer in that situation. The proper application of force requires careful attention to the facts and circumstances specifically known to the officer involved at the moment the force was used, including:
      1. whether the suspect posed an immediate threat to the safety of the officer or others.
      2. the severity of the incident.
      3. whether the suspect was physically resisting arrest in an aggressive manner.

      . All statutory references are to RSMo 2000 unless otherwise noted. Section 536.150.1 provides:
      When any administrative officer or body existing under the constitution or by statute ... shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person ... and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body....

      . "Uncontested cases for which no other method of judicial review is provided are subject to judicial review under Section 536.150 of the Administrative Procedure and Review Act.” State ex rel. Nance v. Board of Trustees for Firefighters' Ret. Sys. of Kansas City, 961 S.W.2d 90, 92 (Mo.App.W.D.1998).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    Michael D. BLACKMON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64283.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.

      Jeannie Marie Willibey, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Deborah Daniels and Evan J. Buchheim, Office of Attorney General, Jefferson City, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Michael Blackmon appeals the denial of his Rule 29.15 motion for post-conviction relief after evidentiary hearing. He claims (1) that his trial counsel was ineffective for failing to object to an allegedly erroneous jury instruction, and (2) that his appellate counsel was ineffective for failing to raise on appeal a plain error argument that the trial court erred in submitting the instruction. Blackmon has failed to show, as he must in order to prevail, that the trial court’s findings of fact and conclusions of law are clearly erroneous. Affirmed.

Facts

Michael Blackmon was charged as a pri- or and persistent offender with one count of the class D felony of violation of an order of protection, second offense, Section 455.085.8, RSMo 1994. His case was tried before a jury on September 27 and 28, 1999. The following evidence was adduced at trial:

Wyonna Sullivan and Michael Blackmon were married for sixteen months during 1994 and 1995 over which time she endured verbal and physical abuse when he punched, slapped, and threw chairs and other objects at her. As a result of the abuse, Sullivan received injuries requiring medical attention. Sullivan divorced Blackmon and eventually received a full order of protection against him. After Sullivan received the order of protection Blackmon continued to page her, call her, and threaten her. He came to her work at Truman Medical Center and also went to her house where he verbally abused her.

In March of 1995, Sullivan returned to court to renew the order of protection. Blackmon was present at the hearing and he agreed to the terms of the order. After the court proceeding, however, Blackmon confronted Sullivan outside and told her, “I don’t care what no white man say. You’re my wife.” He then tore up the order of protection in the middle of the street and began to follow Sullivan to her car. She was able to alert a security officer and Blackmon was escorted away.

On January 22,1998, Sullivan obtained a full order of protection, which was effective for one year and prohibited Blackmon from abusing her. Blackmon was served with the order of protection on April 4, 1998.

Blackmon was in prison for approximately three years until March of 1998 for violating various orders of protection obtained by Sullivan. While in prison Black-mon contacted Sullivan once at work and told her that he was on his way up there and that the she should “watch [her] back.” By March of 1998, Sullivan had remarried and was living with her husband and her children. During that month, Blackmon again contacted her while she was home at night. Blackmon called and said, “Watch your back. I’m outside your door. Come see. I’m in the backyard.” After the phone call, Sullivan also received pages from the phone of Blackmon’s brother. She became so afraid of Blackmon that she changed her address but decided to keep the same pager number so she could have advance warning of Blackmon’s desire to contact her.

Sometime during the night of October 13, 1998, or the early morning of October 14, 1998, Sullivan received three or four pages from the phone of Blackmon’s brother. The next morning, at approximately 7:30 a.m., a Truman Medical Center employee named Michael Tindall saw Black-mon on the third floor of the Medical Center. Tindall asked Blackmon to leave but Blackmon told Tindall that he had paged someone and was waiting for the return call. Tindall told Blackmon that he could wait by the phone but Blackmon eventually left before it rang. At approximately the same time, Sullivan received a page from a prefix that indicated the call originated from Truman Medical Center. When Sullivan arrived at work she notified a security officer that she believed she had received a page from Blackmon and that he was in the building. The security officer called the number from Sullivan’s pager and it rang the phone Blackmon had been standing next to moments earlier. Tindall answered the call and gave the officer a description of Blackmon.

At approximately 8:00 A.M. Blackmon went to the main lobby of Truman Medical Center and asked to use the courtesy phone. The front desk attendant, Lane Burch, watched Blackmon make a call. Blackmon asked Burch if he could receive incoming calls and she told him he could not but directed him to a pay phone.

On another floor of the medical center, Lisa Torrence-Hughes had arrived at her office that had once belonged to Sullivan when she was married to Blackmon. Tor-rence-Hughes received a phone call from a man asking to speak to Sullivan. The man insisted on speaking to Sullivan and told Torrence-Hughes to “tell her that Michael called. I’m in the building, and I am trying to find her.” Torrence-Hughes then called Sullivan and security to inform them about the call.

Blackmon was eventually confronted by Truman Medical Center security. Black-mon told the officers that he had been in the emergency room for a heart condition, but the officers checked and the emergency room had no record of treating Black-mon that morning. Kansas City police officers eventually arrived at approximately 8:30 a.m. and Blackmon was later arrested when the police verified that a full order of protection existed against him. Sullivan received six pages that morning. Later in the day, she was seen shaking and crying.

Blackmon did not present evidence at trial. At the close of evidence and argument, the jury found him guilty as charged. On December 2, 1999, Blackmon was sentenced as a prior and persistent offender to ten years imprisonment. His conviction and sentence were affirmed on May 1, 2001. State v. Blackmon, 44 S.W.3d 443 (Mo.App.2001).

Blackmon filed a pro se motion for post-conviction relief on May 29, 2001, and filed his amended motion on September 10, 2001. The motion court denied his motion, but this court remanded the case back to the motion court with directions to make findings of fact and conclusions of law. Blackmon v. State, 102 S.W.3d 90 (Mo.App.2003).

An evidentiary hearing was held on May 23, 2003, during which Blackmon testified. On April 16, 2004, the motion court filed findings of fact and conclusions of law overruling Blackmon’s motion.

Standard of Review

In reviewing the denial of a post-conviction relief motion, the appellate court is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Reynolds v. State, 87 S.W.3d 381, 383 (Mo.App.2002). The motion court’s determinations are clearly erroneous only if, after review of the entire record, the appellate court is left with definite impression that a mistake has been made. Id.

To prove that counsel was ineffective, a movant must show that counsel’s performance “did not conform to the degree of skill, care, and diligence of a reasonably competent attorney” and that movant was thereby prejudiced. Barnett v. State, 103 S.W.3d 765, 768 (Mo. banc 2003) (citations omitted). Should the movant fail to satisfy either prong, ineffective assistance or prejudice, the appellate court on review need not consider the other. Haskett v. State, 152 S.W.3d 906, 909 (Mo.App.2005). To establish that his attorney’s performance was deficient, the movant “must overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment.” State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). To demonstrate prejudice, a mov-ant must show that, but for counsel’s poor performance, there is a reasonable probability that the outcome of the proceeding would have been different. Barnett, 103 S.W.3d at 768-69.

Ineffective Assistance of Trial Counsel

Blackmon alleges in Point II that his trial counsel was ineffective in failing to object to the verdict director given at his trial. Blackmon claims that the verdict director used was deficient because it “failed to set forth the specific course of conduct, involving more than one incident, committed by [Blackmon], which constituted ‘abuse by harassment.’ ” The verdict director at issue reads as follows:

INSTRUCTION NO. 5

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about January 22, 1998, the Circuit Court of Jackson County entered an order prohibiting defendant from abusing Wyonna Sullivan, and
Second, that on April 4, 1998, defendant had been served with the order, and
Third, that on or about October 14,1998, in the County of Jackson, State of Missouri, the defendant violated that order by abusing Wyonna Sullivan by harassing,

Then you will find the defendant guilty of violation of order of protection.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
As used in this instruction, the term “harassing” means engaging in a purposeful or knowing course of conduct that alarms or causes distress to another adult and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult to suffer substantial emotional distress and must actually cause substantial emotional distress to Wyonna Sullivan.

Blackmon concedes, as the hearing court found, that the verdict director used was in compliance with the applicable Missouri Approved Criminal Instructions at the time. MAI-Cr 3d 332.52. Nevertheless, Blackmon asserts that he was prejudiced because the verdict director allowed the jury to convict him based upon less evidence than what was required by law. He hypothesizes that, as a result of the wording of the instruction, the jury may have convicted him of violating the protective order on the basis of only one harassing act.

Blackmon’s argument is founded entirely upon the decision in State v. Schleiermacher, 924 S.W.2d 269 (Mo. banc 1996), where the Supreme Court held that the jury instructions used were deficient because they put forward only a single incident of conduct where multiple incidents were required to support a conviction. Id. at 274-75. Schleiermacher was a direct appeal alleging trial court error, not ineffective assistance of counsel. The instruction used in Blackmon’s trial was drafted after Schleiermacher and appears to address many of the issues decided in that case. Blackmon correctly argues that even an instruction that complies with MAI-CR 3d should not be given if it conflicts with the substantive law. State v. Blue, 991 S.W.2d 716, 717 (Mo.App.1999).

We need not determine whether trial counsel was ineffective, however, because it is clear that Blackmon was not prejudiced. As mentioned, Blackmon must show both prongs, ineffectiveness and prejudice, in order to prevail in this appeal from the denial of his post-conviction motion. Barnett, 103 S.W.3d at 768. There is no reasonable probability that, but for his trial counsel’s failure to object to the instruction, he would not have been found guilty. The evidence admitted before the jury revealed a number of different harassing acts allegedly committed by Black-mon, any two of which could have formed the basis of his conviction. Late on October 13, 1998, or early on October 14, he paged Ms. Sullivan three to four times. He then paged her six times the following morning and came to her workplace at Truman Medical Center searching for her. He also called Ms. Sullivan’s former office at the Medical Center and left a message that he was in the budding looking for her.

The State argues that any defect in the instruction was cured when the prosecutor made comments during closing argument instructing the jury that the words “course of conduct” from the instruction meant more than one incident. The relevant comments were as follows:

There’s no magic number to it. It’s not like the law says if you contact her four times then you’re guilty or if you contact her two you’re not. That’s what you are here for.
Course of conduct, that can be two things, three, four, five, six, nine. That’s enough. That’s enough numbers to qualify for harassment under the law that you’re being given under by the court.

When read in context with the evidence admitted, the prosecutor’s comments remove any alleged prejudice that may have resulted from trial counsel’s failure to object to the approved instruction. The prosecutor’s statements unambiguously directed the jury that they needed to find that more than one incident of harassment occurred in order to convict.

Similarly, we find unpersuasive Blackmon’s allegation that we must reverse because the motion court’s findings erroneously recite post-conviction counsel’s true argument. Generally, a trial court’s judgment will be sustained if it reaches a correct result even if its findings are erroneous. State v. Hanners, 827 S.W.2d 273, 275 (Mo.App.1992); Mercer v. State, 666 S.W.2d 942, 947 (Mo.App.1984).

Given the comments by the prosecutor, the substantial evidence of guilt, and the limited scope of our review, we find no reason to disturb the decision of the motion court. Blackmon was not prejudiced by trial counsel’s inaction and, therefore, the motion court’s findings of fact and conclusions of law are not clearly erroneous. Point denied.

Ineffective Assistance of Appellate Counsel

Blackmon argues in Point I that his appellate counsel was ineffective for failing to assert on appeal that the trial court plainly erred in submitting the verdict director discussed above. Blackmon claims that if appellate counsel had raised the issue, this court would have reversed his conviction and sentence and remanded the case for a new trial. We disagree.

The right to relief due to ineffective assistance of appellate counsel has been consistently described as “inevitably tracking] the plain error rule; i.e., the error that was not raised on appeal was so substantial as to amount to manifest injustice or a miscarriage of justice.” Kluck v. State, 30 S.W.3d 872, 878 (Mo.App.2000). In this case, Blackmon alleges that his appellate counsel’s ineffectiveness in failing to raise a claim of manifest injustice on direct appeal resulted in manifest injustice. “An attorney will not be found ineffective for failing to raise an unpreserved error on appeal.” Sanfilippo v. State, 143 S.W.3d 765, 769 (Mo.App.2004).

Finally, even if we accept Black-mon’s contention that appellate counsel should have raised this issue on direct appeal, we would reach the same result because, had it been raised, it would not have required reversal. Reversal on plain error grounds requires a finding that the error so substantially affected the defendant’s rights that a manifest injustice or a miscarriage of justice resulted. State v. Dillard, 158 S.W.3d 291, 299 (Mo.App.2005). Having found above that the submitting of the instruction resulted in no prejudice, it follows that a miscarriage of justice did not result either. See Aaron v. State, 81 S.W.3d 682, 697-98 (Mo.App.2002) (movant’s allegations of plain error would not have been successful on appeal, so movant suffered no prejudice from appellate counsel’s failure to raise them). Point denied.

The judgment is affirmed.

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


text:
    David W. CRITES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84138.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 2, 2005.

      Scott Thompson, Public Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER, III, J. and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, David W. Grites (“Movant”), appeals from the judgment of the Circuit Court of St. Louis County denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Movant was convicted following a plea of guilty to possession of ephedrine with intent to manufacture methamphetamine or its analogs, section 195.246, RSMo 2000. Mov-ant was sentenced to four years imprisonment. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

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


author: RONALD R. HOLLIGER, Judge.

text:
    ESTATE OF Oliver N. BREWER, Deceased; James T. Holcomb, Personal Representative, Defendant, Amberetta Dawn Brewer, Appellant, v. Danny Brewer and Trudy Brewer, Respondents.
    No. WD 64671.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.

      Dana James Macoubrie, Chillicothe, for Appellant.
    Jack Peace, Trenton, for Respondents.
    James T. Holcomb, Trenton, for Defendant.
   RONALD R. HOLLIGER, Judge.

Amberetta Armstrong, the illegitimate daughter of the decedent, appeals the judgment of the Probate Division of the Circuit Court of Grundy County, Missouri, finding that she was not entitled to an intestate share, as an omitted child, of the estate of Oliver N. Brewer. While Oliver left a will disposing of his estate, the will was executed prior to Amberetta’s birth, and she claims a share of the estate as an omitted child pursuant to Section 474.240, RSMo. The trial court found that Amber-etta was not entitled to recover under that statute because she was an illegitimate child who had not been recognized by Oliver as his child. We conclude that the trial court’s judgment erroneously declares and applies the law and must be reversed and remanded for further proceedings.

Factual and Procedural Background

There is little dispute about the facts. Amberetta Armstrong (a.k.a. Amberetta Brewer) was born on November 30, 1980. No father was listed on her birth certificate, and she was raised by her mother, Sherry Armstrong. Paternity proceedings were initiated in the Circuit Court of Cole County, resulting in a judgment on October 29, 1982, finding Oliver N. Brewer to be Amberetta’s father and ordering him to pay child support to Armstrong in the amount of $100 per month. Oliver paid the ordered child support until the child’s emancipation, but apparently provided her no other support. He did not apparently attempt to develop any sort of parental relationship with Amberetta and had, at best, minimal contact with his daughter.

Oliver died on April 21, 2003. He left behind a last will and testament dated June 21, 1979. That document divides Oliver’s estate between his other two children, Danny and Trudy Brewer. As that document was executed prior to Amberet-ta’s conception and birth, it contained no mention of her or any intended disposition of the estate to her.

The will was admitted in the Probate Division of the Circuit Court of Grundy County on April 28, 2008. Amberetta subsequently filed a petition seeking a share of the estate as an omitted child. The court ultimately denied her petition. This appeal follows.

Discussion

In her sole point on appeal, Amber-etta contends that the trial court erred in denying her a share of Oliver’s estate as an omitted child upon its finding that Oliver had not “recognized” her as his child. Amberetta argues that the evidence established that Oliver clearly recognized and acknowledged her as his daughter on a number of occasions during his lifetime. Respondents contend that the trial court correctly concluded pursuant to Section 474.240, RSMo 2000, that Oliver had not recognized Amberetta as his child and, therefore, she is not entitled to a share of Oliver’s estate.

As a court-tried case, our review is conducted under the standard of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In re Estate of Weddle, 84 S.W.3d 144, 146 (Mo.App.2002). We will, therefore, affirm unless the trial court’s judgment is unsupported by substantial evidence, is against the weight of the evidence, or it erroneously applies or declares the law. Id.

The principal if not sole issue herein is the meaning of the term “recognize” in Section 474.240, RSMo 2000, which addresses inheritance rights for children born after execution of a testator’s will. As a general proposition, if a child of the testator was born or adopted after the date the testator executed the will being probated, that child is entitled to whatever intestate share of the testator’s estate he or she would have been entitled to had the testator died without a will. Section 474.240.1, RSMo. This general rule is subject to three exceptions, none of which is relevant for purposes of this matter.

Subsection 3 of the statute addresses claims made by an illegitimate child born after execution of a male testator’s will. It provides that the illegitimate child is entitled to the above-mentioned intestate share of the decedent’s estate if the decedent recognized the child as his, either in the will or while the testator was alive. The subsection provides: “An illegitimate child is not a child of a male testator, for the purposes of this section, unless the testator, during his lifetime or in the will, recognized that the child was his.” Section 474.240.3, RSMo (Emphasis added).

There is no question, here, that Amber-etta would have been entitled to a share of Oliver’s estate had he died intestate. For purposes of intestate succession, a child born out of wedlock may inherit from his or her father, provided that a paternity judgment is obtained prior to the father’s death or is established by clear and convincing evidence after the father’s death. Section 474.060.2, RSMo. As Oliver did not die intestate, however, Amberetta was required to prove that Oliver had recognized her as his child, either in the will or while he was still alive. It is this question upon which resolution of the present dispute hinges.

The recognition requirement of Section 474.240.3, RSMo, was not part of the Uniform Probate Code, but was added by the Missouri legislature when adopting the statute. John A. Borron, Jr., 5 MissouRi PRACTICE: PROBATE LáW AND PRACTICE Section 46 at 100 (3rd ed.1999). The drafting committee notes indicate that this addition to the statute was intended to address the situation in which an illegitimate child, unknown to the decedent, made a claim on his estate. Frances M. Hanna, 4 MissouRi PRACTICE: PROBATE CODE MANUAL Section 474.240 at 584 (2nd ed.2000).

The term “recognized” in Section 474.240 is not specifically defined by the legislature. It is a concept, however, frequently used in similar context in Missouri case law. In those contexts, recognition of a child may occur through “combination of words, acts and conduct indicating the relation of parent and child.” Lowtrip v. Green, 363 Mo. 619, 252 S.W.2d 524, 526 (1952). In identifying what acts or conduct might be probative on this issue, courts have observed:

[Cjircumstances that the child has always borne the name of the alleged father and has been treated, maintained and educated as his child, and that the child has been uniformly received in society as his child, and so acknowledged by the other members of the family, are recognized as circumstances tending to prove the parental relation.

Id. (citing Mooney v. Mooney, 244 Mo. 372, 148 S.W. 896 (1912); Breidenstein v. Bertram, 198 Mo. 328, 95 S.W. 828 (1906); and Drake v. Milton Hosp. Ass’n, 266 Mo. 1, 178 S.W. 462 (1915)). While recognition of the parent-child relation might be inferred from such circumstances, we note that the alleged father’s statements with regard to the alleged child may also be highly probative on the issue, and should be considered alongside evidence of acts and conduct. See, e.g., Brown v. Conway, 598 S.W.2d 549, 553 (Mo.App.1980) (statements by decedent to family members that alleged child was decedent’s son found persuasive by court).

The Brewers argue and the trial court agreed based on the above legal statements that “recognized” refers to the qualitative nature of a parental child relationship. Conversely, Amberetta contends that “recognized” refers to the realization of the fact of a parental child relationship (whether there is a biological relationship). Here, there was substantial evidence that Oliver did not treat Amberetta as his child through his acts and conduct. He did not attempt to develop a father-daughter relationship with her. She was not included in family events and was treated, essentially, as a stranger by Oliver and his other children. Oliver did not mention her to others of his own volition, and would only speak of her when he was asked about her, often becoming angry and upset in the process. A number of Oliver’s close friends knew nothing about Amberetta until after Oliver’s death. The Brewer’s argue that recognition means only that a familiar relationship existed in the sense that there is some quality to the relationship. In other words, they argue that the emphasis is not whether the decedent realized that the illegitimate child was his but whether the illegitimate child was treated in the same way that one might expect natural children to be treated. With this definition, the Brewers argue the correctness of the trial court’s finding that Oliver did not recognize Amberetta as his child.

Here, however, there was more than just Oliver’s acts or conduct. The trial court was also required to consider statements made by Oliver with regard to Am-beretta in determining whether he recognized her as his daughter. The trial court, in its findings, mentioned a number of instances where Oliver verbally acknowledged that he was Amberetta’s father. On one occasion, Oliver told his son, Danny, that he was Amberetta’s father. He made a similar statement on another occasion to his daughter, Trudy, which was witnessed by one of Trudy’s close friends. Once, someone questioned Oliver after hearing Amberetta (then a young girl) calling Oliver “Dad,” to which he described the situation as “an $18,000 mistake,” apparently in reference to the child support he had been paying.

Each of these statements is set forth or described in the trial court’s judgment and were apparently found to be credible by the court. These fact findings cannot be reconciled with the trial court’s conclusion that Oliver did not recognize Amberetta as his child before his death unless we accept respondent’s argument about the meaning of the term “recognized.”

Both parties rely upon Lowtrip. There an allegedly legitimated daughter of a decedent filed an action for partition. Lowtrip, 252 S.W.2d at 525-26. The decedent and her mother had married subsequent to her birth and she claimed legitimization under the provisions of Section 468.070, RSMo.1949 (now 474.060). Id. at 526.

While Oliver may have shunned Amber-etta and disavowed any sort of parental bond or relationship with her, the evidence, as found by the court, clearly indicates that he acknowledged the fact that he was her father. The Brewers point to no authority for their meaning of the term “recognized.” Indeed, a reading of each of the cases they cite clearly indicates to the contrary; that the essential issue in each case was whether a biological parent child relationship existed.

The judgment of the trial court is, therefore, reversed, and the matter is remanded to the Probate Division of the Circuit Court of Grundy County to enter judgment in favor of Amberetta and conduct further probate proceedings consistent with this opinion.

JAMES M. SMART, JR., Presiding Judge, and LISA WHITE HARDWICK, Judge, concur.

      . There is considerable confusion in the record with regard to Amberetta’s surname. In the 1982 paternity action and resulting judgment, her name is stated as "Ambretha [sic] D. Armstrong.” There was evidence that Am-beretta's birth certificate, social security card, paychecks, and savings account bear the surname Armstrong. In the present proceeding, she styles herself "Amberetta Dawn Brewer,” however. She also claims to have used the Brewer surname during her schooling, while respondents contend that her first use of the Brewer surname is the present litigation. Nothing in the record indicates whether Am-beretta's surname was legally changed from Armstrong to Brewer. Despite confusion on the issue of Amberetta’s surname, it is ultimately not a factor in the disposition of the question presented on appeal. For purpose of this opinion, we will refer to her solely by the name "Amberetta” for clarity.

      . Whether this statutory provision was truly necessary in light of the requirements of Section 474.060, RSMo, discussed above, is beyond the scope of the present inquiry.

      . Indeed, the trial court’s findings include recitations of a number of times where Oliver stated that Amberetta was “not a part of his life.” Other evidence in the record indicates that Oliver spoke with an attorney about changing his will to explicitly exclude her from inheriting from his estate. This suggests that Oliver acknowledged that he was Amber-etta's father and the possibility that she might be able to inherit from his estate. Obviously, Oliver did not follow through with those intentions by executing a new will.


author: PAUL M. SPINDEN, Judge.

text:
    Todd A. JOHNSON, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. WD 64557.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Lasandra F. Pearl, Office of Attorney General, Jefferson City, MO, for Appellant.
    Jeffrey S. Eastman, Gladstone, MO, for Respondent.
   PAUL M. SPINDEN, Judge.

The Director of Revenue appeals the circuit court’s judgment setting aside her revocation of Todd A. Johnson’s driving privileges pursuant to Section 577.041, RSMo Supp.2003, for refusing to submit to a chemical test. The director contends that the circuit court’s judgment is not supported by substantial evidence and is against the weight of the evidence. She claims that she made a prima facie case that Johnson did not rebut. We agree and reverse the circuit court’s judgment.

The evidence established that on April 2, 2004, Kansas City police officer Arthur Willingham and his partner received a radio dispatch reporting that a car had collided into a stone driveway wall. A brief time later, the officers saw a car matching the description of the car in the radio dispatch. The officers turned on their patrol car’s emergency lights, and the car pulled to the side of the road and parked with its engine running.

Willingham walked to the car’s side and ordered the driver, Johnson, to turn off the engine. Johnson had difficulty complying. While Willingham spoke to Johnson, he noticed a moderate smell of alcohol and that Johnson’s eyes were glassy or watery and bloodshot. He ordered Johnson to get out of the car. As Johnson stood beside the car, he swayed slightly. He failed Willingham’s horizontal gaze nystagmus test. Willingham arrested Johnson for driving while under the influence of alcohol.

The officers took Johnson to police offices where Willingham informed him of the Implied Consent Law and asked him to submit to a breath test. Johnson agreed. The test indicated that Johnson’s blood alcohol concentration was .064 percent, within the lawful limit. Willingham then asked Johnson to submit to a urine test, but Johnson refused. Willingham notified Johnson that his driving license would be revoked for one year pursuant to Section 577.041 because of his refusing to submit to the urine test.

The circuit court issued a judgment setting aside the director’s revocation of Johnson’s driving license. The director appeals.

Section 577.020.1, RSMo Supp.2003, provides that any person who drives on Missouri’s public highways is deemed to have impliedly given consent to a chemical test to determine the content of drugs or alcohol in his or her blood. The statute mandates that, to have a right on insisting on giving the test, officers must have arrested the driver on reasonable grounds to believe that the person was driving in an intoxicated or drugged condition. Section 577.020.2 authorizes an officer to request the driver to submit to two chemical tests. To revoke a driving license on the ground that a driver has refused to submit to a chemical test, the director must establish that (1) a qualified law enforcement officer arrested or stopped the driver, (2) with reasonable grounds to believe that the driver was driving while in an intoxicated or drugged condition, and (3) the driver refused to submit to a chemical test. Section 577.041.4; Zimmerman v. Director of Revenue, 988 S.W.2d 583, 585 (Mo.App.1999). If the director fails to establish one of these requirements, the driver’s driving privileges must be reinstated. Section 577.041.5; Zimmerman, 988 S.W.2d at 585.

The director’s evidence was sufficient to support a finding that Willingham had reasonable grounds for believing that Johnson was driving while under the influence of alcohol. Indeed, Johnson concedes the issue. But Johnson contends that, before Willingham could ask him to submit to a urine test in addition to the breath test, the officer had to have a sound basis for arresting him for driving under the influence of a drug not containing alcohol.

Section 577.041.4 requires the arresting officer to have reasonable grounds to believe that the arrested person was driving “while in an intoxicated or drugged condition.” It does not require an officer to determine specifically what substance the driver had consumed before the arrest. Whether the driver is under the influence of alcohol or any other substance is irrelevant. The relevant inquiry is whether or not the arresting officer had reasonable grounds for believing that the arrested person was driving while in either an intoxicated or drugged condition. The evidence in this case established that Willingham possessed reasonable grounds to believe that Johnson was driving while in an intoxicated condition.

As to the final element, the director asserts that she established that Johnson refused to submit to a chemical test. A person under arrest may refuse to submit to a chemical test of his blood alcohol or drug level. Section 577.041.1 says,

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 section 565.024 or 565.060, 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.

Although Johnson successfully completed the breath test, Willingham had a right to request Johnson to submit to a second test. Section 577.020.2; Smock v. Director of Revenue, 128 S.W.3d 643, 647 (Mo.App.2004); Snow v. Director of Revenue, 935 S.W.2d 383, 385-86 (Mo.App.1996). “[A] driver who produced a requested breath sample can, under Section 577.020.2, be required to submit to a second chemical test or have his or her driving privileges suspended for refusing such a test.” Smock, 128 S.W.3d at 647. Nothing in Section 577.041 required Willingham to read the implied consent warning again before requesting a second test. Baldridge v. Director of Revenue, 82 S.W.3d 212, 221 (Mo.App.2002); Sweatt v. Director of Revenue, 98 S.W.3d 926, 930 (Mo.App.2003).

If Johnson were confused about the consequences of refusing to submit to the urine test, he had the affirmative duty to communicate his lack of understanding to Willingham. When officers advise a driver of his rights under the implied consent law and the driver refuses to take a chemical test, the driver is deemed to have refused the test unless he objectively and unequivocally manifests that he did not understand his rights and is denied clarification. Baldridge, 82 S.W.3d at 222. Johnson did not communicate any misunderstandings about his rights to Willingham.

The director made a prima facie case establishing that Johnson refused to submit to a chemical test, and Johnson did not rebut it. We, therefore, reverse the circuit court’s judgment and remand with directions that the circuit court reinstate the one-year revocation of Johnson’s driving privileges.

LISA WHITE HARDWICK, Presiding Judge, and PATRICIA A. BRECKENRIDGE, Judge, concur.